Opposition Brief — Steward v. Virginia

TABLE OF CONTENTS

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Law AND ARGUMENT:

1. Did The Commonwealth Suppress Evidence Favorable To

The Defendant So As To Deny The Defendant Due Process

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2. Was The Evidence Sufficient To Support The Verdict And

as oe wee Gamer 6

3. Was Improper And Prejudicial Evidence Presented To The

Trial Court During Sentencing Proceedings In Violation

Of Defendant’s Due Process Rights? —..0000000000..2..eeeeee 6

I 10

RESET LN RED 10

APPENDIX

TABLE OF CITATIONS

Cases

Brady v. Maryland, 373 U.S. 83. 10 L.Ed.2d 215, 83 S.Ct. 1194

chic dchd cenit doen 5

Clarke v. Burke, +40 F.2d 853 (7th Cir. 1971) 000000. 5

Giglio v. United States, ... U.S. ....., 31 L.Ed.2d 104, 92 S.Ct.

II retestrebinbeenh acini cians hsicceceassinconneintniraascnncoeostsniinincnendios 5

Grayson v. Harris, 267 U.S. 352, 69 L.Ed. 652, 45 S.Ct. 317

eects bettie bosiscobsishesccpeaasaieleetisaiawntian 6

Klingstein v. United States, 217 F.2d 711 (4th Cir. 1954) 8

ALLIS Og LALO OREN Ce Ree Taam

Page

Linton v. Commonwealth, 192 Va. 437, 65 S.E.2d 534 (1951) ... 8

McClain v. Commonwealth, 189 Va. 847, 55 S.E.2d 49 (1949) _ 8

Taylor v. United States, 179 F.2d 640, cert. den. 339 U.S. 988,

94 L.Ed. 1389, 70 S.Ct. 1010 (9th Cir. 1950) -202 0 o. 8

Thayer v. Spratt, 189 U.S. 346, 47 L.Ed. 845, 23 S.Ct. 576

ERD soscesttane since eacaionehilineneddiehdameccasauiiansdaeheciitdinaeiligimteen.. 6

United States v. Chewuing, 458 F.2d 381 (9th Cir. 1972) 000... 8

United States v. Cole, 449 F.2d 194 (8th Cir. 1971) 00. 5

United States v. Cole, 453 F.2d 902 (8th Cir. 1972) 20000... 5

United States v. Hill, 455 F.2d 504 (9th Cir. 1972) 0022. 5

United States v. Randolph, 456 F.2d 132 (3rd Cir. 1972) 2000000000... 5

United States v. Trainer, 423 F.2d 263 (1st Cir. 1970) -220000000000..... 5

United States v. Weston, 448 F.2d 626 (9th Cir. 1971) 00000000... 8

Williams v. New York, 337 U.S 241, 93 L.Ed. 1337, 69 S.Ct.

1079 (1949), reh. den. 337 U.S. 961, 93 L.Ed. 1760, 69

S.Ct. 1529, 338 U.S. 841, 94 L.Ed. 514, 70 S.Ct. 34 ooo... 8, 9

Williams v. Oklahoma, 358 U.S. 576, 3 L.Ed.2d 516, 79 S.Ct.

421 (1959), reh. den. 359 U.S. 956, 3 L.Ed.2d 763, 79

PIE “ic tcatinidiukocch utaaeid deancssai ateiisticceaenoacins Aamir 8

Statute

§ 53-278.1, Code of Virginia (1950) .....................-.c.cscsccsscssssecsceserees 7

Supreme Court of the United States

October Term, 1971

No. 72-171

LAWRENCE STEWARD,

Petitioner,

¥.

COMMONWEALTH OF VIRGINIA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

To the Honorable Chief Justice and Associate Justices of the

Supreme Court of the United States:

The respondent, the Commonwealth of Virginia, respect-

fully submits the following brief in opposition to the

granting of a writ of certiorari in the above matter. The

parties will be referred herein by their respective positions

in the trial court, i.e.. defendant and Commonwealth.

QUESTIONS PRESENTED

_ The Commonwealth will restate the questions presented

inorder to remove from them statements of arguable facts:

1. Did the Commonwealth suppress evidence favorable

2

to the defendant so as to deny the defendant due process of

law?

2. Was the evidence sufficient to support the verdict and

judgment of the trial court ?

3. Was improper and prejudicial evidence presented to

the trial court during sentencing proceedings in violation

of defendant’s due process rights ?

STATEMENT OF THE CASE

The “Statement of the Case” set out in defendant’s brief

is substantially correct. However, the Commonwealth will

briefly review and highlight the pertinent facts in order

to more accurately present the facts as they appeared before

the trial court.

Defendant was indicted for the murder of Warren

Thomas Woodward, a sailor stationed in Norfolk, Virginia.

The assault, which resulted in the death of Woodward, took

place on the sidewalk of Hampton Boulevard in Norfolk in

the evening hours of September 28, 1970. Death was caused

by a blow or blows to the head.

An eyewitness to the incident, Mrs. Cathon, testified

that she was driving on Hampton Boulevard when she

observed a sailor being beaten by two men. He was being

kicked in the back and head, and his head was “being

stomped on.” (Tr., p. 34). She stopped her car, got out, and

walked towards the sailor, when the defendant turned

around and looked at her. He then alerted his co-defendant

that she was coming, and they ran off. (Tr., p. 35).

Mrs. Cathon positively identified the defendant as one of

the ones doing the beating. (Tr., pp. 33, 35, 38, 39, 40).

She also stated that both of the persons were doing the

beating simulianeously. (Tr., p. 37). Defendant attempts

to dispute this positive identification with the statement that

en -

a CREE GRA Ba ASN NAN EGR ATE PT ce

3

his identification was somewhat qualified on cross-examina-

tion. A close reading of Mrs. Cathon’s cross-examination

shows that her identification was not positive as to the co-

defendant, Brooks, but was positive as to the defendant.

(Tr., pp. 45-49).

The second key witness for the Commonwealth was a

Mrs. Bonney who lived near the scene and who was an

acquaintance of the defendant. She testified that on the day

in question, the defendant and Brooks were staying at her

house where she lived with another woman. They were

visiting in Norfolk from their home in New York.

On the night of the assault, the defendant and Brooks

returned to the house after having been out all day. In a

resulting conversation between the four of them, the two

men were describing between themselves how they had beat

some white man. (Tr., p. 71). They said that they had just

killed some “Honky,” and both of them indicated that they

thought they had some of his brains on their shoes. They

indicated that they had beaten him because he was white.

The defendant and Brooks are black. They said they had

beaten this white sailor on Hampton Boulevard, and that

they had stomped him and kicked him and beat him. (Tr.,

p.72).

Defendant describes this witness as a “young girl”; how-

ever, young woman would be more accurate. Although she

never testified as to her age, she had four children. Further,

her testimony was very straightforward and unequivocal

and was not shaken on cross-examination. She also described

Brooks as wild-eyed, but not Steward, and did not testify

that they were drunk.

Any further discussion of facts, as they specifically relate

to the questions raised by the defendant, wiil be set out in

the Law and Argument to follow.

4

LAW AND ARGUMENT

1.

Did The Commonwealth Suppress Evidence Favorable To The

Defendant So As To Deny The Defendant Due Process Of Law?

There were two young girls, Cynthia and Glenda Vines,

who were eyewitnesses to the crime, but who were not

called by the Commonwealth. On cross-examination of one

of the investigating police officers, it was brought out that

these girls had been shown photographs of the defendant

and Brooks and had identified Brooks, but not the de-

fendant. Defendant claims that this was a suppression of

evidence favorable to the defendant and deprived him of

his Constitutional rights to due process.

Initially, it should be pointed out that the evidence was

not “suppressed” since it came out at trial and was before

the trial court. Secondly, the evidence was not a “secret”

withheld by the police or the prosecutor, because it had

become public record at the trial of the co-defendant, Brooks,

which was held on January 15, 1971, three months prior

to defendant’s trial.

The Commonwealth will include as an appendix to this

brief excerpts from the transcript of the trial of Brooks

which fully explore the showing of the pictures to the girls

and the extent of their identification. The fact of the

identifications made by these girls, and that they had been

witnesses, was fully explored in Brooks’ trial, and therefore

was a matter of public record. Although the Commonwealth

has no way of knowing whether defendant’s counsel at-

tended the trial of Brooks, it seems inconceivable that he

would not, considering that Brooks was a co-defendant.

Certainly the defendant cannot complain of any “surprise”

under these circumstances.

Finally, the Commonwealth submits that the evidence that

TREE TY FM LR ARE SIRI LE OE ET

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was allegedly “suppressed” was not such as to materially

affect the outcome of the trial if it had been known to the

defendant sooner. Certainly, its actual effect on the trial

was negligible, since the fact that the girls had not identified

the defendant was before the Court, and did not detract

from the otherwise overwhelming evidence of guilt of the

defendant.

Certainly the leading case relating to suppression of

evidence is Brady v. Maryland, 373 U.S. 83, 10 L.Ed:2d

215, 83 S.Ct. 1194 (1963), a case which has been fo.lowed,

construed, and distinguished by numerous lower court deci-

sions. Under the Brady rule, there must be a failure of the

prosecution to disclose exculpatory information at the trial,

not necessarily prior thereto. It does not require pre-trial

discovery. United States v. Cole, 453 F.2d 902 (8th Cir.

1972) ; United States v. Cole, 449 F.2d 194 (8th Cir. 1971);

United States v. Trainer, 423 F.2d 263 (1st Cir. 1970).

Further, the evidence suppressed must be exculpatory or

materially aid the defense. United States v. Randolph, 456

F.2d 132 (3rd Cir. 1972); United States v. Hill, 455 F.2d

504 (9th Cir. 1972) ; Clarke v. Burke, 440 F.2d 853 (7th Cir.

1971); Giglio v. United States, ...... BPR wissns 31 L.Ed.2d

104, 92 S.Ct. ...... (1972). As stated in Giglio, supra, “we

do not, however, automatically require a new trial whenever

the combing of the prosecutor’s files after trial has disclosed

evidence possibly useful to the defense but not likely to have

changed the verdict.”

In the instant case, not only was there in fact no “sup-

pression” of any evidence, but the evidence in question would

not have been material to the defendant’s case, since the

record of the trial of the co-defendant Brooks show that the

girls did not identify the defendant because they were never

in a position to see his face. Certainly there has been no

showing of a denial of due process of law.

6

2.

Was The Evidence Sufficient To Support The

Verdict And Judgment Of The Trial Court?

This assignment of error by the defendant is essentially

a simple question of sufficiency of the evidence, which is

not a Federal constitutional question and therefore not a

proper ground for granting certiorari. Thayer v. Spratt,

189 U.S. 346, 47 L.Ed. 845, 23 S.Ct. 576 (1903) ; Grayson

v. Harris, 267 U.S. 352, 69 L.Ed. 652, 45 S.Ct. 317 (1925).

Defendant has attempted to convert this into a Federal

question by asserting that the conviction is devoid of

evidentiary support. However, the facts simply do not

justify such an argument. There was ample evidence that a

murder had been committed and that the defendant had

jointly participated in it and was responsible for it.

3.

Was Improper And Prejudicial Evidence Presented To The Trial

Court During Sentencing Proceedings In Violation Of Defend.

ant’s Due Process Rights?

The Commonwealth would bring to the attention of the

Court initially that defendant's brief contains some mis-

leading, if not inaccurate assertions. First, the defendant

asserts that “emotional, inflammatory letters were read

into the record” at the sentencing hearing. The letters in

question were written to the Commonwealth's Attorney

(prosecutor ) by the father of the victim, and attempted to

describe the type of person the victim was and what he was

doing when he was killed. There was nothing therein re-

lating to the defendant, per se. and certainly nothing ex-

tremely “emotional” and “inflammatory.” Furthermore, this

same matter had already been testified to by the victim's

father during the actual trial, and was already properly in

-

7

the record. It was hearsay at the time of the presentation

of the pre-sentence report only because it was obtained by

the probation officer from the letters rather than from the

trial transcript.

Secondly, defendant asserts that he was prejudiced by

the fact that the probation officer reported that the co-

defendant Brooks had claimed that he was under the in-

fluence of drugs at the time of the assault. While this was

an opinion or conclusion of the probation officer, the basis

for that conclusion was fully set out so that the sentencing

judge could evaluate that information and form his own

conclusions. Further, this information was also a part of

the record in the trial of the co-defendant Brooks.

The procedure followed by the trial court for sentencing

was in conformity with § 53-278.1, Code of Virginia

(1950). which reads as follows:

Ҥ 53-278.1. Investigation by probation officers in

certain cases.—When a person is tried upon a felony

charge for which a semence of death or confinement

for a peried of over ten years may be imposed and

pleads guilty, or upm a plea of net guilty is tried by

the court witheut a jury »s provided by law, and is

adjudged guilty et sah charge. the court may. or on

the motion of the deton tant shall, before fixing punish-

ment or impesing senterce direct a probation officer of

such court te thereughly investigate and report upon

the history of the accused and any and all other relevant

facts, to the end that the court may be fully advised as

to the appropriate and just sentence to be imposed.

The probation officer shall present his report in open

court in the presence of the accused who shall be ad-

vised of the contents of the same and be given the right

t» cross-examine the investigating officer as to any

matter contained therein and to present any additional

facts bearing upon the matter which he may desire to

present. The report of the investigating officer shall be

filed as a part of the record in the case.”

This procedure is proper, and the introduction of addi-

tional evidence to that which was presented at the trial is

not a violation of due process. McClain v. Commonwealth,

189 Va. 847, 55 S.E.2d 49 (1949); Linton v. Common

wealth, 192 Va. 437, 65 S.E.2d 534 (1951).

It has been consistently held by this Court and lower

Federal courts that such a sentencing procedure is not

unconstitutional and is not subject to the same due process

requirements as the trial itself. Williams v. New York, 337

U.S. 241, 93 L.Ed. 1337, 69 S.Ct. 1079 (1949). reh. den

337 U.S. 961, 93 L.Ed. 1760, 69 S.Ct. 1529, 338 U.S. 841,

94 L.Ed. 514, 70 S.Ct. 34; Williams v. Oklahoma, 358 US.

576, 3 L.Ed.2d 516, 79 S.Ct. 421 (1959), reh. den. 359

U.S. 956, 3 L.Ed.2d 763. 79 S.Ct. 737; Taylor v. United

States, 179 F.2d 640, cert. den. 339 U.S. 988, 94 L.Ed. 1389,

70 S.Ct. 1010 (9th Cir. 1950) ; Klingstein v. United States,

217 F.2d 711 (4th Cir. 1954) ; United States v. Chewning,

458 F.2d 381 (9th Cir. 1972). The type of evidence and

information before the trial court in the instant case, to

which the defendant objects, was specifically approved in

Williams v. New York, supra, as stated in Williams vy.

Oklahoma, supra:

“This Court .. . held that, once the guilt of the

accused has been properly established, the sentencing

judge, in determining the kind and extent of punish-

ment to be imposed, is not restricted to evidence de-

rived from the examination and cross-examination of

witnesses in open court but may. consistently with the

Due Process Clause of the Fourteenth Amendment.

consider responsible unsworn or ‘out-of-court’ informa-

tion relative to the circumstances of the crime and to

the convicted person's life and characteristics.”

Defendant's reliance on United States v. Weston, 48 —

F.2d 626 (9h Cir. 1971) is misplaced. not ony because

———_ AO OEE EE

9

Weston is a somewhat singular exception to the line of cases

stemming from Williams v. New York, supra, but also be-

cause there is no close factual comparison between Weston

and the instant case. In Weston, the evidence introduced at

trial warranted the minimum punishment of five years, and

the trial judge so stated. However, a pre-sentence investiga-

at the sentencing hearing, contained unsworn evidence de-

tailing otherwise unverified statements to an unknown in-

former to the effect that the defendant is probably guilty

of additional and far more serious crimes. The trial judge,

admittedly taking this information into consideration, then

sentenced Mrs. Weston to fifteen years.

None of the information in question in the instant case

involved other crimes, and there is no evidence whatsoever

that the trial court judge based his sentence upon the

objected to evidence. The record in the instant case, con-

trary to the inferences in defendant's brief, does not show

prejudice against the defendant on the part of the probation

officer. The pre-sentence report contained information favor-

able to the defendant, as well as unfavorable. It did not

contain “highly prejudicial” and “inflammatory” remarks.

as asserted by defendant, without support. Defendant has

not even shown that any of the information was untrue.

The sentence received by the defendant was justified under

the facts of the case and was not a result of any prejudice

by the judge or anyone else.

i i a iia atta, alien lt hl Aten sh eh ein saith Nine

10

CONCLUSION

For the reasons set forth herein, it is submitted that

no error, constitutional or otherwise, was committed by the

trial court or the Virginia Supreme Court, and the petition ~

for writ of certiorari should be denied.

Respectfully submitted,

ANpbREW P. MILLER

Attorney General of Virginia

| Gitrert W. Haiti

Assistant Attorney General

Supreme Court Building

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I certify that three (3) copies of the foregoing Brief in

Opposition to Petition for Writ of Certiorari in the case

of Lawrence Steward v. Commonwealth of Virginia, were

this 10th day of November, 1972. mailed to Stanley E

Sacks, Esquire. Sacks, Sacks & Tavss, 405 First & Mer-

chants National Bank Building, Norfolk, Virginia 23510.

Gitsert W. Hattru

Assistant Attorney General

Testimony of Officer McManus

Cross-Examination

[20] * * *

Mr. McLellon:

Q Taking these pictures here, this is the only connection

you had with this case, is that correct? A There and at

the Medica! Examiner’s Office, yes. sir.

Q You didn't go out and interview any witnesses? A

Yes, sir. I did.

Q Who did you interview? <A _ I interviewed Cynthia

Vines, along with Detective Everett.

Q Whoelse? A_ Glenda Vincs.

Q Whoelse did you interview? A _ Just those two.

Q The only connection with the case were these pictures

and interviewing Cynthia and Glenda Vines? A_ Yes, sir.

[21] Q Where did you interview them? A_ Their

home at 1010 West 42nd Street.

Q 42ndStreet? A_ Yes, sir.

Q Don't they live on 26th Street? A They lived on

42nd Street at that time.

Q Did you show them any photographs? A Yes, I

did.

Q Did you show them any of the defendant. here? A

Yes, sir.

Q How many others? A_ I believe there was a half

dozen in all, but I don’t have the envelope.

Q Are these girls here today? A _ Far as I know, yes,

sir.

SO IE SRE ry 4 el ee . te & . a

App. 2

Mr. Campbell: They are here.

(Mr. Dills presented envelope to the witness. )

Mr. McLellon:

Q What is their race? A _ I showed them eight photo-

graphs.

Q What is the race of Glenda and Cynthia Vines? A

They are Negro.

Mr. McLellon: That is all | have, your Honor please.

* * *

[22] By Mr. Dills:

QI have just a few questions, Detective McManus.

(Mr. Dills presented envelope to Mr. McLellon. )

Mr. Dills: Your Honor, we ask that this package of

eight pictures, we just ask it be marked Commonwealth's

Exhibit C8.

Mr. McLellon: You are just marking, not putting them

in?

Mr. Dills: This is for the purpose of identification, at

this point.

( Envelope marked by the Court. )

Mr. Dills:

Q Detective, I show you C8 and ask if you can identify

that? A These are the photographs that Detective Ever-

ett and myself showed to Glenda and Cynthia Vines.

Q Is that at 1010 42nd Street? A No, sir. I showed

them to them on 27th Street. I don’t know the number off-

hand, but it was on West 27th Street at another home.

Q How many pictures appear there? How many pic-

turesarethere? A Eight photographs.

os,"

rey

~~

App. 3

Q Are these the eight you showed the two girls at that

time? [23] A That is correct.

Q Allright, sir.

Mr. Dills: I’m going to offer them in evidence at this

time.

By Mr. McLellon:

© You did not show these girls any pictures of a man

by the name of Steward, did you? A_ I believe he was

included in there.

Q Were these girls supposed to have been at the scene?

A They were in the Drive-In restaurant. It’s a hamburger

place, directly across the street from where the offense

allegedly occurred.

Q You were asking the girls if they could identify any

of the men in connection with the alleged killing, is that

right? A That’s correct.

Q When did the killing occur? What was the date of it?

A It was on the 28th of September.

Q I notice these pictures that you have here of both

Steward and Brooks have the date of the alleged killing on

there, don't they? A I’mnot certain.

[24] Q You are not certain? A_ I’m not certain of

the date on there.

(2 These pictures of these various men, one says August

17th of 1968. A_ I’m not certain of the dates the photo-

graphs were taken.

Q Still, you have an alleged crime committed and you

have a date on a picture. Don’t you think that is of a little

significance ?

Po. SR aw

App. 4

Mr. Dills: I have simply offered them in evidence. I don’t

know I have turned the witness over to Mr. McLellon. If

there is any objection, I would like to know.

Mr. McLellon: We want to—

Mr. Dills: Is there an objection?

Mr. McLellon: Are you offering them at this time?

Mr. Dills : That’s right.

Mr. McLellon: Do you have further examination of him?

Mr. Dills: I don’t have to answer that.

Mr. McLellon: Concerning the offering in evidence. |

think I can go into the photographs. Whether or not they

would be of benefit to the Court.

The Court : Have you completed your examination?

[25] Mr. Dills: Yes, sir.

The Court: You can go ahead and examine.

Mr. McLellon: Your Honor, please, I might say this

picture here has some notations on the back right here, which

I think would make it inadmissible.

Mr. Dills: Is Mr. McLellon testifying, Judge, or is he

going to let the witness answer the question?

Mr. McLellon: I'm pointing something out to the Court.

Mr. Dills: You'll have to be a witness, Mr. McLellon.

The Court: You can examine the witness.

Mr. McLellon:

Q I believe from your notation, you showed these to

these girls on October 7th, is that correct? A Yes, if that

is what is written on the back of that photograph, that is

correct.

—— —- -

OO a ee ee ee ee SS

App. 5

Mr. McLellon: Your Honor, I would object to these pic-

tures being admitted in evidence. I think especially the

photograph of Brooks, here, which has some notations on

the back, and I think it would be inadmissible. I don’t think ~

it should be gotten in before any jury and | don’t think it

{|26] should be gotten in before your Honor. I think also,

your Honor, the dates on these photographs here of both

Steward and Brooks, that it would be suggestive to a person

to make an identification. Anybody who can read, can see

the dates on it.

Mr. Campbell: Mr. McLellon brought out from the wit-

ness that he did show these girls some pictures. We are of-

fering these only to follow up, to show what he did show

to them. We are not offering them for anything written on

them, but to show what the girls saw.

Mr. McLellon: We object.

The Court: Of course, I don’t know what is on the pic-

tures. It was mentioned there were dates on there and cer-

tain notations on the back. I don't know what the notations

are and should not go into them at this time. Your position

is there are notations on the back and they would make them

prejudicial ?

Mr. McLellon: For one thing, they put him on the stand

to identify some pictures and they say that is all. Now, they

want to go ahead and put other photographs.in evidence

and I think the Commonwealth would have realized the

notations [27] are prejudicial to the defendant and that is

why they didn’t put them in in the first place. Concerning

the dates, I think it’s suggestive to anyone to make iden-

tification.

Mr. Dills: There is no evidence they saw the dates, but

I'll clear that up.

App. 6

Mr. McLellon: If they looked at the pictures, they

wouldn’t have seen the dates ?

Mr. Dills: If I could inquire of him, we can clear it up.

The Court: You can ask him.

* * *

By Mr. Dills:

QI show you these eight pictures and ask you how you

showed them to the two girls. A I handed her this stack

of photographs and at that time, there were no notations on

the back.

Q Atthat point,that day? A That’s right.

Mr. McLellon: No names on them?

A Names, yes. Notations were made after she made

identification of the photographs. I selected the photographs

because they came as close to the defendants as I possibly

could make them.

Mr. Dills:

[28] Q Did you see them, did they look at the back

of the pictures? A No, sir. They looked through them

like this, and she did not hesitate when she came to the de-

fendant’s photograph.

Mr. Dills: All right.

By Mr. McLellon:

Q You say the names of the people were written on the

back, isthat correct? A Yes, sir.

Q And these little girls, I guess they go to school, don't

they? A Yes, sir. They did not turn the photographs

over.

App. 7

Q You are testifying they did not turn the photographs

over? A That’s correct. I stood there and handed them

to them. They looked at the face of the photograph and that

is all.

Q Toclarify this, this crime had been in the newspapers

around here? A_ Yes, sir.

Q Also the names of the people charged had been in

the newspaper? [29] A limagine so.

(2 You imagine so? Didn't you read it yourself, per-

sonally? A I don’t recall the names were in the news-

paper. I imagine they were, sir.

Q Didn't you read the articles on this? A I probably

did.

© You say you don’t remember whether the names were

inthearticles? A That's correct.

Q Did you tell them after they had looked at these

pictures, that they had made a correct identification? A

Yes, sir. I did.

Mr. McLellon: All right, Judge. That is all I have of him.

| still object to these pictures being put in evidence.

Mr. Campbell: Your Honor, maybe we can solve this

thing.

Mr. McLellon: I would object to Mr. Campbell taking

over the examination.

Mr. Campbell: I’m not taking over the examination of

any witness. I'm conferring with the Court and making ob-

jections. I think I have a right to. I’m not examining any

witness Mr. Dills has.

[30] Mr. McLellon: Are you objecting to the pictures ?

App. 8

Mr. Campbell: I'll address my comments to the Court.

There is only one picture with notations on the back other

than the name. We will be glad to eliminate the notations

and that will leave the face of the photograph with names

on the back. Some of them don’t have names on the back.

We will offer them without notations other than names on

the back.

The Court: I'm going to accept the evidence of the pic-

tures. I don’t see that is overly suggestive. It is testified

they did not see the back of the pictures and the back is going

to be blotted out. I'm going to admit it in evidence.

Mr. McLellon: We object, of course, and feel the dates on

there, that this is highly suggestive and we object. Please

note our exception.

Mr. Dills: That is all I have.

*_ * *

Testimony of Glenda Vines

[72] = 2

(Glenda Vines called to the witness stand by Mr. Camp-

bell.)

Glenda Vines, Witness called by the Commonwealth, hav-

ing been first duly sworn, was examined and testified as

follows:

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By Mr. Campbell :

Q Whatis yourname? A _ Glenda Vines.

Q I'm going to ask you to speak up loud and clear. How

oldare you? A 15.

App. 9

Q Where do you live? A 320 West 26th Street.

Q Where were you living on September 28th of last

year? A 1010 West 42nd Street.

Q 101042nd Street? [73] A Yes, sir.

Q How far is that from Rich’s hamburger place on

the corner of 42nd and Hampton? A _ About a block, I

would say.

Q Is it in the same block that Rich’s is located? A

Yes, sir.

Who were you living there with? A My mother.

Whoelse? A My brother.

How old is your brother? A 11.

How old is your sister? A 14.

What ishername? A _ Cynthia.

Do you remember what day of the week September

2thwas? A_ No, sir. 1 know it was on a Monday.

Q OnaMonday? A _ Yes, sir.

Q That Monday night, did you have occasion to go to

Rich’s hamburger place? A Yes, sir. | was going there

to buy something | 74] to eat.

Q Speakup. A_ I was going to buy something for to

eat.

Q Whowent withyou? A My sister.

Q Cynthia? A_ Yes, sir.

Q About what time did you go? A Around 8:00.

Q Atnight? A _ Yes, sir.

ooo vO DO DO

App. 10

Q While you were at Rich's, did you see anything hap-

pen on the other corner, across from Rich's? i

unusual happen? A_ Across the street from Rich's?

Q Yes, in that area. A_ I saw two people, two men

over there, and one sailor.

Q Ican't hear you. A_ I saw one sailor and two men.

Q When you saw them, where were they? When the

sailor and the two men were together, where were they? A

On the side of BeLo, you know.

Q The side of the Street BeLoison? A Uhhuh.

175] Q Now, what were they doing? A_ First they

hit him and then they started kickit§, him.

Q Who is the “they” you are talking about? Was the

sailor white or Negro? A He was white.

Q Were the men—the other two men—white or Negro?

A Negro.

Q Wecan identify them that way. Were the other two

men sailors or not? A They weren't sailors.

Q The white man had on a sailor uniform? A_ Yes,

sir.

Q Who was beating who? A Both of them was

beating him up.

Q Beatingwhoup? A _ Thesailor.

- QQ How were they going about it? Explain it the best

youcan. A They were kicking him in the head.

Q Was the sailor standing up or down on the sidewalk?

A He was on the ground.

a

App. 11

Q Which one of the men was kicking? [76] A Both

of them.

Q What part of the sailor's body were they kicking? A

The head.

Q Did you see the sailor at any time when he was

standing up? A _ No, sir. I hadn't turned around then.

Q Now, the two men that were kicking him, when was

the first time you saw either one of them that night? A

| haven't never seen them before.

Q That night, when was the first time you saw them?

A They came up to Rich’s window and looked in.

Came up and looked in Rich's window? A _ Yes,

or

Q What sort of place is Rich's? How many windows

dees it have? A_ It got one big picture window you can

open and one side door. two side doors.

Q Were the doors open or closed? A They were

closed, you know. The front door was closed.

Q Was the window open or closed? A They were

closed.

Q How long before you saw the two men and the [77]

sailor together did you see the two men run over at Rich's?

A. The sailor got—no—the two men got off the bus.

© The two men? The two colored men? A_ Yes, sir.

Q They got offthe bus? A_ Yes, sir.

Q Where did they go? A They came across the

strect.

Q They got off on the other side of Hampton Boulevard

App. 12

from Rich’s and came across the street to Rich’s A Yes,

sir.

Q Didthey come inside? -A Uhuh.

Q How far were you from them when they were at

Rich’s? A_ I was close up to the window and they came

up close.

Q Then what did they do? A _ They just looked in.

One looked in.

Q Can you identify the person in this courtroom who

looked in?

Mr. McLellon: I think we are going to have a question as

to this identity now, and I would object to any type question

as to identification. |78] Your Honor heard the police officer

say he went to see this girl, and after showing the pictures

he told her it was a correct identification. This influences

this girl and J object to any type identification being made.

The Court: The test is going to be on what does she base

her identification today.

Mr. McLellon: Of course. it’s something at this time.

The fact of a police officer, a detective, telling a—what is

she about a 14 or 15 year old girl—that this is a correct

identification, that these are the men that did it. This can-

not help but influence a person and for that reason, I would

object to any type identification being made by this girl.

The Court: As I said, I'm going to let him question her

and I’m going to let you question her and the test is going

to be whether her identification has been so tainted that her

identification cannot be entered in evidence.

Mr. McLellon: I know, as your Honor knows, there are

many things we know are wrong that are legally not wrong

eat

App. 13

and people are influenced by certain things. Take jurors, you

hear the stories about things they tell you later they thought

was [79] important and wasn’t important. We know many

things influence a person that they would never admit in-

fluenced them. With the fact the police officer previously

told the girl her identification was correct, this would taint

it and I can’t possibly see any way that it could help but be

tainted.

The Court: I'm going to see what the evidence presents.

All right.

Mr. Campbell :

Q Can you identify the person that looked in, in this

courtroom today? A Yes, sir.

Q Would you point to that person, if you can? A

( Witness pointed to the defendant )

Mr. Campbell: The record will show she is pointing at

the defendant.

Mr. McLellon: Note our exception to it.

The Court: Yes, sir.

Mr. Campbell :

Q What type clothing was the defendant—the one who

looked in—wearing? A Fur coat.

Q After he looked in, where did he go? A They went

back down that way by BeLo’s way, [80] by the bus stop.

Q Who was at the bus stop? A The sailor was com-

ing, you know, from BeLo way, up to the bus stop.

Q Coming from the direction of BelLo’s? A Yes, sir.

~

() Where did the three of them meet? A Out there

in front of the whiskey store.

App. 14

Q What was the first thing that was done? A_ First]

know, they were hitting him and he fell on the ground.

Q Did you hear anybody say anything? A _ No, sir.

Q Anyofthethreeofthem? A _ No,sir.

Q Which one hit first? A_ I don’t know, but I know

both of them hit him.

Q Bothofthemhit who? A_ Hit the sailor.

Q What did the sailor do? A _ He fell on the ground.

Q Did the sailor ever hitthem? A _ No, sir.

Q Did yousee himtry tohitthem? A _ No, sir.

[81] Q After he fell on the ground, did he ever get

up? A Hetried to. He tried to get up and get his hat.

(9 What happened? A_ They knocked him back down

and started kicking him.

Q Which one was kicking? A The one in the fur

coat.

Q What kind of coat did the other one have on? A

A leather coat.

Q What did the one in the leather coat do? A He

was just standing up there and then they started running

across the street when the man came out of Rich's.

Q What mancame out of where? A_ Rich’s.

Q What did that man do? A He came over and

looked at the man.

(2 Where was the man from Rich's when the two men

ran? A_ He was inside.

@ Then whai did he do? A Then he went back in

App. 15

and called the police and the other man came up and that’s

when the lady pulled over [82] in the car.

Q The lady pulled upinthtcar? A Yes.

Q A white lady or a Negro lady? A White lady,

with children.

Q Didyouseeherhere? A Yes.

Q When the two men ran from where the sailor was,

where did they go? A They ran across the street and

went on 40th Street.

Q On40th Street? A Yes, sir.

(Q Does that mean they had to go down Hampton Boule-

varda little ways? A No, sir.

Q You were at 42nd Street, weren't you? A Uh huh.

Q How did they get to 40th Street? A Because the

next corner when they got across the street is 40th Street,

because a church— Q_ They ran to the next corner and

goton 40th Street? A Yes, sir.

Q Did you keep them in sight or did you lose [83]

sightof them? A Ther they came back.

Q Did youever lose sight of them? A No, sir.

Q Where did they go on 40th Street? A They went

on 40th Street. I didn’t see them when they went on 40th

Street.

Q That's why | asked did you lose sight of them. Did

vou understand what I meant? <A_ | lost sight of them.

© How long before you saw them again, was it, ap-

proximately? A Until the police came.

Q No. How long was it until you saw them again? Can

"7

you tell us in minutes, about? A It was a minute when

they came back.

App. 16

Q Where did you see them come from? A They were

coming from 40th Street.

Q Where did they go? A 42nd, down the other end.

Q How did they get from 40th Street to 42nd? A

They were walking.

Q On what street were they walking? A They were

walking on the sidewalk, the other side of Hampton Boule-

vard.

[84] Q You saw them walking from 40th to 42nd

Street? A Yes.

Q What were they doing? A They won't doing

nothing. They was just walking together.

(J When they got to 42nd Street, what happened? A

I didn’t see them then, because it was real dark on 42nd

Street.

Q Where were they the last time you saw them? The

last time that night you saw them?, A They were going

back down 42nd Street. I didn’t see them no more then.

Q Were they walking or how ?

~

Mr. McLellon: Your Honor please, she already said they

were walking.

A They were walking.

Q How far did they get from Hampton Boulevard be-

fore you lost sight of them on 42nd Street? A T hey were

running across Hampton Boulevard.

Q Pardon? A_ They ran across Hampton Boulevard,

got on the other side and went on 40th Street.

App. 17

Q After they left 40th Street, what did they do? A

They was on the other side of Hampton Boulevard and

were walking about, going down 42nd.

[85] Q Tell what else happened? A_ I ain’t seen

them because it was real dark on 42nd Street. They got

way down.

Q Did you see them any more that night? A No, sir.

Q You say you identify this man as being the one in

the fur coat ? Were you ever able to identify the other man?

A No,sir.

Q Did the police come to you and talk to you about

this? A No, sir, but two detectives came to our house.

Q Do you know how long after that night they came to

your house? A They came the next day.

Q Were you shownany pictures? A Yes, sir.

Q Do you know how many pictures you were shown?

A I think around eight of them.

Q Were they all Negroes or some white and some

Negro,or what?) A They were all Negro.

(2 How many of those pictured did you identify as being

one of the men there? A Just one.

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Cross-Examination

(90] * * &

Q Did the police officer show you that picture? A

Yes, sir.

Q He didn’t ask you whether he was one of the men

got off the bus that was there? A No, sir.

App. 18

Q Did he ask you if you could identify the men? A

Q You didn’t pick that man out, did you? A_ Yes, sir.

Q You picked that manout? A Uhhuh.

Q You told the officer that man is one of the men that

got off the bus at Rich’s? [91] A Yes, sir.

Q You told the police officer that? A Yes, sir.

Q Which police officer did you talk to? A_ I didn’t

talk to a police officer. It was two detectives.

Q Were both of them with you at the same time? A

Yes, sir.

Q They stuckright withyou? A_ Yes, sir.

Q Each of them heard everything you said, is that

right? A Yes, sir.

Mr. McLellon: Do you have Detective McManus on call?

I think he is the one testified he went by to see the girl.

Mr. Campbell: Uh huh.

Mr. McLellon: We would like him produced, your Honor.

If he is on duty, he could be told to come back over so we

could clarify this.

Mr. McLellon:

Q Now, let me ask you, was your sister, Cynthia, there

at the same time they showed you these pictures? A _ Yes,

sir. They showed us together.

Q Did your sister, Cynthia, tell the police [92] officer -

this man was the one at Rich’s? A _ Yes, sir.

Q_ She told the police officers that also? A We ain't

talked to no police officer.

App. 19

Q Imeanthe detectives. A Yes, sir.

Mr. McLellon: Judge, I would like the record to show

that the—

Q This is the photo I showed you right here, correct?

A. Yes, sir.

Mr. McLellon: Judge, this is the one with 62003. I be-

lieve the men shown on the photographs have different

numbers in the little plates and I think 62003 is the one we

are talking about.

Q Let's get this straight. You told the police officer

this was oneofthemen? A_ Yes, sir.

Q Did the police officer tell you you made a correct

identification? A Yes, sir.

Q This made you feel good, didn’t it? A Kind of.

Q Let me ask you this. Did your sister identify [93]

this picture? A Yes, sir. It was this one.

Q This one she identified, and not the other one? A

Yes, sir. They look alike.

Q They lookalike, yousay? A _ Yes, sir.

Q Are they the same people? Is this the same one I

showed youa minuteago? A _ No, sir.

Q Did your sister identify thisone? A Yes, sir.

Q Did you identify thisone? A Yes, sir. It was that

_ one. I thought it was that one there.

Q Youthought it was the other one? A_ It looked just

like him.

Q It looked just like him?

RFE ERE ORRIN

-_

App. 20

Mr. Campbell: I will ask Mr. McLellon to identify which

picture he is talking about.

Mr. McLellon:

Q This is the picture I just showed you? A No, sir.

Q This isn’t the picture I just showed you?

Mr. Campbell: Objection. I object to him yelling at this

fifteen-year-old girl.

[94] The Court: I think we should have subject num-

bers to the pictures.

Mr. McLellon: 62005 is the one I showed.

Mr. Campbell: I’m asking which picture he showed her

when. I don’t know what picture he is talking about. Identify

them as you show them, please.

Mr. McLellon:

Q You say these two men here look alike? A Yes, sir,

Q_ They do look alike? Which one did you identify? A

This one.

( You are pointing to the one with 62005 on it, is that

correct? A Yes, sir.

Q When I asked you while ago did you think this was

the one, I was talking about the one with 62003. Did you

think he was the one being tried today? A No, sir.

Q Why did you say you identified that picture? Did you

feel 62003 was involved in this? A No, sir. It looked just

like the one they were showing us.

Q What do you mean “it looked like the ones [95] they

were showing”? Let me ask you this. Was this man here,

62003, one of the men that looked in the window? A No,

sir.

. apr wt 5

App. 21

Q It was not? Want to read the name on the back of

that picture? A “Steward.”

Q You say Steward was not one of the men involved

in this, is that correct? A I ain't saying, but I didn’t see

him.

Q You looked right in the faces of the men who looked

in the window, correct? A One face. One turned around.

Q You looked at one face? Didn't you tell us you saw

them get off a bus and come across the street? A Yes,

sir, but I was in Rich’s.

( You didn’t pay attention to them, did you? AI

was paying some attention.

Q Youare not telling the Court you saw the men out of

Rich’s and watched them walk down the street, are you?

You were interested in your hamburgers. A No, sir. I

was looking out the window.

Q You want to tell the police you watched these men

particularly get off the bus, leok in the window, and walk

down the street to where the sailor was? Is that what you

told the police? [96] A Yes, sir. 1 told.

Q No question this one with Steward on the back was

not one of the men?

Mr. Campbell: He asked her three or four times and she

never said that, and I object to him using that method on

this young girl.

Mr. McLellon: I believe she has said it.

The Court: She said she saw one face that looked in

Rich’s, She didn’t say he wasn’t the other person. She said

she saw one face that looked in Rich's.

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