D. The 1998 Evidentiary Hearing
Counsel for Mr. Smith also presented
the following witnesses: Chiquita Lowe; Jeffrey Walsh; Andrew
Washor; and Judge William Dimitrouleas. Ms. Lowe again testified
that in 1989 she was shown a picture of a man whom she recognized
as the man she saw on the street the night of Shandra Whitehead's
murder (1998 trans 79-82). Ms. Lowe identified the picture she
was shown in 1989; it is a booking photo of Eddie Lee Mosley
(Defense Exhibit 1).
Ms. Lowe explained why she identified
Mr. Smith at his trial as the man she saw near the victim's house
on the night of the crime. Ms. Lowe was a teenager at the time
of Mr. Smith's trial who knew the victim's family and wanted
to assist the police in solving the crime. She explained:
I was under a lot of pressure,
a whole lot of pressure. I was scared, nervous, young. I just
was under a lot of pressure. It hurted me because I know a little
girl got killed, I know the family, and it just hurted me seriously,
just hurted me. It hurts talking about it.
(1998 trans 66). Ms. Lowe explained:
"I knew a bad thing happened and I feel that I had to do
something about it in my heart." (1998 trans 145). Ms. Lowe
also explained that she felt pressured by the community:
Q You said the people in the
neighborhood --
A Neighborhood. They just afraid
to have that person on the street again so they can go over again,
something else can happen to somebody else little girl. They
wanted him off the street.
(1998 trans 72-73).
In addition to pressure from
the community, Ms. Lowe testified that she was pressured by Detectives
Scheff and Amabile to cooperate with their investigation. Ms.
Lowe testified that the police attempted to influence her when
she looked at the first photo line-up. Ms. Lowe testified that
the police "kept pointing at [James Freeman's photo] and
talking about it" and "kept on telling me is Freeman
the one who did it, because Freeman known of doing that to little
girls." (1998 trans 57). The police used the same suggestive
tactics when they showed her the line-up including Mr. Smith's
picture:
They showed me the second [line-up]
and I looked at them and they say -- I'm not certain which number
he said but I know it was a number with Frank Lee face on it.
I'm just saying, for instance, say number two.
They said this is the one that
Shandra mother said and Gerald said this is the one, Frank Lee.
This is who did it. This is the one that we have to get off the
street because he hurt little girls.
And he just kept on pointing
to the picture and telling me that this is the one, we have to
get him off the street.
THE COURT: Who's saying that?
THE WITNESS: The two police officers.
THE COURT: Scheff and somebody
else?
THE WITNESS: Yes.
THE COURT: Did you know him beforehand,
Frank Lee Smith?
THE WITNESS: I never laid eyes
on him.
. . .
THE COURT: They said to you that
he was the one that did this homicide?
THE WITNESS: They said he the
one that did it.
(1998 trans 58-59). Ms. Lowe
testified that the police told her that Ms. McGriff and Mr. Davis
had already identified Mr. Smith as the man they saw on the night
of the murder (1998 trans 75). Ms. Lowe believed what the police
told her about the other witnesses (1998 trans 76).
Ms. Lowe explained on cross-examination
that she would not have chosen Mr. Smith from the photo line-up
if not for police coercion:
Q Okay. Do you recall picking
out number two?
A They was pointing number two
out to me.
Q They were pointing number two
out to you? Have you ever testified in any court of law that
Detectives Scheff and Amabile and/or Amabile told you to pick
out number two?
A They kept on pointing at that
one saying this is the one.
Q At the time you made the selection?
A What selection?
Q At the time that you did this
photo lineup, originally did this photo lineup?
A They brought these pictures
to me and they kept pointing at number two telling me that this
is the one, this is the one.
Q Okay.
THE COURT: So in other words,
you're saying the only reason you pointed out number two is because
they kept saying this is the one, this is the one?
THE WITNESS: Uh-huh.
THE COURT: You're saying but
for them saying that to you, you would not have picked out number
two?
THE WITNESS: No, I wouldn't have
picked number two out.
THE COURT: You wouldn't have?
THE WITNESS: I wouldn't have
picked none of those that he just showed me. I wouldn't have
picked none of them.
(1998 trans 106-08). Ms. Lowe
admitted that she swore under oath that the police had not pressured
her; she explained why she made that statement: "I had to
say it." (1998 trans 116).
The same pressure was exerted
upon Ms. Lowe at the time of Mr. Smith's trial:
Both of the police officers told
me that go in there and tell the truth. We captured the person
that did this to this little girl here and he needs to be off
the street.
Mr. D told me that he would not
harm me, that everybody was going to be around in the courtroom
and he cannot do anything to you. Just go in there and just tell
the truth.
And they kept on saying this
person here is bad, he need to be off the street, and just go
in there and just tell the truth. They just kept on telling me
that over and over and over and over again.
(1998 trans 69). Ms. Lowe testified
that she was afraid to go into the courtroom because "[t]hey
said they captured the person that killed that little girl, and
I was afraid to go in the courtroom on account of death . . .
. and looking at the person in there in their face knowing that
they did an awful crime like that." (1998 trans 152).
However, when Ms. Lowe saw Mr.
Smith in court at his trial, she knew that he was not the man
she saw on the night of the murder. Ms. Lowe explained that when
she saw Mr. Smith in court at his trial, it was the first time
she had seen him live (1998 trans 71). She realized that he was
too thin and did not have the droopy eye that both she and Mr.
Davis saw on the night of the murder (1998 trans 70). Ms. Lowe
explained why she identified Mr. Smith despite her realization
that he was the wrong man:
Q Okay. Now, earlier you said
-- Well, why did you point to [Mr. Smith] and say he was the
man you saw when you were in court?
A I was under a lot of pressure,
other people in the neighborhood, what they were saying. `Um,
I was very hurt because I know how the mother feel, how the mama
had been under a lot of stress and she was hurt.
(1998 trans 72). Ms. Lowe's testimony
on recross was consistent about the pressure that caused her
to identify Mr. Smith at his trial:
Q You had no hesitation in pointing
him out and saying that's the man I saw on April 14th, 1985?
A The police told me that Miss
Dorothy and Gerald say that is the man and I went ahead and said
also because they said the man needed to be off the street and
he hurt that little girl and that was him.
(1998 trans 161).
Ms. Lowe testified that the first
time she saw a picture of Eddie Lee Mosley was 1989 when Jeff
Walsh visited her. She also testified consistently with her trial
testimony that she was shown two photo line-ups: one including
a picture of James Freeman and the other including a picture
of Frank Lee Smith.
In response to Ms. Lowe's testimony
identifying Eddie Lee Mosley as the man she saw on the night
of the crime, the State presented Detective Richard Scheff and
Dorothy McGriff. Detective Scheff testified that he and Detective
Amabile considered Eddie Lee Mosley a suspect in this case "because
he was notorious for committing crimes of violence in the area"
and that "simply in an abundance of caution I considered
him a suspect." (1998 trans 349). Detective Scheff testified
that he showed a photo line-up of Eddie Lee Mosley to Ms. Lowe,
Ms. McGriff, and Mr. Davis (1998 trans 349-50). He identified
the Mosley line-up and testified that the picture accurately
depicted Mosley as he appeared at the time of the Whitehead murder
(1998 trans 370). Detective Scheff explained that he encountered
Mosley in "the latter part of February of 1985" and
again during "the latter part of April of 1985 through May
and June." (1998 trans 370). According to Detective Scheff,
at that time Mosley's hair was close-cropped and his beard was
neatly trimmed (1998 trans 373).
The State's other witness at
the evidentiary hearing was Dorothy McGriff, the victim's mother.
Ms. McGriff testified that the police showed her a picture of
Eddie Lee Mosley in a line-up of six pictures and that she told
them he was her cousin (1998 trans 218). Ms. McGriff testified
that the picture of Mosley was in the same line-up that included
Mr. Smith's picture (1998 trans 219-20). On cross-examination,
Ms. McGriff admitted that at the 1991 evidentiary hearing she
testified that she saw Mosley's picture not in a line-up but
in a picture book:
Q Do you remember did they actually
show you a lineup at one point in time with about six pictures
in it? And your answer: No, there wasn't no six pictures. It
was like a photo book. Do you know -- do you know how to get
a photo book? And then the question, yes. I looked through the
book and the book -- skimmed through to look in the picture book.
(1998 trans 234). On redirect,
Ms. McGriff testified that she knows the difference between a
photo line-up and a photo book (1998 trans 236).
Detective Scheff also testified
about Eddie Lee Mosley's modus operandi and explained why he
believed Mosley's modus operandi did not match the facts of this
case:
A In all the cases that we've
been able to link to Eddie Lee Mosley - and by link I mean more
than simply just suggest that it might be Mr. Mosley - the victims
are adult female prostitutes primarily or picked up in a bar.
The sexual activity occurs outside in an open field and the manner
of death is manual strangulation without a ligature being used.
Also there is no trauma, blunt trauma.
Q And in this case you have a
--
A This case I have a child victim,
I have a ligature, I have blunt trauma, and I have sexual activity
occurring indoors.
(1998 trans 397). Detective Scheff
explained why he used a Mosley line-up in this case despite the
alleged differences in his modus operandi:
I thought Eddie Lee Mosley was
an individual that I was looking at as a suspect in two other
cases that I subsequently arrested him on. He was notorious in
the area and a decision was made simply to put his picture in
a photo lineup and see how the witnesses reacted.
This was prior to us getting
the composite. I don't think I would have even done that had
we gotten the composite first because I would have looked at
the composite and said that that's not Eddie Lee Mosley or at
least the Eddie Lee Mosley that I knew.
(1998 trans 460).
Detective Scheff was unable to
explain the inconsistency between his hearing testimony regarding
the Mosley line-up and all the other evidence in the case. In
regard to his trial testimony that he did not show a line-up
including Mosley's picture to the witnesses, Scheff explained
that he made a mistake (1998 trans 375). Detective Scheff offered
the following explanation for his failure to mention investigating
Mosley or showing the witnesses a Mosley line-up at his deposition:
Okay. I did not consider at the
time I was giving my deposition to Tom Gallagher the issue of
Eddie Lee Mosley to be one of any importance at all. I based
that on the fact that there was no link between Eddie Lee Mosley
and the murder of Shandra Whitehead.
Tenuous or not, there was no
witness, there was nothing to suggest that Eddie Lee Mosley was
a suspect in this case other than the fact that he was a notorious
person in this area.
. . .
And so I considered it a very
trivial matter. Obviously, it's taken on added importance over
the years, but at that point in time it really didn't seem to
be relevant.
(1998 trans 437-58). This answer
would suffice only if Scheff had been asked a specific question
about "relevant suspects." However, his opinion that
Mosley was irrelevant to the case does not satisfactorily explain
why he failed to mention showing the witnesses a Mosley line-up
when he was repeatedly asked whether anything else had
been done on the case. His explanation also fails to establish
any difference between Mosley and the other suspects who were
allegedly eliminated but were mentioned during his deposition.
Detective Scheff was also questioned
about his handwritten notes which include an account of the investigation
detailing the activity done each half hour (Defense Exhibit 7).
The notes do not mention showing a line-up including Eddie Lee
Mosley to Chiquita Lowe, Dorothy McGriff, and Gerald Davis (1998
trans 444). Detective Scheff's notes also do not refer to his
showing a picture book of 150 pictures to Ms. McGriff as he testified
at the 1991 hearing (1998 trans 449). The notes make no mention
of Eddie Lee Mosley at all although, as with his deposition,
they do mention other suspects who were investigated such as
James Freeman, Neely Williams, and Edwin McGriff (1998 trans
444). The notes specifically indicate that Scheff checked the
criminal histories of Edwin McGriff and James Freeman for similar
crimes (Id.). There is no similar notation that Scheff checked
Mosley's criminal background although he testified that he investigated
Mosley's criminal history and was familiar with his modus operandi
(1998 trans 445).
Detective Scheff could not adequately
explain his failure to mention the Eddie Lee Mosley line-up in
his handwritten notes, his final report, his deposition and his
trial testimony. He claimed in 1998 that Mosley was not a suspect
(1998 trans 468), while at Mr. Smith's trial he testified that
Mosley was a suspect. He offered the following explanation:
I differentiated Eddie Lee Mosley
to any of the other names that you have mentioned because the
other names that you have mentioned, there was some link; that
was somebody said, you know, the family came forward and they
were suspicious. There was some link, tenuous though it might
be, between that person, that potential suspect and the case.
In Eddie Lee Mosley's situation
there was nothing to suggest that he was the suspect other than
pure speculation on the part of the sheriff's office. And so
there was a distinct difference in the way I would characterize
him in this case, at least in my mind there was.
(1998 trans 455). This differentiation
in Detective Scheff's mind is insufficient to explain the inconsistency
between his hearing testimony that he showed a Mosley line-up
to the three witnesses and all the other evidence in the case
indicating that a Mosley line-up was never used.
Counsel for Mr. Smith presented
additional testimony contrary to Detective Scheff's hearing testimony
regarding the Mosley line-up. Mr. Smith's trial attorney, Andrew
Washor, testified that during discovery he received two photographic
line-ups -- one of Mr. Smith and one of James Freeman (1998 trans
251). Mr. Washor testified that he received nothing about Eddie
Lee Mosley during discovery (1998 trans 252, 254). Mr. Washor
was also called as a rebuttal witness after the Mosley line-up
was introduced during Detective Scheff's testimony. After examining
the Mosley line-up, Mr. Washor testified that it did not look
familiar and repeated his testimony that he did not receive a
Mosley line-up at the time of Mr. Smith's trial (1998 trans 527-28).
William Dimitrouleas, the prosecutor
on Mr. Smith's case who is now a federal district court judge,
also testified for Mr. Smith in rebuttal regarding the Mosley
line-up. Judge Dimitrouleas testified that the trial judge had
granted a defense motion requesting all photographs and photographic
line-ups used during the investigation. Judge Dimitrouleas testified
that he would have turned over all photographic line-ups used
during the investigation even if Mr. Washor had not filed a motion
specifically requesting them (1998 trans 509). Judge Dimitrouleas
examined the Mosley line-up that was produced by Detective Scheff
and testified that he had no independent recollection of ever
seeing the line-up before (1998 trans 514). He explained:
[I]t's an unusual arrangement
for a photographic line-up. I'm not saying I never saw it but
I would think that a line-up where it wasn't three across and
three across, it would be something that I might remember.
Q But you don't recall ever seeing
this?
A Never recall seeing that.
Q And in your experience the
formation of the lineup is different than your normal line-up?
A Yeah. Normally they'll have
three pictures across and three pictures on the bottom or some
other situation.
Q Two parallel lines?
A Usually that's what they have.
That's an unusual configuration that I might remember if I had
seen that before.
(1998 trans 514). Judge Dimitrouleas
testified that he would have corrected Detective Scheff's trial
testimony that there was no Mosley line-up shown to the witnesses
if he knew that Scheff was mistaken or lying (1998 trans 506-07).
Mr. Washor also testified that
the information regarding Eddie Lee Mosley that was unavailable
to him at the time of trial -- Ms. Lowe's identification, police
reports naming Mr. Mosley as a suspect, the Mosley photograph
that Ms. Lowe was shown -- would have enabled him to support
his theory that Mr. Smith was innocent. Mr. Washor was shown
a composite exhibit of police and autopsy reports from sexual
assault and murder cases in which Mr. Mosley was a suspect. He
testified that he would have used the reports to compile a reverse
William's Rule motion and to question Detectives Scheff and Amabile
about their elimination of Mr. Mosley as a suspect (1998 trans
272). In regard to the reverse Williams' Rule motion, Mr. Washor
testified that the reports revealed several details that were
similar to the facts of this case. First, Mr. Mosley approaches
people on the street, says that he is from New York and asks
the person about doing drugs with him (1998 273). This pattern
was followed by the person who approached Gerald Davis on the
night of the murder. Several of the reports identifying Mr. Mosley
as the perpetrator mention a "droopy eye." (1998 trans
274). Chiquita Lowe and Gerald Davis both included this unique
characteristic in their descriptions of the man they saw. Mr.
Washor also testified about similarities between the crimes Mosley
was suspected of and the Whitehead murder: all involved African-American
female victims who were raped or raped and murdered. Mr. Washor
also testified that the reports indicated that Mr. Mosley used
different methods to kill his victims, in contrast to Detective
Scheff's testimony that Mosley was eliminated as a suspect because
he only kills by manual strangulation. The reports show that
Mosley used different weapons (including a knife, a cane, and
a gun) and that on several occasions he strangled his victims
with a ligature. In addition to the similarity of the crimes,
the rapes and murders of which Mosley was suspected were all
committed in the same geographical location as the Whitehead
murder (1998 trans 274). Regardless of his success with a reverse
Williams' Rule motion, Mr. Washor testified that he would have
used the reports to question the detectives about the elimination
of Mr. Mosley as a suspect; if these reports had been available
to Mr. Washor, the jury would have known that Mr. Mosley was
a suspect in numerous rapes and murders in the same geographical
area as Shandra Whitehead's rape and murder.
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