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MITCHELL v. HOKE

September 5, 1990

VINCENT MITCHELL, PETITIONER,
v.
ROBERT HOKE, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Weinstein, District Judge.

MEMORANDUM AND ORDER

Petitioner was convicted by a jury of robbery and menacing in December 1985 in the New York State Supreme Court, Queens County. The conviction was affirmed by the Appellate Division in September 1988. The Court of Appeals denied leave to appeal in April 1989. Petitioner sought a writ of habeas corpus in September 1989. As demonstrated below, petitioner's confrontation rights were violated through the introduction of identification hearsay. The writ must therefore be granted.

I. FACTS

Petitioner and another defendant were tried jointly. The government's proof consisted of testimony of an alleged eyewitness victim to the robbery, Bobby Jones, and of a police detective who investigated the case. Jones testified that he was with three others, Elliot Primus, Mitchell Warren and Jerome Trim on the night of the robbery. It is uncontroverted that all had been drinking. Jones denied smoking marijuana. He stated that petitioner and the co-defendant participated in the robbery. He identified both men as people he knew casually; petitioner lived in his mother's apartment building. Before the night of the crime, it had been four and a half years since he had last seen petitioner. Jones stated that petitioner removed and took his ring, went through his wallet and searched his pockets, and removed and took his jacket.

The police detective testified about a lineup at which Primus picked out petitioner as one of the perpetrators. During a colloquy in chambers before this testimony, the attorneys made clear, and the parties in the present habeas corpus action do not dispute, that Primus would not at trial testify that petitioner was the perpetrator.

The state never established or even suggested at trial that Primus would testify to being unable to identify petitioner due to memory loss, a change in petitioner's appearance, or some other reason. On the contrary, in a colloquy before the judge in chambers defense counsel claimed that Primus was now "saying Mr. Mitchell was not the person that was the person that robbed him."

Over petitioner's objection, the police detective was permitted to testify as follows:

  Prosecution: And Detective, did Mr. Primus pick
  anyone out of that lineup?
  Defense: Objection, Judge. Just what we discussed
  in the chambers.
  Court: He can answer that yes or no.

  Defense: Very well, Judge.

Court: Exception noted.

Detective: Yes, he did.

  Prosecution: And pursuant to that did you effect
  an ...

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