We were walking down Grand Avenue and we got to the corner of 184th Street, we
crossed the street. And we were walking up 184,th towards Davidson. And on the
opposite side of the street, two guys, they called out to us . . . So, the guy
said that they -- that they had some nickels [drugs], and - - so, Terrance
crossed the street to approach the guys to talk to them, and I followed.
Def exh F, pp. 234-35.
Hall stated that one dealer “pulled out the nickels,” showed them
to Joyner, who said “he didn’t want anything because he
didn’t have enough money.” At some point, one man said that Joyner
had “stole one of his nickels.” Voices were raised; Hall and Joyner
walked away and turned the corner onto Grand Avenue. One of the two men ran up
behind them and threw a bottle at Joyner, which hit him in the head. He went
down, holding his head, and “ when he came back up, the other guy was
coming at him from another direction. And that’s when he lifted up his
shirt, and pulled out the gun, and he shot him.” See Def exh F, pp.
Joyner was shot in front of 2380 Grand Avenue near 184th Street; it was about
2:40 a.m. on a Sunday morning. Joyner died from one shot to the left side of
his chest. A gun and magazine were recovered at the grocery across the
but the ballistics tests were
inconclusive. It is not in dispute that one of the two drug dealers was Robert
Portee’s Recanted Testimony
Portee identified Don Taylor as the shooter at a police precinct lineup and
from the witness stand at Taylor’s criminal trial. Years later, in 1998,
following the discovery via a freedom of information request of Detective Morris
Schwaber’s notes on the case, counsel for Taylor interviewed Portee, who
was then incarcerated at Clinton Correctional Facility. Apparently there were
two interviews, and in 1999, Portee gave a sworn statement that he had testified
falsely against claimant. This led to a followup by the Bronx District
Attorney’s office, which was delayed for a considerable period of time
because Portee’s lawyer denied access to his client until a federal case
against him was concluded.
On January 7, 2004, Assistant District Attorney Jeremy Shockett interviewed
Portee in a federal detention facility in Florida; Shockett testified that
Portee told him that Don Taylor was not involved in Joyner’s shooting.
Portee was thereafter deposed on June 5, 2007 at the federal prison in Florence,
Colorado, and his testimony, in which he denied witnessing the murder and having
any knowledge of claimant’s involvement, was read into evidence at trial.
Recanted testimony is generally viewed as unreliable. As this Court has
observed in another case brought under the Unjust Conviction statute:
“Inherent, of course, in any recantation is that the witness has lied once
about what happened . . .” Morales v State of New York, 183 Misc
2d 839, 848-49 (Ct Cl 2000), affd 282 AD2d 245 (1st Dept 2001). However,
given among other things, Portee’s incentive to lie and Evelyn
Hall’s testimony implying that Portee was not present at the shooting,
Portee’s recanted testimony is more credible than his initial story.
Portee’s Incentive to Lie
Back in the fall of 1987, Portee was facing multiple charges in New York that
could have led to substantial prison time. Instead, as part of a cooperation
agreement, which included his testimony in People v Taylor
, Portee was
allowed to plead to two to six years for all charged crimes, received credit for
21 months’ time served and was promised a favorable letter to the parole
In addition, Maryland authorities
agreed to withdraw their pending extradition request for Portee. By contrast,
in connection with his recantation, there was no showing that Portee was
promised or received any benefit. Defendant’s argument that Portee wanted
to clear himself of having been regarded as a snitch because of his original
testimony against Taylor is unpersuasive. The defendant also contends that the
recantation came without risk inasmuch as the statute of limitations for perjury
The prosecution, in the persons of Bronx ADA James Palumbo, and NYPD Detective
Morris Schwaber in 1987, went through extraordinary efforts to shore up their
deal with Portee. They allowed him a private, probably conjugal, visit at the
DA’s office with his girlfriend Reva Johnson, who testified to that effect
at the 8-b trial. Moreover, apparently to demonstrate some connection between
Portee and Taylor, Palumbo and Schwaber went along with an unlikely story Portee
told about a 25-minute phone call between him and Taylor in 1988 when both were
incarcerated at different New York City jails - - Portee at Rikers Island and
claimant at the Bronx House of Detention. This was, in fact, virtually
impossible to arrange; among other things, only outgoing calls were permitted
with a maximum of six minutes on a system with limited technological capability.
See the April 6, 1990 letter from the acting director of the Telecommunications
Division of New York City’s Department of Correction (cl exh 27).
Inconsistency With Evelyn Hall’s Testimony
Ms. Hall’s testimony that she was with Joyner when he was shot has gone
unchallenged. However, it is possible that given the circumstances and
Hall’s admitted drinking and drug use, she became confused about what
happened. With that said, her description of what she saw leads to the
conclusion that Portee was not on the scene, and therefore did not see the
shooter, whoever he was.
Portee’s trial testimony had the shooter coming from a different
direction than Hall’s testimony, and Portee said Joyner was smashed over
the head with a bottle, as opposed to having it thrown from a few feet away as
Hall remembered. In addition, Portee said that as the confrontation began, he
was standing on the sidewalk talking to Ms. Johnson, who was at or leaning out
of her second floor apartment window - - but Johnson lived a block away at 2308
Significantly, Hall told Detective Schwaber that the shooter was thin and 5' 7"
tall. This information was missing from Schwaber’s notes that were
later uncovered by the FOIL request. Taylor was 5' 9," probably not that
noticeable a difference, but the claimant was described then as stocky and 175
The photograph of the lineup taken on
the day of his arrest, September 10, 1987, shows a filled-out Taylor (def exh A;
Taylor is number 4).
Adolphus Black’s testimony on Taylor’s behalf at his criminal trial
was read into evidence at the 8-b trial. The defendant State of New York argues
that Black’s credibility is limited because in 1989, he had a criminal
record, was serving a 6- to 12-year sentence for robbery, and admitted on the
stand that he had once lied under oath in connection with his robbery of a
At the criminal trial, Black, who was then 19 years old, said that he had known
Portee “since childhood.” The witness testified that in 1987 (Black
was arrested for robbery on September 15, 1987), he and Portee were inseparable:
“When he go out, I go. Where I go, he go.” He said that they were
together in the early morning hours of August 16 at 30 Buchanan Place, and went
down to the crime scene later in the morning at about 10 a.m. with a group of
people. Black, who lived on 184th Street, testified that the place was full of
police cars and erroneously believed it must have been 15 or 20 minutes after
Claimant testified before this Court on January 5, 2009. This court also
viewed the videotaped statement Taylor gave when arrested on September 10, 1987,
some three weeks after the crime. The videotape has deteriorated and is not
complete, but the parties have agreed to its use as is; a complete transcript
of Taylor’s video statement is in evidence (cl exhs 20A and 20).
To this trier of fact, Taylor was credible then and now. As for his arrest-day
video, he came across as a young person, without artifice, trying to come to
grips with something he did not understand. While it could be part of a
contrivance, it seems highly unlikely that an individual who kills someone would
not have an alibi at hand. Here, we saw Taylor thinking aloud, working through
his schedule as if he had nothing to hide.
Taylor was asked if he remembered where he was on August 16. He responded
“that the officer over there said it was like on a weekend, I know for
every weekend I would be with my girlfriend . . . [Wendy].” Then, the
following exchange ensued:
Q. Do you know what day of the week August 16 is, or what day it was?
A. See being that I know it was a weekend, cause like last month . . . the pay
[day] . . . falls on every 7 day, 14, 21, 28, it had to be on Saturday or Sunday
. . .
Q. You think you were with your girlfriend?
A. See, I don’t know, because she went away last month too. Also,
I’m not sure if it was on the week of the 16th or the 21st.
Q. So you’re not sure [where you were on August 16]?
A. No. [Claimant then went on to consider aloud whether he was in a
recording studio at the time.]
Cl exh 20, pp. 322-23.
Taylor at all times maintained his innocence. When at work on September 10,
1987, Taylor’s employer called him over and said that two police officers
were there to see him; claimant at first thought that something had happened to
a member of his family. Taylor refused three plea offers from the prosecution;
the final one, offered during jury deliberations, was for only two to four
years. At his sentencing, Taylor stated that he held no ill will toward the
prosecution even though he was innocent of the crime - - he expected to be
exonerated on appeal.
Claimant’s alibi was that he was housesitting for his girlfriend, Wendy
Ladson, while she, her mother and brother were in South Carolina to visit
Wendy’s ailing father. At the 8-b trial, Taylor testified that the
Ladsons had left the Bronx on August 14; they returned the next weekend. Taylor
said that at the time of the shooting, he was on the phone with Wendy.
Claimant gave notice before his criminal trial that his alibi witness would be
Ms. Ladson and at the time of the crime, he was on a long distance call.
However, in his alibi notice, claimant’s home address, not Wendy’s,
was given as his location at the time.
Ladsons lived at 3433 Dekalb Avenue, some 30 blocks from the crime scene; Taylor
lived at 2825 Grand Concourse, which is closer, but still described as a 15- to
20-minute walk from where Joyner was shot. At the 8-b trial, Taylor recalled
that he had not hung out on Grand Avenue since 1983.
No physical evidence such as fiber or fingerprints connected Taylor to the
crime. Claimant credibly testified before this Court that he had never owned a
gun or even fired one. Taylor testified, without contradiction, that he did not
know Portee, Black, Hall, or Joyner. He was acquainted with Robert Elliot, but
did not spend time with him.
By the summer of 1987, claimant had been working for about eight months for a
home improvement company as an order packer. His schedule was Monday through
Friday, from 8 a.m. to 4:30 p.m. At some point, Taylor was attending school,
the Monroe Business Institute, every day after work. He recalled that he was
taking a class in July in the summer session, but was unclear whether school was
over by mid-August. His Monroe transcript indicates that he was not attending
school then (cl exh 4).
Claimant was an active congregant of his church. Taylor attended on Sundays and
two nights out of the week; during the day on Saturdays and Sundays, he
performed field service, which consisted of knocking on doors, offering bibles
and literature to the public.
Taylor had also become involved with the music business. He had formed a rap
group, managed another, published a song and performed at block parties under
the name of “Don Q,” which is how Portee became aware of him.
Claimant described himself as extremely busy with the rap group that summer.
Taylor said that with some exceptions, usually for his music career and
visiting Wendy at her home, his mother had him on a 10 p.m. curfew, although it
was unclear whether that included the weekends. Finally, it should be noted
that there has been no showing that Taylor altered his normal activities from
the day of the crime to the day of his arrest.
The details of claimant’s job, school, church and music activities do
not serve as an alibi, but do give a sense of his ordered, busy life, and that
the crime was at a time and place removed from his daily world.
The defendant’s case at the 8-b trial included the prior criminal
testimony of Portee and Hall (def exhs E and F), the deposition of former
Detective Schwaber, taken in Florida on November 13, 2008 (def exh H), and the
courtroom testimony of former ADA Palumbo. The 1989 testimony of Portee and
Hall was discussed above. As for the testimony of Palumbo and Schwaber, it was
notable that neither offered any argument that Taylor had been involved in the
shooting. Detective Schwaber did have an independent recollection that Portee
had been looking to make a deal, and, in a similar vein, Palumbo said that he
had reminded Portee that without a deal, he would “get a lot of
time.” When shown his paperwork from the case, Schawber testified that at
some point, two other individuals were suspects. (They are named in exhibit D
and on page 77 of Schwaber’s deposition.)
Defendant cites claimant’s prior criminal record (and youthful offender
status) as undercutting his credibility. Taylor was born in October of 1966 and
had been arrested on October 15, 1983, for an attempted robbery two weeks
earlier of a man in an elevator. Shortly thereafter, Taylor was accused of
stealing a coat, and he was also charged in the vestibule robbery of a woman.
Facing three robbery charges, he pled guilty in each case to robbery, so as to
receive a one-year sentence and youthful offender status on the charges
involving the elevator and vestibule robbery charges. At his 8-b trial,
claimant admitted that he was guilty of the elevator attempted robbery, denied
the charge involving the woman, and explained that the jacket theft accusation
arose out of an altercation at a party. He denied that any weapon was used or
displayed on the elevator, and no evidence was offered to suggest otherwise.
Prior convictions go to credibility, not disposition, and this Court finds
Taylor to be highly credible.
Defendant contends that Taylor’s alibi that he was in Ms. Ladson’s
apartment telephoning her in South Carolina is implausible, given that his
original alibi notice to the prosecution stated that he was at his own home (cl
exh 45) and that the telephone record was never produced, although some efforts
were made to locate it (see cl exhs 43 and 44). This trier of fact notes that
it does seem unusual that claimant would call Wendy at that hour when she was
staying with relatives.
Defendant also takes issue with Portee’s explanation that he was able to
pick Taylor out of a lineup because, “[e]veryone else was crack heads.
Don Taylor was . . . dressed in the same nature as me.” From this
vantage, looking at a color photo of the lineup (def exh A), the participants do
not seem so easily distinguishable, but as Portee stated, “I [had] seen
him before.” * * *
Under the Unjust Conviction Act, claimant is required to prove by clear and
convincing evidence that he did not commit the acts that were charged in the
This means that the
trier of fact must be satisfied that claimant’s innocence is highly
probable; such evidence cannot be equivocal or open to opposing
A murder conviction resting solely on one eyewitness without any forensic
evidence, the subsequent recantation by such accuser which was credible for a
number of reasons (including Portee’s benefit from a plea bargain which
required his testimony against Taylor and the incompatibility of Portee’s
description of the crime with that of Evelyn Hall’s), together with a
highly credible claimant constitute clear and convincing evidence that claimant
was innocent of the shooting of Terrance Joyner. There being no issue that
claimant caused or brought about his conviction by his own conduct, the
defendant is liable to Don Taylor under §8-b of the Court of Claims Act,
and the Clerk of the Court is directed to enter interlocutory judgment against
the State of New York on liability.