Despite Professor Mark Rabil’s petition, prosecutors deny allegations of suppressing evidence in Winston-Salem murder case

Photo of Wake Forest Law Professor Mark Rabil

Professor Mark Rabil, director of the Wake Forest University Innocence and Justice Clinic

Winston-Salem Journal reporter Michael Hewlett writes that Forsyth County prosecutors didn’t withhold evidence in the John Robert Hayes despite a petition Professor Mark Rabil, director of the Innocence and Justice Clinic, filed in July with the North Carolina Court of Appeals. The original story, “Prosecutors deny allegations of suppressing evidence in Winston-Salem murder case,” follows.

Forsyth prosecutors didn’t withhold evidence or present misleading testimony in the case of a Winston-Salem man convicted of killing two men outside an illegal drink house in 1993, attorneys with the N.C. Attorney General’s Office said in a response to the man’s appeal.

John Robert Hayes, 44, was convicted July 19, 1994, of two counts of second-degree murder in the deaths of Waddell Lynn Bitting and Stephen Joel Samuels. The jury deliberated about 30 minutes. Bitting and Samuels were shot to death on July 25, 1993, as they were coming out of a drink house at 910 E. 22nd St., which was known as the “Deuce-Deuce.” Hayes is serving two consecutive life sentences.

Last month, his attorney, Mark Rabil, filed a petition with the N.C. Court of Appeals, asking the court to overturn Hayes’ conviction and to grant him a new trial. Rabil, the director of the Innocence and Justice Clinic at Wake Forest University School of Law, is appealing a ruling in October 2014 from now-retired Forsyth Superior Court Judge William Z. Wood Jr.

Rabil said in the petition that Forsyth County prosecutors withheld evidence favorable to Hayes in his 1994 trial, including the fact that a third person was shot and identified a different shooter and that 10 witnesses named someone else as the shooter, along with possible motives. They also failed to turn over evidence that could have been used to undermine the credibility of two eyewitnesses, Rabil said.

Prosecutors also allowed misleading testimony about ballistics evidence, and Hayes’ trial attorney, Warren Sparrow, failed to provide adequate legal representation, spending a total of 10 hours on the case, according to the petition.

Mary Carla Babb, a prosecutor with the N.C. Attorney General’s Office, filed a response to Rabil’s petition Monday.

Babb said in her response that none of the evidence that Forsyth County prosecutors are alleged to have suppressed would have made a difference in Hayes’ case. She also argues that Sparrow had access to some of that evidence.

She points to the prosecution’s two main witnesses — Mary Geter and Anita Jeter. Rabil argued that they both gave conflicting statements to police and that Jeter lied to authorities in telling them that she didn’t work at the drink house.

Babb said Sparrow asked Jeter on cross-examination whether she worked at the drink house and she denied working there. Sparrow had to have had access to her statements or else he would not have had a factual basis to ask the question in the first place, Babb said in her response.

Rabil also argues that Carolyn Coleman, another witness in the case, gave an initial description of the shooter that did not match Hayes. He said she also described the shooter differently to police than she did in her testimony. He also argued that prosecutors never mentioned two additional shell casings that were found on the porch of the drink house, even though Jeter and Geter told investigators that Hayes fired from beside his car on the street.

The jury was only told about 12 shell casings found on the street and not the two found on the porch, Rabil said.

Babb said none of that would have changed the outcome of the trial. The jury was told that Coleman couldn’t describe the shooter specifically because at some point she ducked down in her car, she said.

Babb also said any discrepancy in Coleman’s description of the shooter was minor and that it didn’t matter that the jury was never told about a third man, Kenneth Evans, getting shot because the jury heard evidence that there were multiple shooters.

It also doesn’t matter that shell casings were found on the porch, Babb argues. Rabil said that the fact that the shell casings were found on the porch proves that Forsyth County prosecutors’ theory of the case was “impossible.”

Babb said that’s not true. The alleged murder weapon was a 9 mm handgun, which would have ejected shell casings, Babb said. Those shell casings could have landed anywhere, including the porch, even if the shooter was firing from his car, she said.

“The State wholly disputes petitioner’s allegations that it knowingly presented false evidence, knowingly allowed false evidence to go uncorrected, or knowingly created a false impression to obtain petitioner’s conviction,” Babb said.

The N.C. Court of Appeals will first have to decide whether to allow the petition. If the court decides to review the case, it could take up to a year before it issues a ruling.

Follow Michael Hewlett on Twitter @mhewlettWSJ