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 22nd 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 22nd 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.