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
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
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
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
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
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,
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
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
PROSPECTIVE JUROR: She is more, a little she looks
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,
(Voir Dire 3: Tr. 115-17.) The prosecutor summed up what her
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.
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
PROSPECTIVE JUROR: Of you. You told us part of it
before. 5/10, 135, 140 pounds. That's why I'm
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
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
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
(Voir Dire 3: Tr. 182-85.) Again, defense counsel did not object.
The Prosecution Case at Trial
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
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.
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.)
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.
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.)
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
(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
(Id. at 285.)
Martinez explained to the jury how this incident has affected
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,
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
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.
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
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
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
(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