On the night of December 7, 1978, Daniel Stewart, a 25-year-old drug dealer was fatally shot and robbed of nine pounds of marijuana worth $5,000 in an alley in Bakersfield, California. Stewart’s girlfriend, Leticia Mendez, 24, was sitting next to Stewart when he was shot in the face.
Mendez told Bakersfield police that the gunman was a stocky black man, about 5 feet, 6 inches to 5 feet, 8 inches tall with a mustache and a medium Afro hairdo. At first she said the gunman was a hitchhiker. But after she was granted immunity for the marijuana transaction, she said that Stewart had brokered a meeting with the gunman through a teenager named “Charlie.”
She said that “Charlie” had ridden with them in Stewart’s truck and directed them to the alley where he got out and walked away. Not long after, the gunman got into the truck and told Stewart to drive. When Stewart balked, the gunman fired a warning shot and Stewart began to drive. The gunman demanded their money and when Stewart made a threatening motion, the gunman shot him between the eyes and fled with a suitcase full of marijuana that was on the floor of the truck.
Mendez looked through high school yearbooks and identified Charles Tillman as the teenager she knew as “Charlie” who brokered the drug deal.
Police found Tillman, who confirmed that he had arranged a meeting between Stewart and the gunman for a drug transaction. Tillman was questioned and would not give the name of the gunman, but, according to police, wrote the name “Treetop” on a piece of paper.
That was the nickname of Charles Tomlin, a 26-year-old Bakersfield man with prior convictions for selling heroin and grand theft and who had had previous run-ins with the Bakersfield detective assigned to investigate Stewart’s murder.
On December 12, 1978, police arranged a photographic line-up for Mendez and she picked out Tomlin’s photo. The following day she picked Tomlin out of a live line-up. Tillman was brought in and identified a photograph of Tomlin as the man he knew as “Treetop.”
Tomlin was charged with first-degree murder. At the time, Tomlin was 6 feet tall, slim and his hair was shoulder-length, not an Afro. Tillman also was charged with murder.
Neither the murder weapon nor the marijuana was ever found. None of the fingerprints on Stewart’s truck matched Tomlin.
In 1979, Tomlin went on trial in Kern County Superior Court. Tillman was scheduled to be tried later.
Tomlin’s defense attorney pursued a defense strategy of mistaken identification and alibi—Tomlin’s family and a neighbor testified that he was home on the night of the crime and that his car never left the driveway.
Because the live line-up had been illegal—Tomlin was represented by counsel at the time and the lawyer was not notified of the line-up—Mendez’s in-court identification would not be admissible unless the prosecution could show that the identification was based on a source independent of the live line-up.
Tomlin’s trial lawyer chose not to challenge the in-court identification, fearing that if he did and was successful, the prosecution would likely offer Tillman a plea agreement in exchange for his likely more damaging testimony against Tomlin.
The defense lawyer believed that Mendez would be an easier witness to undermine. However, after Mendez identified Tomlin in court, the defense attorney, in cross-examination, brought up the live line-up and opened the door for the prosecution to bring in Mendez’s identification at the live line-up.
A Bakersfield detective testified that Tillman had written “Treetop” on a piece of paper, although the paper had not been preserved.
On March 5, 1979, Tomlin was convicted by a jury of first-degree murder and two counts of robbery with a firearm. On September 7, 1979, he was sentenced to 25 years to life in prison. Tillman was later convicted and sentenced to prison.
The California Court of Appeals upheld the conviction in 1981.
In 1986, attorney Gerson Horn took on the case. He read the preliminary hearing transcript and discovered that at first Mendez had recanted her identification, but under continued questioning by the prosecution she had ultimately agreed that she had identified Tomlin.
Horn tracked down Mendez in the San Francisco Bay area and when he told her that he was working on Tomlin’s case, she blurted out, “I convicted an innocent man.” She said that when she looked at the photograph of Tomlin, the detectives exchanged glances and she believed that meant Tomlin was the one she was supposed to pick.
In June, 1986, Horn filed a petition for a state writ of habeas corpus and at a hearing that fall, Tomlin’s trial attorney admitted he provided inadequate legal assistance. Mendez testified that her identification of Tomlin was a mistake based on suggestive cues given by the police.
Tillman testified at the hearing and denied that he had written “Treetop” on a piece of paper and denied that he ever implicated Tomlin. He claimed to have turned down a deal for a three year sentence if he would testify that Tomlin was the assailant.
On October 23, 1986, the petition was denied by a judge who ruled that Mendez was emotionally distraught and unreliable. Appeals of that ruling were denied.
In December, 1988, Horn filed a petition for a federal writ of habeas corpus and four years later, in 1992, a federal judge denied the petition.
However, on July 28, 1994, the U.S. Court of Appeals for the Ninth Circuit reversed the district court, ruling that Tomlin’s trial attorney had provided inadequate legal assistance.
Tomlin was released from prison on October 28, 1994 and the charges were dismissed.
He later filed a federal civil rights lawsuit, but following a trial, the jury found in favor of the city of Bakersfield and its police department.
– Maurice Possley