EVIDENCE: MARC STEPHENS VS. CITY OF ENGLEWOOD

OVERVIEW OF POLICE INVESTIGATION

1.  October 31, 2012 - Victims attacked by a ski-masked suspect at 7-eleven at 10pm in Englewood, NJ.
2.  November 2,2012 - Victims and Witness Natalia Cortes provided sworn statements to Detective McDonald and Singh.  None could identify the ski-masked suspect.
3.  November 7,2012 - Justin Evans gives a sworn statement
4.  November 8, 2012 - Tyrone Stephens gives a sworn statement and states he saw Detective Kinlaw at McDonalds at 10pm.  Kinlaw states to Marc Stephens, and Detectives Marc McDonald and Desmond Singh that he saw Tyrone at McDonalds at 10pm.  Tyrone is arrested as the ski-masked suspect.  Marc McDonald's Police Reports states Natalia Cortes identified Tyrone Stephens as the ski-masked suspect.
5.  November 13, 2012 - Natalia Cortes provided another sworn statement regarding the photo array to Detective Cubillos.  The report states Natalia did not identify anyone.

Conclusion: If the victims were attacked at 7-eleven at 10pm, and the investigating officer Nathaniel Kinlaw stated that he saw Tyrone Stephens at McDonalds at 10pm, then Tyrone can not be the suspect who attacked the victims at 7-eleven.  Below are the three (3) errors of fact and law that Marc Stephens is requesting the Court of Appeals for the 3rd Circuit to correct.

MANIFEST INJUSTICE AND COURT ERROR OF FACT #1

The Panel Opinion states, Page 5, “The facts here, viewed most favorably to the Stephenses, do not create a genuine dispute as to whether probable cause existed when Tyrone was arrested. The defendants had three compelling pieces of evidence implicating Tyrone in the attack: (1) the identification by Natalia Cortes; (2) the statement made by Justin Evans that Tyrone had participated in the attack; and (3) inconsistencies in testimony regarding Tyrone’s alibi. This evidence was more than sufficient to establish probable cause.

(1) No identification by Natalia Cortes

A. Photo array eyewitness identification worksheet for Natalia states the following: “Did the witness identify any photo as depicting the perpetrator?” The answer checked is “No”, SA186, #20 also same ECF Doc. 42, page 9. #20

B. Q. So, looking through the photo array, at headquarters, on November 13th, the bottom line is Natalia could not identify anyone in the photo book as being there that night, right? McDonald: Right. Doc. 003112688918, #4-21

C. Jordan Comet (Q). Did you witness Mr. Stephens fighting that night? Natalia Cortes (A). I didn’t quite see anybody’s faces who were actually fighting. SA234, Doc 003112432109, Page: 80, para #9, #7-10.

D. Jordan Comet (Q). And, at that point, was there ever a point where you said, I identify a specific person? Natalia Cortes (A). Well, I identified, like, one or two that kind of stood out, but not him. Doc: 003112688921 - para #10, #3-6.

E. Jordan Comet (Q): And the crucial question is, do you know whether one of those faces that you said might have been there was my client? Natalia Cortez: No….I’m saying, no, it wasn’t him, ECF Doc. 72-3, page 94, para #17, #1-3.

F. Prosecutor: Did you recognize any of the pictures that you pointed out as being Tyrone Stephens? Natalia Cortez: No. ECF Doc 72-3, pg 95, para 19, #16-18.

G. According to detective Cubullos, Tyrone’s (a juvenile) picture was not in the photo array, and this photo array was the same used by McDonald on November 2, “On 11/13/12, I met with Natalia Cortes at the Englewood Police Department to show her the same photo array that Det. McDonald had provided”…McDonald advised me that the individual that was placed in the photo array was a possible suspect Victory Sarhano..”No photo of any other juvenile suspect was used in this photo array”, Doc: 003112688916, defendants SA177.

H. McDonald testified after speaking with the victims and witness Natalia Cortes on November 2, 2012, the Englewood Investigators “only had Derric Gatti”. The Supplementary Investigative Report prepared by defendant McDonald and reviewed by defendant Cubullos states, “On 11/02/12, (see paragraph 1), ECF Doc 72-3, page 19, para #1. “After taking all of the statements from the victims and witnesses. Detective Singh and I drove to the Winton White football stadium to pick up Derric Gaddy for questioning”, (see paragraph 3, last sentence), ECF Doc 72-3, page 19, paragraph #3.  Q: After you attempted to interview Derric Gatti, what happened next?  McDonald: I mean well, that was pretty much it. All we really knew at that particular point was Derric Gatti. ECF Doc 72-3, page 113, #14-25.

I. McDonald testified in the probable cause hearing that Natalia identified Tyrone, ECF Doc 72-3, page 113, pg 1-5. Q: Do you recall who Natalia was able to pick out out of that -- photo book that you showed her? McDonald: Yes. She picked out Tyrone Stevens, Justin Evans, and Derric Gatti.

J. McDonald told the Grand Jury that Natalia identified Tyrone because the Ski-mask fell off his face. ECF Doc 72-4, page 3, #5-25. Juror #4: It sounds like Santiago’s cousin identified Mr. Stephens?  McDonald: Yes. Natalia. Juror #4: So is there any thought that the mask came off at any point, if Natalia Cortez saw Stephens there or did the person who was wearing the mask take it off or anything like that….?  McDonald: It could have come off.

K. On November 2, 2012, Natalia stated to McDonald and Singh that she could not identify anyone. Q: “If you saw the actors again, would you be able to identify them? Natalia Cortez: “I’m not really sure because it was really dark and most of them had hoods on and like that one in the bike had the ski-mask on”, ECF Doc 72-2, pg 22, #23 & pg 23, #2-3.


MANIFEST INJUSTICE AND COURT ERROR OF FACT #2

(2) the statement made by Justin Evans that Tyrone had participated in the attack was produced by coercion.

A. Defendant McDonalds testified that none of the victims or codefendants identified Tyrone as the suspect. Comet: Did any of the victims identify my client? McDonald: No.  Comet (Q): Did any of the codefendants, other than Justin Evans who was accused himself of wearing a mask, did any of them identify my client? McDonald: No. ECF Doc 72-3, page 53, para 67, #7-12.

B. Defendant Desmond Singh admits that he suggested Tyrone’s name when he states to Justin, Desmond Singh: “You’re doing good but the more names we give you”. ECF Doc 72-2, page 70.

C. Justin Evans: “How they gonna put my name in this?”..”Tyrone was in High School”. McDonald: I gave you all of them. ECF Doc 72-2, page 59.

D. Justin Evans testified that he implicated Tyrone Stephens because the officer lied to him, Justin Evans: I thought he was one of the people that said I was involved or told them”…and it was “out of revenge”. ECF Doc 72-4, page 8-9.

E. Comet (Q): Did he say, “It’s me because the officers are pushing me…” McDonald: correct. ECF Doc. 72-3, page 32, #24-25


MANIFEST INJUSTICE AND COURT ERROR OF FACT #3

(3) No inconsistencies in testimony regarding Tyrone’s alibi.

A. Judge Gary Wilcox: “I heard the brief testimony of Tyrone Roy. I found Tyrone to be credible as a witness. And clearly the reason Tyrone Roy was called is to establish time line, indicating that, again, he and another friend, Anthony Mancini, picked up Tyrone at his house at approximately 9:40, 9:45. At approximately 10pm they went to McDonalds. They ate food there for about ten or 15 minutes. And then Anthony drove Tyrone Stephens home. So, I think the Juveniles argument here is that, again, the time line, and again, the act was alleged to have occurred at 10:13pm-- that Tyrone at that time, would have been at McDonald’s”. Doc: 003112688950

B. Tyrone Stephens: Kinlaw said he seen me! Kinlaw just said he seen me!

1.  Det. McDonald: “Kinlaw said he saw you and other people…when Kinlaw saw you on the Ave at this particular time you weren’t at home..”
2.  Marc Stephens: Were you there?
3.  Tyrone Stephens: No I was not there at all! I was not there! I didn’t see any fight, anything! Kinlaw seen me at McDonald’s. I pulled up at McDonalds.
4.  Marc Stephens: Kinlaw said he saw him on the Ave, at, look like 10 o’clock. Where was this altercation at? The 7-Eleven on the ave.?
5.  Det. McDonald: up the street.
6.  Tyrone Stephens: That’s it right there! I was in front of McDonalds. I just hopped out of a car. I walked in McDonalds and said what’s up Kinlaw.
7.  Tyrone Stephens: If Kinlaw just said that he seen me, you just said it on here, you heard Kinlaw say that he seen me. He seen me at McDonalds, and he was talking to a little kid Willie. I think he was with Ron, right there at McDonalds. If you say that’s the time, than how could I be at two places at once?
8.  Det. McDonald: That was at 10:00 he said, ECF Doc 72-2, page 91. para 9-14.

C.  Prosecutor: First of all what was the time that the victims said the attack occurred?

1.  McDonald: On or about 10pm.
2.  Prosecutor: And what day did they say the attack occurred?
3.  McDonald: October 31, Halloween.
4.  Prosecutor: Where did Tyrone say that he was at that time?
5.  McDonald: He stated he was initially at McDonald’s. Doc: 003112688943


MANIFEST INJUSTICE AND COURT ERROR OF LAW #1

The District Court stated, see Order page 8, “even if Tyrone did offer such evidence, “[i]t is well settled that police officers are absolutely immune from § 1983 suits for damages for giving allegedly perjured testimony…” Blacknall v. Citarella, 168 Fed.Appx. 489, 492 (3d Cir. 2006) (citing Briscoe v. LaHue, 460 U.S. 325 (1983)).

Marc Stephens’ Response: The United States Supreme Court stated, “Qualified immunity does not protect police officers who are "plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L. Ed.2d 271, 278 (1986). The common law has never granted police officers an absolute and unqualified immunity, Pierson v. Ray, 386 US 547 - Supreme Court 1967, at 555. The United States Supreme Court has made it "clear that procedural regularity notwithstanding, the Due Process Clause is violated by the knowing use of perjured testimony or the deliberate suppression of evidence favorable to the accused." (Albright v. Oliver (1994) 510 U.S. 266, 299 [127 L.Ed.2d 114, 114 S.Ct. 807] (dis. opn. of Stevens, J.).) “A police officer who fabricates evidence against a criminal defendant to obtain his conviction violates the defendant's constitutional right to due process of law”. Halsey v. Pfeiffer, 750 F. 3d 273 - Court of Appeals, 3rd Circuit 2014 at 279.


MANIFEST INJUSTICE AND COURT ERROR OF LAW #2

3rd Circuit Opinion, Page 6, “Further, notwithstanding their arguments to the contrary, no reasonable juror could conclude that the detectives coerced Evans’s statement.

Marc Stephens’ Response: “[T]he question of whether a criminal defendant was coerced is a matter well within “lay competence” and thus a jury is not foreclosed from considering whether there was coercion even if there is “unequivocal, uncontradicted and unimpeached testimony of an expert” addressing the issue. Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 76-77 (1st Cir. 2002). Halsey v. Pfeiffer, Court of Appeals, 3rd Circuit 2014. “[I]t is clear enough from our recent cases that at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter”, Anderson v. Liberty Lobby, Inc., 477 US 242 - Supreme Court 1986 at 249. Celotex Corp. v. Catrett, 477 US 317 - Supreme Court 1986.


MANIFEST INJUSTICE AND COURT ERROR OF LAW #3

3rd Circuit Opinion, Page 7, “And, in light of these rulings, the District Court did not err in denying the Stephenses’ Rule 59(e) motions.

Marc Stephens’ Response: The Panel’s opinion is identical to the district court. The evidence in Appellants opposing brief, and First Motion for Reconsideration, ECF 85, which contains undisputed evidence was ignored. The Panel and district court erred as a matter of fact and law by ignoring or overlooking the vast documentary evidence and undisputed testimony on record, see Roe v. Operation Rescue, 54 F. 3d 133 - Court of Appeals, 3rd Circuit 1995 (holding that the district court abused its discretion by “ignoring” undisputed evidence).