ALIBI WITNESS MONIQUE RAY AND TIME-STAMPED PURCHASE RECEIPTS
Mrs. Ray stated in her affidavit and testified at the evidentiary hearing that she was off from work on Friday, March 26, 1999, in order to complete last minute preparations for a planned family trip to Disney World. (See Affidavit at Post-conviction Record ("PCR") page 158 and Federal Evidentiary Hearing Transcript ("E.H.") page ). Mrs. Ray presented a copy of her "Request for Leave From Work (PCR page 216), beginning March 26,1999, to Ray's trial attorney to verify that she was, indeed, off from work on this day and able to testify as stated.
Mrs. Ray testified that she left from home with Ray and their daughter around 8:00 a.m., on this Friday morning and dropped off some rental movies at the
The Rays then went to Best Buy department store to exchange C.D.s. The receipt for this transaction was recorded at 12:29 p.m., March 26, 1999 (See Receipt, P.C.R. page 205). The Rays then went to Wal-Mart to purchase a camera and 35 mm film, and a time-stamped store receipt also recorded this transaction at 12:56 p.m., March 26, 1999 (See Receipt at P.C.R. 205). After leaving Wal-Mart, the Rays stopped at a drive-thru for lunch and then proceeded to Mr. Ray's mother's home at
ALIBI WITNESS MS. ANTONIA WOODS
Ms. Woods states in her affidavit (P.C.R. page 156) and testified at the evidentiary hearing on December 19, 2006, that, on the morning of March 26, 1999, she was at home throughout the day, and that she was preparing to make sandwiches and snacks for her family's trip to Disney World. (
PETITIONER RAY'S TESTIMONY AND EVIDENCE
Ray's affidavit (Exhibit JJ, P.C.R. page 268-70) and testimony at the evidentiary hearing is consistent to Mrs. Ray's and Ms. Wood’s in every material respect. Ray further stated that he had wrecked his motorcycle in early January and that, on the day of the wreck, he went to
All parties submitted their affidavits under oath, and testified under oath at the evidentiary hearing, that all of the above referenced material was provided to counsel who, upon discussing these matters with the parties and reviewing the documents in corroboration, told them that he would present this defense. Counsel also clearly told the jury, on the record, that he would present a defense case-in-chief. (R. 65) However, after the State rested its case, trial counsel informed Ray and his family -- over Ray's objection -- that he would not put on a defense because he believed that Ray would be acquitted the following day.
TIME-LINE OF RAY'S ALIBI IN RELATION TO BATTS'
TESTIMONY CONCERNING THE TIME OF DEATH
The time-line aspect of Batts' testimony is severely undermined by Ray's evidence of alibi. For example, Batts testified that he met Ray at Ray's home in New Market,
A. On that Friday, it was a Friday when I came to work I had some of the guys I -- they left a message Melvin called, so I called Melvin back...
Thus Batts, according to his own testimony, could not have left his place of employment in
Moreover, Batts testified that Ray arrived at the
SUPPRESSED BALLISTICS REPORT SHOWING THAT PROJECTILE RECOVERED IN THIS CASE WAS FIRED FROM A .380 CALIBER HANDGUN, WHICH IS CONTRARY TO BATTS' TESTIMONY THAT HE SAW RAY SHOT DECEASED WITH A 9 mm
Batts testified that he saw Ray shoot the deceased by placing a gun to his head (R. 314) and that this gun was a 9 mm caliber weapon. (R. 332-33) The prosecutor withheld an exculpatory scientific ballistics report which shows that the victim was killed with a .380-auto caliber weapon. (See Ballistics Report, P.C.R. page 161) Furthermore, Batts’ testimony that Ray placed this 9 mm to the head of the deceased is inconsistent with scientific reality. The State's own witness, Dr. J.C. Upshaw Downs, testified that he had determined that the gunshot range was "distant" because of the "absence of gunpowder particles and soot on the skin surface." (R. 377) Though Ray would need assistance from an expert to present this argument, Ray directs the court's attention to Fugate v. Head, 261 F. 3d 1206 (11th Cir. 2001) where an expert explained in detail the scientific principles involved that prove that Batts was testifying falsely. Furthermore, Batts committed perjury when he denied having a deal with the State in exchange for his testimony.
NEWLY DISCOVERED EVIDENCE OF BATTS' PERJURED TESTIMONY
WHEN BATTS DENIED HAVING A DEAL WITH THE STATE IN EXCHANGE
FOR HIS TRIAL TESTIMONY AGAINST PETITIONER.
In Murray v. Carrier, 477 U.S. 478 (1986) the U.S. Supreme Court held that, in a given circumstance, impeachment evidence, by itself, can demonstrate actual innocence where it gives rise to "sufficient doubt about the validity" of a conviction. In this case, Batts gave no less than four different accounts of what he did or did not do, or did or did not know, concerning the events on March 26, 1999. (See Cross-Examination of Batts at Trial Record 394-397) In these statements, Batts either completely exonerated Ray, or gave statements that exculpated Ray.(See e.g., R. 481-484) Batts also admitted to the jury that he had lied in the past, and that a "good reason" to lie was when one was attempting to avoid responsibility for their own actions.(R. 484-486):
Q. Do you think there are good reasons to lie sometimes, Mr. Batts?
A. No, sir.
Q. But, yet, you have lied?
A. Yes, sir.
Q. And another reason to lie is not wanting to put ourselves in something and not wanting to implicate ourselves. That's another reason people typically have for lying, isn't it?
A. Yes, sir.
Q. Another reason people have for lying is just not wanting to own up to responsibility for what they have done, isn't it?
A. I guess.
Q. And that's been one of your reasons for lying about this so much, hasn't it?
A. To an extent.
Q. When you lied on all these occasions, no one would have any way to know you were telling a lie, would they?
A. No, sir.
Against this back-drop, Ray was confronted with the task of presenting evidence before the jury to show that Mr. Batts had not given up in his ways of lying. This opportunity presented itself when Batts was confronted about his motivations for testifying against Ray. During voir dire proceedings, the prosecutor had already told the jury that Batts would be testifying pursuant to a deal with the State:
R. 121: We have cut a deal with Fred Batts. He has turned state's evidence. We will call him to the stand and you will hear he will get a benefit out of doing what he is doing for us.
Also, during its opening argument to the jury, the Respondents again stated to the jury that Batts had a deal in exchange for his testimony:
R. 200: Fred Batts will tell you about the events that happened, though, that afternoon on March 26, 1999, and he will tell you that he has a deal with the State. But, members of the jury, that is conditioned on him taking the witness stand, looking at you and testifying truthfully.
These two statements by the prosecutors were the first times that Ray had been informed that the codefendant had reached a deal with the state in exchange for his testimony. But, and as the record reflects, the prosecutor never disclosed the full terms of this deal with Batts. Notwithstanding this, Ray was able to obtain a copy of the terms of this deal after trial and attached a copy of it to his petitions, which called for Batts to have his murder charge nolle-prossed in exchange for his testimony. (Motion to Nolle Pros, Exhibit L, P.C.R. 177) Yet, in spite of all of this evidence, when Batts was cross-examined, he completely denied having a deal with the State in exchange for his testimony:
R. 433: Q. I understand that's what you said here. I am saying when they were preparing you for testimony and cutting the deal with you, did you tell them that Billy Joe had given you information about the murder?
A. I didn't receive a deal,
R. 452: Q. Now, several times you said -- in fact, you said even without my asking you several times that you didn't have a deal in this case.
Is that what you kind of said during your testimony?
A. Yes, sir.
R. 457: Q. Well, you had a chance to tell the truth about the situation that day and you didn't do it, did you?
A. No, sir.
Q. And the reason you didn't is because you didn't have the kind of promise and the kind of guarantee that you needed.
Is that fair to say?
A. I haven't gotten any promise.
R. 459: Q. Let me ask you this. There are several possibilities, you agree, that could happen to your case?
A. Yes, sir.
Q. Your case could be dismissed or nolle prossed, to use the legal term. That's one possibility, isn't it?
A. I haven't went over that with anyone.
R. 461: Q. Is there any possibility that you would be here out of the goodness of your heart because you want to tell the jury what is on your soul without a deal?
A. I haven't got a deal,
In this instance, trial counsel did not object to this false testimony; Batts' attorney, who was also present (R. 290), did not object to this false testimony; and the State prosecutor did not correct this testimony that it knew to be false. And not only that, but the prosecutor repeatedly told the jury during its closing statements that Batts "told the truth about everything," (R. 667); "He came in here straight up, I submit to you, and told you the truth and he will benefit from it."(R. 670); "Think of what you remember was, was there anything he ever got trapped up on here? He told the truth in here," and "He told the truth." (R. 675). also see (R. 681, 685). Thus Ray's jury never knew that it had been lied to by a witness who had already testified that he had intentionally lied in the past :
(R. 410): BY MR. DAVIS: Mr. Batts, while you went in to talk to the investigator, was it your intent to lie or tell the truth?
Did you understand my question?
A. What was my intent?
Q. Yeah.
A. My intent, to tell him I didn't know anything about it.
Q. So you went in intending to lie?
A. Yes, sir.
As Respondents know, in
(a) No objection must be allowed to the competency of a witness because of his conviction for any crime, except perjury or subornation of perjury.
Respondents were acutely aware of the ramifications for violating Section 12-21-162 because another of their witnesses, Mr. Kenneth Friend, was excluded from the witness stand when he was caught giving perjured testimony ... for denying the existence of his deal with the State. (See Trial Record at 566-575) And, just as with Batts, the prosecutor failed to correct this perjured testimony. (Ray also discovered, post-trial, that a third witness for the State, Gene Walker, may have also committed perjury by denying a deal with the State in exchange for his testimony.) Fred Batts clearly denied having a deal with the state in exchange for his testimony, and, because the state's case relied so critically on his testimony, this evidence raises substantial doubt about the validity of Ray's conviction.
CREDIBILE PHYSICAL EVIDENCE SHOWING THAT STATE WITNESS
JOAN MOLOTSI GAVE FALSE TESTIMONY
Ray also presents credible physical evidence to refute and expose as false the testimony of Respondents' witness Ms. Joan Molotsi. Ms. Molotsi was offered by Respondents to testify, in corroboration of Batts, that at some point between 2:30 and 3:00 p.m., on March 26, 1999, she saw a "tall guy and a short guy" (R. 21-38)(Molotsi was never asked to identify the "tall guy") loading something into the trunk of a vehicle at
(R. 227): Q. Give me an estimate based on where I am standing right now. As close as I am to you right now, were you as close to that house at
A. I can see from here to that door over there, the door. (indicating)
And, Respondents contended at trial that Ms. Molotsi's view was unobstructed:
R. 262: Q. Okay. And from what you observed, was the house she was living in, was it unobstructed as far as the view of Perrion's house?
A. No obstructions.
Ray offers 'credible physical evidence" in the form of an investigative report prepared by a privately obtained investigator, Mr. Gary L. Fox, Sr. (See Investigative Report, Exhibit O at P.C.R. 191) and photos taken by Mr. Fox (P.C.R. 211-214), cast grave doubt on the validity of Molotsi's testimony and the validity of Ray's conviction. Mr. Fox visited Molotsi's then-residence of
(R. 191): I'm enclosing these pictures I took last week. They were taken from the kitchen window of the house where Ms. Molotsi was living when she said that she saw Melvin and the other Black Male (sic)(that she couldn't Identify)(yeah) If she could ID one she should have been able to ID both. I also took some pictures from the living room window and 2 or 3 from outside at street level. I have labeled each one as to where they were taken from and what they depict. As you can see, there is NO WAY she could have seen what she says she saw. I measured the distance from the front door of the house on
The evidence uncovered by Mr. Fox refutes the evidence offered by the State at trial and shows that Ms. Molotsi's view was not unobstructed, and Mr. Fox supported his findings by taking photos where Molotsi testified that she was standing. (See Photos at P.C.R. 211-214) These photos depict two large trees, each standing over 35 feet in height, totally blocking the view of
"It has been pointed out, however, that for the doctrine of physical impossibility to be applicable to the testimony of a witness, that testimony must be such that a reasonable mind must reject it as wholly impossible of belief in view of the physical evidence; mere improbability is not impossibility in terms of the doctrine under discussion.
It simply is not possible to view a rear license plate of a vehicle, backed in, from a distance of 175 feet. Just as it is impossible for a normal human being to see through two trees, each standing over thirty (30) feet. A clear indicator of the lack of veracity on the part of Molotsi can be gleamed from her account of the day/date/month of her alleged observations. The State has contended at trial that the deceased was shot and killed on Friday, March 26, 1999. (R. 295). In stark contradiction to this, Molotsi testified that the incident she was describing and was giving account of occurred on Thursday, April 22, 1999:
(R. 221): Q. (By defense counsel) Ms. Molotsi, as we sit here today, you are not exactly sure what day you saw the person that you think was Melvin Ray and this other person, are you?
A. But I know the date.
Q. What was the date?
A. The 22nd.
Q. Okay.
So you think the date was the 22nd?
A. Yes.
Q. Of what month?
A. April.
Thus, Molotsi was wrong on the day (Thursday/Friday), date (22nd vs. 26th), and month (April vs. March). The codefendant/state witness testified that there were three cars at the Rita Lane address this day: the white Dodge Stratus, plus he testified that he had driven Petitioner's gray Lexis to Rita Lane (R. 305), and that there was also a dilapidated blue Ford Mustang in the drive-way of this residence (R. 317) while Molotsi testified that she did not see any vehicle other than the white Dodge Stratus in the driveway on Rita Lane on this day:
(R. 230 ):
Q. [D]id you see any other cars parked outside that day?
A. No.
Q. No other cars.?
A. No.
Petitioner had no way of uncovering this information before trial because Respondents withheld the address and identity of Molotsi until the day she gave testimony at trial. There is also additional scientific medical evidence which suggests that asphyxia and beating -- not gunshot -- are the cause of death in this case.
