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Moore v. State

Court of Criminal Appeals of Oklahoma

June 13, 2019

ALEX MOORE, Appellant
v.
THE STATE OF OKLAHOMA, Appellee.

          AN APPEAL FROM THE DISTRICT COURT OF BECKHAM COUNTY THE HONORABLE DOUG HAUGHT, DISTRICT JUDGE

          RICHARD L. YOHN ROBERT S. KEITH OKLA. INDIGENT DEFENSE SYSTEM COUNSEL FOR DEFENDANT

          DANA HADA MICHAEL A. ABEL ASST. DISTRICT ATTORNEYS BECKHAM COUNTY COUNSEL FOR THE STATE

          JAMES H. LOCKARD OKLA. INDIGENT DEFENSE SYSTEM COUNSEL FOR APPELLANT

          MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA DONALD D. SELF ASST. ATTORNEY GENERAL COUNSEL FOR APPELLEE

         ORDER GRANTING APPELLEE'S MOTION TO PUBLISH, WITHDRAWING PRIOR OPINION AND SUBSTITUTING ATTACHED OPINION

         ¶1 On March 28, 2019, this Court affirmed Appellant's conviction and sentence on direct appeal in an unpublished opinion. On April 12, 2019, the State of Oklahoma filed with this Court a Motion for Publication and Brief in Support. In this motion, the State urges that publication of our opinion in this case is warranted on various grounds. Upon review of that request and the opinion, and for good cause shown, we find that the State of Oklahoma's Motion for Publication and Brief in Support should be and hereby is GRANTED.

         ¶2 IT IS THEREFORE THE ORDER OF THIS COURT that the prior opinion in the above styled case is WITHDRAWN. The Clerk of this Court is hereby directed to designate the attached opinion as "FOR PUBLICATION."

         ¶3 The Clerk of this Court is directed to transmit a copy of this Order and the attached Opinion to the Court Clerk of Beckham County; the District Court of Beckham County, the Honorable Doug Haught, District Judge; and counsel of record.

         ¶4 IT IS SO ORDERED.

         ¶5 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 13th day of June, 2019.

          DAVID B. LEWIS, Presiding Judge, DANA KUEHN, Vice-Presiding Judge, GARY L. LUMPKIN, Judge, ROBERT L. HUDSON, Judge, SCOTT ROWLAND, Judge

          OPINION

          HUDSON, JUDGE

         ¶1 Appellant, Alex Moore, was tried and convicted at a jury trial in Beckham County District Court, Case No. CF-2015-9, of Murder in the First Degree, in violation of 21 O.S.Supp.2012, § 701.7 (A). The jury recommended a sentence of life imprisonment without the possibility of parole. The Honorable Doug Haught, District Judge, presided at trial, and sentenced Moore in accordance with the jury's verdict. Moore now appeals.

         FACTS

         ¶2 The State's evidence showed that Appellant attacked and killed his cellmate, Todd Bush, on the evening of March 6, 2014. Appellant and Bush were inmates from California incarcerated at the privately-run Northfork Correctional Center in Sayre. [1] Appellant and Bush were under lockdown in Cell 261 of the Fox South Unit at approximately 7:45 p.m. when Christopher Hill, a corrections counselor, stopped by to verify their respective account balances. Hill did not unlock the cell door during this process although he had a key. Instead, he knocked on the cell door and spoke with each inmate through the window. Bush was laying on the bottom bunk bed when Hill read Bush's account balance. Bush did not get up but responded with a simple "okay." Appellant was laying on the top bunk, reading a book when Hill asked whether he wanted his balance. Appellant hopped down off his bunk, walked to the door and Hill read his account balance. Appellant said "okay" and returned to the top bunk where he resumed reading. Appellant and Bush were the only two inmates inside the cell.

         ¶3 Before walking away from Cell 261, Hill tugged at the handle of the cell door to confirm it was locked. Then Hill moved down the line to the other cells, repeating the process of balance checks with the other inmates. At approximately 8:00 p.m., Hill finished his shift and had just walked outside the Fox South Unit when an emergency medical call for Appellant's and Bush's cell was broadcast. Robert Hubbard, a correctional officer, was conducting a lockdown of the inmates on the bottom row of the Fox South Unit when someone yelled about an inmate down on the top tier.

         ¶4 Hubbard raced upstairs to Cell 261. There, he observed through the window of the locked cell door Appellant holding onto Bush. Both inmates were on the floor with Appellant's legs folded underneath him; Bush was on his knees. Appellant had his arms wrapped around Bush and was doing something to Bush's chest. According to Hubbard, Appellant was "[k]ind of like shaking" Bush's chest. No other inmates were inside the cell. Hubbard called over the radio for medical assistance then unlocked the cell with his key and went inside. Hubbard quickly determined that Bush had no pulse and that his condition was not good. Hubbard conveyed this information over the radio, laid Bush's body flat on the floor and began CPR while waiting for the medical team to arrive.

         ¶5 Hill arrived to find Hubbard inside Cell 261 performing CPR on Bush. Hill ushered Appellant away from the cell and told him to sit on a bench in the common area. Hill then relieved Hubbard and commenced CPR on Bush. The prison's medical team soon arrived. Bush was loaded onto a gurney and transported to a local hospital by ambulance. Bush was in full cardiac arrest and never responded to the continuous efforts of the prison medical staff, paramedics and emergency room personnel to save his life. Bush was pronounced dead at the hospital.

         ¶6 When asked by Northfork officials what happened to Bush, Appellant said he didn't know. Appellant explained that Bush "liked to drink" and had fallen off his bunk bed. Appellant offered too that he and Bush were from the same neighborhood. Bruising and abrasions were observed on Bush's face, neck and upper chest by investigators and medical personnel that were inconsistent with falling roughly two feet off the lower bunk bed. A small laceration was observed at the base of Bush's neck and an abrasion was apparent on Bush's left rib cage where the skin had rubbed off. Petechial hemorrhaging was observed in both of Bush's eyelids. These injuries suggested to investigators evidence of attack, struggle and asphyxia. By contrast, two small scratches were observed on Appellant's neck.

         ¶7 Inside Cell 261, investigators found utter disarray. Spilt "hooch" or contraband prison alcohol (commonly made from fermented food like bread, fruit and sugar) was spilt on the floor along with one of Bush's overturned tennis shoes. In the corner of the cell near a mounted table and chairs was an overturned cup and wet towel. Passive blood drips were found in this same area suggesting the source was directly above the blood drops. Blood swipes were observed on the cell wall that were consistent with someone trying to get up off the ground.

         ¶8 Dr. Ruth Kohlmeier, the state medical examiner, autopsied Bush and determined that the manner of death was homicide with the cause of death being asphyxiation due to strangulation. Her external examination revealed bruising on Bush's hands, forearm and chest area. Bush also had an abrasion on his left chest. Bush had bruises on his nose, above his left eyebrow and on his right eyebrow; he also had a black left eye. These injuries were fresh and were inflicted during the same time frame. Dr. Kohlmeier ...


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