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Appellate panel questions whether unobjected testimony and a phone remark were prejudicial in Moore post-conviction appeal
Summary
At oral argument, lawyers debated whether trial counsel’s decision not to object to two witnesses’ references to one defendant’s jail history and the admission of a phone call saying “Face just shot the victim” amounted to ineffective assistance of counsel or harmless error.
An appellate panel heard oral argument over whether post-conviction relief is warranted for D’Michael Moore, whose counsel says trial lawyers failed to object when two witnesses referenced his prior incarcerations and when the court admitted a phone call in which, according to trial testimony, someone said, “Face just shot the victim.”
The question before the court, raised by petitioner’s counsel during argument, was whether those failures constituted deficient performance and whether the record shows prejudice sufficient to undermine confidence in the verdict. "If it's just once, I might be able to better appreciate that," petitioner’s counsel said of the jail references. "But this wasn't just once. This is two separate times, them getting into it." The state countered that the references were brief contextual comments and that the phone call qualified as an excited utterance admitted properly at trial.
The…
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