Moormann v. Schriro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT HENRY MOORMANN, 
Petitioner-Appellant, No. 00-99015
v. D.C. No.
DORA B. SCHRIRO,* Director,  CV-91-01121-PHX-
Arizona Department of ROS
Corrections, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
November 8, 2001—Pasadena, California
Submission Deferred February 15, 2002
Submission Deferred September 26, 2002
Resubmitted October 3, 2005
Filed October 13, 2005
Before: Mary M. Schroeder, Chief Judge, Stephen S. Trott,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Chief Judge Schroeder
*Dora B. Schriro, is substituted for her predecessor, Terry Stewart, as
Director of the Arizona Department of Corrections. Fed. R. App. P.
43(c)(2).
14007
MOORMANN v. SCHRIRO 14011
COUNSEL
Denise I. Young, Tucson, Arizona, for the petitioner-
appellant.
John Presley Todd, Phoenix, Arizona, for the respondent-
appellee.
14012 MOORMANN v. SCHRIRO
OPINION
SCHROEDER, Chief Judge:
Robert Henry Moormann was convicted in Arizona of the
first degree murder of his elderly adoptive mother and sen-
tenced to death in 1985. This is an appeal from the district
court’s denial of his first federal petition for habeas corpus
relief. He earlier filed two unsuccessful state petitions for col-
lateral relief after losing his direct appeal from the conviction
and sentence in state court.
We heard oral argument in this case in November 2001.
We then deferred submission pending the Supreme Court’s
decision in State v. Ring. 536 U.S. 584 (2002). In Ring, the
Court decided that the Arizona sentencing scheme applied in
this case, in which the trial judge alone determined the pres-
ence or absence of aggravating factors required by Arizona
law for the imposition of the death penalty, was not compati-
ble with the Sixth Amendment. 536 U.S. at 589. We again
deferred submission pending the outcome of other cases with
priority that determined the retroactivity of Ring. See Pizzuto
v. Arave, 280 F.3d 949 (9th Cir. 2002); amended by 385 F.3d
1247 (9th Cir. 2004); aff’d 385 F.3d 1247 (9th Cir. 2004);
Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003) (en
banc); rev’d sub nom. Schriro v. Summerlin, 542 S. Ct. 2519
(2004). Subsequently, the Supreme Court held that Ring is not
retroactive to cases on habeas corpus review. Schriro v. Sum-
merlin, 124 S. Ct. at 2526. Thus, Ring ultimately does not
affect the current appeal. Given the length of time that had
passed since oral argument, we then gave the parties an
opportunity to file supplemental briefs. We have received and
considered those briefs and this case can now be decided.
In order to set the legal framework for our decision, we first
determine that the provisions of the Antiterrorism and Effec-
tive Death Penalty Act of 1996 (“AEDPA”) do not apply to
this case. See 28 U.S.C. § 2244 et seq. Chapter 153 of
MOORMANN v. SCHRIRO 14013
AEDPA, dealing with general habeas corpus petitions, does
not apply to cases which were pending at the time AEDPA
became effective. See Lindh v. Murphy, 521 U.S. 320, 336
(1997) (“[T]he new provisions of chapter 153 generally apply
only to cases filed after the [Antiterrorism and Effective
Death Penalty] Act became effective.”). Moormann filed his
initial habeas petition in July 1991, and an amended petition
in September 1993, both well before AEDPA’s effective date
of April 24, 1996. Id. at 322. The provisions of chapter 154,
dealing with special habeas corpus proceedings in capital
cases, do not apply unless a state “opts in” by establishing a
statute or court rule for the appointment and compensation of
competent counsel in state post-conviction proceedings
brought by indigent capital prisoners. See 28 U.S.C.
§ 2261(b). It is undisputed that Arizona has not “opted in.”
Thus, neither the general nor the capital case provisions of
AEDPA apply to this case.
The parties, as is to be expected under the our pre-AEDPA
capital habeas jurisprudence, devote a great deal of time to
discussing whether Moormann’s various claims can be con-
sidered in federal court, or whether they have been forfeited
by his failure to bring them in state court, or by his having
presented them in a manner that invokes state procedural bars
to their consideration by the state supreme court. See Duncan
v. Henry, 513 U.S. 364, 365 (1995). Although we affirm the
district court’s dismissal of most of the claims, we observe
that some of Moormann’s federal claims were never properly
litigated in state court, but were handled by counsel with a
conflict of interest. Moormann thus presents some claims of
ineffective assistance of appellate counsel that appear color-
able on this limited record. We therefore vacate the district
court’s judgment and remand for further proceedings on those
claims.
I. FACTS
The facts are set out in all their lurid detail in the Arizona
Supreme Court’s opinion on direct appeal. State v. Moor-
14014 MOORMANN v. SCHRIRO
mann, 744 P.2d 679 (1987). Moormann appeals his convic-
tion for the murder of his adoptive mother during a furlough
from state prison. Moormann was apprehended after his
strange and inconsistent behavior came to the attention of the
local police.
In January 1984, Robert Moormann was incarcerated in the
Arizona State Prison in Florence, Arizona, serving a sentence
of nine years to life for kidnapping. Moormann’s adoptive
mother, Roberta, then age 74, traveled by bus on Thursday,
January 12, to visit with Moormann during a 72-hour fur-
lough. They checked into the Blue Mist Motel in Florence.
At about seven a.m. the next morning, Friday, January 13,
1984, Moormann called Marianne Southworth, the friend who
had brought Roberta to the prison from the bus depot, and told
her that when she came to the motel that afternoon, he would
like her to take him to Mesa so that he could see a lawyer.
Sometime between six and seven-thirty a.m., Moormann
walked to a store where he purchased a buck knife, a steak
knife, and some food. Shortly after eight a.m., Moormann
went to a local pizza parlor owned by a former prison guard,
where he bought a soda. He told the owner that he was on fur-
lough with his mother, that she was not feeling well, but that
they would come back that evening for dinner.
At about nine a.m., Moormann went to the front desk of the
Blue Mist and asked the owner to hold both maid service and
phone calls because his mother was ill. At around this time,
he also approached the owner’s wife, asked her not to come
to the room because his mother was sick, and asked to borrow
some disinfectant spray. She testified that Moormann smelled
horrible, that he had some blood on his face, and that some
towels he later left outside his room smelled so bad that she
threw them away.
When Roberta’s friend, Marianne Southworth, arrived that
afternoon with Roberta’s suitcase, Moormann told her that his
MOORMANN v. SCHRIRO 14015
mother had been gone since he returned from getting her a
salad at ten that morning. Moormann also said that his mother
had asked him to dispose of some garbage bags. Marianne
refused to help dispose of the bags. She noticed that Roberta’s
purse was still in the motel room and that the room was
extremely cold because the air conditioning was turned up all
the way. At around four p.m., Moormann called Marianne at
her home and asked whether his mother had called.
At about four-thirty p.m., Moormann approached the motel
owner and asked him whether the garbage would be collected
the next morning. When the owner told Moormann that the
garbage would not be collected until Monday morning, Moor-
mann explained that his mother had bought some meat that
spoiled and he needed to throw it out. During the evening,
Moormann asked a liquor store clerk and the pizza parlor
owner whether he could dispose of spoiled meat or animal
guts in their dumpsters. Both refused.
Acting on a tip from the suspicious pizza parlor owner, two
Florence police officers went to the Blue Mist at around ten-
thirty, where they knocked on Moormann’s door and
explained that they had heard his mother was ill and they
wanted to check on her welfare. Moormann told them that his
mother had been sick that morning but, after feeling better,
had gone visiting with a Mexican woman at about six p.m. He
said that he had not heard from her since, and that he was very
worried. Moormann was wearing only a pair of unzipped
trousers and a belt.
The officers looked in the motel’s dumpsters, but did not
see anything suspicious. They left the motel and went to the
prison, where they got a partial description of Roberta. They
then returned to the motel, where they parked in front of
Moormann’s room. About five minutes later, Moormann
came out of his room and approached the police car. The offi-
cers asked if his mother had returned, and when he said no
they asked him for a physical description of his mother.
14016 MOORMANN v. SCHRIRO
Moormann expressed concern that his mother had not
returned because she had not taken her medication with her.
When two other officers arrived at the motel a few minutes
later, he insisted on taking them into the room to show them
his mother’s medication. Moormann told the officers that his
mother had sent him to the U-Totem to buy a knife for her to
give to a friend, and that when he returned his mother was
gone. This version of events contradicted his earlier story.
Moormann also told one of the officers that a friend had given
him some cow guts, that he had been trying to get rid of them,
and that he had eventually flushed them down the toilet.
Sometime between ten-thirty and eleven p.m., Moormann
asked a corrections officer, whom he encountered in the motel
parking lot, where he could dispose of twenty-five pounds of
spoiled hamburger meat that his parents had brought with
them. The officer suggested that he call the officer in charge
of his unit at the prison. At twelve-twenty a.m. on Saturday
the 14th, Moormann called the lieutenant in charge of his
prison unit and asked for help. He said that his cousin had
dropped off some dog bones a couple of days earlier and that
he needed to get rid of them and some other stuff, that his
mother was out visiting, and that the dumpster at the motel
was full. The lieutenant agreed to help and came by about ten
minutes later. Moormann put a box in the bed of the lieuten-
ant’s truck. He then asked for a ride back to the prison so that
he could get something out of his living quarters. The lieuten-
ant refused, returned to the prison and put the box, in which
he could see some clean bones, out by the dumpster. At
around one-thirty a.m., when he received a call from the
police saying that Moormann had been acting suspiciously,
asking to throw out spoiled meat, and that Moormann’s
mother was apparently missing, the lieutenant told the police
about the box he had picked up. He and a policeman opened
the bags in the box and found what looked like human bones
and tissue. The policeman took the box to a hospital for analy-
sis.
MOORMANN v. SCHRIRO 14017
After their second conversation with Moormann, the offi-
cers went back to their car to wait. Moormann came out of his
room about fifteen minutes later, around one-thirty a.m., and
crossed the parking lot to the public telephone. The officers
called this activity in to the police captain, who told the offi-
cers not to let Moormann go back into his room. The officers
drove their car back to the front of Moormann’s room and
asked him if he would like to wait in the car for his mother
to come back. When he said yes, one of the police officers
offered him the front passenger seat and went to sit in the
back seat. For about an hour and fifteen minutes, Moormann
sat in the car, dozing off and occasionally conversing with the
officers. At two-forty-five a.m., two officers from the prison
arrived at the Blue Mist and informed the officers that the
bones in the box were human.
The officers asked Moormann to get out of the car, hand-
cuffed him, and told him that he was under arrest on suspicion
of murder. As Moormann was getting back into the car, he
said “I wonder if I need a lawyer. I’ll leave it up to you guys
whether I need a lawyer.” The officers did not reply. Moor-
mann then stated that he wanted to confess. The officers told
him to wait, that they were on their way to the police station.
About five minutes later, Moormann said “You can change
the charge, she’s dead.” Moormann told the officers that he
had called the prison because he was afraid they might be
mad that his mother was not with him, and that he had just
“lost his cool” when his mother made him “take his father’s
place” and “do things he just couldn’t handle.” The officers
took Moormann to the police station where, after being read
his Miranda warning, he confessed to killing his mother and
dismembering her body. The full text of the confession is
included as an appendix to this opinion.
The police obtained a warrant to search Moormann’s room
at the Blue Mist, where they found bedding stained with
Roberta’s blood; towels, a washcloth, and a cooking pot
stained with blood; bloodstains on the bathroom walls and
14018 MOORMANN v. SCHRIRO
floor; a scouring pad with bloodstains and human tissue; and
a buck knife and steak knife. They also found Roberta’s bras-
siere hanging in the closet with five hundred dollars in cash
safety-pinned to it.
In trash dumpsters at and near the motel, the police officers
found trash bags containing Roberta’s thorax, head, pelvic
area, feet and hands, and muscle and skin cut from her limbs
as well as torn strips of towel, a razor, the package in which
the steak knife was sold, and some pajamas. The police found
a finger in the sewer.
A search of Moormann’s living quarters in the prison
revealed a notebook of bizarre writings, including instructions
to train a dog to make bank deposits, a document entitled “last
will and testament” that purported to transfer Roberta’s estate
to Moormann in exchange for shares in his business, and a let-
ter purporting to be from Roberta explaining why she was
making the transfer. Roberta’s actual will left her entire estate
to Moormann, but stated her belief that he was not competent
to handle his own affairs and placed the money in trust for his
benefit. The executor of Roberta’s estate testified that Roberta
was planning to move to Oklahoma to be with her remaining
relatives in April 1984, which happened to be the next time
that Moormann was up for parole.
The medical examiner testified that Roberta had died of
asphyxiation as a result of something being held on her face
and blocking her air supply. He testified that, between twelve
hours and one half-hour prior to her death, she had sustained
bruises as the result of moderate force from a fist or blunt
object on her left upper arm, both breasts, and on her lower
back. He also testified that, between two hours and one half-
hour before her death, Roberta was cut by a knife or other
sharp, pointed object once on her right breast and five times
on her right buttock. The medical examiner found no defen-
sive wounds on Roberta’s hands and found no marks indicat-
ing that her wrists or ankles were bound. However, her hands
MOORMANN v. SCHRIRO 14019
had been cut from her wrists and her feet from her ankles, so
any such marks may have been impossible to find. The medi-
cal examiner did find bruises in and around Roberta’s mouth
consistent with being gagged. The medical examiner noted
that the dismemberment of the body was very meticulous,
particularly the cutting off of the hands at the wrist, the feet
at the ankles, and then the fingers at the knuckles. The entire
process would probably have taken two hours. The medical
examiner found no evidence of sexual activity, and tests run
on the sheets and bedspread found no evidence of semen.
While the medical examiner could determine that Roberta was
alive when she was bruised and cut, he could not tell whether
she was conscious, but noted that the cuts would have been
painful if she was conscious.
Numerous lay witnesses testified that Moormann was odd,
that he switched conversational topics frequently and seemed
not all there or off in another world. A woman with whom
Moormann stayed while he was on parole testified that he
would dress normally during the day, but wear only black at
night; that he claimed to have ties to the mafia; and that
although his mother supported him generously, he was unsuc-
cessful in his business affairs. His parole officer testified that
Moormann failed to adjust to the outside world because of
frequent fantasies that interfered with daily activities. The
parole officer testified that, despite his mother’s generous
support, Moormann was unable to succeed in business
because he was not intellectually capable of success. At the
time that Moormann’s parole was revoked, his parole officer
recommended that he be hospitalized, rather than returned to
prison. The parole officer did state, however, that he was
never sure whether Moormann was incompetent or whether
he was a con man. Many of the people with whom Moormann
interacted on that Friday reported statements that Moormann
made about his business dealings and family affairs that were
untrue. He told the clerk who sold him the buck knife that it
was a gift for his son, mentioned his dead father to several
people as though he was alive and visiting Moormann on this
14020 MOORMANN v. SCHRIRO
furlough, and told the liquor store clerk that he was married
and that his mother had recently died of cancer.
The defense called one expert witness, Dr. Overbeck, a
psychologist who interviewed Moormann for almost ten hours
in five sessions, gave him psychological tests, and reviewed
his lengthy medical history and school and prison records. Dr.
Overbeck concluded that Moormann suffers from organic
delusional syndrome, pedophilia, and schizoid personality dis-
order, and that he was unable to appreciate the nature and
consequences of his actions when he killed his mother. Dr.
Overbeck also noted that a delusional diagnosis is difficult
because it depends on whether or not you believe Moor-
mann’s allegations of an incestuous relationship with his
mother.
The state called three expert witnesses. Dr. Cleary, a court-
appointed expert psychiatrist, diagnosed Moormann as suffer-
ing from pedophilia and antisocial personality disorder. Dr.
Cleary stated that he did not believe that Moormann was
unable to understand and appreciate the nature of his actions,
although his subsequent knowledge of Moormann’s bizarre
writings and some of his statements on the day of the crime
made him less certain of his conclusion. Dr. Tuchler, a board-
certified forensic psychiatrist who had diagnosed Moormann
on four prior occasions beginning in his teens, testified that
Moormann does not suffer from organic delusional syndrome.
Dr. Tuchler testified that Moormann is a pedophile with anti-
social personality disorder, but that he is capable of under-
standing the nature of his actions. However, Dr. Tuchler
believed Moormann, who told him that he had an incestuous
relationship with his mother, that he had sex with her that
night, that she wanted her breasts pinched, and that she was
making noises and he put a pillow over her face so that he
would not hear her. Dr. Tuchler testified that he believed
Roberta’s death was accidental. Dr. Buchsbaum, a board-
certified neurologist who examined Moormann, testified that
MOORMANN v. SCHRIRO 14021
while he found no evidence of an organic brain defect, he
could not rule out the possibility.
After two hours of deliberation, the jury found Moormann
guilty of first-degree murder, rejecting his insanity defense.
The trial judge received a pre-sentencing report and held a
sentencing hearing, at which Moormann’s counsel argued that
Moormann’s inability to fully understand his actions and
record of good conduct in prison weighed in favor of a life
sentence. The trial judge found three statutory aggravating
factors (prior life sentence, pecuniary motive, and cruel, hei-
nous, or depraved murder) and one mitigating factor (dimin-
ished ability to understand actions) and sentenced Moormann
to death. After an unsuccessful direct appeal to the Arizona
Supreme Court and two unsuccessful state post-conviction
relief petitions, Moormann filed this federal habeas corpus
petition.
There are, from a procedural standpoint, essentially three
different categories of claims before us. The first are claims
that the district court rejected on the merits after concluding
that they had been properly exhausted. We affirm the district
court on the merits of those claims. The second are claims that
the district court properly refused to hear because of proce-
dural irregularities in presentation to the state court. We
affirm the dismissal of those claims. The third category are
claims for which we conclude the petitioner has established
sufficient cause to excuse the procedural irregularities in pre-
sentation to the state court. We vacate the district court’s
judgment and remand for further proceedings on a limited
number of claims falling into the third category.
II. CLAIMS THE DISTRICT COURT REACHED
ON THE MERITS
Moormann raised four claims that the district court denied
on the merits: whether he was provided a full and fair oppor-
tunity to litigate his Fourth Amendment claims; whether the
14022 MOORMANN v. SCHRIRO
state courts constitutionally applied two aggravating factors in
imposing his death sentence; whether his counsel was ineffec-
tive for failing to argue proportionality in his direct appeal;
and whether the state courts properly considered all mitigating
evidence. We affirm the district court’s judgment on these
issues.
Fourth Amendment
[1] Moormann challenges the validity of the search warrant
pursuant to which the Florence police officers searched his
hotel room. The Fourth Amendment requires that a search
warrant specify the items to be seized with sufficient preci-
sion for the person conducting the search to identify the items
for which seizure is authorized. United States v. Stubbs, 873
F.2d 210, 211 (9th Cir. 1989). The warrant pursuant to which
the Florence police searched Moormann’s hotel room did not
indicate what items were to be seized, but the affidavit sup-
porting the warrant did describe the items in detail. The trial
court found that, while the affidavit was not attached to the
warrant, the officer who executed the affidavit was present for
all material parts of the search. The court therefore admitted
all material evidence described in the appropriately limiting
affidavit. See Center Art Galleries-Hawaii, Inc. v. United
States, 875 F.2d 747, 750 (9th Cir. 1989), overruled on other
grounds by J.B. Manning Corp. v. United States, 86 F.3d 926,
927 (9th Cir. 1996). The Arizona Supreme Court affirmed,
relying on these same factual findings and holding that any
evidence outside the proper scope of the warrant that the trial
court admitted was harmless in light of its insignificance to
the case and the overwhelming evidence of Moormann’s
guilt. Moormann, 744 P.2d at 684-85.
[2] If the state has provided a state prisoner an opportunity
for full and fair litigation of his Fourth Amendment claim, we
cannot grant federal habeas relief on the Fourth Amendment
issue. Stone v. Powell, 428 U.S. 465, 494 (1976). Moormann
contends that he did not have a full and fair opportunity to liti-
MOORMANN v. SCHRIRO 14023
gate his warrant challenge because the state court’s factual
findings are not supported by the evidence. Moormann was
provided a full and fair opportunity to litigate his state claims,
however. He raised the warrant issue in a pre-trial motion; the
trial court held a hearing on the issue at which Moormann was
allowed to present evidence and examine witnesses; the trial
court made a factual finding, and appropriately limited the
admissible evidence to that described in the warrant affidavit;
and the Arizona Supreme Court reviewed the trial court’s
decision. Cf. Abell v. Raines, 640 F.2d 1085, 1088 (9th Cir.
1981). The district court did not err in denying Moormann’s
petition.
Aggravating Factors
Moormann alleges that the state courts did not constitution-
ally apply certain aggravating factors in the Arizona death
penalty statute because the record does not support the finding
of those factors. Moormann specifically objects to the state
courts’ application of two aggravating factors — that the mur-
der was committed for pecuniary gain, and that the murder
was particularly cruel, heinous, or depraved. Ariz. Rev. Stat.
§ 13-703(F)(5), (F)(6).
Federal habeas review of a state court’s application of
aggravating factors is limited to determining whether the state
court’s finding “was so arbitrary or capricious as to constitute
an independent due process or Eighth Amendment violation.”
Lewis v. Jeffers, 497 U.S. 764, 780 (1990). We examine
whether, “viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Id. at 781 (emphasis in original) (internal quotations and quo-
tations omitted).
[3] Under Arizona law, a finding that a murder was moti-
vated by pecuniary gain for purposes of section 13-703(F)(5)
must be supported by evidence that the pecuniary gain was
14024 MOORMANN v. SCHRIRO
the impetus for the murder, not merely the result of the mur-
der. State v. Kayer, 984 P.2d 31, 41 (Ariz. 1999). The evi-
dence presented at Moormann’s trial and sentencing hearing
was conflicting. Several witnesses testified that Roberta had
supported Moormann generously, pouring tens of thousands
of dollars into unsuccessful business ventures, and that
Roberta was supportive of and had a close relationship with
her adoptive son. The police found five hundred dollars in
cash undisturbed in Roberta’s brassiere, which was found
hanging in the closet of the room where she was killed. The
executor of Roberta’s estate, however, revealed that her will
left her estate in trust to Moormann because she believed he
was not competent to handle his own affairs, and that Roberta
was planning to move to Oklahoma to be with relatives.
Moormann’s parole officer testified that it would have been
possible for Moormann to be paroled to Oklahoma, but only
if his mother agreed to be responsible for him there. A search
of Moormann’s prison living quarters revealed a handwritten
document, in a notebook of other writings, entitled “last will
and testament.” That forged document purported to transfer
all of Roberta’s property to Moormann in exchange for two
hundred shares of stock in his business. The notebook also
contained a letter purporting to be from Roberta to Moor-
mann, explaining why she wanted to make the transfer. A rea-
sonable fact-finder could have found that Moormann
murdered Roberta for pecuniary gain.
[4] The (F)(6) aggravating factor, that the murder was com-
mitted in an especially cruel, heinous, or depraved manner, is
disjunctive, and need only be supported by evidence of one of
the three. State v. Hyde, 921 P.2d 655, 683 (Ariz. 1996). In
this case, the trial and appellate courts seem to have relied
upon cruelty, rather than heinousness or depravity. To find
cruelty, the court must find beyond a reasonable doubt that
the victim was conscious during the attack and that the defen-
dant knew or should have known that the victim would suffer.
State v. Trostle, 951 P.2d 869, 883 (Ariz. 1997). The Arizona
courts have upheld findings of cruelty based on a showing
MOORMANN v. SCHRIRO 14025
that the victim suffered mental anguish or fear. State v. Wal-
lace, 728 P.2d 232, 237 (Ariz. 1986). The medical examiner
testified that Roberta had been bruised and cut in the hours
before her death, and that these bruises and particularly the
larger cuts would have been painful if she was conscious
when they were inflicted. The medical examiner was not able
to determine whether Roberta was conscious when they were
inflicted, nor was he able to find evidence that Roberta’s
wrists or ankles had been bound. The medical examiner did
find bruises in and around Roberta’s mouth consistent with
being gagged, and the police found strips of bloody, torn
towel in the trash bins where Moormann disposed of Rober-
ta’s body. In Moormann’s confession, he told the police that
he and Roberta had argued, that he had hit her during the
argument, that he had tied her up, and that she had continued
to talk to him while she was tied up until he held a pillow over
her face and suffocated her. Moormann also mentioned, in his
confession, that he disposed of a razor blade that he had used
to cut Roberta. On the basis of this evidence, a rational fact-
finder could have found beyond a reasonable doubt that
Roberta suffered physical and/or mental anguish before she
died. We affirm the district court’s denial of Moormann’s
habeas petition on these sentencing issues.
Ineffective Assistance of Counsel on Direct Appeal in Failing
to Present Proportionality Argument
[5] In order to establish that counsel’s assistance was suffi-
ciently defective to require reversal, the defendant must show
that counsel’s performance was deficient and that the defi-
ciency prejudiced the defendant. Strickland v. Washington,
466 U.S. 668, 686 (1984). Moormann argues that he was prej-
udiced by his counsel’s failure to argue that his death sentence
was disproportionate. At the time of Moormann’s appeal, the
Arizona Supreme Court considered the proportionality of
each death sentence as part of its independent review of the
propriety of death sentences. State v. White, 815 P.2d 869,
884 (Ariz. 1991). This process was so inexact and problem-
14026 MOORMANN v. SCHRIRO
atic, however, that the court abandoned it in 1992. State v.
Salazar, 844 P.2d 566, 583-84 (Ariz. 1992). This alone sug-
gests that Moormann’s appellate counsel made a reasonable
tactical choice in omitting this argument, particularly given
the disturbing nature of Moormann’s crime. In addition, the
Arizona Supreme Court actually conducted a proportionality
review sua sponte as part of its independent review of Moor-
mann’s sentence. Moormann, 744 P.2d at 688. Therefore,
even if Moormann’s counsel was deficient in failing to pre-
sent proportionality arguments on review, he was not preju-
diced by this failure. We affirm the district court’s denial of
relief on this ground.
Failure to Consider Mitigating Evidence
[6] Moormann also contends that the state courts failed to
“consider and give effect to all relevant mitigating evidence”
that he offered, in violation of the Eighth Amendment.
Eddings v. Okla., 455 U.S. 104, 110 (1982). However, the
trial court need not exhaustively analyze each mitigating fac-
tor “as long as a reviewing federal court can discern from the
record that the state court did indeed consider all mitigating
evidence offered by the defendant.” Clark v. Ricketts, 958
F.2d 851, 858 (9th Cir. 1992)(citation omitted).
[7] Moormann contends that the trial court failed to con-
sider his ability to adapt to prison life and his childhood and
family background. Although Moormann’s counsel did not
expressly argue that this evidence, which was contained in the
trial and sentencing record, constituted mitigation, the trial
court explicitly stated that it would consider all evidence pres-
ented at trial, in the pre-sentencing report, and at sentencing
in rendering its sentencing decision. This court may not
engage in speculation as to whether the trial court actually
considered all the mitigating evidence; we must rely on its
statement that it did so. Smith v. McCormick, 914 F.2d 1153,
1166 (9th Cir. 1990).
MOORMANN v. SCHRIRO 14027
III. CLAIMS THAT WERE NOT EXHAUSTED
AND ARE PROCEDURALLY BARRED
Moormann raised the following claims in his habeas peti-
tion, and urges this court to order the district court to address
their merits, even though he did not raise them in any of his
state court proceedings. These claims are procedurally barred.
Ineffective Assistance of Counsel at Trial
[8] In his habeas petition, Moormann argued that his trial
counsel was ineffective because he called only one expert wit-
ness to support Moormann’s insanity defense, because trial
counsel elicited prejudicial information from that witness, and
because counsel failed to provide that witness with critical
information on Moormann’s background. (The district court
denominated this claim 12A.) The district court found that
this claim had never been presented in state court. Moormann
contends that the operative facts of this claim were identified
in the trial court, and that he argued in his second petition for
post-conviction relief (PCR) his trial counsel’s ineffectiveness
for presenting his insanity defense through only one expert.
Moormann did not claim, in either his direct appeal to the Ari-
zona Supreme Court or in his first PCR, that his counsel was
ineffective in presenting the insanity defense. Because Moor-
mann could have presented this claim in those proceedings,
Arizona Rule of Criminal Procedure 32.2 barred its review in
future state proceedings. Even in his second Rule 32 petition,
he failed to establish that there was any available expert wit-
ness who could have materially assisted the defense.
Moormann also alleges that his trial counsel was ineffective
as a result of:
• counsel’s refusal to allow Moormann to testify (claim 12D
in the district court)
14028 MOORMANN v. SCHRIRO
• counsel’s refusal to stipulate to the victim’s identity and
the resulting introduction of a photograph of the victim’s
severed head (claim 12E in the district court)
• counsel’s failure to object to irrelevant and prejudicial
information about the victim (claim 12F in the district
court)
• counsel’s failure to object to prosecutorial misconduct
(claim 12G in the district court)
• counsel’s failure to request a jury instruction that the jury
should consider the elements of the crime before consider-
ing insanity or to object to the prosecutor’s contrary sug-
gestion in closing arguments (claim 12H in the district
court)
[9] Moormann contends that the facts of these claims were
present in the state record and that they are fundamentally the
same as the claims he did present in state court — that his
“counsel was ineffective for failing to investigate and present
a viable defense.” He does not contend that these more spe-
cific claims were presented in any state proceeding, and
indeed they were not.
Moormann points out that we have held that, so long as the
petitioner presented the factual and legal basis for his claims
to the state courts, review in habeas proceedings is not barred.
E.g., Chacon v. Wood, 36 F.3d 1459, 1467-68 (9th Cir. 1994).
This does not mean, however, that a petitioner who presented
any ineffective assistance of counsel claim below can later
add unrelated alleged instances of counsel’s ineffectiveness to
his claim. See Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.
1992) (en banc). Rather, this rule allows a petitioner who
presented a particular claim, for example that counsel was
ineffective in presenting humanizing testimony at sentencing,
to develop additional facts supporting that particular claim.
See Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999).
MOORMANN v. SCHRIRO 14029
Moormann did not present these claims of ineffective assis-
tance in state court, and we cannot address them on habeas
review.
Ineffective Assistance of Sentencing Counsel
Moormann asserts that his sentencing counsel was ineffec-
tive for:
• failing to present evidence or argument that Moormann
was severely mentally ill and the victim’s death was acci-
dental, neither motivated by a desire for pecuniary gain
nor cruel, heinous, and depraved (claim 16D in the district
court)
• failing to object to certain opinions of the victim’s family
(claim 16E in the district court)
• failing to object to the trial court’s restriction on mitigation
(claim 16F in the district court)
• failing to object to information in the pre-sentence report
or provide information for the report (claim 16G in the
district court)
Moormann contends that the substance of these claims was
presented in his first PCR, in his allegation that his counsel
failed to represent him adequately at sentencing. Moormann’s
first PCR claimed that his sentencing counsel was ineffective
for failing to call witnesses who would testify to his “charac-
ter and upbringing” and refusing to allow Moormann to tes-
tify in an attempt to mitigate the impact of his prior
conviction. These claims were neither covered by the argu-
ments of the first PCR nor asserted in the second PCR.
Because these claims were never presented in any state court
proceeding, they cannot be addressed by the federal courts.
The district court’s dismissal of these claims was proper.
14030 MOORMANN v. SCHRIRO
Issues Moormann Argues Were Exhausted by Fundamental
Error Review
At the time of Moormann’s direct appeal, the Arizona
Supreme Court was required by statute to review indepen-
dently the trial record for fundamental errors affecting the
judgment and sentence, whether or not the defendant alleged
those errors on appeal. Ariz. Rev. Stat. § 13-4035 (1987)
(repealed); State v. Brewer, 826 P.2d 783, 790 (Ariz. 1992).
The Arizona Supreme Court conducted this review in Moor-
mann’s case. Moormann, 744 P.2d at 684 (reviewing the
validity of the search warrant even though Moormann did not
raise it on appeal because of the court’s “duty to search the
record for fundamental error”). Moormann asserts that this
independent review by the Arizona Supreme Court constitutes
full and fair presentation of his federal claims and that several
of them are therefore not procedurally defaulted.1 We have
explicitly rejected this argument. Martinez-Villareal v. Lewis,
80 F.3d 1301, 1306 (9th Cir. 1996); Poland v. Stewart, 117
F.3d 1094, 1105 (9th Cir. 1997). Where the parties did not
mention an issue in their briefs and where the court did not
mention it was considering that issue sua sponte, there is no
evidence that the appellate court actually considered the issue,
regardless of its duty to review for fundamental error, and the
issue cannot be deemed exhausted.
1
Moormann makes this argument with respect to his claims of inade-
quate jury voir dire (claim 5 below); inadequate, burden-shifting jury
instructions on the insanity issue (claim 6 below); prosecutorial miscon-
duct (claim 9 below); and “record-based” ineffective assistance of counsel
claims, by which he seems to mean 12B (failure to present alternative
defense), 12E (failure to stipulate to victim’s identity), 12F (failure to
object to irrelevant and prejudicial information about the victim), 12G
(failure to object to prosecutorial misconduct), 12H (failure to request cor-
rect jury instructions on insanity).
MOORMANN v. SCHRIRO 14031
Issues Moormann Argues Were Exhausted by Arizona’s
Mandatory Independent Review of Death Sentences
At least as of the time of Moormann’s direct appeal, the
Arizona Supreme Court independently reviewed the propriety
of all death sentences, examining the trial court’s findings on
aggravating and mitigating factors and independently
reweighing those factors to determine whether the death sen-
tence is appropriate. State v. Watson, 628 P.2d 943, 945-46
(Ariz. 1981). Moormann contends that this independent
review served to exhaust the following claims: that his coun-
sel was ineffective at sentencing; that two of the aggravating
factors are unconstitutional; that prejudicial information was
considered at sentencing; that he was denied a jury trial on
facts that increased his sentence; that the Arizona statute fails
to adequately channel sentencing discretion; that the Arizona
statute contains an unconstitutional presumption of death; that
the Arizona statute unconstitutionally mandates a sentence of
death; that the death penalty is cruel and unusual punishment;
that the Arizona death penalty is discriminatory; that the Ari-
zona Supreme Court failed independently to review and
reweigh mitigation and aggravation evidence; and that the
death sentence is imposed arbitrarily and capriciously. These
issues are not included in the scope of the Arizona Supreme
Court’s independent review of the death sentence as defined
by that court, and therefore were not exhausted.
IV. CLAIMS WHERE PETITIONER HAS SHOWN
CAUSE
Moormann was represented by three different attorneys in
his state proceedings: Thomas Kelly at trial, Robert Cimino
on direct appeal and during his first petition for post-
conviction relief (PCR), and Allen Gerhardt during his second
PCR. In the first PCR, prepared by Cimino, Moormann
alleged a number of errors at trial and sentencing that were
not included in his direct appeal to the Arizona Supreme
Court. The trial court dismissed Moormann’s first PCR for
14032 MOORMANN v. SCHRIRO
this reason, because Arizona Rule of Criminal Procedure 32.2
bars the assertion, in a PCR proceeding, of any claim that
could have been part of a prior proceeding. Cimino then
moved the court for the appointment of another attorney who
would be able to assert that Cimino was ineffective in failing
to raise these issues in the direct appeal. The trial court
refused, but did appoint another attorney, Gerhardt, when
Moormann filed a second PCR pro se. Gerhardt filed an
amended second PCR petition, in which he alleged that
Cimino was ineffective for failing to file an adequate motion
for reconsideration after the first PCR petition was denied, for
failing to appeal denial of the first PCR petition, and for fail-
ing to present certain other, specifically enumerated, issues of
alleged error at trial and sentencing. The state court denied the
second PCR on Rule 32.2 grounds.
Moormann now contends that Cimino could not have
argued his own ineffectiveness in the first PCR proceeding,
and that the trial court’s failure to appoint a new attorney to
argue that Cimino’s ineffectiveness constitutes cause for the
default of those issues Cimino did not raise in Moormann’s
direct appeal.
[10] A prisoner who fails to comply with state procedures
cannot receive federal habeas corpus review of a defaulted
claim unless the petitioner can demonstrate either cause for
the default and resulting prejudice, or that failure to review
the claims would result in a fundamental miscarriage of jus-
tice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
“Cause” must be something external to the petitioner. Id. at
753. Attorney ignorance or inadvertence is not cause, but
attorney error rising to the level of an independent constitu-
tional violation (in the form of ineffective assistance of coun-
sel) does constitute cause. Id. at 753-54. In several cases, we
have rejected arguments similar to Moormann’s on the ground
that, because there is no Sixth Amendment right to counsel in
state post-conviction proceedings, there can be no indepen-
dent constitutional violation as a result of post-conviction
MOORMANN v. SCHRIRO 14033
counsel’s incompetence. See Ortiz v. Stewart, 149 F.3d 923,
933 (9th Cir. 1998); Nevius v. Sumner, 105 F.3d 453, 459-60
(9th Cir. 1996); Martinez-Villareal, 80 F.3d at 1306. Moran
v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996); Bonin v.
Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996).
[11] Moormann’s claim that cause excuses his procedural
default is, however, not grounded on allegations of Cimino’s
ineffectiveness in his role as Moormann’s counsel during his
first PCR petition. Rather, the claim is grounded in allegations
that Cimino was ineffective when serving as Moormann’s
counsel on direct appeal, for failing to raise various issues that
the state courts later found precluded because they were not
raised on direct appeal. There is a Sixth Amendment right to
counsel during a criminal defendant’s appeal as of right.
McCoy v. Court of Appeals of Wis., 486 U.S. 429, 436 (1988).
Therefore, if Cimino was constitutionally ineffective in failing
to present these claims on direct appeal, Moormann may have
demonstrated cause sufficient to overcome the procedural bar.
Cf. Manning v. Foster, 224 F.3d 1129, 1135-36 (9th Cir.
2000). Cimino was not trial counsel and should have had no
conflict of interest in raising ineffective claims on direct
appeal. He was, however, conflicted in the presentation of the
first PCR petition, because he had been counsel on direct
appeal.
Moormann raises a number of issues he claims Cimino was
ineffective in failing to present on direct appeal.2 If Moor-
mann had, after the denial of his first PCR petition, come into
2
Those issues are, according to Moormann’s brief: inadequate voir dire,
gruesome photographs, jury instructions, denial of right to rebut evidence,
prosecutorial misconduct, right to testify, incomplete record, incompetent
trial and sentencing counsel, unconstitutional (F)(5) and (F)(6) aggravat-
ing factors, consideration of prejudicial information at sentencing, denial
of jury trial on facts that increase the sentence, failure to channel sentenc-
ing discretion, death sentence cruel and unusual punishment, and failure
to independently review mitigation and aggravation and reweigh those
factors.
14034 MOORMANN v. SCHRIRO
federal court and asserted on habeas review that Cimino was
incompetent in failing to raise those issues during either direct
appeal or the first PCR, the procedural bar to the claims of
ineffectiveness on Cimino’s part may have been excused for
cause. Instead, after Moormann’s first PCR petition was
denied as procedurally barred, Cimino filed a motion, in state
court, asking for the appointment of new counsel to assert
Cimino’s ineffectiveness in failing to raise those claims on
direct appeal. The trial court at that time refused. When Moor-
mann filed a second, pro se, PCR petition, the trial court
appointed a different attorney to represent him, one who was
not conflicted in raising Cimino’s ineffectiveness. That coun-
sel filed an amended second PCR petition, in which he
alleged that Cimino was ineffective for failing to file an ade-
quate motion for reconsideration after the first PCR petition
was denied, for failing to appeal denial of the first PCR peti-
tion, and for failing to present certain other, specifically enu-
merated, issues of alleged error at trial and sentencing. Insofar
as Cimino was ineffective for failing to present the issues
raised in the first and second PCR petitions during Moor-
mann’s direct appeal, such ineffectiveness does not excuse
Moormann’s failure to include, in his second PCR petition,
the additional claims of trial and sentencing counsel’s ineffec-
tiveness, that were raised for the first time in his habeas peti-
tion.
[12] Therefore, we conclude that Moormann has suffi-
ciently asserted cause to excuse the procedural default of
those claims that were presented in his first and second PCR.
These claims include, but are not limited to, the following:
1. That trial counsel was ineffective for failing to present
available evidence that Moormann’s statements to the
police were not voluntary because of his mental illness
(claim 12C in the district court)
2. That his sentencing counsel was ineffective for failing to
investigate and call witnesses who could testify to Moor-
MOORMANN v. SCHRIRO 14035
mann’s background and childhood (16A, B, and C in the
district court)
3. That his sentencing counsel was ineffective for refusing
to allow Moormann to testify at sentencing to mitigate his
prior conviction (claim 16H in the district court)
4. That appellate counsel was ineffective for failing to pre-
sent (and thereby both exhaust and save from procedural
bar) the following issues:
a. Counsel’s ineffectiveness at trial and sentencing in
the respects described above
b. That Moormann’s right to a jury trial on all facts that
increased his sentence was violated by Arizona’s
practice of judge sentencing
c. That the Arizona death penalty statute fails to guide
the sentencer
d. That the death penalty is cruel and unusual punish-
ment both generally and as applied in Moormann’s
case
[13] Cimino’s failure to raise these claims constitutes
“cause” sufficient to lift the state procedural bar only if he
was indeed ineffective in failing to raise them, i.e., if the fail-
ure prejudiced Moormann. Claims 4c and 4d have been
repeatedly rejected by the Arizona courts. See State v. Sans-
ing, 26 P.3d at 1118, 1131-32 (Az. 2001). If the law on those
issues changes, Moormann can file an additional PCR in Ari-
zona state court to address the effect of the legal change on
his case. Ariz. R. Crim. P. 32.2. Cimino’s failure to raise these
issues could not have prejudiced Moormann.
[14] We vacate and remand the other claims listed above,
along with any other colorable claims in Moormann’s first
14036 MOORMANN v. SCHRIRO
and second PCR, to the district court for further proceedings
to determine whether there was prejudice to Moormann in
Cimino’s failing to raise those claims on direct appeal. If the
district court determines that there was prejudice, Moormann
will have sufficiently shown cause and prejudice to excuse his
procedural default of those claims, and the district court may
determine their merits.
AFFIRMED IN PART, VACATED IN PART, and
REMANDED.
MOORMANN v. SCHRIRO 14037
APPENDIX
CAPT. HORRALL: Okay now, we’ll begin (inaudible) . . .
I’ll let you guys take case (inaudible) . . . (inaudible - noise).
Okay Robert, you’ve already been advised of your Miranda
rights, uh, however, I’m gonna’ tape record, and since you
feel the need to discuss this, apparently since you’ve made
several statements, you can go ahead and, if you want to, just
— you can tell us anything you’d like at this time. Officer
Thuesen needs to read you your rights first. Okay, Don?
OFFICER THUESEN: Okay. You have the right to remain
silent. Anything you say can and will be used against you in
a court of law. You have the right to talk to a lawyer and have
him present with you while you are being questioned. If you
cannot afford to hire a lawyer, one will be appointed to repre-
sent you for any questions if you wish. If you decide at any
time to exercise these rights and not answer any questions or
make any statements. Okay, Robert, do you understand each
of these rights as explained to you?
ROBERT MOORMANN: Yes, I do.
OFFICER THUESEN: Okay, having these rights in mind, do
you wish to talk to us?
OFFICER THUESEN: Okay, having these rights in mind, do
you wish to talk to us?
ROBERT MOORMANN: Yes, I do.
OFFICER THUESEN: Okay, uh, time is now 0318 on, uh,
Saturday, January 14th, 1984.
CAPT. HORRALL: Okay, Robert, would you — present dur-
ing this interview will be, uh, Officer Don Thuesen, Captain
T.J. Horrall and Robert Moormann.
14038 MOORMANN v. SCHRIRO
ROBERT MOORMANN: Robert Henry Moormann.
CAPT. HORRALL: Robert Henry Moormann. Would you
like to tell us what happened today?
ROBERT MOORMANN: Well, my mom and I had a — we
had a argument, and during it I hit her a few times, and then
it got worse and I — I lost my cool and — and I tied her up,
and she kept on me, talkin’ about things that, uh, pertained to
my real family and, I don’t remember the exact time, and I
suffocated her. Then I took the 409 and went into the wash
room. I panicked, at which time I dissected her.
CAPT. HORRALL: Where did you do that at?
ROBERT MOORMANN: In the sh-shower and tub.
OFFICER THUESEN: Was that this morning, Robert?
ROBERT MOORMANN: Yes, sir.
OFFICER THUESEN: Now you told me earlier when we
were trying to find her that, uh, you know, while — while she
was missing that, uh, you got up about 6:30 or 7:00 o’clock;
is that about the time you got up?
ROBERT MOORMANN: I never went to bed.
OFFICER THUESEN: You never went to bed last night?
ROBERT MOORMANN: (No answer)
OFFICER THUESEN: That would have been on the, uh,
night of the 13th?
ROBERT MOORMANN: Yes, sir. Night of the 12th.
OFFICER THUESEN: Night of the 12th?
MOORMANN v. SCHRIRO 14039
ROBERT MOORMANN: Yes, sir.
OFFICER THUESEN: Friday night or Thursday night?
ROBERT MOORMANN: Thursday.
OFFICER THUESEN: Thursday night. That would have been
the night of the 12th. Uh, did your mother stay up all night,
too?
ROBERT MOORMANN: Yes, sir.
OFFICER THUESEN: Okay, uh, was it sunup yet? Do you
know, uh, Robert?
ROBERT MOORMANN: I — I didn’t get to check.
OFFICER THUESEN: Didn’t pay any attention. Did you, uh,
what — what did you use to suffocate her?
ROBERT MOORMANN: A pillow.
OFFICER THUESEN: Okay. Was that, uh — was she in the
bed, Robert?
ROBERT MOORMANN: The bed closest to the bathroom.
OFFICER THUESEN: On the bed closest to the bathroom.
Okay. And then you, uh, you held a pillow over her face?
ROBERT MOORMANN: Yeah, and kept it until she was
dead.
OFFICER THUESEN: You had — you had tied her up before
then?
ROBERT MOORMANN: Yes.
14040 MOORMANN v. SCHRIRO
OFFICER THUESEN: What did you tie her up with, Robert?
ROBERT MOORMANN: I tore a towel up.
OFFICER THUESEN: Tore a towel up? What did you —
what did you do with the towel after?
ROBERT MOORMANN: I threw it away this morning.
CAPTAIN HORRALL: You threw that away this morning?
Do you know where you threw it?
ROBERT MOORMANN: Yes. It’s probably in one of those
bins where the maids put the stuff.
OFFICER THUESEN: Okay. Did you, you throw it in the
trash in the, uh, room there?
ROBERT MOORMANN: I — I gave it to the maid in — it
was in a plastic bag I gave the maid this morning.
OFFICER THUESEN: You gave the maid a plastic bag this
morning?
ROBERT MOORMANN: Yeah, when I to — when I to —
when I told ‘em that my mom was sick and didn’t want to be
disturbed, and they didn’t — instead of, instead of going
inside, they had me hand ‘em the stuff.
OFFICER THUESEN: Okay, was there anything else in the
bag that you handed the maid?
ROBERT MOORMANN: A razor blade that I used to cut ‘er
with. I had torn one of the razors I had apart.
OFFICER THUESEN: Uh, the — there was just, uh, there
was just trash and some, uh — was there bloody material or
anything in the bag?
MOORMANN v. SCHRIRO 14041
ROBERT MOORMANN: No.
OFFICER THUESEN: Just the parts of the towel and a piece
of razor or one of the razors?
ROBERT MOORMANN: There might be — I can’t remem-
ber if I put that one piece of towel that was kind of bloody in
there or not. There might be. I can’t remember.
OFFICER THUESEN: Okay, uh —
CAPTAIN HORRALL: Okay, uh, Robert, after you suffo-
cated her, uh, then what happened?
ROBERT MOORMANN: I untied ‘er and let ‘er lay there for
awhile. Then I knew I had to do something because I knew
that Baker and Mrs. Southworth was gonna’ be there.
CAPTAIN HORRALL: Did she show up at one o’clock?
ROBERT MOORMANN: Yes.
CAPTAIN HORRALL: Okay. What did you do before she
showed up?
ROBERT MOORMANN: That’s when I dissected my mom.
CAPTAIN HORRALL: Okay. When did you, uh — when
you did that then what did you do — how did you dispose of
‘er?
ROBERT MOORMANN: I went down and bought some
plastic bags from, uh, the grocery store.
CAPTAIN HORRALL: From U-Totem er —
ROBERT MOORMANN: Yes, and I used the knife you have,
so on. And if you look in the fan, the one that’s against the
14042 MOORMANN v. SCHRIRO
far wall, there’s some — there’s some little holes on — on
top.
CAPTAIN HORRALL: Uh-huh.
ROBERT MOORMANN: You’ll find the steak knife that I
used to cut the bones.
CAPTAIN HORRALL: Okay.
OFFICER THUESEN: Do you know — do you recall how
many bags, uh, you had to use, Robert?
ROBERT MOORMANN: No.
OFFICER THUESEN: Okay.
ROBERT MOORMANN: But I know that on some of the
parts I doubled.
OFFICER THUESEN: You doubled the bags or, uh, you used
two bags on some parts?
ROBERT MOORMANN: But then I decided at first I’d just
cut ‘er, just — and put the — put the arms and legs into bags
and then later on I decided — I knew if I could — it would
be easier to dispose of ‘er; then I dissected her completely.
That’s when I panicked and that’s the reason I wanted to talk
to the Major. There’s something I’ll tell him.
OFFICER THUESEN: Okay.
ROBERT MOORMANN: But I would —
OFFICER THUESEN: Go ahead.
ROBERT MOORMANN: I would like to have — you two
can be there. I — this part I’d like to have off this record.
MOORMANN v. SCHRIRO 14043
OFFICER THUESEN: Okay.
OFFICER HORRALL: Okay.
(Off the record discussion)
OFFICER HORRALL: Did you flush anything down the toi-
let?
ROBERT MOORMANN: Yes.
CAPTAIN HORRALL: What did you flush down the toilet?
ROBERT MOORMANN: Nine fingers.
CAPTAIN HORRALL: Fingers?
ROBERT MOORMANN: Yes.
CAPTAIN HORRALL: Okay. Is that all?
ROBERT MOORMANN: Yes, sir.
OFFICER THUESEN: Robert, you said nine fingers?
ROBERT MOORMANN: The tenth one I did this afternoon.
OFFICER THUESEN: Now, you say you did this afternoon.
What do you mean by that?
ROBERT MOORMANN: I was, uh, when I was cuttin’ ‘em
off I lost one of ‘em.
OFFICER THUESEN: I see.
ROBERT MOORMANN: And this afternoon I found that.
CAPTAIN HORRALL: Did you flush it also?
14044 MOORMANN v. SCHRIRO
ROBERT MOORMANN: Yes.
CAPTAIN HORRALL: Okay.
OFFICER THUESEN: Do you — do you recall how many
trips, uh, you made to, uh, any of the, uh, trash areas with
bags?
ROBERT MOORMANN: Not that I remember. Uh, about
four.
OFFICER THUESEN: About four.
ROBERT MOORMANN: ‘Cause I didn’t want people to
know what I was doing.
OFFICER THUESEN: I see.
CAPTAIN HORRALL: After — wha — what clothes —
where are the clothes that you had on when you did this?
ROBERT MOORMANN: Nothin’.
CAPTAIN HORRALL: No clothing?
ROBERT MOORMANN: Nothin’.
CAPTAIN HORRALL: You didn’t have any clothes on when
you did this?
ROBERT MOORMANN: No.
CAPTAIN HORRALL: Did you want to talk to the Major
now?
ROBERT MOORMANN: Whenever he wants to, yeah.
CAPTAIN HORRALL: Okay. This concludes the interview.
It is 0236 a.m.