A Winston-Salem man who says he was wrongfully convicted of two murders in the 1990s is asking a Forsyth County judge to order new forensic testing of ballistics evidence that his attorneys say might prove his innocence.
John Robert Hayes III, 49, has spent 27 years in prison after he was convicted of fatally shooting two men — Waddell Lynn Bitting and Stephen Joel Samuels — outside an illegal drink house on East 22nd Street on July 25, 1993. He is serving two consecutive life terms on convictions of second-degree murder.
Hayes has appealed his case all the way up to the 4th Circuit of the U.S. Court of Appeals, which denied it in 2019. He has claimed through his attorneys that he is innocent and that Forsyth County prosecutors failed to turn over favorable evidence. His attorneys didn’t uncover that evidence, which includes statements from eight witnesses who identified other shooters, until 20 years after Hayes’ conviction, according to court records. Hayes also didn’t receive a key piece of evidence that his attorneys say contradicts the state’s entire theory of the case — two shell casings found by a man on the front porch of the drink house when 12 other shell casings were found either on the street or the sidewalk.
All the shell casings came from the same firearm, which was never recovered, and three witnesses told police that the shooter fired the gun from behind a car on the side of the street. Hayes’ attorneys argue that if that is true, there is no way for two of the total 14 shell casings to end up on the front porch. Hayes’ attorneys also said that all three witnesses gave trial testimony that contradicted their initial statements to police.
Forsyth County prosecutors have argued that Hayes is guilty and that the newly-discovered evidence is neither compelling nor reliable enough to overturn his conviction.
Mark Rabil and Emily Thornton, Hayes’ attorneys, filed a motion for testing on Nov. 12 in Forsyth Superior Court. Rabil is the director of the Innocence and Justice Clinic at Wake Forest University School of Law. Thornton is a staff attorney for the clinic.
They want a Forsyth County judge to order new forensic testing for the 14 shell casings and one projectile that was taken from Bitting’s body at autopsy. According to the motion, scientists can use new technology not available at the time of Hayes’ trial to pull DNA evidence and latent fingerprints from the ballistics evidence. The testing could help definitively exclude Hayes as a suspect and possibly lead investigators to the actual shooter, Rabil and Thornton said.
The ballistices evidence was never previously submitted for DNA testing, they said. Additionally, they want a Forsyth County judge to order that the ballistics evidence be submitted to a federal database called the National Integrated Ballistics Imaging Network. The database could help determine if the same firearm used to kill Bitting and Samuels was used in other crimes, according to the motion.
In a statement Wednesday, Forsyth County District Attorney Jim O’Neill said it took a jury only 38 minutes to convict Hayes of a double homicide.
“His convictions have since been upheld by state, appellate and federal courts,” O’Neill said. “Furthermore, the federal court in 2019 that reviewed these convictions found that the eyewitnesses have never expressed reluctance or uncertainty about their testimony at trial. Regardless of the courts’ repeated denials of Hayes’ motions, as prosecutors we will continue to follow and uphold the law in N.C. as directed by statute, and defend the convictions when appropriate. The murdered victims and their families in this case deserve nothing less.”
Bitting and Samuels were shot to death just after 3 a.m. on July 25, 1993, outside an illegal drink house at 910 East 22nd St. Police found Samuels’ body in front of his car, parked in the driveway of a house at 914 East 22nd St. Bitting’s body was found on the porch of a house at 922 East 22nd St.
Hayes was arrested and charged with murder three months later in October 1993. The murder weapon was never found, and there was no physical evidence that tied Hayes to the crime scene. The main evidence against Hayes was testimony from two women who said they saw Hayes go to a car, get a gun out of the trunk and start firing.
Hayes was tried and convicted in July 1994 and sentenced to two consecutive life terms.
The Forsyth County District Attorney’s Office provided the Innocence and Justice Clinic with more than 100 pages of police and lab reports from the State Bureau of Investigation between 2011 and 2012 but then stopped, saying it needed a court order to provide more evidence. On March 7, 2013, the district attorney’s office provided more than 1,000 pages of reports, photographs, a crime scene video and transcripts and recordings of 17 witness interviews.
“The evidence disclosed by the State in 2013 significantly discredited the State’s trial story,” Rabil and Thornton write in the motion.
Among the evidence turned over were accounts from eight eyewitnesses who identified the shooter as someone other than Hayes. Rabil and Thornton said many of the statements included details, names of possible suspects and potential motives.
Rabil and Thornton also said Hayes’ trial jury was never told about two shell casings found on the drink house porch by John Hamm (who has since died) who turned them over to Winston-Salem police. Prosecutors only mentioned 12 shell casings found on the street or sidewalk.
“Per SBI Lab testing, the two shell casings found on the porch were fired by the same medium caliber firearm as the other casings found on the sidewalk or in the street,” the motion said. “If Hayes fired from his car in the street, then all of the casings should have been together on or near the street.”
The two eyewitnesses who identified Hayes as the shooter — cousins Anita Jeter and Mary Geter — gave statements at trial that contradicted what they initially told police. For example, they said they never drank and only rarely went to the drink house. But Jeter worked at the drink house. They also told police that they saw Hayes fire a large-caliber gun, but it was a medium-caliber weapon that killed Bitting and Samuels.
Cynthia Coleman, another witness, told police she saw a man fire a gun but she never identified Hayes as the shooter. She gave inconsistent statements about the description of the shooter, Rabil and Thornton say in court papers. She also initially told police that the shooter fired from the porch and then later said he fired from a blue Toyota, according to the motion. Jeter and Geter also said the shooter fired from a blue Toyota.
Forsyth County prosecutors, according to the motion, also never mentioned that a third man, Kenneth Evans, was shot on July 25, 1993. Evans survived and identified someone other than Hayes as the one who shot Bitting and Samuels, the motion said.
Rabil and Thornton argue that new forensic testing is needed for the sake of justice in the case.
“With DNA testing, in light of the entire record of both trial evidence and the exculpatory information disclosed two decades later, there is a reasonable probability that the jury would have reached a favorable verdict for Hayes,” they argue.
A date for a hearing on the motion has not yet been set.