Statement of case

STATEMENT OF CASE
A. Statement of Proceedings
On May 28, 1991, petitioner Tommy Green,along with his co-defendant Kevin Jones, was charged by a grand jury indictment, under indictment number 4-91-1558, with aggravated rape, a violation of La. R.S. 14:42. On June 20, 1991, petitioner en­tered a plea of not guilty to the charge.
On March 6, 1992, petitioner went to trial in the 19th Judicial District Court before the Honorable Bob Hester,and subsequently, petitioner was found guilty as charged by a(10)Ten(2)Two verdict.
On April 10, 1992, petitioner filed a Motion for a new trial and was denied.
On April 13. 1992. petitioner was sentenced to serve life imprisonment at hard labor without the benefits of probation, parole or suspension of sentence.
On April 14, 1992 petitioner's co-defendant plea bargained with the State and plead guilty to forcible rape.
On August 10,1992, petitioner appealed his conviction to the Court Of Appeal, First Circuit, under docket number 92/KA/1121.0n May 28, 1993, The Court Of Appeal, First Circuit affirmed petitioner's conviction and sentence.
On May 24, 1996, petitioner filed a Application for A Post Conviction Relief, under docket number 4-91-1558in the 19th Judicial District Court. On November 8, 1996,the District court denied petitioner's Application For Post conviction relief.
On December 1, 1996, petitioner petitioned The Court of Appeal, First Circuit for a Application For Writ of Certiorari. On January 6, 1997 and January 28, 1997, petitioner re­quested to Supplement to his petition for writ of certiorary. On February 20, 1997, The Court Of Appeal, First Circuit denied petitioner's petition for Writ Of Certiorari under docket num­ber 96/KW/2637.
On April 17, 1997, petitioner petitioned The Supreme Court Of The State Of Louisiana for Writ Of Certiorari. On November 26, 1997, The Supreme Court denied petitioner's petition for Writ Of Certiorari under docket number 97-KH-1109. ( see exhibits in the Appendix marked as exhibit " G"')'

B. STATEMENT OF FACTS
During petitioner's trial, eyewitness Barham Moss testified that during the early morning hours on April 4, 1991, he was awakened by the sounds of someone screaming. ( see Tr. p. 6 in the Appendix marked as exhibit " H"') He then jumped out of his bed and looked out of his window and saw two men attacking this girl who was kicking and screaming, at this point he ran to his roommate's room, yelled for him to get up because somebody needs help, and then he ran back to his room to call 911.
When he first got on the phone to call 911, the two males and female were going out of his line of view, and after he got off the phone:with 911, he and his friend went to help. ( see Tr. pp. 7,8, and 9 in the Appendix marked as exhibit "H") However, he further testified that he did not see petitioner rape the female. ( see Tr. p. 24 in the Appen­dix marked as exhibit "H" ) And while he was on the phone with 911 for four (4) minutes, he was not observing the two males and female and could not say whether or not petitioner was trying to help the female. ( see p. 26 in the Appendix marked as exhibit "'h'*) Eyewitness Suzzane Brown, Barham Moss' girl friend, testi­fied during petitioner's trial that, after Barham Moss had looked out the window and called 911, she got out of bed and began putting on her clothes, and once Barham Moss got off the phone with 911, she immediately ran downstairs and around the block to where the bikes were, when she arrived 4. at the scene, she saw the rape.. Ms. Brown further testified that, once she was at the scene, she saw a male and a female and " THE MALE" was on top of this female who was laying face down on the ground and ""'HE" was "'RAPING HER"', (see Tr. pp., 28 - 30 in the Appendix marked as exhibit "I"); Ms. Brown de­scribed the man she saw on top of this female as having on a green and white striped polo-type shirt and dark shorts and that he fled from the scene on a white bike, (see Tr.p.31 in the Appendix marked as exhibit "I") Ms. Brown later testified that the person she saw on top of this female raping her was "NOT" petitioner (Tommy Green) (see Tr.p.35 in the Appendix marked as exhibit "I").

The victim, Dawn Charton, testified during petitioner's trial that she was out jogging during the early morning hours on April 4, 1991, when she notice two men on bikes appearing to be following her. And as she turned to see if they were still following her, that is when she was attacked, (see Tr. pp. 152-153 in the Appendix marked as exhibit "B" ) She then started kicking and screaming, and thereafter was grabbed, and after she was grabbed, someone else came and grabbed her legs. Mrs. Charton further testified that she was dragged from one side of the road to another and ended up on the right side of the road in some bushes; At this point she was being hit in the face while her attacker kept yelling, "Shut up bitch."
Wh­en she stopped screaming, she was thrown to the ground and her face was down into the ground; At this point both men raped her. (see Tr. pp.154-157 in the Appendix marked as exhibit "B"'); However, Mrs.Charton testified on cross-examination that she could "NOT"' identify petitioner as the person who raped her. (see Tr. p. 165 in the Appendix marked as exhibit "B") Mrs.Charton later testified that the person who raped her stayed on her back raping her, "THE ENTIRE TIME." and that she was, "NOT SURE EXACTLY HOW LONG."' (.see Tr. p.169 in the Appendix marked as ex­hibit "B".

Petitioner's co-defendant Kevin Jones testified during peti­tioner's trial that he asked the victim (Mrs. Charton) for di­rections and she called him a nigger, at this point is when he hit her in the face with his fist. He then grabbed her from be­hind and put a full nelson on her, that is when petitioner told him to stop and tried to pull him off the victim. Jones further testified that,"Sometimes she (Mrs. Charton) was kicking and he (Tommy Green) grabbed her by the legs and they, fell" ( see Tr. pp. 187 - 188 in the Appendix marked as exhibit "B." )

On cross-examination Jones testified that he body slammed the victim (Mrs. Charton) and petitioner told him to stop, leave her alone. ( see Tr. p. 195 in the Appendix marked as exhibit "G"') He later testified that he turned himself in ,in-order to collect the Thousand dollars reward money from crime stoppers. ( see Tr. p. 202 in the Appendix marked as exhibit '"C" ) At this point he told the police that petitioner (Tommy Green); raped the victim, and he made up a lie trying to free himself. (emphasis added); ( see Tr.. pp:. 203 - 205 in the Appendix mark­ed as exhibit "C") Jones also testified that he did not rape the victim. ( see Tr. p. 206 in the Appendix marked as Exhibit "•C"')

Petitioner testified during his trial that he observed Jones talking to this white female and noticed that she was making motions with her hands like she was angry, and at this point is when Jones hit her. Petitioner further testified when he seen Jones hit the white female, he went into a state of shock, because he could not believe what he was seeing, then afterwards he attempted to stop Jones from hitting the victim, and as he attempted to stop Jones and help the victim, she started kicking at him as though he was trying to hurt her; At this point, peti­tioner grabbed hold of her leg and they fell to the ground. Once they were on the ground, Jones continued to beat the victim as petitioner tried to stop him. When petitioner realized that Jon­es was not going to stop, is when petitioner fled the scene because he was frightened and wanted to get away from trouble. ( see Tr. p. 210 - 212 in the Appendix marked as exhibit "J") Petitioner testified that he did not rape the victim, (see Tr. p. 215 in the Appendix marked as exhibit "J")


ARGUMENTS, AND AUTHORITIES-

I. Petitioner was denied his Constitutional right to effective assistance of counsel in violation of the Sixth Amendment to The United States Constitution when defense counsel fail­ed to introduce petitioner's co-defendant Kevin Jones' sworn Affidavit-Confession to the jury when Jones confessed to com­mitting the crime in his sworn Affidavit and exonerated peti­tioner, but at petitioner's trial Jones testified that he did not commit the crime; And prejudice resulted therefrom when defense counsel failed to impeach Jones' testimony with his sworn Affidavit-Confession and when the jury was entitl­ed to have before them the impeaching evidence in order to hear, consider and weigh the credibility to be given the testimony of Jones, when the evidence was relevant, materi­al and probative to petitioner's innocence. ( see exhibit "A1" in the Appendix)

In Strickland v. Washington, 466 U.S. 668,104 S.Ct.,2052,L.Ed. 2d 674 (1984), The United States Supreme Court established the now well settled two-pronged test for ineffective assistance of counsel.
First, a criminal defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.
Second­ly, the defendant must show that the deficient performance pre­judiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Petitioner contends that the Commissioner's Recommendation is bias, partial and obviously erroneous. The Commissioner's Recom­mendation is contrary to the evidence and testimony adduced at trial.
First, petitioner addresses the issue where the Commissioner held that, "Because Jones' testimony on direct examination at petitioner's trial mirrored the allegations he made in the two affidavits, this Court finds that petitioner has failed to prove that he was prejudiced by counsel's failure to introduce the affidavits(1) into evidence as required under the second prong of the Strickland test...."' (see Commissioner's Recommendation,page 7 in the Appendix marked as exhibit "G")

Petitioner contends that there are two affidavits at issue in this case, but there is a distinct difference between the two. The first affidavit was executed on December 7, 1991 approximately three months prior to petitioner's trial, (see exhibit "A" in the Appendix) Petitioner Post Conviction Application has clearly set out the distinct difference between the two affida­vits. ( see Post Conviction Application, pp. 2,12, and 13 in the Appendix marked as exhibit '"G") The affidavit that was exe­cuted on December 7, 1991, prior to petitioner's trial is obviously the only one that petitioner contends that counsel was ineffective, because of his failure to introduce it into evidence. In simple terms, there is only one affidavit probative to counsel ineffectiveness, the one executed on December 7,1991.
The Commissioner's Recommendation indicates that he applied the Strickland test to the second affidavit executed on May 22, 1992, approximately three months after petitioner's trial-(see exhibit "K" in the Appendix) This affidavit could never be ma­terial and probative to counsel's ineffectiveness because it is post-trial evidence. Thus, the Strickland test does not ap­ply to it. The proper review is to apply the Strickland test; only to the first affidavit executed on December 7,1991.
Petitioner contends that the Commissioner' Recommendation is erroneous where it held that,"Jones' testimony on direct ex­amination at petitioner's trial mirrored the allegations he made in the two affidavits,..." As the following has proved;

Quoting from Jones' Affidavit-Confession executed on Decem­ber 7,1991, Jones stated;
"...I Kevin Jones going to confess to the crime and verify that my co-defendant took no action of the crime, besides in stopping (sic) me from committing the act. The statement I made to the detevies (sic) was negetive,(sic) I was being bribe, feeling threaten and being selfish when I made the statement concerning the charge I'm accused of doing. I lied so I can set me free and put everything on my co-defendant Tommy Green, the detevies (sic) promise to let me go if I tell them the truth, so I made up a false statement concerning this case..."(2)
(see exhibit "A"' in the Appendix)
************

....I Kevin will take full responsibility for committing the crime. . . .I have not been offered any money, or anything of va­lue for this declaration of fact in this case. I have not been threaten nor promised anything for this statement. I offer this affidavit under sworn oath completely voluntarily circumstances. I swear under penalty of perjury, that the foregoing statement is true and correct to the best of my knowledge. "'(see exihibit'A" )

Now compare Jones' bais, partial and prejudicial trial testi­mony.
Q. All you are saying now is that you just hit the lady and ran?
A. Yes, no rape wasn't involved, (emphasis added) (see Tr.p.206 in the Appendix marked as exhibit "C")

The above quoted colloguy has establish that Jones' trial tes­timony did not mirror the allegations he made in his Affidavit-Confession executed prior to petitioner's trial on December 7, 199I.(3 )
Petitioner contends that, in Jones' Affidavit-Confession, he specifically states that,
1) he is confessing to the crime, and
2) his co-defendant Tommy Green is innocent.
However, Jones misleads the jury by alluding to himself as being innocent too. Jo­nes' bias, partial and prejudicial trial testimony raised the question in the jurors minds, i.e., Then who raped the victim? Had counsel introduced Jones' Affidavit-Confession into evidence, then he could have 1) impeached Jones' testimony where he allude to himself as being innocent, and 2) made the jury aware that Jones executed the Affidavit-Confession three months prior to pe­titioner's trial, confessing to the crime of rape;thus, answer­ing the jurors question, i.e., Kevin Jones raped the victim.

Jones was called to testify on the behalf of the defense be­cause the defense anticipated on Jones testifying in accordance with his sworn Affidavit- Confession. But when Jones testified in relationship to one portion of his Affidavit- Confession and excluded the part where he confesses to the crime, caught the de­fense by surprise and stripped it of its credibility.
At this point counsel should have impeached Jones' inconsistent trial testimony with his sworn Affidavit- Confession, by laying a proper foundation, as a predicate, "...after the proponent has first fairly directed the witness' attention to the statement, act, or matter alleged, and the witness has been given the opportunity to admit the fact and has failed distinctly to, do so." See, La.C.E. art. 613 and Fed..Rules Evid.Hule 613 (b) -t Also see, U.S.v. Strother, 49 F.3d at 874 (Conn.1995).i Powlowski v, Kelyr 932F.supp.475 (W.D.N.Y.1995);laboy v.Demskie, 947 F Supp.733 (S.D>N.Y.1996)Jones' prior inconsistent statement was still admissible even, if Jones would have admitted to making prior inconsistent statement. See, U.S. v. Winberlyr 6OF.3d at 286 (Ill.1995).
The jury is better able to assess a witness credibility by having access to his prior self -contradictory statement. The jury was entitled to have before it the impeaching evidence in order for it to weigh the credibility to be given, the testimony of Kevin Jones' who gave a version of the rape different from the one given in his sworn Affidavit-Confession. Furthermore, because of counsel's errors, where he failed to lay a proper foun­dation as a predicate for the admission of impeaching evidence deprived petitioner of a statutory and constitutional right to have the jury hear and consider the impeaching evidence. Depri­vation of this right is error which requires reversal of the conviction.See State. vr Caldwell, La.206 3a»2d at 495(1968); Petitioner has a Constitutional right to present any and all re­levant evidence hearing on his innocence. See, State v-Vaughnr 431 So.2d 358, 370 (La. 1982) ; La.C.E.art.613; Fed. Rules Evid. Rule 613(b);Const. Amendment Six.
"Credibility of witness can be impeached by any party, and use of leading questions to impeach own witness is allowed without prior notice; Federal rules abolished voucher rule and corollaries, such as having to declare your witness adverse before cross-examining him. or to show that his testimony surprise you." See, Fed. Rules Evid 607, 28 U..S.C.A..U.S. v Iencor 92 .3d .564(Ill.1994).
"Impeachment by contradiction is valid method of impeachment and simply involves presenting evidence that part or all of witness. testimony is incorrect." See, U.S.v.Kozinski, 16F.3d 795 (Ill.1994)

Petitioner contends, that his a trial was rendered "Fundamentally un­fair" when counsel failed to introduce Jones' Affidavit-Confession before the jury when the jury was entitled to hear, consider and weigh the impeaching evidence. This, evidence takes, on an even gre­ater significance in. light of the victim, Mrs.Charton's testimony. Mrs.Charton testified that she could not identify the" person, who raped her. The identification of the one, who raped Mrs. Charton th­en becomes the key issue in this case.. Moreover, M.rs. Charton iden­tification is not unassailable. She only assumed that two people raped her because she, allegedly heard someone say, "Come on man, comeon," as implying the other man wanted to get on her and rape her. Mrs.Charton testimony was directly contradicted by testimony adduc­ed at trial* as. the following shall prove..

Q. What did you do when, you, herd those sounds?
A. Jump out of my bed and looked out.
Q. What did you see?
A. Two men were attacking this, girl, and she was struggling and they picked her up and carried her off.
Q. What exactly did you see the two men doing?
A. One guy had her under the arms.. One guy, had her by the legs, and she was kicking and screaming.
Q. And when you first saw them, where were they?
A. Across the street on the other side of Myrtle where they apparently left the bikes. (Trial Tr. p.7)

It is clear from the above colloguy that Mr. Moss witness what appeared to him to be two males attacking a female. After this brief encounter Mr. Moss testified as follow;
Q. What did you do after you saw that?
A.. I ran to my roommate's room, yelled for him to get up because somebody needs help, and then I ran back to my room and called 911. (Trial Tr. p.8)

The above colloguy indicates that Mr. Moss left the window to get help and returned back to his room to call 911 and at this point he noticed that the two males and female were no longer in his line of view.

Q. When you looked out again, what did you see? did you still see them?
A. When I first called 911 they were going out of my view. There was a clear line of sight across the street from the area, pro­bably about forty yards to this side of the building and a tree, and they were moving across my line of sight. (Trial Tr. pp. 8-9)

To determine what happened at this point we must turn to other testimony adduced at trial in sequence, i.e., in the order it happened.

Dawn Charton On Direct Examination
Q.. And what part of your body was grabbed?.
A.. At first when I was grabbed, I was being held by the top part of my body and then when the second person came, he was hold­ing my legs and I was struggling. (Trial Tr. p.155)

This portion of Mrs. Charton1s testimony confirms Mr. Moss' testimony as to what he saw when he looked out of the window. To determine what happened next, we must continue with Mrs. Ch­arton' s testimony..
Q. what were you doing at this point?
A. I was still screaming very loud, and I was kicking and strug­gling with my arms to get away. I was trying to free myself.
Q Did they ever stop at a location?
A. After dragging me from one side of the road to the other, I believe twice ,we ended up on the right side of the road in some bushes. (Trial Tr. p.155)
This portion of Mrs. Charton's testimony confirms Mr. Moss' testimony that "'...they were moving across my line of sight."

Now we will address the critical question; What happened when Mr. Moss loss sight of the two males and female?-
The testimony adduced at trial demonstrates that shortly after Mr. Moss loss sight of them, they ended up on the ground by the bushes on the other side of the street, and it was at this point when they ended up on the ground and when petitioner fled the scene. The following testimony reflects these facts.
Dawn Charton on Direct Examination
Q. And what happened once you were taken to the bush?
A. They threw me on the ground and at that point they were hit­ting me.
Q. Where were you being hit?
A. In the face.
Q. Did you see them?'
A. No. (emphasis added) (Trial Tr.p. 155)
Q. Other than, shut up, bitch, did you hear any other words
spoken at that point between the two of them at that time?
A. No. (emphasis added)' (.Trial Tr. p. 156);

The reason Mrs. Charton did not hear any other words spoken between the two men is because it was at this point that peti­tioner fled the scene. This is confirmed by the following tes­timony which is in sequence with Mrs. Charton testimony.

Kevin Jones on Direct Examination
Q. What happened when you was on the ground, after all three of you were on the ground?
A. Nothing happened.
Q. Did you continue to beat her or not at that point?
A. Excuse me.
Q When all three of you were on the ground, did you continue to hit her at that time or not?
A. Yes, I did.
Q. What did Mr. Green tell you at that point?
A. He told me to stop.
Q. What did he do after he told you to stop?
A. He told me- He broke out running, (emphasis added) (Trial Tr, p. 189), Tommy Green on Direct Examination
Q Did you say anything to Kevin when y'all were on the ground or not?
A. Yes, Sir.
Q.What did you say to Kevin?
A. I told Kevin not to hit her no more-
Q. What did Kevin do?
A. He say, fuck that shit, you know, and he started hitting her.
Q. What did you do?
A.. I got up and ran, (emphasis added); (Trial Tr. p. 212)

The above testimony of petitioner and Jones confirms that peti­tioner fled the scene shortly after the three of them fell to the ground. Note, that this was prior to the rape taking place. Further, it can be inferred from the testimonies at this point that

1)After Mr. Moss left the window to call 911, shortly thereafter the three of them fell to the ground after crossing the street and reaching the bushes;
2) What appeared to Mr. Moss to be two males beating a female was actually petitioner trying to prevent Jones from carrying out his intentions;
3) Mrs. Charton did not hear any other words spoken between peti­tioner and Jones because petitioner had fled the scene and;
4) petitioner could not have raped Mrs. Charton because he fled the scene prior to the rape taking place.
When returning to Mr. Moss testimony, we can infer from his testimony that there were no eyewitnesses to what had transpired for four minutes while he was on the phone with 911. The following testimony suggest that such was the case.

Barham Moss on Gross Examination
Q. Yes. How long did you talk to 911?
A. Approximately four minutes. (Trial Tr. p. 21)
Q You assumed, Okay, did you see this guy Tommy Green here, do anything to her other then hold her legs?
A,. No_.( emphasis added) (Trial Tr. p. 24)
Q. The four minutes you were on the telephone, you cannot tell the jury what this man was saying or not saying the four minutes you were on the telephone, can you?
A. No_, Sir, (emphasis added)
Q. Because you were not observing them those four minutes you were on the telephone, correct?
A. Correct.
Q. So you cannot tell whether he tried to help her or not at that point, could you?
A. No, Sir. (emphasis added) (Trial Tr. p. 26)

In order to determine what transpired during those four min­utes Mr. Moss was not observing, we must pick-up Mrs. Charton's testimony at the point after all three of them fell to the gr­ound.
Dawn Charton on Direct Examination

Q.. Then what happen?
A. When I stop screaming, they threw me on my stomach and put my face into the ground. (Trial Tr. p. 156)
Q What happened?
A After they put me on the ground on my stomach, one of them got on the back of me and pulled down my pants and proceeded to try to rape me. (Trial Tr. p. 156)

The above portion of Mrs. Charton's testimony indicates that she could not identify the person who was allegedly the "first man" because her face was into the ground. However, it can be inferred from petitioner's and Jones' testimony that it could not have been petitioner because he had fled the scene after all three of them fell to the ground.

As the following testimony will show, according to Mrs .Charton she determined that two people raped her because she heard someone say, "Come on man, come on, man."
Q . Did you hear anyone say anything?
A. While he was still on me, I heard the other guy say, "come on. He just kept saying, come on man, come on, man.
Q . What were you thinking?
A. At that point I thought he was saying, come on, man, because he wanted to leave.. (Trial Tr. p. 157)
Q. What happened?
A. The reason he was saying, come on, man was because he want­ed to get on me.
Q. Did he?
A. Yes.
Q. What happened?
A. The first one got off of me and the second one got on me, and he proceeded to put himself in me too.
Q Did that last very long?
A. No.
Q. Do you know what caused him to stop?
A. After he got on me, and not too long after that, is when the girl came running out. (Trial Tr. p. 157)
When the above portion of Mrs. Charton's testimony is viewed in conjunction with her testimony below, it can be inferred that Mrs. Charton, in her hysteria, was too confused to realize that petitioner had fled the scene and that the first and se­cond man was one and the same, Kevin Jones.

Dawn Charton on Cross Examination
Q. Tell me about the first man Dawn that raped you. (Trail Tr. p. 167)
Q ,. How long did he stay on your back from the rear, having sex
with you from the rear? A. The entire time. I am not sure exactly how long. ( emphasis
added) (Trial Tr. p..l69)
Although Mrs. Charton does not know how long the first man stayed on her, e.g., two minutes, four minutes, etc., one thing is clear;: it was "THE ENTIRE TIME." This contradicting testimony strongly indicates that only one person raped the victim. If Mrs. Charton's testimony that two people raped her is to be taken at face value, surely Ms., Brown's testimony would have to be taken at face value also. This is so because Ms. Brown be­came Mrs. Charton's eyes, as the following testimony has indi­cated.

Suzanne Brown on Direct Examination
Q. At some point and time did he get off the telephone with 911?
A. Yes.
Q What happened?
A. At that point I went downstairs, and I don't know what they did. (Trial Tr.p.29)
The above colloquy indicates that Ms. Brown went downstairs immediately after Mr. Moss got off of the telephone. Ms. Brown testimony continues.
Q. What did you do? Where did you go and what did you see?
A. I ran around the corner and saw the bikes. I could not quite see them yet, so I kept running. They were hidden in the bushes, and as I was running, I ran upon the scene, and I saw the rape. I saw the girl and the guys.
Q. How many people did you see at that time?
A. Two, (emphasis added))
Q, That was a male and a female?-
A. Yes, (emphasis added)
Q. What did you see, the male do?
A. He was on top of the girl who was laying face down on the ground, and he was raping her, (emphasis added) (Trial Tr.p.30):

It can be inferred from the above colloquy that from the time Mr. Moss initially looked out of the window, to the time Ms. Brown came upon the scene of the rape that, approximately 4 and a half minutes — 5 and a half minutes had elated* This infe­rence is substantiated by Mr. Moss' testimony that he talked to 911 for "approximately four minutes."(Tr.p.21) And Ms. Brown's testimony was, "At that point when Mr. Moss got off of the ph­one with 911- she went downstairs.. ."'(Tr.p.29) And within this time frame of approximately 4 and a half minutes - 5 and a half minutes, testimonies clearly infers that petitioner was only pre­sent for approximately one minute at the most. This inference is substantiated from Mrs. Charton's testimony which reflects that "After dragging me from one side of the road to the other...we ended up on the right side of the road in some bushes...." (Tr. p. 155) Mrs. Charton further testified that once they reached the bushes "They threw me to the ground..."(Tr.p..155) Mrs. Charton's testi­mony strongly indicates that they fell to the ground shortly af­ter Mr. Moss left the window. This is confirmed by Mr. Moss' tes­timony that they were "Across the street on the other side of Myrtle..." (Tr.p.7) Which infers that when "'...they were moving across my line of sight."(Trp,9) And according to Mrs, Charton, it could be inferred that when Mr. Moss testified, "they were going out of my view." was in harmony with Mrs.Charton as to what happen at that point, when she testified that, "we ended up on the right side of the road in some bushes..." This inference is substantiated by petitioner's and Jones' testi­mony that when they were on the ground petitioner fled.. Jones testified that petitioner, "'...broke out running."'(Tr.,p.189); and petitioner testified that, "I got up and ran."'(Tr.p.212) This testimony has demonstrated that petitioner fled the scene shortly after Mr. Moss left the window to call 911...
Moreover, the time frame of approximately 4 and a half minutes-5 and a half minutes is supported by Mrs. Charton's and Jones' testimony as the following has indicated.

Pawn Chartons
Q. How long did the incident take place, Dawn?
A. Five or Ten minutes.(emphasis added)
Q. This includes the beating and the alleged rape incident, Dawn?
A. Yes. (Trial Tr.p.167)

It is more likely that the entire incident took approximately Ten minutes and approximately Five of those minutes could be contributed to the actual rape. This is evident from Mr. Moss' testimony that he was on the phone for approximately Pour min­utes with 911 and shortly thereafter Ms. Brown came upon the scene of the rape. More importantly, as indicated below, Jones was still on the scene Five minutes after petitioner had fled.
Kevin Jones
Q.. And how much time was there between when he ran and you ran?
A. About five minutes difference, (emphasis added) (Tr.p.199)
Q.. What were you doing during that five minutes?
A. I was not doing nothing. (Tr.p.199);
Surely Jones is lying when he states that he was "'...,.not do­ing nothing " during those Five minutes. Ms., Brown,, the only eyes Mrs. Charton had, testified that, "'...I saw the rape...he was on top of the girl who was laying face down on the ground, and he was raping her." (Tr.p.30) Ms. Brown does not stop there, she goes on to positively identify Kevin Jones as the man she saw raping Mrs. Charton.
Suzanne Brown;:
Q. When he got off of her, what did you do and what did he do?
A.. Before he got up, I started screaming at him.. He jumped up, look at me, and started pulling up his pants, and as he did that, he started running towards his bike and got on his bike,
Q. Do you recall which bike he got on?
A. The white bike.
Q Do you recall what he had on?
A. He had a green and white striped polo-type shirt and dark shorts. I think they were red - I think they were dark. (Tr.pp.. 30-31)

If there is any doubt as to who Ms. Brown is identifying, then the below quoted colloquy from Jones1 testimony confirms that the person she identified was Kevin Jones.
Kevin Jones;
Q. What color bike did you have?
A. I had a white bike. (Tr.p.192)
Q. Back on April 5,1991 when you were on your white bike and he was on his red bike, what were you wearing?
A.- Blue shorts.
Q. What kind of shirt were you wearing?
A. I believe green and white.
Q. Striped shirt? Green and white strip shirt?
A. Yes.(Tr.p.202);
Jones' testimony supports Ms.Brown's testimony as to the description of the bike and clothing the man who raped Mrs. Charton was wearing.
Moreover, Ms. Brown points out in open court that petitioner was not the man she saw raping Mrs. Charton.

Suzanne Brown on cross.
Q. I have a couple of questions I would like to ask you, Ms.Brown. I'm going to ask you several questions. For the record, is this the man you saw on top of Mrs. Dawn raping her? Is this the man here?
A.. No( emphasis added) (Tr. p. 35)
The above colloquy clearly demonstrate that petitioner was not the man Ms. Brown identified as seeing raping Mrs. Char-ton. And petitioner has also clearly demonstrated that he could not have been the first man who raped Mrs. Charton be­cause testimony has shown that petitioner fled the scene be­fore the actual rape occurred. The facts are that Mrs. Charton, in her hysteria, was too confused to realize that peti­tioner had fled the scene and that the first and second man who raped her was one and the same, Kevin Jones.

To be entitled to habeas relief due to the ineffectiveness of defense counsel, petitioner must establish first that coun­sel'ss performance was deficient, then petitioner must also establish prejudice to his defense as a result of that deficient performance, see Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct.2052,2064, 80 L.Ed.2d 674 (1984); Prejudice will be established if "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceed­ing would have been different. A reasonable probability suffi­cient to undermine confidence in the outcome." Id. at 694,104 S.Ct. at 2068.

Petitioner contends that he has demonstrated that Jones' tr­ial testimony did not mirror the allegations he made in his sworn Affidavit-Confession executed prior to petitioner's tr­ial on December 7,1991- (see exhibit "A")And that defense counsel knew about Jones1 Affidavit-Confession prior to peti­tioner's trial and that the Affidavit-Confession was availa­ble to counsel, (see exhibit "D"')

1)Notice that the Commissioner has determined in his recommenda­tion that Jones' testimony mirrored the allegation he made in the " two affidavits"and petitioner has failed to prove that he was prejudiced by counsel's failure to introduce the '"affidavits" into evidence.
(2) take notice that Jones' Affidavit was original written by him in his own handwriting., (see exhibit "'A'" in the Appendix) (3)In the Commissioner's Recommendation, the Commissioner compared Jones's testimony to his Affidavit-Confession to illustrate that Jones' testimony mirrored his Affidavit-Confession. However, note, when the two are compared, that the Commissioner left out the part in Jones' testimony where Jones testified, "Yes, no rape wasn't involved;" Whereas, in his affidavit Jones confessed to the rape, (see p.5-7 in the Commissioner's Recommendation in the Appendix marked as exhibit "G"? also see Jones' testimony on page 206 in the Appendix marked as exhibit "C"1) .

What is needed: At this time Tommy Green is trying to obtain enough funds so he can so can get DNA testing done to prove his innocence and hire an attorney. We have a legal defense fund and are a 501c3 organization so your donations will be tax deductible.

For more information, contact Tommy Green at the address above or email FFUP at swansol@mwt.net and we will forward your question to Mr Green.

If you would like to donate, Send funds to :
FFUP (Forum for Understanding Prisons)
PO Box 285
Richland Center, Wi 53581
Make checks out to FFUP and write "For Tommy Green defense" on line at bottom left.