The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
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
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
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
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
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?
Q: Did she contact you or did you contact her?
A: I contacted her.
Q: By telephone?
Q: And you contacted her, you indicated, because
you were reading a report; is that correct?
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
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?
Q: Who was it that took the report?
A: Demayon. (phonetic) . . .
Q: When you spoke to . . . Leonida Punn [sic]
. . . did she ever mention
the name Dematra [sic] Harris to you?
Q: Did she provide you with a description of the
person that robbed her?
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
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.
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.
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
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
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
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?
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
[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
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
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
* * *
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?
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 . . .
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.
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.
Q: Is that the person you had seen that
[Harris' Counsel]: Objection.
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.
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
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. ...