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ROMAN v. FILION

June 10, 2005.

RICARDO ROMAN, Petitioner,
v.
GARY FILION, Superintendent, Coxsackie Correctional Facility, Respondent.



The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

Pro se petitioner Ricardo Roman seeks a writ of habeas corpus from his November 14, 2002 conviction in Supreme Court, Bronx County, of two counts of first degree robbery and sentence of eighteen years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) Roman's habeas petition contends that: (1) Roman was deprived of due process and an impartial jury by prosecutorial misconduct during voir dire and summation, when the prosecutor asked the jurors to place themselves in the victim's shoes, improperly bolstered testimony with the prosecutor's opinions and conjecture, and denigrated the defense (Pet. ¶ 12(a)); (2) Roman was denied a fair trial by the improper admission of two pieces of hearsay evidence that bolstered the identification made by the single eyewitness (Pet. ¶ 12(b)); and (3) the verdict was against the "weight of the evidence" where the only evidence offered was that of a single unreliable eyewitness who gave inconsistent descriptions that did not match Roman's appearance (Pet. ¶ 12(c)).

For the reasons set forth below, Roman's petition should be DENIED.

  FACTS

  During voir dire, the prosecutor asked certain potential jurors to provide further information about situations in which they themselves had been victims of crimes. (E.g., Voir Dire 2:*fn1 Tr. 90; Voir Dire 3: Tr. 189.) The prosecutor asked the following type of questions directed at individual jurors:
Q: Has anyone here been in a situation where you've been in actual fear of your life? Ms. Maholmes, I know you raised your hand. Mr. Coplin and Espinol, would you care to — Ms. Espinol, would you share it.
(Voir Dire 3: Tr. 189; see also id. at 189-91.)*fn2 To another juror who had told the judge he had been robbed, the prosecutor asked, "Would you like to share a bit of what happened to you that day?" (Voir Dire 2: Tr. 90.) The judge, however, did not allow the juror to answer, saying: "I don't think we need each juror to go through their own individual experiences about being a crime victim." (Voir Dire 2: Tr. 90.) The prosecutor asked prospective jurors hypotheticals in which the prospective juror was placed in the role of a crime victim. (Id. at 92.) For example, the prosecutor engaged one prospective juror in the following exercise:
[A.D.A.] CORREA: I think, Mr. Sanchez, you had mentioned that you were the victim of an assault?
PROSPECTIVE JUROR: Yes.
MS. CORREA: Some time ago. Let's say, hypothetically speaking, the person who assaulted you had been apprehended and I get that case and there was a situation where you were assaulted. There were people out there, but you're the only witness to that assault. That case lands on my desk. Should I prosecute that case with one witness?
PROSPECTIVE JUROR: Yeah.
MS. CORREA: And why do you think I should?
PROSPECTIVE JUROR: `Cause I was a victim.
(Voir Dire 2: Tr. 92; see also id. at 92-93, 95-97.) Defense counsel did not object. (Id.)
  The prosecutor also asked the potential jurors hypothetical questions designed to show that one could remember a stranger who did something bad to you if you saw him a few days later:
[A.D.A.] CORREA: All right. I have a quick question. Let's say, Mr. Lloyd — you look so cute today. Let's say you're on the train and you have these brand new spanking shoes on, your nice gray shoes, and someone happens to come and happens to spit on your brand new shoes and you're livid. You look down and there's like, you know, and you give that person a hard look and that person just smiles, walks away. You see that person in the next car maybe like five minutes later. You gonna remember that person's face? PROSPECTIVE JUROR: Yes.
MS. CORREA: Right. He just spit on your $450 shoes and you're livid, right?
PROSPECTIVE JUROR: Yes.
MS. CORREA: How about the next day, you catch that same train again, you see that person. You think you're gonna remember that face?
PROSPECTIVE JUROR: I'm pretty sure I will.
MS. CORREA: How about a week later, you think you'll remember that person? That person over there spit on my shoes. You think you'll remember that under those circumstances?
PROSPECTIVE JUROR: Yes.
MS. CORREA: What other circumstances do you guys think in order for an identification procedure to be made, and you might think — I expect you're going to be hearing some evidence of an identification procedure during my trial.
What factors do you think you would consider in determining whether or not the witness's identification is correct?
Miss Lloyd, what circumstances, what factors do you think you'd consider, would you take in consideration; for example, the lighting conditions?
PROSPECTIVE JUROR: Yes.
* * * * *
MS. CORREA: If there's anything blocking the face, maybe the length of time, right? I mean, in our — since it happens, what, like 15, 20 seconds, a minute maybe. But she spit on your shoes, right? That's like some rough stuff, so you're gonna remember that, right? PROSPECTIVE JUROR: Yes.
MS. CORREA: You think like the circumstances under which something happens is gonna make you remember, too? Like if something, you know, like spitting on your shoes or you know, like maybe someone eats your sandwich that you left at your desk, you think you're gonna remember?
PROSPECTIVE JUROR: Yes.
(Voir Dire 2: Tr. 97-100.) Again, there was no objection from defense counsel. (Id.)

  Defense counsel also asked prospective jurors to imagine that "something dramatic" had happened to them, would they be able to accurately describe it in the future? (Voir Dire 2: Tr. 111: "I want you to imagine that something really horrible happened to you. Take that back. Not necessarily. Just something dramatic, something happened. And imagine you were asked to describe that . . . in the future.") Defense counsel tied this into his theme that the victim was mistaken in identifying Roman as the robber. (Voir Dire 2: Tr. 112-14; see also Voir Dire 3: Tr. 132-34, 196-200.)

  The first two days of jury selection resulted in five jurors being selected. (See Voir Dire 3: Tr. 122-23.) Voir dire continued on September 17, 2002. The prosecutor gave the prospective jurors hypotheticals in which she, the prosecutor, had committed a crime against them and she asked them to describe her, i.e., describe the perpetrator:
[A.D.A.] CORREA: . . . Ms. Somayya, let's say I jump over [this] ledge and yank your chain off and run out of the door. How would you describe me to the police. PROSPECTIVE JUROR: Well, a young lady who stole — long hair, I'd give the color of [your] hair —
MS. CORREA: Describe me. I'm grabbing you, I'm running out of the door. The police come to take your report.
PROSPECTIVE JUROR: I would say she's tall and slim.
MS. CORREA: What's my height.
PROSPECTIVE JUROR: Six feet.
MS. CORREA: Weight.
PROSPECTIVE JUROR: Around 120, 125.
. . .
MS. CORREA: What's the color of my hair.
PROSPECTIVE JUROR: Light brown.
MS. CORREA: What would you tell the cops I was — my ethnicity.
PROSPECTIVE JUROR: She is more, a little — she looks Hispanic.
MS. CORREA: What's Hispanic.
PROSPECTIVE JUROR: No, Asian.
MS. CORREA: Who's my next victim. Ms. Venero, how [about] you. I jump and grab your chain and run out of the door, cops come and take a report. How are you going to describe me.
PROSPECTIVE JUROR: Tall, like white Hispanic . . .
MS. CORREA: Describe my hair slowly.
PROSPECTIVE JUROR: Blonde hair with highlights. MS. CORREA: How tall am I.
PROSPECTIVE JUROR: 5/9.
MS. CORREA: Okay. Mr. Nicholson, how are you.
PROSPECTIVE JUROR: Six foot, late twenties, brownish, blondish hair.
(Voir Dire 3: Tr. 115-17.) The prosecutor summed up what her experiment showed:
MS. CORREA: Okay. So we have a whole range of descriptions. I have Caucasian, I have Hispanic, I have Asian. Does that mean you guys are talking about a different person or the same person.
Can you guys appreciate that people describe things in different ways. You said you really couldn't articulate, but you were able to see me on the corner eating a hot dog. And you guys saw me last Friday and last Thursday, you guys were sitting over here, and you didn't get a chance to look at me, but that doesn't mean you can't recognize me.
(Voir Dire 3: Tr. 118.)*fn3 Defense counsel did not object. (Id.)
  When the next round of prospective jurors was seated, the prosecutor repeated the same scenario, asking them to imagine that she jumped over the ledge and grabbed the prospective juror's purse (Voir Dire 3: Tr. 183):
[A.D.A.] CORREA: You guys are in the unenviable position of being the last group so you heard everything that I have to say. But there's one thing I want to stress is that I've been up here smiling, talking about hypotheticals, and joking a little bit but that doesn't mean there's no gunpoint robbery. It is a serious case, both to myself, the People and also to the defendant. I don't want to you think because I've been joking and talking about ledgers and descriptions that detracts from the seriousness of the case. Do you understand.
. . . .
MS. CORREA: How about my background.
PROSPECTIVE JUROR: Latino, Spanish.
MS. CORREA: How about you, Ms. Montero.
PROSPECTIVE JUROR: 5/10, long hair, Asian, skinny.
MS. CORREA: Ms. Eng is laughing. What's your description.
PROSPECTIVE JUROR: Of you. You told us part of it before. 5/10, 135, 140 pounds. That's why I'm laughing.
MS. CORREA: Can you all appreciate the different descriptions. I'm actually Puerto Rican, a lot of people don't believe me but we're talking about the same person, different descriptions, people look at things differently. Some people concentrate on hair or eyes but — or height.
It's a gun point robbery. It involves one witness and I know I talked a little about that earlier and also on Friday.
I'm going to take you to Ms. MacDonald's. If I jump over the ledge and grab your purse and run out the door you call the police, you guys go around the block looking for me, you see me. I don't have the purse anymore. Do you expect that I should have the purse on me.
PROSPECTIVE JUROR: No.
MS. CORREA: Why not. PROSPECTIVE JUROR: You're going to get rid of the evidence. You know, it may turn out to be yes that you did it, just because you don't have it doesn't mean you didn't do it.
MS. CORREA: Everybody understands that concept. How about when you see me on the street.
PROSPECTIVE JUROR: I would recognize you right away.
MS. CORREA: You would recognize me. How about if you say that's her and that's her, the cops are like all right, where are your witnesses, Ms. McKegney. You're saying officer it's me telling you she did it. No, I can't report that, I need more than one witness. What do you think of that.
PROSPECTIVE JUROR: My word should be sufficient . . .
MS. CORREA: Why.
PROSPECTIVE JUROR: Because I was the victim.
MS. CORREA: You need more witnesses.
PROSPECTIVE JUROR: From my understanding, it happened to me, so you have to go from there, it's my word.
MS. CORREA: Your word is sufficient.
THE COURT: Your word is sufficient, if it's truthful.
PROSPECTIVE JUROR: It's truthful, if it happened to me.
THE COURT: You might be saying if you would say it would be truthful and it would be accurate that's the judgment you will have to make about the witness when you hear her, right.
PROSPECTIVE JUROR: Of course. MS. CORREA: So as you said, one witness, yourself, is sufficient and you will judge the sufficiency of the testimony if and when you are selected as a juror in this case.
(Voir Dire 3: Tr. 182-85.) Again, defense counsel did not object. (Id.)

  The Prosecution Case at Trial

  April 4, 2002

  On a sunny April 4, 2002, at approximately 3 p.m., Kelly Martinez was robbed at gunpoint of approximately nine hundred dollars at the corner of Union Avenue and East 161st Street in the Bronx. (Martinez: Trial Transcript ["Tr."] 89, 92-95, 98-99.) On that day, Martinez, a resident of Fox Street*fn4 in the Bronx (Martinez: Tr. 85-86), was returning from work and walked from the train station to a check cashing store across the street from the train station, between 160th Street and Prospect Avenue. (Id. at 90-92.) Martinez cashed a $309 child support check and put that money in her purse along with $600 of rent money, and other personal items such as her credit cards, her key, and her identification. (Id. at 92-93.)

  On her way to pick up her son at day care with her black pocketbook strap over her left shoulder, on the corner of 161st Street and Union Avenue, a man grabbed her elbow and hit her on the head with a hard object. (Id. at 94-95, 171.) Martinez testified:
Everything happened so fast. I know as I was walking suddenly I heard like foot step, keep walking, suddenly somebody grabbed me through my elbow. I felt like someone — like something fell on my — like — I felt like a big rock or something really hard on my head and then I looked back to see.
(Id. at 171.) In fact, it was a gun that hit her in the head. (Id. at 170.)

  Martinez turned around and Roman pointed a gun in her face. (Id. at 95, 97-98, 172 (she saw "[t]he defendant wearing a black leather jacket with a gunpoint had [sic] at me.").)

  Martinez testified that the man was "my size"*fn5 (id. at 99, 281), that he was wearing a baseball cap and sunglasses (id. at 97, 99) and that the person was the defendant, Ricardo Roman. (Id. at 97-98, 172.) Martinez further testified that nothing had obstructed her view of Roman. (Id. at 98.)

  The robber told Martinez to let go of her purse and she complied. (Id. at 99.) After she dropped her purse to the ground, the robber struck her again with his gun. (Id. at 99-100, 170.) As Martinez was dropping to the floor, he struck her a third time with his gun to make sure she dropped completely to the floor. (Id. at 100, 170.) Martinez testified:
When he hit me the first time, I turn around, turn around and then he said let go of the purse. I let go of my purse. When he hit me the second time on my head right here, okay, I was going — I was going on the floor in one knee and then he hit me as I was falling, as I was falling because I was — the second time I was in almost on one knee, I fell down on one knee and as I was falling he hit me again the third time and I was on the floor. That's what happened.
(Id. at 280-82; see also id. at 170, 216.)

  Martinez stated that from the time that she was hit on the back of her head until the time she was on the ground and the robber ran away took ten or fifteen seconds. (Id. at 228.) Martinez further testified that she was on the ground for approximately three seconds (id. at 229), people helped her up (id. at 100, 229, 267), and that she chased the robber (id. at 102, 267). She said to the people who helped her up, "let me go" and she "start running." (Id. at 100, 230.) Martinez ran after the robber for a bit and the robber turned around "seconds, no[t] minutes" after she got up and started chasing him.*fn6 (Id. at 102, 237, 271.) He was no longer wearing sunglasses. (Id. at 102.) Martinez testified that nothing was blocking her view of his face at that point. (Id. at 103, 233-34.) Martinez could see that the robber had dark brown eyes, a small black mustache, and wore "black pants, a black leather jacket, with an Indian on the back," and tan Timberland boots. (Id. at 103, 105, 107-08.) David Soler, a superintendent on 161st Street, saw a Hispanic man, about 5'6½" tall, wearing a baseball cap and a leather jacket with an Indian on it, running toward 160th Street with a gun in one hand and a purse in the other. (Soler: Tr. 355-58.) Jeremes Cortez, who also was working in the area, saw a Hispanic man in dark blue clothing running toward 160th Street with an object resembling a gun in his hand. (Cortez: Tr. 400-02.)

  Martinez described what happened after that:
And then the group of persons, a group of people came to me start hugging me. You bleed, you cannot, a guy, you bleeding a lot you need to stop, that's money, forget it. We called the ambulance, you bleeding a lot. You need to calm yourself down. I said no, leave me alone, leave me alone . . . I told those men, I want to — please let me go . . . I wanted — I want to catch that man.
But I didn't — they didn't want me to do it. They said, I said please go inside, I will pay anything, I want to catch that guy. They said no, they start holding me, we're going to take you across the street. We called the ambulance, we're going to call the police calm yourself down, calm yourself down.
(Martinez: Tr. 102-03.)

  Emergency Medical Technician ["E.M.T."] Mario Maldonado, who arrived at the scene to treat Martinez for her physical injuries, testified that she was "upset" and "bleeding profusely from the top of her head." (Maldonado: Tr. 52-54, 56, 59, 63.) On cross-examination Maldonado explained that head wounds tend to bleed more profusely than an equivalent cut to another part of the body. (Id. at 66-67.)

  Martinez was still bleeding when the first police car arrived. (Martinez: Tr. 275.) She testified that she was crying while she was talking to the police officers: "I was crying because I was shock and I thought this man was going to kill me because he hit me three times on my head. I was thinking about my kids." (Id. at 276.)

  Martinez was transported to Lincoln Hospital (Maldonado: Tr. 64; Martinez: Tr. 110) where she remained for seven to eight hours and "they did a C.T. scan because I have a lot of laceration on the head and it was bleeding a lot." (Martinez: Tr. 169-70.)

  Detective Mark Davis interviewed Martinez at Lincoln Hospital approximately two hours after the robbery. (Davis: Tr. 364, 366; Martinez: Tr. 110, 204.) Detective Davis testified that Martinez described the robber as being "a male Hispanic, approximately 30 years of age" who was "short [with a] small frame." (Davis: Tr. 368; see also Martinez: Tr. 111-12.)

  April 10, 2002

  Six days later, on April 10, 2002, which was Martinez's daughter's birthday (Martinez: Tr. 112: "it was my daughter's birthday, that's why I . . . could never forget it."), Martinez was on her way to work at 8 a.m. and saw the man who had robbed her, Roman. (Id. at 113-15, 139.) Martinez was walking down East 161st Street, turned right onto Prospect Avenue, was walking down Prospect Avenue towards East 160th Street, the Prospect Avenue train station, and as she was approaching the steps of the train station, she saw the robber.*fn7 (Id. at 113-15.) Martinez testified: "Next to the stairs, I see a man looking towards me and I looking at him and I say, oh, God this is the man that took my purse." (Id. at 113.) Martinez immediately recognized Roman and "[h]e open his eyes, he was — he was like in shock that I recognized him." (Id. at 115.) Martinez chased him again and that "I see him running towards the same place that he was running when he took my purse." (Id. at 116.) Martinez called the police on her cellular phone and said, "I was robbed on April 4th, please send a cop I seen the guy who did it." (Id.)

  Martinez testified further:
What I did, I hide myself since I was going, then there was a kid, a guy asked me, are you okay because I was crying. And I say, sir, I was robbed five or six — something like that and I just saw the man. Do you see a man that's wearing a black jacket, black pants, and yes, this man is running . . .
I stay up there waiting for the police to come. But once, that there was a moment that when I look I couldn't see him. And I say, God, I cannot let go — I cannot let this man disappear on me. I cannot let this man disappear on me. So what I did was, I went downstairs again, okay. And I saw, I saw him again . . .
Right there on Prospect and 160, in the same area that he was talking to his friends, he was talking to a woman. . . . Same area when I saw him. When I saw him, I panicked and what he did, he start running towards Prospect and Montefiore. And then I start looking, I said why the police are not here and what I did, I saw marshals across the street that was going to take a car away and I went to them. And I told them please help me, I was robbed and I showed them a piece of paper that [Detective] Davis gave me and I showed them that I was robbed and I had — I have seen the guy who did it, please help me, please call the police.
(Id. at 117, 120.)
  The marshals used Martinez's cell phone to call the police. (Id. at 121.) Martinez testified that the robber started running (id. at 122) and the marshals:
tell me relax, stay next to me, they're going to come . . . Since the cop, they was not coming, they told me to go inside. They told me to go inside the van with . . . the marshal. Once I was inside, inside the van with him, someone call on the walkie talkie and say that the cops are back, you know, the officer arrive and they are — he told me to, that they there.
(Id.)
  Police Officers Shando Lowrance and Moises Feliz responded to a radio call from a police dispatcher and arrived at the scene approximately five minutes after receiving the call. (Lowrance: Tr. 290-92, 311.) Martinez got in their vehicle and they "look[ed] around for [the] suspect" for "approximately 8 to 10 minutes." (Lowrance: Tr. 292-93, 310; see also Martinez: Tr. 122-23.) Martinez testified:
The cops told me I'm sorry we cannot see him, we didn't see him. So they left me in the same place that, the same street for the train station that I saw Mr. Roman. And I told them please don't let me here, because maybe he's hiding and he's maybe capable of to do something to me.
(Martinez: Tr. 123; see Lowrance: Tr. 293, 310.)
  As the police car stopped at a red light, Martinez spotted Roman standing on the corner of 160th Street and Prospect Avenue, approximately five feet or less from the steps leading up to the train station. (Martinez: Tr. 123-24; Lowrance: Tr. 310-12.) Martinez testified:
They said okay we're going to take you to — I'm going to take you to a new train station . . . [T]here was a red light there. As I remember, something like my instinct to look back, I was inside the car, with the officer and something told me to look back the same area that he was hanging out with his friend because there was a group of people still there and when I look back I seen someone like really next to the, against the . . . wall from the stairs that had the same boots, the same black pants the same black jacket. And I screamed to the officer, that's the man. And then the officer got off and then I got off and then when they have him in the wall, I look at his face and I said, yes, that's the man who did it, that's the man.
(Martinez: Tr. 123-24.)

  The police arrested Roman, who was 5'6", 135 pounds, and 37 years old. (Lowrance: Tr. 290-91, 294, 299-300, 309-10.)

  Martinez testified that she had no difficulty seeing the defendant's face that day, that she had never seen him before April 4th, and that she had only seen him on April 4th and April 10th. (Martinez: Tr. 134-35.) When cross examined about whether she could have been mistaken regarding whether Roman was or was not the perpetrator, Martinez responded, "I'm sure a hundred percent . . . I'm sure he did it." (Id. at 173.) On redirect examination, the prosecutor asked Martinez again:
Q. Is there any doubt in your mind that this is the man who robbed you?
A. No, that's the man who did that to me, that's the man.
(Id. at 285.)
  Martinez explained to the jury how this incident has affected her:
Now that I'm waiting in the bus stop with my kid or even with myself anyone that come close to me or a group of guys I have to be looking back and always make sure what they have on and everything, like thinking that they're going to do anything to me. Anybody is running, you see me looking back or see what color and then when I have a lot of my money in my bag I take a cab. In one day this man have changed my life, not just me my kids, too.
(Id. at 286.) The 911 Tape

  A 911 call tape from April 10, 2002 was admitted into evidence as an excited utterance, and played for the jury. (Tr. 134; see also Tr. 125-31.) The portion of the 911 tape that was played for the jury was where the city marshal relayed Martinez's description of the man she had just seen. (Tr. 128.) The judge admitted it as an excited utterance, ruling that it was not the product of the excitement of the crime but of the excitement of recognizing a person who had committed a past crime. (Tr. 128, 130.)

  Defense counsel objected that this was well after the crime itself and that since Martinez was standing right next to city marshals, she had no reason to be afraid and therefore it did not meet the excited utterance standard. (Tr. 129, 131.) The judge responded:
I'm ruling that that is a product of the excitement not the robbery six days earlier, [not] at all. It's a product of the excitement of April 10th, seeing her assailant. Case law of excited utterance does not have to be produced by viewing a criminal event. It's been admitted in negligence cases where somebody saw a car go through a red light and a person yelled out oh, my God, he ran the red light.
So here the event which is stimulating her recollection is recognizing the person on April 10th who robbed her several days earlier.
(Tr. 130.)

  Martinez's Disputed Description of Roman

  The judge allowed Detective Davis, who interviewed Martinez at the hospital two hours after the robbery, to testify about the description Martinez had given him, although Martinez herself already had testified to this description. (Tr. 342-52; see page 14 above for a summary of Davis' testimony.) The prosecution offered Detective Davis's statement under People v. Huertas, 75 N.Y.2d 487, 554 N.Y.S.2d 444 (1990), for the purpose of demonstrating that Martinez was able to form a mental impression of her assailant and provide a verbal description. (Tr. 326, 342-43, 346.) Defense counsel opposed the admission of this testimony as improper hearsay, observing that the complainant had already testified to this description and that other, more immediate descriptions were going to be brought in through the testimony of other officers. (Tr. 343-45.)

  The defense argued that Huertas does not envision multiple immediate descriptions. (Tr. 345.) The prosecutor argued that she was not offering it to bolster the testimony and stated that it is not a prior inconsistent statement but that it was offered to show that Martinez was able to accurately identify her assailant and was able to accurately describe the assailant's appearance. (Tr. 345-46.) The prosecutor continued to say that defense's whole line of cross-examination was based upon the argument that Martinez was unreliable as a witness because she was going through the stress of the attack and she was not able to form an accurate mental impression of Roman, and the prosecution was offering Detective Davis' testimony to show that that was not true, not to bolster her testimony as to Roman's description. (Tr. 346.) The defense argued that the prosecutor was offering it for the accuracy of the statement made to Detective Davis, which Huertas holds is not allowed. (Id.)

  The judge ruled:
[The Court in Huertas] said that particularly in a case where identification is the principle issue and where the defense challenges that the witness was mistaken, not has falsely identified her assailant but is mistaken in identifying the defendant as her assailant, that evidence concerning the description given shortly after the crime enables the jury to compare the defendant's appearance at that time with the description given and determine, whether or not the complainant had an ability to perceive her assailant to perform a mental image of her assailant and to transfer the mental image of the corporeal identification made six days earlier.
Ultimately yes, that does go to the fact of whether her identification is accurate. That's the issue in the case is her identification reliable, is it accurate. So the People's use of the concept of accuracy does not take it outside of the purview of Huertas.
(Tr. 347-48.)
  After Detective Davis' direct testimony (summarized on page 14 above) the judge instructed the jury:
[Detective Davis'] testimony was permitted . . . for a limited purpose that is in your evaluating whether Ms. Martinez had the capacity to observe her assailant and to remember the physical characteristic of her assailant you may consider the description that she gave to any police officers shortly after the commission of the crime.
You may consider that description in comparing it with the appearance of the defendant as he appeared at about that time, back in April of 2002. Because you may consider that if . . . the description that she gave does not match the physical characteristic of the defendant as he appeared at that time that is a factor that you may consider in determining whether the witness had the capacity and abilities to observe and remember the physical features of her assailant.
Likewise, if the description she gave does match the physical characteristics of the defendant as he appeared at that time that is a factor again which you may assess, which you may consider in assessing the witness the capacity to have observed the assailant and to remember the features of her assailant.
(Tr. 370-71.) The Defense Case at Trial*fn8

  Officer Zajo Hoti, one of the responding officers on April 4, testified that Martinez told him that the perpetrator of the robbery was 5'9", 190 pounds, and about 20 years old. (Hoti: Tr. 436.) Sgt. Murphy testified that Martinez told him that the robber was 5'10" to 6' tall. (Murphy: Tr. 425.)

  On cross-examination, the prosecutor tried to explain the discrepancies in Martinez's descriptions by pointing out that Martinez was crying when she was talking to Officer Hoti, that he questioned her while she was crying and being treated by E.M.S., that he doesn't speak Spanish (Martinez's native language), and that Martinez did not check the complaint report for accuracy or mistakes or sign the complaint report to confirm that it was accurate.*fn9 (Hoti: Tr. 439-40.) Martinez's height description to Sgt. Murphy was given when he and another officer were seated in a patrol car with her, and what she said was the robber's height was between the height of Sgt. Murphy and the other officer. (Murphy: Tr. 427-28.)

  The judge allowed Roman himself to be "published" to the jury by the defense without actually testifying. (Tr. 444; see also Tr. 416-19.) The judge explained to the jury: THE COURT: By publish, he wants you to be able to ...


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