Larry Mayes

● Defendant’s DNA was not on the mask that gunman wore.

• Eyewitness
• Forensic Evidence

• Fingerprint
• Serology

• Valid

Fingerprint exclusion. The serology analyst for the first time during cross-examination agreed that all non-secretors and O secretors could have been the donor. The analyst was never asked but never offered that anyone could have been the donor, raising the question whether the problem of masking and non-quantification was properly explained to the jury, or at minimum the correct conclusion that any male could have been the semen donor. While raising a close question, the testimony was nevertheless included as valid because of statement stating agreement with question, “[Y]ou cannot say with any specificity that that is his semen?” Analyst concluded that latent print excluded the defendant.

• Cross Racial Identification
• Victim

• Lineup
• Photo array

Yes ● Hypnotized victim ● Brady – use of hypnosis not disclosed to defense – and forbidden by police department policy at the time. ● Suggestive remarks ● Victim not told attacker might not be in line-up ● Suggestive line-up – Defendant’s photo was repeated in multiple arrays – and one array included two separate photos of defendant, but single photosof the others – she was shown and “selected two (2) photographs” of Mayes, “[o]ne a side view, and one of a straight face of the same individual.”

After picking filler, victim was instructed as follows – “They told me to stop and take a good look; asked me if I wanted them to say anything, if I wanted them to turn; to really concentrate.” After “Two or three minutes” she then identified Mayes. An officer described, “I was in the room when she first came in the door. She was looking at No. 5 subject [a filler]. She said, ‘No. 5.’ Q. Anything other? A. Just No. 5. So I grabber her and I said, ‘Come on in the room, and shut the door and look at everyone and see if he is in here.’ Q. Okay. And did she look? A. She studied all five subjects and made the statement, ‘No. 4. That’s him. It looks like him. Yes, that is him.’ I asked her, ‘Are you positive, []?’ And she said, ‘Definitely, yes.’”

Yes ● Initial nonidentification – picked filler at line-up – and Brady – officer later testified in civil cases that victim’s photo array identifications were initially “tentative.” ● Discrepancies in description – age, facial hair. Did correctly describe gold tooth, which Mayes had.

Victim explained she picked filler in line-up because “I was nervous. I wanted to get it over with and get out of there.” Victim descriptions became more detailed after hypnosis. However, victim could not recall if attacker identified as Mayes had facial hair (Mayes had a mustache). Victim also described the two attackers as “young” and was asked, “Q. How young? If you could give us approximate ages? A. Early twenties. Q. Have you since had any occasion to learn the ages of Mr. Hill and Mr. Mayes? A. Yes. Q. How old is Mr. Hill? A. He is 19. Q. How about Mr. Mayes? A. 30,” something.”

• Jackson Claim
• Prosecutorial Misconduct
• Sentencing — Noncapital
• State Law Evidence Claim

• HE

Mayes v. State, 467 N.E.2d 1189 (Ind. 1984)