United States District Court, Eastern District of New York
September 5, 1990
VINCENT MITCHELL, PETITIONER,
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.
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
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 arrest, Officer?
Detective: Yes, I did.
Prosecution: And who did you arrest?
Detective: Vincent Mitchell [petitioner].
At sidebar petitioner's counsel again noted his objection.
Petitioner called three witnesses. One was Michael Warren,
who was with Jones at the time of the incident. Warren claimed
that Jones had been drinking and smoking marijuana and was
having trouble walking. Warren stated that neither of the
defendants, both of whom he knew, were the perpetrators of the
crime. He also stated that shortly after the perpetrators
arrived, he ran away from the scene and returned after they had
The defense also called Jerome Trim, another person with
Jones at the time of the incident. He claimed Jones had been
drinking and smoking marijuana. He testified to knowing the
defendants. He also testified that neither defendant was a
member of the group that committed the crime. Shortly after the
perpetrators arrived, he and Warren ran away. He described
himself and Warren as friends, and stated that he and Warren
had discussed the case and Warren's testimony before Trim
Finally, the defense called petitioner's employer, who
testified that at the time of the incident, petitioner's face
was covered with very noticeable scarring that was the result
of an operation for which petitioner had recently received sick
leave. A hospital report was admitted into evidence, but that
report is not before this court.
During jury deliberations, the jury indicated on two
occasions that they had reached a verdict as to one defendant
but were deadlocked on the other. Eventually, they returned
guilty verdicts against both.
This case raises two related questions: whether the testimony
of the detective violated the technical evidentiary hearsay
rule and whether it violated the confrontation clause. Both
questions should be answered in the affirmative. Furthermore,
the error was not harmless.
A. Hearsay Rule
Under New York state law, third-party testimony regarding a
pretrial identification of a criminal defendant is inadmissible
at trial unless the witness cannot identify the defendant on
the basis of present recollection or is otherwise unavailable.
New York Crim.Proc.Law § 60.25 (McKinney 1981); People v.
Bayron, 66 N.Y.2d 77, 495 N.Y.S.2d 24, 485 N.E.2d 231 (1985)
(failure of witness to identify defendants at trial out of fear
does not render admissible police testimony that witness
identified them at time of arrest; statute strictly construed);
People v. Nival, 33 N.Y.2d 391, 353 N.Y.S.2d 409,
308 N.E.2d 883 (1974) (statute applies to "situation where the witness,
due to lapse of time or change in appearance of the defendant,
cannot make an in-court identification").
In the case at bar, no such showing of the unavailability of
the witness was made by the prosecution. The prosecution
attempted to avoid the hearsay rule by not asking the detective
who Primus picked out of the lineup, but rather asking whether
he picked someone, and who was arrested as a result. This is a
distinction without a legal difference. The case provides a
classic example of indirect hearsay. The act of the hearer (the
detective) leads by direct inference to the precise words of
the speaker (the identifying witness). Since the speaker's
credibility must be evaluated to determine the probative force
of this line of identification proof, the hearsay rule applies.
The jury could only draw one reasonable inference from the
detective's testimony: that Primus selected Mitchell. The
detective in effect repeated the substance of Primus's
out-of-court statement. Because Primus was available to
testify, the hearsay rule was violated.
B. Confrontation Clause
The confrontation clause of the sixth amendment and the
hearsay rule "stem
from the same roots" but are not identical. Dutton v. Evans,
400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970);
California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930,
1933-34, 26 L.Ed.2d 489 (1970). The purpose of the
confrontation clause is to "prevent [other evidence] being used
against the prisoner in lieu of a personal examination and
cross-examination of the witness in which the accused has the
opportunity, not only of testing the recollection and sifting
the conscience of the witness, but of compelling him to stand
face to face with the jury in order that they may look at him,
and judge by his demeanor upon the stand and the manner in
which he gives his testimony whether he is worthy of belief."
Mattox v. U.S. 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39
L.Ed. 409 (1895). The confrontation clause is applicable to the
states. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13
L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct.
1074, 13 L.Ed.2d 934 (1965).
Availability of the witness does not necessarily cure the
violation of the confrontation clause. "In the usual case . .
. the prosecution must either produce, or demonstrate the
unavailability of, the declarant whose statement it wishes to
use against the defendant." Ohio v. Roberts, 448 U.S. 56, 63,
100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980). A demonstration of
unavailability can be dispensed with only when "the utility of
trial confrontation is . . . remote." Id. at n. 7. Accord
Reardon v. Manson, 806 F.2d 39, 42 (2d Cir. 1986) ("[I]n those
borderline cases where the likely utility of producing the
witness is remote, the Sixth Amendment's guarantee of an
opportunity for effective cross-examination is satisfied where
the defendant himself had the opportunity to call the declarant
as a witness."), cert. denied, 481 U.S. 1020, 107 S.Ct. 1903,
95 L.Ed.2d 509 (1987).
This is obviously not a "borderline case where the likely
utility of producing the witness is remote." The evidence
offered through the detective, an identification of petitioner
as the perpetrator, corroborating the one other eyewitness
identification offered, was crucial. The parties agree that,
had Primus testified, he would not have identified petitioner.
The government implies that he would have testified that "he
could no longer identify petitioner," suggesting merely a loss
of memory. Petitioner suggests that Primus' testimony would
have been more favorable to petitioner.
We need not speculate as to precisely what Primus' testimony
would have been. The burden is on the state to establish what
his testimony would have been — normally by producing him. As
noted earlier, Primus might have testified that defendant was
not one of the perpetrators. At minimum, his lack of memory
would have undermined his credibility and diluted the power of
his lineup identification, and at most, his testimony could
have directly contradicted the lineup identification. This
testimony could have been of considerable value to petitioner
and the jury.
Even if the utility of Primus' testimony were limited, in
order to admit the detective's account the government would
still have to demonstrate that Primus's identification bore
"adequate `indicia of reliability.'" Ohio v. Roberts,
448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980) (quoting
Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d
213 (1970)); Reardon v. Manson, 806 F.2d 39, 43 (2d Cir. 1986).
Third-party identification testimony where the declarant is
available is not "a firmly rooted hearsay exception," either
under New York state law or under the Federal Rules of
Evidence, and thus "particularized guarantees of
trustworthiness" must be demonstrated. Ohio v. Roberts,
448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). That
Primus was not prepared to testify that petitioner committed
the crime throws at least some doubt upon the reliability of
his prior identification.
This case is readily distinguishable from California v.
Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970),
where the Court admitted hearsay evidence of a witness
identification. In that case, the witness took the stand but
claimed not to remember the incident. A prior identification
was given at a preliminary hearing,
under circumstances closely approximating those
that surround the typical trial. [The witness] was
under oath; respondent was represented by counsel
. . . respondent had every opportunity to
cross-examine [the witness] and the proceedings
were conducted before a judicial tribunal,
equipped to provide a judicial record of the
Id. at 165, 90 S.Ct. at 1938. Because the setting of the prior
identification bespoke reliability and offered the defendant
adequate protection of his rights, it was admissible. In the
case at bar, there was no opportunity to cross examine Primus
and test his credibility and the reliability of his
The fact that petitioner could have called Primus as a
witness does not protect his rights under the confrontation
clause. It is the right to cross examination, as distinct from
direct examination, that is protected by the confrontation
clause. See Ohio v. Roberts, 448 U.S. 56, 70-71, 100 S.Ct.
2531, 2541-42, 65 L.Ed.2d 597 (1980); Douglas v. Alabama,
380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965);
Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13
L.Ed.2d 923 (1965). See also Westen, Confrontation and
Compulsory Process: A Unified Theory of Evidence for Criminal
Cases, 91 Harv.L.Rev. 567, 577-78 (1978). Had petitioner called
Primus for direct examination he could not claim denial of the
right to cross examine. But he did not call Primus, exercising
a clear right to insist on the state's carrying the burden.
The government in a criminal case has the burden of producing
the evidence necessary to prove guilt beyond a reasonable
doubt. Courts must be wary of placing on a criminal defendant
any burden of producing witnesses on his behalf. In this case,
the defense had a right to force the prosecution to make a
decision: to either present its case without evidence of a
second identification or to risk placing an unconvincing or
possibly uncooperative witness on the stand. This strategic
advantage, grounded in due process and reflected in the
confrontation clause, was unconstitutionally denied to
petitioner by the admission of the hearsay testimony.
Failure of the defense to call Primus cannot constitute a
waiver of rights under the confrontation clause. In order for
a waiver to be effective, it must be "an intentional
relinquishment or abandonment of a known right or privilege."
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82
L.Ed. 1461 (1938). Accord Barber v. Page, 390 U.S. 719, 725, 88
S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968); Brookhart v. Janis,
384 U.S. 1, 4-6, 86 S.Ct. 1245, 1246-48, 16 L.Ed.2d 314 (1966).
Defendant's failure to call Primus cannot be considered such an
intentional relinquishment. Direct examination and cross
examination are strategically distinct; a decision to forego
one cannot be construed as a waiver of the other.
C. Harmless Error
In order for a federal constitutional error to be declared
harmless, it must be harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17
L.Ed.2d 705 (1967). The issue is not "whether there was
sufficient evidence on which the petitioner could have been
convicted without the evidence complained of, [but] . . .
whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction." Fahy
v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11
L.Ed.2d 171 (1963).
Identification is the crux of this. The prosecution presented
one witness who identified Mitchell as that robber. It then
bolstered the case through the inadmissible and
unconstitutional testimony of the detective, essentially
turning a one-witness case into a two-witness case.
The defense presented two witnesses who said that Mitchell
was not one of the perpetrators. The jury deliberated for some
time and on two occasions indicated that they did not believe
that they would be able to reach a verdict. The case was a
close one, both in the eyes of the jury, and on the record.
Inclusion of the improper
testimony could very well have contributed to the result. The
constitutional error was not harmless.
The writ of habeas corpus must issue. Defendant shall be
released unless a retrial is begun within sixty days of
completion of all appeals from this judgment.
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