Counsel called again on Sunday night and on Monday morning. Tr. 111-12.
On Monday, counsel spoke with a woman who informed him that Tran's mother
was at work, and gave counsel a number where Tran's mother could be
reached. Tr. 112. This work number was the same as the one that counsel
had in his files for the restaurant where Tran had previously been
employed. Tr. 116-17. Counsel called the restaurant and spoke with an
individual who identified himself as the manager. Tr. 112. The manager
indicated that petitioner's mother was not in the restaurant, but that he
had counsel's number and would give her the message. Tr. 112. At 5:30
P.M. on Monday, counsel sent a Western Union telegram to the Philadelphia
address provided by the Post Office. Tr. 112.
Counsel argued at the hearing that, "it appears that the family [of Phi
Tran] is fully apprised that we're looking for Phi Tran, and based on
their non-responsiveness I have to assume that they're not going to let
us know any time soon, if at all, of where he is." Tr. 120-21. Counsel
indicated that he would send Ledee to Chinatown, but that he could not
provide Ledee with a picture of Phi Tran because neither he nor the police
possessed one. Tr. 121-22. The Assistant District Attorney stressed that
counsel and Ledee had not spoken to the mother, and that a possibility
existed that they could ascertain Phi Tran's location if they did so.
Tr. 122-23. After the trial judge indicated that the defense had not made
a "true diligent effort," counsel requested that the judge reserve his
final decision until he pursued additional channels, namely, a personal
interview with the manager and/or mother. Tr. 124. The trial judge then
suggested that the mother be subpoenaed, so that "a determination [can
be] made right here in court where she's under oath to determine whether
she has any knowledge of where the son's located. . . ." Tr. 124.
Subpoenas were signed by him on October 23 "requiring Mrs. Luu
[petitioner's mother] to appear in this Court and testify under oath."
People v. Phan, 150 Misc.2d 435, 441 (N.Y. Sup.Ct. 1990). The subpoenas
were served on petitioner's mother at the restaurant where she worked.
Tr. 936-37. Petitioner's mother did not appear to testify. Phan, 150
Misc.2d at 441.
At the close of the prosecution's case, counsel stated that the defense
"will be unable to offer any additional evidence on the issue of due
diligence for the purpose of finding the witness we allege to be
unavailable, Mr. Phi Tran." Tr. 928. When asked by the trial judge
whether he or Ledee had yet interviewed petitioner's mother at the
restaurant, counsel responded that they had not, and that he could not
"give the Court a reason aside from we were hoping that she would respond
to the subpoena." Tr. 937.
The trial judge denied petitioner's application to introduce Tran's
grand jury testimony, as well as the testimony of another witness, Vinh,
who told the grand jury that he saw petitioner inside the pool hall 15
minutes after the shooting. He first concluded that the testimony of
Vinh, who was deceased at the time of trial, was not material to the
defense case because it did not create a reasonable doubt that did not
otherwise exist. Phan, 150 Misc.2d at 439. With respect to Phi Tran, the
judge found that, "while defendant has made attempts to find the witness
Phi Trung Tran, his efforts have not met the good faith/due diligence
standard necessary for a finding that the witness is unavailable." Id. at
441. The specific deficiency that the judge identified was that
petitioner "did not make efforts to physically interview Mrs. Luu and the
restaurant manager, nor did he
conduct a more extensive interview of Y. Tran with respect to whether
other relatives might know the whereabouts of Phi Trung Tran." Id. The
trial judge observed that while he had "signed subpoenas on October 23
requiring Mrs. Luu to appear in this Court and testify under oath, she
has not appeared. In fact, defense counsel had the subpoenas served on
Mrs. Luu at the Manhattan Chinese restaurant, but neither defense counsel
nor the investigator made any efforts to personally interview her at that
location. The extent of the investigation, consisting of ringing
doorbells, "visiting one relative of the witness, and telephone calls,
does not satisfy this Court that the witness is unavailable." Id.
In affirming the judgment of conviction, the Appellate Division
addressed as follows the claim that it was error to exclude Tran's grand
A defendant has a constitutional right to introduce
secondary evidence when (1) the evidence bears
sufficient indicia of reliability, and (2) the witness
is no longer available (see, Ohio v. Roberts, 448 U.S. 56,
66; Rosario v. Kuhlman, 839 F.2d 918). With respect to
one of the witnesses in question, the defendant failed
to meet his burden of establishing that he made a good
faith effort to obtain that witness's presence at
trial (see, Ohio v. Roberts, supra. at 74; Rosario v.
Kuhlman, supra, at 924-925).
People v. Phan, 208 A.D.2d 659, 660-61 (2d Dep't 1994).
Before addressing petitioner's challenge to this specific basis for
excluding the grand jury testimony, I address the preliminary issues
relating to the admissibility of the prior testimony and the showing of
materiality necessary to grant relief. There is no dispute here that the
grand jury testimony of Tran was under oath and subject to examination by
a prosecutor who had a motive and opportunity to discredit his
testimony. Indeed, after examining the grand jury testimony of Tran, the
trial judge found that Phan "was subjected to a full and extensive
cross-examination by the district attorney, the same party which would
have had the opportunity to cross-examine the witness if he testified at
the trial." People v. Phan, 150 Misc.2d 435, 439 (N.Y. Sup.Ct. 1990).
This is sufficient to satisfy the reliability predicate for the admission
of prior testimony. Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir.
Nor is there any dispute that the testimony was material. The standard
for determining whether the exclusion of evidence is so unfairly
prejudicial as to violate the Due Process Clause is the same one that the
Supreme Court has applied to determine whether a defendant is entitled to
a new trial when exculpatory evidence has been withheld. See Collins v.
Scully, 755 F.2d 16, 18-19 (2d Cir. 1985); Justice v. Hoke, 90 F.3d 43,
47 (2d Cir. 1996). It was recently articulated by the Supreme Court in
Kyles v. Whitley, 514 U.S. 419 (1995), in which the Court considered the
defendant's claim that evidence favorable to him had been wrongfully
[The] touchstone . . . is a "reasonable probability"
of a different result, and the adjective is
important. The question is not whether the defendant
would more likely than not have received a different
verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.
Id. at 434. Because this standard necessarily subsumes the normal
harmless error standard, once it has been met, the exclusion or
evidence "cannot subsequently be found harmless under [Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993)]." Id. at 436.
The standard has been met here. The case against petitioner rested on
the testimony of a single eyewitness to whom petitioner was a stranger.
This kind of testimony is notoriously unreliable, and is alone sufficient
to undermine confidence in the verdict. See Arizona v. Youngblood,
488 U.S. 51, 72 n. 8 (1989) (Blackmun, J., dissenting, citing
"authorities suggest[ing] that eyewitness testimony alone, in the absence
of corroboration, is to be viewed with some suspicion"); Jackson v.
Fogg, 589 F.2d 108, 112 (2d Cir. 1978) (noting that of "all the various
kinds of evidence" testimony of eyewitnesses "is the least reliable,
especially where unsupported by corroborating evidence"); see also Lyons
v. Johnson, 99 F.3d 499, 504 (2d Cir. 1996) (noting that "eyewitness
testimony is often highly inaccurate"). More recently, a study of 28
cases conducted by the National Institute of Justice in which convicted
defendants were exonerated on the basis of DNA testing showed that the
most common cause of conviction was eyewitness identification. Edward
Connors, et al, Convicted by Juries, Exonerated by Science: Case Studies
in the Use of DNA Evidence to Establish Innocence After Trial, National
Institute of Justice Research Report (June 1996)). Indeed, Judge Newman
has argued that an uncorroborated eyewitness identification should be
held to be insufficient to sustain a conviction. See Jon O. Newman, The
Madison Lecture: Beyond "Reasonable Doubt", 68 N.Y.U.L.Rev. 979, 999
In addition to the "intrinsic unreliability of eyewitness
identifications," Lyons, 99 F.3d at 504 (citations omitted), the
identification here was a cross-racial one. Studies show that such
identifications "are much less likely to be accurate than same race
identifications." Arizona v. Youngblood, 488 U.S. at 72 n. 8 (internal
quotations and citations omitted). Moreover, in a post-arrest lineup, a
second eyewitness to the shooting identified petitioner's co-defendant as
the person who shot Stahl. Under these circumstances, testimony by a
witness placing petitioner inside the pool hall at the time of the
shooting is plainly material. If credited by the jury, it "could have
raised a reasonable doubt regarding the [accuracy of the eyewitness
identification]." Justice v. Hoke, 90 F.3d 43, 50 (2d Cir. 1996).
Indeed, the trial judge expressly found that Tran's testimony
"potentially provides defendant with an alibi defense" and was material to
his defense. People v. Phan, 150 Misc.2d 435, 439 (N Y Sup.Ct. 1990). The
Appellate Division did not decide otherwise and the Assistant District
Attorney acknowledges its significance here. Tr. 35 (Hearing, December
21, 2000) ("[T]he second witness said he was standing at the table [next]
to him when these shots were fired. It's significant evidence."). The
concession here is consistent with the position taken by the Assistant
District Attorney at trial. Specifically, he told the trial judge that
"to be candid, I was seriously considering consenting to defendant's
application, because there is certainly a basis for it. . . ." Tr. 65. The
objection to the admissibility of Tran's grand jury testimony, in the
end, was motivated by the possible unavailability of a witness who would
have contradicted one aspect of Tran's testimony, Tr. 65, a problem that
the prosecutor would have faced even if Tran was available.
I turn then to the only issue on which the petition turns, namely,
whether Tran was unavailable. Petitioner's 18-B counsel
and an investigator, whose fee was capped at $350 for the entire trial,
Tr. 89 (Hearing, October 18, 1990), made serious efforts to locate Tran
and to speak with his mother. of course, as the Supreme Court observed in
Ohio v. Roberts, 448 U.S. 56 (1980), "[o]ne, in hindsight, may always
think of other things [that could have been done to locate the witness]."
Id. at 75. The record there is instructive. Approximately four months
before the defendant's trial and some ten months after the preliminary
hearing testimony of Anita Issacs, a critical witness, the prosecutor
contacted her mother, about Anita's whereabouts. Mrs. Isaacs told him
that Anita left her home in Ohio, for Tucson, Ariz., soon after the
preliminary hearing. About a year before the trial, a San Francisco social
worker was in communication with the Isaacs about a welfare application
Anita had filed there. On the same day that Mrs. Isaacs spoke to the
social worker, she also spoke to her daughter. Id. at 81 (Brennan, J.,
dissenting). Since then, however, Anita had called her parents only one
other time and had not been in touch with her two sisters. When Anita
called, some seven or eight months before trial, she told her parents
that she "was traveling" outside Ohio, but did not reveal the place from
which she called. Mrs. Isaacs stated that she knew of no way to reach
Anita in case of an emergency. Id., at 75.
Other than serving subpoenas on Anita Issacs at her parents home, the
prosecution took no steps to find her such as contacting the San Francisco
social worker with whom Mrs. Issacs had previously spoken and through
whom Mrs. Issacs had apparently been able to contact her daughter a year
earlier. Indeed, the dissenting Justices in Roberts, outlined "the vista
of investigatory opportunities that were available to the State had it
actually attempted to find her." Id. at 82. Nevertheless, the majority in
Roberts concluded that "the great improbability that such efforts would
have resulted in locating the witness, and would have led to her
production at trial, neutralizes any intimation that a concept of
reasonableness required their execution." Id. at 76.
This language is equally applicable here. In the present case, the
mother of the witness is the analog of the social worker in Roberts. She
was, as petitioner's interview of Tran's brother revealed, the only
potential source of information as to Tran's whereabouts. Unlike the
prosecutors in Ohio v. Roberts, who sought to use Anita Issacs'
preliminary hearing testimony at trial, petitioner and his investigator
made repeated efforts to contact Tran' s mother, and they made far more
substantial efforts to locate Tran than the State of Ohio did to locate
Anita Issacs. Indeed, it was their own investigative efforts that led
them to Tran's mother as a possible source of knowledge of his
whereabouts. More significantly, even if the meager resources available
to the defense could have been stretched to accommodate a greater
effort, it seems unlikely, in light of the failure of Tran' s mother to
contact defense counsel or appear in response to the subpoena served upon
her, that a face to face interview would have led to the discovery of
Tran's whereabouts. Indeed, my own reading of the record supports the
judgment of petitioner's counsel that, "it appears that the family [of
Phi Tran] is fully apprised that we're looking for Phi Tran, and based on
their non-responsiveness I have to assume that they're not going to let
us know any time soon, if at all, of where he is." Tr. 120-21.
Moreover, the conclusion that the efforts of counsel were undertaken in
good faith is
supported by the absence of any apparent motive to obtain an advantage by
admitting secondary evidence. The New York Court of Appeals has observed
that the purpose of requiring due diligence to secure the presence of a
witness where prior testimony is being offered is to ensure that the
failure to produce the witness "was not due to indifference or a
strategic preference for presenting [the witness'] testimony in the more
sheltered form . . . of minutes rather in the confrontational setting of
a personal appearance on the stand." People v. Arroyo, 54 N.Y.2d 567, 571
(1982); see also Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988).
There was no advantage to the petitioner to offer a transcript of Tran's
grand jury testimony rather than having him testify before the jury. This
was a case in which the prosecution had an eyewitness who identified the
witness in open court. Such testimony, as a practical matter, is more
likely to be overcome by the testimony of a live alibi witness, whose
credibility the jury is able to assess, than the cold transcript of the
prior testimony. Indeed, the Assistant District Attorney acknowledged as
much in tempering his concession that Tran's grand jury testimony was
significant. Tr. 35 (Hearing, December 21, 2000) ("I think whether this
evidence would have a lot of impact coming in as a transcript, I don't
know, but I think this was no[t] insignificant evidence.").
There is one more reason why the exclusion of Tran's grand jury
testimony was unreasonable, although I do not rely on it to grant the
writ because it was not raised in the New York State courts. While I
disagree with the holding of the trial judge that petitioner's lawyer
failed to do enough to find Tran, if that holding is correct, then
petitioner was deprived of the effective assistance of counsel. A lawyer
competently representing his client has an obligation to use due
diligence to secure the presence of an alibi witness whose testimony was
critical to the defense case. Moreover, this particular dereliction of
counsel was apparent to the trial judge in time to avoid the prejudice to
the defendant, i.e. before he excluded Tran's grand jury testimony.
Indeed, the trial judge apparently recognized his own obligation here to
protect petitioner's rights when he suggested that Tran's mother be
subpoenaed, although upon being informed that the subpoena had been
served on her, he took no action to enforce it. Instead, as the following
colloquy indicates, he appeared to be more concerned with making a record
to justify the exclusion of Tran's grand jury testimony than in securing
THE COURT: I did sign a subpoena for the mother of one
of those witnesses. What happened to that subpoena?
[DEFENSE COUNSEL]: It was served by Laurie Chinese
Ramos. THE COURT: Where was it served? [DEFENSE
COUNSEL]: On Canal Street, at the restaurant. THE
COURT: Did you or the — or your investigator go
to that location, interview that person? [DEFENSE
COUNSEL]: No, your Honor. THE COURT: Any reason for
[DEFENSE COUNSEL]: Well, I cannot give the Court a
reason aside from we were hoping that she would
respond to the subpoena. THE COURT: All right. Thank
you. That's what I wanted to know.