Appellate panel questions whether unobjected testimony and a phone remark were prejudicial in Moore post-conviction appeal

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 hearing record includes testimony that a witness, Maurice Wiley, said on direct examination that the defendant had been “in and out of jail,” and that another witness, David Miller, “blurted” similar information during testimony. The petitioner argued those mentions were not isolated and risked reinforcing a view of criminal propensity. The state, represented by Caroline Weldon, said the remarks were contextual and that trial counsel reasonably judged that objecting could highlight the comment to jurors rather than allow it to “blend into the background.”

The parties also disputed the judge’s admission of a phone call made by Raymond Lennox, who, according to trial testimony, called another witness about 10 to 15 minutes after the shooting and said, "Face just shot the victim." Petitioner’s counsel argued the timing and content left room for deliberation and fabrication, and therefore the statement did not meet the spontaneity requirement for an excited utterance under the cited precedent. The state responded that the record shows the caller made the statement shortly after the shooting and that the circumstances were "textbook" for an excited utterance.

A separate procedural question animated much of the argument: whether appellate counsel’s unexplained decision not to press the hearsay/excited-utterance issue on direct appeal requires the petitioner to call appellate counsel at the post-conviction hearing. The state argued appellate counsel’s presence and testimony are typically necessary to overcome the presumption that appellate counsel exercised reasonable strategic judgment; the petitioner argued the error is so clear that appellate counsel’s testimony should not be required. "You have to have appellate counsel in order to do this?" a judge asked; the state answered, "Yes. You do." Petitioner’s counsel urged the court to find the excited-utterance ruling so plainly deficient that calling appellate counsel was unnecessary.

Both sides also addressed other claimed errors underlying the post-conviction petition, including the trial court’s admission of cell-site and DNA evidence and trial counsel's decisions about which defense witnesses to call. The state noted the trial occurred in 2017 and the controlling Carpenter decision on cell-site-location evidence issued in 2018, arguing counsel’s choices were reasonable based on the law at the time.

The panel did not issue a ruling at the oral argument. The court recessed at the end of the session to consider the parties’ written and oral submissions.

The issues on appeal center on legal standards for ineffective assistance of counsel, the excited-utterance hearsay exception, and the procedural showings required to prove prejudice when an objection was not made at trial.