2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

7-14-2004 

# U SA v . M o or e

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al
D ocke t N o . 03-2698

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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UNIT ED STA TES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT



### No. 03-2698

UNITED STATES OF AMERICA

v.
DARRICK

MOORE, Appellant

APPEAL FROM THE U NITED STATES DI STRI CT COURT FOR THE MIDDLE DIS TRI CT OF PEN NS YL VA NIA D.C. Crim. No. 02- cr-00097 Distric t Judg e: Th e H ono rable Y vette

Kane

Argued: Februar

y 24, 2004

Bef or e: RENDEL L, BARRY, and RO SE NN , Circuit

Judges

(Opinion Fi led: J

uly 14, 2004)

James J. West, Esq. (Argued) West Long 105 North Front St

reet Suite 205 Harrisburg, PA 17101
Attorney for Appellant

James T. Clancy , Esq. ( Argued) Office of the Unit ed State s Attorne y Federal Bui lding 228 Walnut Stre et P.O. Box 11754 Harrisburg, PA 17108
Attorney for Appelle e

OPINI ON OF THE COURT

BA RR Y, Circuit

Judge

We b egin with the c losi ng argument of the pro secutor:

[S]ta ndin g her e knowing what dat e [September10, 2002] t oday is I am very, very re luctant to use t he term I’m goin g to use, but, frankly , I t

hinkthis defendantwa rrants th a t te rm, and that term is terrorist. There a re man y differe nt kinds of terroris ts. W e all kno w to o w ell t h e kinds of te rrori sts t hat causedthe attac ks of the anniversary s o- to -s pe akwe will m ark tomorrow. But there are very differe nt kinds of terrorist s, and I2

think thi s d efendant i s one of t hem. As you heard the
e vidence today, I thin k th i s evidence can show you t hat he infli ct ed terr or upon BelindaNew come r a n d her fa m ily, up on Britt an y New comer and upo n Bel inda’s s on Brando n New come r. You heard te sti mony that h e wa s forc ing k ids to do d rug tr ansacti ons for hi m. What kind of pe rson does that?

173a.

The kind of pers on that doe s t hat, is, of course, a very

bad person. Indeed, t he government’s hyper bolic c losi ng argumentcrowned its tri al st rategy of pill ory ing de fe ndantDa rri ck Moor e before the ju ry. Th is fact, and fact i t be, is best exemplifi ed by t

he pr osecutor ’s dir ect
exam inatio n of the gover nment’s key witness, Belinda Newcomer, t hrou g h whom he elic ited the man y ways in which Mo ore wa s physica lly violent, serio usly injuring both her

and her son. It was also
seen when the pr o secutor , on redirect examinati on of Be linda’s thir teen year old daugh ter, Britt any, el ici ted te sti mony that Mo ore punched, ki cked and choked her after she re fus ed t o se lldrugs for hi m. Given all of

this , coul d anyon e dis agree with the gove rnmen t that Mo ore was a bad
man if no t some speci es of “te rrori st”? Sure lythe jury did not; i t ret urned a guilty verd ict after o nly twenty -eight minutes of delib erati ons
. Befo re pl acing our s tamp of approval on the jur

y’ s verdi ct, ho we ver, we mu st con sid e r the issues that M oore rais es on appeal, and that the gov ernm ent, defense coun sel, 1 a nd the D istrict Court simp lyignored: Moore w as n ot charge d with forcing c hildr en or any on e else to de a l drug s. Ne ither w as he charg ed w ith
assau lt. Nor d rug p osses sion. N or ch ild abuse. Nor terr orism. In fact , Moore was not on tri al for anything he may have done to B elind a or her fam ily.

Mo ore was on trial for a rson, in violation of 18 U.S.C. § 8 44(i) , and for possessi on o f a f

irearm by a prev iously
co nvicte d felon, in viol ation of 18 U. S.C

. §§ 922(g) and 924(a)(2) . An y observ er w ith
even an elementa l unders tanding of the Federal Rules of Evidence should have wondered how the w ide-ran gin g testi mony aboutdrugs, domestic vi olence, and child abuse was appropri ate i n an arson andgun poss essio n tr ia l. Mor eo ve r, wh a t just ific ationcould the prosecut or have had for rais ing the spect er of S eptem ber 1 1th and calling M oore a t err ori st ? We cannot conceive of an y. We w ill r everse the jud gment and sentenc e, and grant a n e w trial. I. Bac kground

1 Differen t coun sel w as ap poin ted to repres ent Moore on thi s appeal, and has ably d one so.3

On Christmas Eve of 20 01 , a fire occurred at an apar

tment bui lding locat ed at455 North Beave r S treet in York, Pennsy l vania, and a b oy was injured . In mid-Febr uary of 2002 , Belinda Newcomer , Moor e’ s ex-g irlfriend , cam e forw ard to identi fyMoore as the pers on r e spon sible f or the fire. In Ap ril, in th e U .S. D istric t Cou rt for the Middl e D istrict o f Pennsylvania, Moor e wa s c ha rg edina two countindict

ment with a rson re sulting in personalinjury

and with posse ss ion of a fire arm by a c onv icted felo n.
Britt anyNewco m er, Belinda’s daugh ter, was the firs t of four wit nesses to testif y for the government . On direct
ex aminati on, Brit tany

test ifie d that s he saw Mo ore with a gun w hen he live d with her mot he r. She fu rther testified that Mo ore warned her not t o tellhermotherabout the gu n or he would hurt her. On cross exam inati on, defense counselasked Britt anywhy she had wait ed so long before tell ing he r mother about the gun. Britt any r eplie d that

she feared being hu rt byMoore. On re-dir ect, the pr osecutor asked Brittan y if

Moore had hurt her

in the past. Brittany responde d that he ha d hurt herbecause she had refused t o selldrugs f or him. Pres umably on t he groun d tha t Mo ore h ad now been calle d a drug deal er wh o used chil dren to s ell hi s drug s , defense counse l objected: “[t]h is is far bey ond cross- examinati on, and i t’s be yon d t h e scope of thi s tri al. ” The prosecut or countere d only

that t he defens e h ad made
an issue o f w hy Brittan y had w aite d so long to tellhermother about the gun. The Distri ctCou rt ag reed, and overrul ed the object ion. The prosecut or then pr oceeded to elicit from Brittany that M oore ha d punched, kicked, and choked her when she refusedto se ll dru gs. On re-cross, Britt any offeredthat M oore not o nly wan ted he r to sell drug s for h im, bu t a lso w anted her
mo ther and bro ther to d o so
. BelindaNe wc om er took th e s tand after her daughte r. Bel inda beg an her test imonyby des cribi ng the nat ure of her relation ship with Moore. She test ifie d that he wa s in anger management cl asses; that her re lati ons hi p wi thhi m was “very violent”; that he was a “very hosti le man”; that he w as a habitual dru g user; tha t he threw her d ow n a flig ht of s tair s with the result that s he was hospit aliz ed in cri tica l cond iti on ; that he repeat edly punched her in the fa ce; tha t he sev erely beat her son, cracki ng three of

his ribs and leaving scars
on his fac e and neck; t hat her s on was taken by Chil d Ser v ices for fear that he
wo uld again be hurt by Moore; and that she fe ar ed for her l ife and t he live s of her childr en. De fens e cou nsel a t no point object ed and the Dist

rict Court did not inter ven e. Having set t

he scene with her de sc ript ion of M oore’s violent b ehavior, Belindaturned t o the event s which took place on Christmas Eve. She test ifie d that Moor e aw oke her (t

he two were at t

hat ti me living togethe r) andasked herto dri ve him to alocat ion he did not t hen discl ose. She agreed t o do so. Moore fir st di recte d Belindato a gas stat ion, where he fill ed a red plast ic gas can w ith fue l, and they then drov e to 455 N orth Bea ver Street. M oore4

got ou t of

the car with the ga s can, instructed

Belinda t o stay

in the c ar, and disappear ed behindthe buil ding. Minutes later, he came running bac k, smell ing of gasoli ne , an d instructed he r to dr ive the m aw ay. As theydrove off, Moore remarked to Belinda t

hat he had final ly

gotten e ven with “someone he had been angr y at and that no one is goi ng to ‘f’ with ‘D.’ ”

Two other wit

nesses took the s tand. Melissa Strunk Lay er, who was then incarc erate d on drug charges, test ifie d that she knew M oore from deal ing in cr ack cocaine. She ha d not seen Moore since having a disag reem ent w ith him about the purchase of $20 of c rack. Pr e sum ably, it
was this disp ute tha t motiv ated th e arson: on Christmas Eve of

2001, Meliss a Strunk Layer lived at 455 Beaver St. , the locat ion of th e fir e.
Fi na lly, York City

Police O fficer TroyCromer offered i nto evide nce a gun retrie ve d by pol ice fr om M oore’s f ormer place of e mpl oyme nt, a gun that fit t he descriptiongiven by

Belindaand Britt any of the gun to h ave bee n in M oore ’ s posses sio n. Officer Cromer–qual ifie d at tri al as an expert investi gator of the ori gins and causes of

fire –al so testifie d that t he fire was set i ntenti onally , and that a re d plastic gas can was recovered from the
scene.
The government re stedits case, and Mo ore follow ed su it w itho ut cal ling any witnesses. Cl os in g a rg ume nt s we re then present ed to the j ury . The prosec utor laun ch ed into hi s closing argument by call ing Moore a terror ist . Again, no obj ectio n w as m ade by de fen se c oun sel.

The Co urt th en in str uc ted th e ju ry, and the ve rdic t w as re tu rn ed in tw en tyeigh t min utes

.

II. Dis cussion

Mo ore urges us to o vert u rn his convict ion on two ground s. 2 First , he contends th atth e Di stri ctCour t i mp rope rly admitt ed th e te sti m on y of B ritt an y a nd BelindaNewcomer concerni ng his al leged prior bad acts, in viol ation of Federal Ru le of Eviden ce 404 (b). 3 Second, he contends

2 M oor e file d a tim ely no tice o f ap pea l. W e ha ve ju risdi ction und er 2 8 U .S.C . § 129 1 an d 18 U.S .C. § 374 2.

3 Federal Rule of

Evidence 404(b) provides:

Othercrim es, w ron gs, o r acts. Evidence of othe r crimes, wrongs, or ac t s i s not admissibl e t o prove the charac t er of a p erson in orderto sho w a ction in confo rmity ther ew ith. I t
m ay, h owev er, b e a d mis sible for othe r purposes , s uch as proof of motive, opportuni ty , int en t , p r epa rati on, plan , kn owledge, identity , o r absence of m ista ke o r accid ent, provided t

hat upon (co ntin ued ...)5

that the p r osecutor ’s cl osing ar gument unfairly pr ejud iced him

.
A. Standard of Review

The Federal Rul es of Evide n ce require a tim ely and sp ecific o bjectio n to evidence err on eou sl yadmi tt ed. Fed . R. Evid. 103(a)(1). W here an ob jection is prop erly made, we review a district court’s ruli ng for abu se o f dis creti on. United Statesv. Givan , 320 F.3d452, 463 (3d Cir. 2 003). Wh ere, ho we ver, a p arty fail s t o object in a timely f

ashionor fails to make
a spec ific ob jection , our rev iew is for p lain
error onl y. United St ates v. Boone , 279 F.3d 163 , 188 (3d Cir . 200 2). See also United Statesv. Sandi ni , 803 F.2d 123, 126 (3d C ir. 1986 ) (hold ing tha t failure to object with speci fici ty

does notpreser

ve a Ru le 404 (b) is sue for app eal). I t is we llsett ledthat to establ ish pl ain erro r, a defendantmust show “(1) error, (2 ) that is plain, and (3) t

hat affect s subs t antia l rights. If all th ree condi tions are met, an appe llate court may

the n ex ercise its discr etionto notice a forfe ited e rror, but only i f (4) t he error seri ously

affects the fairness, in tegri ty , or publ ic reput ation of judici al proceedi ngs.” Johnson v. Unit ed States, 520 U.S. 461, 467 ( 1997) (ci tati ons and quotati on marks om itted ). See also Un ited Sta tes v. P lotts , 359 F.3d 247, 249 (3d Ci r. 200 4) (“ Und er

pl ai n e rr orre vi ew, we may grant

relief if (1) the District Co urt
co mmittedan e rror, ( 2) it w as p lain, a n d (3) it affected s ubstant ial rights of the d efendant. ”) (cit ation and quotati on mark s om itted ).

Sim ila rly, a failure to s ustai n an object ion to a pros ecutor’ s closing argumentis ty

pically reviewed for abuse of discr et ion

. United Stat es v. Moli naGuevera , 96 F.3d 69 8, 703 (3d Cir. 1996). Bu t, again, defense counse l nev er sai d a word when his clie nt was li kened to one of the September 11th terr orist s, nor did th e Distri ctCourt. And so, again, the standard of rev iew is pla in er ror. United Statesv. Tiller , 302 F.3d 98, 105 (3 d Cir. 200 2).

B. Plain Error Pervaded the Trial

Inadmiss i ble evide nce a nd h ighly inf la mm atory statem ents ca me ro lling in unimpeded at M oor e’s trial , without any hesit ationbythe pros ecutor, complaint by defen se counsel, or corr ecti on by t he Distri ctCourt. I nd eed , a t only one point when irr elevant

but en orm ously prejud icia l evidence and whollyinappropr i at e statem ents cam e before the jury did 3 (.. .cont inued)
r equest by the acc use d, t h e prose cuti o n in a criminal
c a s e shall prov i d e reaso nable notice in adva nce of trial, or duri ng tri al if

the court excuses pr etri al noti ce on good cause shown, of the genera l nature of

any s uch evidence it intend s t o introdu ce at trial.6

defense coun sel ob ject, 4 and that object ion
was not at all s pecific. His fai lure to objec t, of course, did not r elie ve the prosecut or of his dut

y t o comply wit

h the Federal Rules of

Evidence and, even more im po rta nt ly, rules of fundamental fairness. Th ere w as a serio us b reak dow n he re.
As for the evide nce of M oore’s “OtherCri me s, W ron gs, o r A cts,” i.e ., t he Ru le 404(b) evi dence, whichc ame in princip ally through Belinda and Brittany New come r, let us be quite clear . We a r e not reviewing t

he Distr ict Court ’s deci sion to admit t

his evi dence, beca

use the evidence came in beref t of an y motion to adm it; bereft

of any prior not ific ation of the g eneral nature of

the Rule 404(b) eviden ce the go vern men t intend ed to i ntroduce; bereft

of any obj ecti on b y defense counsel; and bereft of any exercis e of controlon the part

of the Distri ct Co urt. Indeed, Rule 4 04(b ) never once came up during the course of t

rialuntilthe Dist

rict Cou rt sua spon te (because ne ither defense counsel nor the government hadsubmitt ed
a propose d jury instruction as to 404(b )), asked during t

he charge confer en c e whetherthere was any

need to ins truct

the juryregarding M oore’s “pr ior crimes or bad acts. ” Couns el bo th agree d that t hat
wo uld be a ppr opr iate. Whe n the instru ction w as giv en to the jury, however, the District Cou rt stat ed that the te sti mony that

Moore “committed
som e acts ot

her than t

he o nes charg ed in t he indict

ment” was permit

ted “onl y as ba ckg round to th e ev ents at iss ue h ere,” and could be consi dered on ly for that purpose and not as evi dence that he committed

the crim es with which he was charged . Parenthetically, we are un aware of any case u nder Ru le 404 (b) tha t wo uld perm it the use of the type of evi dence seen here as “background, ” and the government has pr of fe re d no ne . A t the c onclusi on of the charge , the pros ecutor a sked the Dist rict Court to fur

ther i nstruc t the j ur y , as the gov ernm ent pu ts it here, t hat “many of [M oore’s] s tate ments and actions providedproof of moti ve f o r the arso n.” App ellee’s Br. at

11-1 2. D efen se co unse l, albei t “ reluct antly ,” agre ed, and t he Dis trict C our t so in struc ted th e jur y.
Putti ng as id e the vi rtualsil ence as to Ru le 404 (b) du ring the cour se of trial, in
o rderto be admiss ible unde r 404(b), “(1) the evidence must

have a proper purpose under Rule 404(b); (2) it mustbe rele vant underRule 402; (3) its probati ve value must out wei gh its p otentia l for un fair prejudi cial effect under Rule 403; and (4) the Court must charg e the ju ry to consider the evidence only for

the limited pu rpo se for wh ich it is ad mitte d.” United Stat es v. Ve ga , 285 F.3d 256, 261 ( 3d Cir. 2002) ( citing, am ong oth ers, Huddleston v

. United States , 485 U.S . 681 , 6 91 -92 (1988)). The evide nce h ere, at l east t hat 4 The sole obj ecti on, diff icult as it may be to bel ieve, was during Bri ttany ’s redirect, to wit: “This is far beyond cross examinati on, and i t’s be yond t he scope of this tri al. ” 30a.7

evidence elic ited f

rom Belinda, 5 fail s each and every

one of these req uir ements. Rather , what is cr

yst al cl ear is that t

he evidence came in for one r eason and one
reasononly: to demo nstrate M oore’s prop ensity to a c t in a particular man ner, i. e., to be a ver

y vi olent man, who s e violenc e made the ars on and t he gun possessi on more like ly . Admitt ing evidence of other bad acts for this purpose is, of course, pr ohib ited. See, e .g., Ans ell
v. Gree n Acres Cont

r. Co , 347 F.3d 515, 520 (3d Cir. 2003) (“Rule 404( b) . . . proh ib i ts the ad missio n of other a cts evidence for t he p urpose of showing t hat
an indivi dual has a propensit y or disposi tionto actin a particular ma nner.”).

W ere there any doubt

that a dmitt ing evidence of the num erou s othe r bad acts alle ged to have been commit tedbyMo ore wo uld alone re quire r ev ersa l, th e compounding ef

fe ct of the prose cutor’s inflamm atory closi ng argument for ecloses anyargu men t that r eversalis not warranted. Thus, on the eve of t he one year anniv ersary of

the S eptem ber 1 1th terrori stattack s, the pro secu tor call e d Mo ore a terrorist. No, said the pro secutor, Mo ore was not one of those terr orist s, but “there are very differe nt kinds of terroris ts, and I thi nk this d efe nda nt is o ne o f the m.” W hy? Because “he infl icte d terro r upon BelindaNewcomer and her family , upon Britt anyNewcomer and upon B elinda’s
son Brand on Newcomer. . . . [H]e was forcing ki ds t o do drug tr ansacti ons for hi m. What kind of pers on does that ?” The prosecut or marshaled

the most damni ng of the 404(b) evi dence and emphasiz ed it to th e jur y. Why sh ould the jury co nvict? Because, he explai ned, of whatMo ore did to the N ew com ers. H e is , in a nut she ll, a bad man who should be stop ped at all
cos ts.

Mo ore was not , of course, on tri al for anything he did to t he New comers. But yet again, there was no object ion from defense counsel, and the D istrict Co urt did not inter ven e. I ndee d, th e C our t, in the
course of de nying M oore’s m otion for a
new trial based on the p ro s ecutori al misconduct

inhere nt in the cl osing argu men t, rema rked : [T]he government produc ed amp le evide nce w hich, if belie ved by the jury, w o uld supp o rt [the prosecutor’s] argumentthat Defendant
use d terr or to coerce [and the] charac teri zati on o f D efe ndantas one who used terr or t o coerc e w as w ithin
ac cepta ble bo unds o f advocacyfor concl usions the jury coul d a dopt from the e vid enc e pr ese nted

. 5 Given the pre

judici al nat

ure of the test imony el icit ed from Belinda on direct examination, we do not pause to also discuss the chal lenged portion of Britt any’ s testimony nor to dete rmine whether defense counsel opene d the door to the pur

ported r ehabil itation of Brit tany that follo we d.8

But the evid ence that the Court f

ound “accepta b le” was p r e judici a l , administ ering the deat

h blow to the cl osing arg um ent, w hich track ed th at ev iden ce.

We have re v ersed convi ctions whe re “ [t]he obj ect, or at l east ef fect, of this disproport io nate emphasi s by t he prosecut ion

. . . was to portray [ the defe ndan t] as . . . viol ence-prone
. . . [ and]
a danger to s ociety an d who needed to be removed for the protection of the p ubl ic.” United Statesv. Himelwri

ght , 42 F.3d 777, 786 (3d Cir . 1 994 ). I n Himelwright , alt hough operating under an abuse o f discr etionstandar d of

re vi ew, we reversed
a convict ion due to c oncerns t hat the go vern ment’s emph asis on 404 (b ) eviden ce in it s closing argument t ainte d th e trial in tw o reg ards: “ First, it h ad th e p ote ntialfor fr ighten ing the jury into i gnoring evidence t

hat othe rwise might have rais ed a re aso nab le do ubt

. . . . Second, if the jury was persuaded t hat [the defe ndan t] was violen c e-prone b y character, it mi ght have i nferredth at he intende d violenc e in thi s part icular inst ance. Th at i nference i s preci sely what Ru le 4 04( b) prohi bits .” Himelwright , 42 F.3d at786 n.8. See also Unit ed States v. Morley , 199 F .3d 129, 13 7-38 (3d Cir. 1999) (“This fro n tal a ssault upon the defendan t’s charact er is simply not appr opriate under our sy stem of laws, and the trial cou rt abus ed its dis cretion in admitt ing it.”). Plain er rorwas committed her e. First, there c an be no doubtth at
error was c ommi tted. The Federal Rule s of Evidence are clear

and unambiguous on this matter : ir

relev ant and prejudi cial evidence is i nadmissible. The evidence at issue here–Moore’s al legedviolenc e, drug use, and generalcrimina l procl ivi t y–was high lyprejudi cial and wh olly irreleva nt to the arson and gun poss ession c harges he faced. Second , the error was plai n, sti gmatizi ng M oore for b ehav io r unconnectedto those charges. Fi na lly , w e are certa in that

the error affected M oore’s substantial r i gh t s. We cannotknow, given the evidence t

hat came in , whethe r Mo ore was conv icted b ecau se the ju ry beli e ved him to be an a rso nist and the i llega l possessor

of a g un, or beca use it thou ght him to be a viole nt an d da nge rou s m an, a “t error ist” of so rts. We are inc lined to belie ve the latt er. Suchuncerta inty in the face of p lain erro r “serio usly affect[s ] the fairness, integrity or p ubli c re putati on of judici al p ro ceedings. ” United Stat es v. Atkinson , 297 U.S. 157 , 160 (19 36)

. See gene rally United Stat

es v. Olano , 507 U. S. 725, 734-36 (1993) ( discuss ing pl ain error).

III. Conclusion

Whether we apply the cons titu tional harmless error doctrine t hat requires a showing b y th e government t hat the error was harmles s b eyond a r easonable doubt
or the non-cons tit

utionalha rmless e rror doctrine that

req uires a show ing tha t it is highl y pr obab le the e rror did not co ntribute to the judgmen t , see Molina-Gue vara , 96 F.3d at 703 , we c onclu de tha t s i ngly or in combinati on, the ad mis sion o f the R ule 404(b ) evidence and the p rosecutor’s9

closin g argument re quire t hat the judgment and sentence be revers ed for pla in e rr or, and t he case re manded to the Dis tri ct Cou rt with dir ecti ons to grant Moore a
new trial.

RE ND EL L, Circuit

Judge , Concurring. I agree with the vie w th at plain
error occurred he re by

v irt ue of the admissi on of evidence th at vil laini zed Mo ore based on pri or bad conduct that was totally unrelat ed to the offenses charged. I wr ite to decry

sit uations in which th e defici en t performances of both the prosecut or and defe nse counsellead t o a predicament like t

he one faced by

the tri al judge he re , na m ely, when such evide nce is i mp rope rlyprese nted b y the pros ecutio n , and when defe nse c oun sel imp rope rly fails to object . While Iagree that the tri al judge shou ld have taken ac tion her e basedon the
exce ptiona llyegregious nature of the vi olat ions of R ule 40 4(b), n oneth eless, in ty picalcases tri al judge s instinctively , and
usua llyquite p rope rly, let the adversary process un fold. I t is underst andable t hat judges are inc lined to leave e vid entiary issues to the attor

neys to chal lenge or no t,
as t hey see fit, becau se ou rs is esse ntially
an ad ve rsa ry sys tem, and j udici a l in terfe rence can have tac tica l impl ica tions

. The instant situation, how ever, differs in degree from a normal cas e. The sheerheft of t

he tr uly damaging and irr elevant

conduct, catal ogued in the
m aj ority opinion, quite probably divert ed the jury’s atte nti on from the re levant issues of proof. T here w as not just one e rro r ; there were str ings of testimonyfocused on in ad missib le and irr elevant prior acts. And this testi mony was n ot overshadowed by

overwhelming other evi dence of Moo re ’s guilt; in fac t, the oth er sub sta nti ve evidence relat ed to the cr i mes that w ere re levant at trial was r elat ively thin, consist ing pr ima ril y of Belinda’ s test imonyand the i dentif icat io n of a red gas can. A ccord in gly , the trial judge’s failure to act

amounts to plain error in large measure due t o the predomi nance of the problemat ic evi dence that wa s pr es en ted to th e ju ry. Wh ile a t rialjudge shoul d not let this happen, i t is far easi er forus to say so from ou r v an tag e p oi nt , w ith th e tw en tytwen tyhi nds ig htth at

we enjoy on appe al, than it is for the judg e to de te r mine midtr ial at wha t point enou gh is enou gh. It
wo uld be a far bette r thing for co unse l – prosecut ion and defens e ali ke – not to put judges into this pr edicament in the first inst an ce, by adhering and poli cing adherence to the Ru les o f E vid enc e. Here,
coun sel utterly and inexp licably failed to do so.