The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
Pro se petitioner Michael Hernandez seeks a writ of habeas corpus from
his September 22, 1998 conviction in Supreme Court, Bronx County, of
first degree assault and fourth degree grand larceny and sentence of
sixteen years imprisonment. (Dkt. No. 2: Pet. ¶ 5.) Hernandez's
habeas petition alleges that: (1) the trial court erred in allowing
testimony of a pre-trial photographic identification (Pet. ¶ 15(A));
(2) volunteered references to Hernandez's prior arrest violated his due
process rights (Pet. ¶ 15(B)); (3) he was denied the right to fully
cross-examine Detective Lauro (Pet. ¶ 16); and (4) trial counsel
rendered ineffective assistance by (a) failing to object to admission of
Hernandez's statement to the police and (b) failing to call a police
officer who "recorded statements describing the perpetrator as someone
other than" Hernandez (Pet. ¶ 17).
For the reasons set forth below, Hernandez's petition should be DENID.
On October 13, 1997, Hernandez attacked an 83 year old woman, Florence
Schiering, and stole her food stamps and cash in order to buy crack
cocaine. (Dkt. No. 6: McGarvey-Depuy Aff. Ex. 4: State 1st Dep't Br. at
5.)*fn1 On October 17, 1997, Hernandez was arrested by Detective Lauro.
(State 1st Dep't Br. at 9; Lauro: Trial Transcript ["Tr."] 54-55.)
A pretrial suppression hearing was held on June 15, 1998. (6/15/98
Hearing Transcript ["H."].) Detective Lauro was the sole witness at the
suppression hearing. (Id.) At the conclusion of the hearing, Justice
Steven Lloyd Barrett held that the photographic arrays shown to witness
Davilla and to the complainant Schiering were not suggestive and thus
their identifications would not be suppressed (H. 85-88.) Justice Barrett
also found that Hernandez was given his Miranda warnings by
Detective Laura, was not mistreated, and thus Hernandez's statements to
the police were admissible. (H. 88-90.)
After jury selection, trial began on June 22, 1998. (Trial Transcript
["Tr."] 1-2.) Detective Lauro testified to, among other things, the
inculpatory statement that Hernandez made to him (Lauro: Tr. 87-88), as
follows: Hernandez said that another drug addict (Davilla) suggested that
he rob this "old lady" who lived in Davilla's building. (Lauro: Tr. 87.)
Inside the building, Hernandez "`put [his] hand inside her sweater pocket
and took out a purse. She told [him] to give her back her money, and [he]
told her to shut up.'" (Lauro: Tr. 88.) Hernandez ran to a "crack spot"
and gave half the food stamps in the purse to the other addict. (Lauro:
The victim, Ms. Schiering, similarly described the robbery at trial:
her attacker reached inside her pocket, took out her purse containing $30
of food stamps, "put his face" into hers and said "`just don't holler.'"
(Schiering: Tr. 705-06.) The next thing she knew she woke up in the
hospital. (Schiering: Tr. 706, 733-34.) In the hospital, Detective Lauro
and another officer showed her a large photo book, with twelve to fifteen
pages full of photographs and then a smaller photo book with six Polaroid
photos per page, and in that second book she identified Hernandez's
picture as that of her attacker, although only with a "90 percent"
certainty. (Schiering: Tr. 735-37, 740-42.)
The Court will not review the balance of the trial testimony, which is
summarized in the parties' briefs to the First Department (see
Ex. 3: Hernandez 1st Dep't Br. at 4-16; Ex. 4: State 1st Dep't Br. at
5-11), except for the testimony relevant to Hernandez's habeas claims.
Detective Lauro's Trial Testimony: Describing An Area Search
As Where Someone Has Been Arrested Before
Detective Lauro testified that as part of his investigation of the
robbery and attack of Schiering, he went to the scene of the crime, 3400
Tryon Avenue in the Bronx, and interviewed several witnesses. (Lauro: Tr.
61-67.) On direct examination by the prosecutor, Detective Lauro
testified that he conducted a further investigation, including an "area
Q. Can you describe what type of investigation you
A. An area search.
Q. Can you define for the members of the jury
what is an area search?
A. An area search is basically a drive by.
walk by of an area where a person that is a
subject of an investigation has been previously
MR. RAMOS [Defense Counsel]: Objection.
THE COURT: Yes. This is more than we need to know,
(Lauro: Tr. 68, emphasis added.) Detective Lauro testified that it
was during this search that he arrested Hernandez. (Lauro: Tr. 69-70.)
After a lunch recess, before the jury was brought back in, defense
counsel Mr. Ramos moved for a mistrial:
MR. RAMOS: I have an application for a mistrial
based on the Officer's testimony that
he went to the location where he
arrested Mr. Michael Hernandez based on
the record of prior arrests, I think.
THE COURT: Based on what?
MR. RAMOS: Records of prior arrests.
THE COURT: I don't believe that was the testimony.
MR. RAMOS: We can read back the record. I asked to
THE COURT: We can read back the testimony. You are
saying the witness said. . . . He
said a prior arrest record?
MR. RAMOS: He made reference to a prior arrest.
The record will speak for itself. I ask
that we refer to the record.
THE COURT: We will refer to the record, not right
It is my recollection that that was not
the type of reference that would impress
upon the jurors what you are suggesting.
(Tr. 76-77.) The next day, when defense counsel renewed his
application for a mistrial and read back Detective Lauro's testimony (Tr.
189-91), the judge again denied a mistrial: "The issue of a mistrial
requires showing of substantial prejudice. I don't believe there is
substantially [sic] prejudice. I don't applaud the use. I don't think it
was intentional. I certainly don't applaud the
reference to the prior arrest. . . . I think a mistrial is a
little excessive remedy. I'll hear your application for any other remedy.
I sustained the objection. If you feel there is something else you would
like me to do in the way of instruction or striking, I will do it." (Tr.
192.) The judge noted that such an instruction "might call unnecessary
attention to a matter that [the judge] believe[s] went right pas[t] this
jury as it just now went pas[t]" the judge. (Tr. 193.) Defense counsel
dropped the issue, moved on to other issues (Tr. 193), and never asked
for a curative instruction (see Ex. 4: State IstDep'tBr. at
Detective Lauro's Trial Testimony; Photographic
On cross-examination, Hernandez's attorney questioned Detective Lauro
about conversations that he had with the victim, Florence Schiering:
Q. When you spoke to Mrs. Schiering, what
date was that?
A. That would be the 16th. 10/16/97. Three
days after the incident.
Q. And would it be fair to say that by
that date you had a picture of Michael
A. Yes, I did.
Q. Okay. Have you spoken to Miss Schiering
since that date?
A. Yes, I have.
Q. How many times?
A. Three or four times since that date.
Q. And in connection with what?
A. In connection with getting ready for
this case to come to trial.
Q. Okay. And on those any of those
occasions when you spoke to Miss
Schiering, did you show her the picture
of Michael Hernandez?
Q. Never at all?
A. After the first time?
Q. That's correct.
A. Miss Schiering identified
MR. RAMOS: Objection, may I be heard off the
THE COURT: No.
A. She saw a picture on the 16th. and
she that was shown to her by me
and I never after that date showed her
any other photos of the defendant or
anybody else for that matter.
MR. RAMOS: Objection, Your Honor. I'd like to be
heard outside the presence of the jury.
(Lauro: Tr. 167-68, emphasis added.) After the jury was excused,
the following colloquy occurred:
MR. RAMOS: Your Honor, at this time I'm moving for
a mistral. At this moment we have two
very egregious errors admitted by the
witness on the stand.
MR. RAMOS: As I indicated initially, he testified
earlier about him going to the area
where Mr. Hernandez was arrested, based
on prior arrest records, something to
that effect. I don't recall his
THE COURT: We have to check the record on that.
MR. RAMOS: On this occasion, I asked him whether
he had ever shown the photograph to
Miss Schiering and he basically
testified about out-of-court
identification. Clearly improper.
THE COURT: What did he do? Sorry, you asked him
whether he showed a photograph of the
defendant to Miss Schiering and he
answered that he showed a
photograph of the defendant to Miss
MR. RAMOS: And that she made an out-of-court
identification. He testified about an
out-of-court identification, Your
THE COURT: Can I have a read back of that.
(Whereupon, the requested testimony was
read back by the Court Reporter.)
THE COURT: Counsel, there's no basis for a
(Tr. 170-71.) The court pointed out that an out-of-court
identification is improper if the district attorney elicits it on direct
examination, but this was elicited by defense counsel, who "went right to
into this point." (Tr. 172: see also Tr. 173-74, 176-78.)
Before his redirect examination, the Assistant District Attorney made
an application to further explore the issue of the photographic
identification brought up by the defense during Detective Lauro's
[A.D.A.] FERRERA: My application is to ask them
both [Detective Lauro and Ms.
Scheiring about the photographic
impressions have been left upon
this jury that an improper
identification was done. Mr.
Ramos this morning asked
repeatedly questions about
whether or not any photos were
shown by either this officer or
even myself during any period of
trial prep . . . is leaving a
very clear impression to a very
intelligent jury, and that it is
that the police department did
something inappropriate in this
case. . . .
. . . .
Mr. Ramos asked [Detective
Lauro] questions about showing a
photograph when we in fact know
that it wasn't a single
photograph that was shown to
this complainant, that in fact
there was a whole series of
photographs a whole book shown
to this complainant and that she
leafed through approximately
forty to fifty photographs and
then picked out the defendant.
The questioning regarding
showing Miss Florence Schiering
a single photograph leaves the
impression that even if she does
make a court identification it's
based only on that showing of
one single photograph, that an
intelligent jury looking at the
testimony . . . will say the
detective showed her a
photograph of the guy they
arrested, one photograph. She
looked at that, yeah, so she
picked him out.
. . . .
Mr. Ramos chose to ask those
questions. No one told him to
ask those questions. He knew
what the responses would have
been. . . . He was on full
notice of what the circumstances
of the identification were, and
yet he elicited only the fact
that a photograph was brought to
Frances Schiering and that
elicited the evidence that a
photograph was actually
identified by Florence Schiering
clearly misleading this
jury . . . [although] this Court
has ruled on the record [at the
suppression hearing] that the
detective showed forty to fifty
photos to this complainant and
at that point she made her
(Tr. 247-49.) The trial judge agreed with the prosecutor, noting
that the line of questioning explored by the defense was not in good
THE COURT: The identification that anybody heard
on a good faith basis only occurs at
the hospital in which a book of photos
MR. RAMOS: Correct.
THE COURT: She selected a photo that was created
to look like other photographs in that
MR. RAMOS: Correct.
THE COURT: No single photograph
identification was ever done.
MR. RAMOS: I didn't refer to that date. I
referred to showing of a picture
afterwards, jury trial preparation I
THE COURT: Why did you ask that question? What
basis did you have to believe that a
single photo identification, a
suggestive photo identification that
has not been noticed was in fact made
by the DA's office?
MR. RAMOS: No, what I'm saying is that
during the period of trial
THE COURT: Trial preparation still is a period
that you would be required to be
noticed on. If they made an
identification, if they showed a single
photo to a witness during preparation,
they are required to notice that. It's
still a pretrial identification. Did
you get notice of any such thing?
MR. RAMOS: No, I didn't.
THE COURT: The clear impression I think, the
officer had the clear impression which
the Court had was that you were
speaking of the photographic
identification that was the subject of
the pretrial hearing because that is
the only photographic identification
procedure that any of us knew occurred,
and to this moment that is the only one
that I believe any of us have any right
to believe did occur.
That being so I am denying a mistrial
motion. I believe the Officer acted and
answered in a manner that was
appropriate in light of the fact he
expected your question went only to the
identification procedure this was had.
But, moreover, the DA now makes a very
fair point, that this jury clearly has
the impression, and I can go back to my
own notes to confirm this, that you
were talking about showing a photo, a
MR. RAMOS: I was.
THE COURT: A suggestive procedure.
MR. RAMOS: I was inquiring whether a single photo
was shown . . . after the photo array
on October 16th.
THE COURT: How is that a good faith
question? . . . There was no basis that
this was done. Your client didn't tell
you it happened, and you are not
. . . .
[W]hatever the motivation of counsel,
I certainly don't find that he had a
basis to believe a single photographic
identification was ever connected in
this case, and I think the District
Attorney will have a
large latitude to correct the
misimpression that the identification
procedure utilized with respect to the
complainant in this case was a single
I'll allow the DA to elicit the full
dimensions of the identification
procedure as mounted by the Detective,
that being the presentation of a book
containing Polaroid pictures that were
all similar in nature and the manner in
which the witness examined the book and
made her selection. . . .
The purpose of this ruling is simply
to allow this clarification of the
methodology to negate the improper
suggestion that a single photographic
identification was elicited.
In light of the Trowbridge
rule I will not allow the DA to elicit
through this witness the fact that the
complaining witness made an
identification when shown this book.
(Tr. 251-56; see also Tr. 257-64.)
On re-direct examination, the prosecutor asked Detective Lauro to
describe the circumstances in which he showed Hernandez's photograph to
Q. Did you have anything with you at the time
that you went to the hospital [to interview
the victim, Schiering]?
Q. And can you describe for the members of the
jury what it was that you brought with you to
A. I had two binders, standard college
student, three ringed style binders and each
contained plastic sleeves which in turn
contained one book contained polaroid
photographs of male Hispanics and the
other book contained official Police Department
mug shots of male Hispanics.
. . . .
Q. Directing your attention to the book that had
the poloroid photographs, can you describe how
many sleeves were in that book?
A. I believe . . . there was about 30 to 40 pages
of sleeves inside that book.
Q. How many photographs were on each page?
A. Well, when you open up the first page it would
be initially, open up the book you would be
looking at one page with six photos on the
first. And as you start flipping the pages into
the book you have photos on the righthand side
page and lefthand side page . . .
. . . That book contained anywhere from 50 to
60 photographs . . .
Q. Now, you indicated that you had taken a
polaroid photograph of the defendant
at the 52 precinct; right?
A. That's correct.
Q. What did you do with respect to that particular
A. I added it to the book. . . . It was
towards the very end.
(Lauro: Tr. 296-300, emphasis added.) The prosecutor asked
Detective Lauro further questions about the circumstances surrounding
Schiering's viewing of the photo book, but did not ask him, and Detective
Lauro did not volunteer, whether Schiering identified Hernandez when she
looked through the book. (Lauro: Tr. 300-03.) The prosecutor ended his
examination of Detective Lauro by asking him how many pages in the book
Schiering viewed, and Detective Lauro responded that she went through the
entire book. (Lauro: Tr. 303.)
Detective Lauro's Trial Testimony; Davilla's Intimidation of
Witnesses and Police Reports
During re-cross-examination, defense counsel Mr. Ramos attempted to
question Detective Lauro about a police report that was not in evidence:
Q. Okay.Now, in the report that was
previously marked as Defense Exhibit E,
Okay, that is the a complaint
report relating to Jesus Davilla?
Q. You make reference to Miss Conroy in
that report, correct?
A. She her name appears on that
Q. And it appears within the section of
the narrative that describes the acts
done by Jesus Davilla, correct?
A. No, her name appears.
THE COURT: No, no. I'm sorry. Neither one of you
are permitted to discuss the contents
of this report. It is not in evidence.
My recollection is it was used for
limited purposes or did it's
been used in that matter. I think it
was to refresh his recollection, that's
all you can do with it. It was not
before the jury and the jury
it's not in evidence.
(Lauro: Tr. 340.) Mr. Ramos, however, continued his attempt to
bring in testimony about the report, the possible involvement of Jesus
Davilla in the robbery, and Davilla's arrest. (Lauro: Tr. 341-45.) On
hearsay grounds, the judge again stopped the line of questioning. (Tr.
346-49.) Mr. Ramos told the judge that he wished to question Detective
Lauro on the DA's write-up, stating that "[i]n the DA's redirect he
brought out an entire line of questioning about how he had no reason to
suspect Jesus Davilla." (Tr. 349.) The judge pointed out that those
questions were in response to Mr. Ramos' earlier questioning of Detective
Lauro about Davilla. (Tr. 349-65.) The judge instructed defense
counsel that he "may not use these documents in the fashion you are
using them. And you may not ask the detective unless you are prepared to
squarely ask him about a prior out of Court statement [by a witness] and
waive any objection on your . . . part to the hearsay, you are not
going to put it in indirectly through these reports." (Tr. 364.)*fn2
The jury found Hernandez guilty of fourth degree grand larceny and
first degree assault. (Tr. 1036-37.) On September 22, 1998, the judge
sentenced Hernandez to sixteen years imprisonment. (See Dkt.
No. 2: Pet. ¶ 5.)
Hernandez's Direct Appeal
On September 20, 2001 the First Department affirmed Hernandez's
conviction, holding in relevant part:
The court properly exercised its discretion in
denying defendant's request for a mistrial based
upon testimony from the arresting detective
concerning a photo identification by the
complainant, since defendant opened the door to
such testimony and actually elicited it during
cross-examination. Likewise, the court properly
exercised its discretion in denying defendant's
mistrial motion based upon the detective's
fleeting reference to what could have been
construed as a prior arrest of defendant.
Significantly, defendant did not accept the
court's offer to provide a curative instruction.
The court properly exercised its discretion in
limiting the cross-examination of the detective
concerning the contents of a document not in
evidence, since the questions asked sought to
elicit hearsay that was not admissible under any
hearsay exception and lacked a good faith basis.
Accordingly, there was no violation of defendant's
right of confrontation.
The New York Court of Appeals denied leave to appeal on December 19,
2001. People v. Hernandez. 97 N.Y.2d ...