Fourth Circuit hears habeas case for man convicted of drink-house murders

Prosecutors
convicted John Robert Hayes III of a 1993 double murder that occurred in the
early-morning hours at a drink-house party in northeast Winston Salem. There
were a lot of people shooting, and multiple witnesses point to different
culprits. The problem is that none of the witnesses are reliable.

Around 3:30 a.m. on July 25, 1993,
Winston-Salem police responded to a shooting at an illegal establishment,
appropriately named the “Drink House,” at the end of East 22^nd
Street, where the street abruptly ends at a chain-link fence and guardrail
separating it from Highway 52.

More shots rang out as the police
found almost a hundred people in the street, according to a brief item in the
Greensboro News & Record at the
time. After the crowd scattered, police discovered that two men, 21-year-old
Waddell Lynn Bitting and 22-year-old Stephen Joel Samuels, lay dead. According
to one witness who gave a statement to the police, almost 50 shots had been
fired. A federal magistrate judge would later cite officers at the scene as
“describing shell casings of differing calibers and in various locations on the
sidewalk and street, and bullet holes in the columns and roof of the front
porch.”

Two cousins, Mary Geter and Anita
Jeter, would testify that they were inside the drink house when they heard
shots coming from outside, prompting almost everyone to run outside.

The police charged John Robert Hayes
III, then 21, with the two murders on Oct. 11, 1993.

Geter and Jeter testified that Hayes
had been inside the drink house playing cards when the initial shots rang out.
Hayes, like everyone else, ran outside. The cousins said they waited inside for
a couple minutes, and then went out to the porch. From there, they testified,
they watched Hayes walk from the porch to a blue car, take a handgun out of the
trunk and fire it repeatedly down 22^nd Street into the crowd. Police
testified that 12 shell casings were found by the blue car that matched a
bullet found in one of the victims, although no murder weapon was ever
recovered.

Hayes’ court appointed lawyer had spent
just 10 hours in preparation for the trial since his appointment seven months
earlier, according to court documents. After a two-day trial in 1994, a jury
took only 30 minutes to convict Hayes on two counts of second-degree murder.

The Innocence & Justice Clinic
at the Wake Forest University School of Law took up Hayes’ case years later,
and in 2011 and 2012 received more than 100 pages of police and SBI Lab
reports, but in 2012, according to a brief filed on Hayes behalf, the Forsyth
County District Attorney’s office announced it would stop providing discovery
materials. Hayes’ legal team kept filing motions, and eventually, in March
2013, the district attorney turned over 1,000 pages of documents, 17 audio
recordings, photographs and a crime-scene video.

What the jurors who convicted Hayes
didn’t hear is that the police were in possession of two additional shell
casings fired by the same 9mm that shot the 12 casings found in the street,
according to an analysis by the SBI lab. Those two casings had been turned over
to police by a man named John Hamm, who said he collected them from the porch
of the drink house. Hayes couldn’t have walked to the car and retrieved a handgun,
as Geter and Jeter testified, if some of the shots were fired from the porch,
his new lawyers argue. They contend that two different police officers
testified that no casings were found on the porch, despite having evidence that
suggested otherwise.

Also revealed in the trove of
materials turned over to the prosecution from 2011 to 2013 was a statement by a
witness named Cynthia Coleman to police that the shooter shot first from the
porch and then from the car.

In total, Hayes’ counsel alleges,
there are 10 other witnesses who identified other shooters on the night of the
murders that were “known to the state in 1993 and disclosed nearly two decades
later.”

One, Kenneth Evans, 16 years old at
the time, was himself shot in the foot as he fled from the drink house. Evans
told police that he was shot by a man named “Grant.”

As detailed in Hayes’ brief, another
witness named Haushen Lindsey “told police that Grant shot Evans because he had
a ‘beef with him.’ Mr. Lindsey also told police that Grant planned the shooting
before Bitting (one of the murder victims) went up to the drink house.”

The brief cites Josephine McGill as
telling the police that Grant and “Darren” “were shooting during the time that
Mr. Evans, Mr. Samuels and Mr. Bitting were shot.”

The most detailed statement comes
from a woman named Avlon Fryer, who, according to Hayes’ counsel, “told
Winston-Salem police that ‘Demo’ left the porch of the drink house and fired
shots in the air. He yelled, ‘There go that MF! He gonna pay me my money,’ and
then pulled out his gun and shot Mr. Samuels in the head with a .38 revolver as
Mr. Samuels was trying to enter his car. This matched the medical examiners’
testimony that Mr. Samuels was shot in the head from behind. This also matched
the crime scene evidence: Mr. Samuels’ keys were found next to the body of his
car. After ‘Demo’ shot Mr. Samuel, another individual named Antonio Bryant aka
‘Sunshine’ yelled, ‘There go the other one!’ as both ‘Sunshine’ and Demo’
approached Mr. Bitting on the porch with their guns out.’ After further
questioning and an inconclusive polygraph, Ms. Fryer retracted her statements
to police, saying she was scared but had wanted to help. The defense, however,
never had the opportunity in 1993 or 1994 to determine whether she had been
intimidated by Demo and Sunshine.”

~

Arguing before the Fourth Circuit
Court of Appeals to oppose John Hayes’ effort to obtain habeas corpus on Jan.
30, Pete Regulski, an assistant attorney general with the NC Justice Department,
did not deny that prosecutors withheld evidence during the trial.

“Why did the state withhold those statements?” asked Chief Judge Roger L. Gregory, an appointee of President Clinton who served on the three-judge panel.

“I don’t know why the state withheld
those statements,” Regulski responded.

“That was wrong, wasn’t it?” Gregory
asked, growing increasingly more demonstrative. “If you have a case where a
person — 50 shots fired, 40 to 50 shots fired, and you have witnesses who
talked about there were people there shooting who had direct animus against one
of the two people who were killed, right? And that’s not relevant for a juror
looking at whether or not — because here you’re right: There’s so many people
shooting, the question is not whether someone shot; the question is who killed
those two people.”

As Regulski stammered, Gregory
continued: “As a person who should be interested in justice and not just a
conviction, you don’t think that’s relevant to disclose that to the defense?”

Regulski said he did think the other
witness statements were relevant, but the problem was that a claim for actual
innocence is more rigorous than whether there was a reasonable doubt at the
time of the conviction.

Under questioning by Gregory,
Regulski said the standard for a claim of actual innocence should be “whether
there’s new, reliable evidence that undermines” confidence in the conviction.
And, he said, the other witness statements couldn’t be considered reliable
because they weren’t made under oath — an argument Gregory found preposterous.

Regulski sought to undermine the
evidence of the two shell casings reportedly found on the porch, noting that
John Hamm is no longer alive and not available to explain how he came to have
them in his possession.

“Where was the shell casing found?”
Regulski asked. “Is there anything that shows where it was found? Is there
anything that shows when it was found? Do we know what the relationship to Mr.
Hamm was to this scene? Do we know whether Mr. Hamm had any relationship to any
of the participants? See, this is the problem.”

Judge Allyson Duncan, who was
appointed by President George W. Bush, seemed flummoxed.

“The thing that makes this case
troubling is less its current status than the fact that the caliber of evidence
at trial was questionable,” she said. “There was no physical evidence the first
time, there was no scientific evidence the first time. So, you’re overlaying
— where am I going with this? I don’t know….”

“I understand your frustration
because this is a frustrating thing to try to sort out,” Regulski sympathized.

“It’s hard to put it all together
because you didn’t have a rock-solid case to start with, but to go back and try
to reconstruct it is challenging, too, because the responses are subject to a
very different standard.”

And with that, Regulski rested his
case.

Raquel MacGregor, a third-year law
student arguing for Hayes, told the judges the evidence doesn’t need to
conclusively prove her client didn’t commit the murders, just that the trial
was so procedurally flawed that the original evidence presented to jurors was
fatally infected.

“We’re arguing procedural actual
innocence,” MacGregor said, “which does not require conclusive 100-percent he
didn’t do it; just that no reasonable juror would have convicted him beyond a
reasonable doubt.”

Judge Julius N. Richardson, a former
federal prosecutor who successfully tried white-supremacist terrorist Dylann
Roof and was appointed to the bench by President Trump in August, seemed to have
another idea.

“You can’t import the second
question about a failure to disclose into the first question, which is an
analysis simply of the new reliable evidence,” Richardson said. “You’ve got to
look at the evidence as it is, right? Not importing some challenge based on the
constitutional violation that the claim that you only get to if you pass this
threshold standard, right?”

Judge Gregory asserted that the
precedent in Hayes’ case is Finch v.
McKoy, a case involving a Wilson, NC man named Charles Ray Finch, who was
convicted of murder in 1976 and sentenced to death, although the NC Supreme
Court commuted his sentence to life imprisonment the following year. Writing
for the Fourth Circuit in an opinion released on Jan. 25, Judge Gregory wrote
that investigators used “impermissibly suggestive procedures” because Finch was
the only suspect placed in a lineup who was wearing a three-quarter length
coat, which may have led the state’s key witness — who struggled with cognitive
issues, alcoholism and difficulty with short-term memory recall — “to base
his identification on cue, instead of the perpetrator’s face or other
characteristics.” More than two decades after the trial, another witness, Noble
Harris, provided an affidavit expressing doubts about an earlier statement he
had made that he saw Finch at the scene prior to the murder. Harris said that a
sheriff’s deputy and prosecutor pressured him to stick with his initial account
and told him that Jones was going to testify that Harris was at the scene when
the murder happened. According to the affidavit, Harris replied that Jones was
“going to testify to a lie.”

“Those are constitutional questions
that are impacted,” Judge Gregory lectured Regulski. “You have to read Finch very carefully. That’s the
precedent. This panel can’t overturn Finch.”

Regulski said he wasn’t trying to
overturn the precedent, but argued that unlike Finch, the case made by Hayes lacks “exculpatory scientific
evidence, trustworthy eyewitness accounts and critical physical evidence.”

MacGregor argued, in contrast, that Finch “is extremely analogous” to Hayes’
case in that there was only eyewitness testimony and no physical evidence at trial.

“This case is stronger than Finch,” Judge
Gregory opined.

“I agree, your honor,” MacGregor concurred.

This story has been updated to correct an error. Contrary to the original reporting, there are two African-American judges on the Fourth Circuit who heard John Robert Hayes III’s petition for habeas. They are Chief Judge Roger L. Gregory and Judge Allyson Kay Duncan.