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HARRIS v. SENKOWSKI

January 8, 2004.

DAMECHA HARRIS, Petitioner, -against- DANIEL SENKOWSKI, Superintendent of Clinton Correctional Facility, Respondent


The opinion of the court was delivered by: FREDERIC BLOCK, District Judge

MEMORANDUM AND ORDER

The Court grants petitioner Damecha Harris' ("Harris") habeas corpus petition challenging, pursuant to 28 U.S.C. § 2254, his state court robbery conviction, for which he is serving a term of fifteen years to life. Two aspects of this case are rather remarkable: one, the abject ineffectiveness of trial counsel for his failure to confront the victim — the sole witness who identified Harris as the perpetrator at his trial — with a totally different description of him given by her to the police within thirty minutes after the robbery; two, that it has taken Harris almost twelve years from the date of his conviction to obtain relief. Page 2

  BACKGROUND

 I. State Court Proceedings

  The underlying facts leading to Harris' arrest could not be more simple. On February 25, 1991, at approximately 9:20 p.m., Leonida Punu ("Punu") was robbed outside her home in Queens, New York. Punu called the police, who came to her apartment and took her statement. A complaint report prepared by an Officer Clifton, just thirty minutes after the robbery, states that Punu described her assailant as a black man twenty years of age, standing 5' 4" tall and weighing 130 pounds. Punu is described in the complaint report as an Asian female.*fn1

  The next evening, two police officers drove Punu around her neighborhood in search of her assailant. After 45 minutes, Punu identified Harris as he was walking on a street; he was accosted and arrested. Two reports relating to his arrest — an On Line Booking System Arrest Worksheet and a Stop and Frisk Report — described Harris, albeit black, as 26 years old, 6 feet tall and 220 pounds.*fn2 Page 3

 A. Wade Hearing

  Prior to trial, a Wade hearing was held to determine whether Punu's identification of Harris should be suppressed as unduly suggestive. See United States v. Wade, 388 U.S. 218 (1967). Police officer Russo ("Officer Russo" or "Russo") was the only one to testify. On direct examination, Officer Russo recounted that he spoke to Punu on the day after the robbery; "she gave [Russo] a description of a male and she told [him] that she had seen him in the neighborhood before." Wade Hearing Transcript at 5.*fn3 During that conversation, Russo and Punu arranged "to take a ride around the neighborhood" later that evening to search for the perpetrator. Id. Russo testified that as he and a fellow officer drove Punu home that night, the following occurred: " [S]he pointed to a male across the street and she said `that's him over there.' And I said, `which person?' And she described him and she said, `the male running toward the subway.'" Id. at 6. Harris' counsel sought to cross-examine Russo about the complaint report:
Q: On February 26th you spoke with Leonida Punn [sic]; is that correct?
A: Yes.
Q: Did she contact you or did you contact her?
A: I contacted her.
  Q: By telephone? Page 4

  A: Yes.

 
Q: And you contacted her, you indicated, because you were reading a report; is that correct?
A: Yes.
Q: Did you take the report?
A: I don't understand what you mean.
Q: In other words, were you the person, the officer, who filled out the information in the report?
A: No.
Q: Did you know who did take the report?
* * *
A: Yeah, the name is on the bottom of the 61.*fn4
Q: Do you have the 61 with you?
A: Yes, I do.
Q: Would it refresh your memory as to who took the report if you looked at the 61?
A: Yes . . .
Q: Have you refreshed your recollection?
A: Yes.
Q: Who was it that took the report?
A: Demayon. (phonetic) . . .
  Q: When you spoke to . . . Leonida Punn [sic] . . . did she ever mention Page 5 the name Dematra [sic] Harris to you?

  * * *

  A: No.

 
Q: Did she provide you with a description of the person that robbed her?
A: Yes.
Q: What was that description?
A: I don't recall offhand right now.
Q: Did you write it down as she was taking it — as she was giving it to you?
A: Write it down, no, but I — no, I don't recall.
Id. at 10-13.
  Harris' counsel did not pursue the matter; he did not attempt to offer the complaint report into evidence, or call Punu or the officer who wrote the report to testify. The focus of his cross-examination was limited to the issue of suggestiveness. In that regard, he questioned Russo about whether he assisted Punu in identifying Harris by calling her attention to Harris as they were driving:
Q: Immediately prior to her identifying that one person, isn't it true that you pointed to that person and said, Miss Punn [sic], is that him or isn't that him or words to that effect?
A: I don't recall saying that.
Q: Do you recall saying something to her?
* * *
  A: Like, are you sure it's him. Page 6
 
Q: Prior to pointing to that person in the street, isn't it true you said something to her?
A: I don't recall saying anything, no.
Id. at 14-15.

  Because there was no evidence of suggestiveness, and the court never knew of the description of Punu's assailant in the complaint report, the suppression motion was understandably denied.

 B. The Trial

  The entire trial, from opening statements to verdict, took place in one day, January 15, 1992. Just prior to the commencement of the trial, Harris' counsel unsuccessfully moved to reopen the Wade hearing to require Punu to testify because her Grand Jury testimony, which he had just received, was at variance with Officer Russo's Wade testimony; she told the Grand Jury that "Russo asked me, what about that guy on your left hand side." Trial Transcript ("Trial Tr.") at 10*fn5 (quoting Grand Jury Transcript ("Grand Jury Tr.") at 5).*fn6

  Punu and Russo were the only ones who testified at the trial. Their combined testimony covers just thirty-five pages of the trial transcript. See Trial Tr. at 29-64. As noted by the judge, the testimony took all of "25 minutes." Id. at 73. Punu's direct Page 7 examination comprises eighteen pages, see id. at 29-47; cross-examination is eleven pages. See id. at 47-58. Russo's direct examination covers six pages, see id. at 59-63; cross-examination consisted of six questions. See id. at 63-64.

  The following is the totality of Punu's direct testimony describing the robbery:
Q: Now approximately what time did you arrive home that night?
A: It was about approximately 9:20, 9:25.
Q: And when you arrived home, will you please tell the members of the jury what if anything did you do?
A: Okay. I was on my way — I was walking home along Avon Street and then in front of my house it was Monday evening. So they pick up the garbage in the morning, so the empty garbage was in front of my house. So I put it on the side of my house and then after I drop the garbage and I saw this — I saw a man right behind me on my left side. I turn around and I saw this man and then I say "You again?" And then he said "I have a gun don't scream."
Q: Now, ma'am, when you said you saw him behind you to the left, where you're seated, would you please point exactly where behind you he was?
A: He was — I dropped the garbage on this side. And then I was — I turn around and saw him on my left side. I turn around like this. I dropped this garbage and then I turn around and I saw him. I said, "You again?"
Q: Now where you're seated, how far was he in relationship to where the Judge is seated? Turn around and look at him.
A: About there. Court: Four to five feet.
  Q: You turned and looked at this individual? Page 8

  A: Yes.

 
Q: Now when you said "You again," what were you referring to, ma'am?
A: Because three weeks ago, the same day, Monday, same guy, I saw the same guy I was walking along Avon Street. And he was walking in the middle of the street. And I was walking on the pavement. And the minute he saw me, he went to me and then I ran in the middle of the street. And then he said. He acted like that. And then the following week I was on vacation, on a Wednesday, between 5:00 and 6:00, I was again, I was taking out garbage because I was on vacation. I was taking out garbage. And this guy is coming from Avon Street. And then he went — when I saw him, I remember he was the same guy that was trying to get me on the week before that Monday.
[Harris' Counsel]: Objection to the characterization, your Honor.
Court: The jury will disregard the statement "trying to get me."
Q: That was the same person you had seen before, right?
A: Yes.
Q: So the second time you saw him, describe how did you see him?
A: I saw him, he was getting near me. When I look at him, I got really scared. And I ran upstairs . . . I ran upstairs and kept ringing my doorbell and I told my daughter, "Call the police. Call the police." And the guy said "I'm not going to do anything. I'm just asking for an address."
* * *
Q: On the 25th of February, when you saw him again in front of your house, how many times had that been then?
A: That was the third time.
Id. at 33-36.
  With regard to the events of the next night, when she identified Harris, Punu Page 9 gave the following testimony on direct examination:
Q: Now as you got into the automobile with the officers, please tell the members of the jury, where did you go at that point?
A: We drove around — started in Hillside, drove around Downing, and then we went round Avon and we kept going around then we went to Midland, went to Wexford. Kept going around four times.
Q: Okay. Now, when you first went on Midland Parkway, where did the officers turn at that point?
* * *
A: The officer went to Wexford Terrace.
Q: Is that a right or a left?
A: Its [sic] on the right side.
Q: And what happened as they did that?
A: And when we — the officer told me that maybe they will not — he's not around. So I will take you home. And they were going to take me home. And then the officer said did you see anything on your left? I said no, because I was on the right hand side of the car and I was thinking that I was — they were going to bring me home. And then he said okay. We'll drive one more time around. And then we drove one more time around and when we got on Midland Parkway, I saw this man walking, on the righthand side of Midland and I said, that's him. That's him.
Q: Now before you said that had the officer said anything to you?
A: No.
Q: Now after you said that's him, that's him. What happened next?
  A: And then — are you sure? Are you sure? The officer said, I'm sure, I'm sure, that's him. That's him. And we made a U-turn. He made a U-turn on Midland Parkway. And then parked the car on Hillside Avenue and Midland Parkway. And then they said "Stay here." And then I stayed there . . . Page 10

  * * *

  Q: Tell us what happened.

 
A: And after that they told me to — they brought the guy and then he said we want you to relax and we want you to be calm and we want you to identify one more time. And when I look at the guy I said "That's him. That's him."
Q: Now, Miss Punu I'm going to ask you to look around this courtroom and tell the members of the jury, if you see the person in this courtroom, that you observed that night?
* * *
A: That's him, the guy.
* * *
Court: Indicating the defendant.
Q: Now is that the person you saw, ma'am, on February 25, 1991?
[Harris' Counsel]: Objection.
A: Yes. That's him.
Court: Overruled.
Q: Is that the person you had seen that previous Wednesday?
[Harris' Counsel]: Objection.
Court: Overruled.
A: That's him.
Q: Is that the person you had seen that previous Monday two weeks before?
A: That's him.
Id. at 44-47. Page 11

  On cross-examination, Punu testified that Hillside Avenue was a "commercial area," id. at 52, but Avon was not; further, when asked whether "on February 25, 1991, there wasn't a single male black on Hillside Avenue anywhere in that area," she answered in the affirmative. Id. Harris' counsel elicited that there were only two streetlights in the area. See id. at 53.

  Harris' counsel sought to ascertain whether the officers might have pointed Harris out to her before Punu identified him. He asked her whether "at some point the officer asked you to look to the left, is that correct?" Id. at 56. Punu responded in the negative because, as she explained, she was "on the right side and . . . was thinking of getting home." Id. Harris' counsel did not confront her with the contrary testimony she gave to the Grand Jury, that Russo asked her "what about the guy on your left-hand side." Grand Jury Tr. at 5.

  Harris' attorney also asked Punu whether the police "wrote down what [Punu] said" after she identified Harris. Id. at 55. She responded that she did not recall; nor did she recall whether she saw "a note pad in their hands." Id. Harris' attorney never questioned Punu about the description she gave the police the night of the robbery that was contained in the complaint report; nor did he question her about a statement in the complaint report that "[p]erp. did not display a gun." Complaint Report, Hrg. Ex. A at H0071.

  Officer Russo testified about Punu's identification of Harris on the day after the robbery; it tracked his testimony at the Wade hearing. See Trial Tr. at 62. During the course of his testimony, Russo made an in-court identification of Harris as the person Page 12 arrested that evening. See id. Harris' counsel's six questions on cross-examination merely elicited that Russo was not an eyewitness to the crime and that Harris lived in Brooklyn.

  The prosecution offered no other evidence. Harris' attorney did not put in a case; thus, he did not introduce the complaint report into evidence or call Officer Clifton to testify.

  In his summation, Harris' attorney's sole theory of defense was mistaken identification. He argued that there were many other black males in the area, see id. at 80; that Punu was likely "tired, inattentive," id. at 84, and that it was "dark." Id. He stated: "Someone is behind you and you'd be very scared. You wouldn't be able to point to a lot of detail." Id. ...


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