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Harris v. Woods

May 1, 2006

SHAUN HARRIS, PETITIONER,
v.
WOODS, SUPERINTENDENT, UPSTATE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Paul A. Crotty, United States District Judge:

Pro se petitioner Shaun Harris seeks a writ of habeas corpus from his April 23, 2001 conviction in Supreme Court, New York County, of first degree murder and second and third degree criminal possession of a weapon and concurrent sentences, the longest of which was twenty-five years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.)

Harris' habeas petition raises three issues: (1) his initial four-word un-Mirandized statement and his subsequent six Mirandized statements to the police and an Assistant District Attorney, in which he confessed to killing Jacqueline Frezza, were coerced and should have been suppressed (Pet. ¶ 13(1); see Dkt. No. 18: Harris Br. at 16-20); (2) the trial judge denied him the right to present a defense at trial when she precluded the testimony of Harris' brother as irrelevant (Pet. ¶ 13(2); Harris Br. at 21-28); and (3) his sentence of twenty-five years to life for first degree murder was excessive. (Pet. ¶ 13(3); Harris Br. at 29-30).

For the reasons set forth below, Harris' habeas petition should be DENIED.

FACTS

Overview

On April 15, 1999, at about 9:10 in the morning, Shaun Harris rode his bicycle south on Broadway and confronted Jacqueline Frezza, demanding her money. When she refused, Harris pointed a .25 caliber hand gun at her chest, fired and killed Frezza. Harris rode his bicycle from the scene.

On June 3, 1999, based on an eye-witness account, video footage of Harris fleeing the scene, and a tip from one of Harris' friends, Detective Victor Henriquez asked Harris to accompany him to the 26th Precinct to answer questions. Harris accompanied the police to the precinct, and for several hours answered questions about unrelated robberies and crimes of Harris' friends. After six hours, Harris asked why he was at the precinct. When confronted by photographs of Jacqueline Frezza's body and accusations by the police, Harris made an incriminating four-word statement, "It was a mistake." Harris then was given and waived his Miranda rights. During the next few hours, Harris made six detailed confessions to murdering Jacqueline Frezza, including four written statements to Police Detective Terrance Felder and one video-taped confession to an Assistant District Attorney.

On September 25, 2001, Justice Wittner held a suppression hearing to determine whether Harris' initial statement and his six Mirandized statements, in which Harris confessed to the murder of Jacqueline Frezza, should be admissible at trial. (Dkt. No. 11: Suppression Hearing Transcript ["H."] 2-377.) At this hearing, the prosecution called Detectives Victor Henriquez (H. 3) and Terrance Felder (H. 187), and Police Officer Dennis Ryan (H. 160). Harris called his bother, Alvin Hodge. (H. 324.)

The Prosecution's Evidence at the Suppression Hearing Identifying a Suspect

On April 15, 1999, at about 9:10 AM, Jacqueline Frezza was shot and killed on the sidewalk in front of 3150 Broadway, part of the Grant Houses, a public housing project. (Henriquez: H. 4-5, 7, 15.) Detectives Victor Henriquez and Terrance Felder were assigned to investigate the homicide. (Henriquez: H. 4-6, 100; Felder: H. 188-90.) Melvin Wallace witnessed the homicide from his apartment window and provided a physical description of the face, body and clothes of the killer. (Henriquez: H. 7-8, 100-01.) On April 16, 1999, the police produced a sketch based on Wallace's description. (Henriquez: H. 10-11, 101.)

Detective Henriquez obtained video surveillance footage from the security cameras positioned around the public housing project buildings. (Henriquez: H. 12-13.) From this footage, Detective Henriquez observed a man, fitting the description provided by Wallace, fleeing the scene on a bicycle just after the time of the homicide. (Henriquez: H. 14-15, 111-12.) The videos were not sharp enough to clearly show the suspect's face, but provided a general description of the killer's build, clothing and bicycle. (Henriquez: H. 16.)

On May 19, 1999, Detective Henriquez spoke with Keith Goodman, a suspect in an unrelated robbery investigation. (Henriquez: H. 20.) Goodman told Detective Henriquez that he had learned through discussion with his co-defendants that Shaun Harris had killed Frezza. (Henriquez: H. 20-23, 106-08, 116.) Detectives Henriquez and Felder compared the police sketch of the suspect with a photograph of Harris from the Board of Education and found the images to be "identical." (Henriquez: H. 24-25; Felder: H. 191-92.) Detectives Henriquez and Felder also compared the sketch with a more recent image of Harris taken by the same video surveillance system in the elevator in Harris' building and again described them as "identical." (Henriquez: H. 26-27; Felder: H. 193-94.) On May 31, 1999, Detectives Henriquez and Felder observed Harris leaving his apartment building and leaving school, and they described Harris as "the same person" in the police sketch. (Henriquez: H. 31-32; Felder: H. 198-99.)

On May 31, 1999, Goodman told Detective Felder that he had spoken to Harris, who said he had seen the homicide and pointed out its location. (Henriquez: H. 29, 120; Felder: H. 194-96.) With Goodman's permission, Detective Felder placed a hidden "wire" on Goodman to listen in on Goodman's discussions with Harris. (Felder: H. 205; see Henriquez: H. 118-19.) Using this wire, Detective Felder listened to Harris later tell Goodman that "they were killing white ladies right over here" "in front of the telephone . . . I saw blood, blood and her heart. . . . [I]t was nasty." (Felder: H. 205-07; see Henriquez: H. 121-22.) In a later conversation between Detective Felder and Goodman, Goodman mentioned that it was well known on Riker's Island that Harris had obtained status in the Bloods gang because of the shooting. (Felder: H. 210-11.)

Approaching Shaun Harris

On June 3, 1999, at about 1:30 PM, Harris was walking on 125th Street with Goodman and three other individuals. (Henriquez: H. 37-39, 127-29; Felder: H. 211-13.) Detective Henriquez, who was watching Harris, decided to approach Harris and ask him to come to the 26th Precinct. (Henriquez: H. 37-38, 121, 129; Felder: H. 264-65.) Dressed in civilian attire, Detective Henriquez parked his unmarked car ahead of Harris and his friends and "got out and just waited on the sidewalk for them to approach the location." (Henriquez: H. 38-39, 129-31.) Detective Valdez, who was working with Detective Henriquez, stood nearby. (Henriquez: H. 37-39.) Neither man drew his gun nor displayed his handcuffs. (Henriquez: H. 44-45, 133-34.) Detective Henriquez requested the assistance of marked police cars over a hand-held radio, radioing that there was no emergency, he "just wanted some police cars there." (Henriquez: H. 40, 139-40.)

Police Officers Dennis Ryan and Strollo responded to this radio request, using the lights of his marked patrol car and occasionally the siren to move traffic out of the way as they drove to the detectives' location. (Ryan: H. 162-64; see Henriquez: H. 45.)

As Harris and the others approached, Detective Henriquez identified himself and told Harris and the others to step to the side so he could talk to them. (Henriquez: H. 41, 42, 71, 127, 130.) Some of the individuals put their hands up against the window of a restaurant at the edge of the sidewalk, but Detective Henriquez told them to put their hands down and turn around.

(Henriquez: H. 41, 43, 44, 47, 131-32.) Goodman began "mouthing off," and Detective Henriquez told him to "shut the f--k up," and that he was in violation of his parole. (Henriquez: H. 41, 47-48.)

Officers Ryan and Strollo drove up and parked facing into oncoming traffic to be closer to the detectives. (Ryan: H. 164; see Henriquez: H. 46.) The officers turned off their car's lights. (Ryan: H. 164.) Officer Ryan did not have the siren on. (Ryan: H. 164-65; see Henriquez: H. 46.) Officer Ryan observed four individuals, two facing the wall and two facing the street; the two facing the wall turned around and began speaking with Detective Henriquez. (Ryan: H. 165-66.) Two more marked police cars approached with their lights on and shut them off once they had arrived. (Ryan: H. 166-67, 178.) The uniformed officers "just stood around," five to ten feet or more away from Harris. (Ryan: H. 167, 179; Felder: H. 278.) None of the officers drew their gun or took out their handcuffs. (Felder: H. 215; Ryan: H. 168.)

Detective Henriquez told Harris, Goodman and the others, in a conversational tone, "We just want to talk to you guys . . . in the Precinct." (Henriquez: H. 49-52.) Detective Henriquez asked Harris and Goodman to ride to the 26th Precinct in Officer Ryan's police car. (Henriquez: H. 49.) Harris and Goodman agreed, and Detective Henriquez walked with them to the vehicle. (Henriquez: H. 50, 135, 140.) Detective Henriquez patted their pockets and waist area, but did not go into their pockets. (Henriquez: H. 49-50, 140.) Neither Goodman nor Harris was handcuffed. (Henriquez: H. 51, 52; Ryan: H. 168; Felder: H. 216.) Officer Ryan said to Harris and Goodman, "'This way, guys. My car is over here,'" and opened the back door to his police car. (Ryan: H. 168-69.) Harris and Goodman "just got in on their own." (Ryan: H. 169; Henriquez: H. 50-51, 135.)

Detective Henriquez did not say anything about an arrest, nor did Harris ask if he was being arrested or if he could leave. (Henriquez: H. 52.) Haarris was not under arrest at that time. (Felder: H. 265-66, 275.)

Detective Henriquez told Officer Ryan not to speak to Harris or Goodman. (Henriquez: H. 52; Ryan: H. 168.) Officers Ryan and Strollo drove Harris and Goodman to the precinct. (Ryan: H. 170.) Their police car had no "cage" partition separating Harris and Goodman in the rear from the officers in front. (Ryan: H. 162.) The ride was approximately two minutes, without sirens or lights, traveling at average city speed. (Ryan: H. 170.) "We just drove in casually." (Ryan: H. 170.)

Initial Hours at the 26th Precinct

Harris and Goodman arrived at the 26th Precinct at around 1:30 PM. (Henriquez: H. 71, 99, 142-43; Felder: H. 219.) They followed Detective Henriquez up to the detective squad room. (Henriquez: H. 53, 141-42; see Ryan: H. 171, 181.) Harris was not touched or restrained in any way. (Henriquez: H. 53.) Harris and Goodman sat down in a fifteen by eight foot interview room containing a large table, chairs and a bench. (Henriquez: H. 53-55.) The room was well lit and the door to the room, which was damaged and did not close completely, was open a crack. (Henriquez: H. 55-56.) Detective Henriquez asked Goodman to leave the room, leaving Harris alone. (Henriquez: H. 56.)

After Detective Henriquez and Goodman left the room, Detective Felder entered and asked Harris for "pedigree" information. (Henriquez: H. 59, 148; Felder: H. 220-21, 320-21.)

Detective Felder asked Harris if he wanted anything to eat, and Haarris said no but asked for water, which Detective Felder gave him. (Felder: H. 221.) As Detective Henrique, now in a coat and tie, passed the room, Harris came to the door and asked whether he was there because of "him," indicating Goodman. (Henriquez: H. 58.) Detective Henriquez said "no," and Harris responded, "Okay." (Henriquez: H. 58.) Harris did not ask whether he could leave or if he was under arrest. (Henriquez: H. 58; Felder: H. 222.)

Detective Henriquez reentered the room about forty minutes later and introduced himself and Detective Valdez as FBI investigators. (Henriquez: H. 60-61, 72, 146.) This was the first of many deceptions Detective Henriquez employed over the next few hours. (E.g., Henriquez: H. 61-66, 146-48.) During this period, Detective Henriquez pretended to look at important papers in a folder that actually contained miscellaneous papers. (Henriquez: H. 62.) Detective Henriquez told Harris that he was tired from his flight from Virginia, and that he had to go down to "Quantico." (Henriquez: H. 63, 65.) Often throughout these hours, Detective Henriquez would leave the room, or be called away by a prearranged phone call or interruption. (Henriquez: H. 62-66.) Each time Detective Henriquez left the room, he closed the door "where the metal touches," but the door remained unlocked. (Henriquez: H. 63-64.) All the while, Harris sat silently. (Henriquez: H. 66.) At one point, Detective Henriquez inquired whether Harris needed any food, and Harris declined. (Henriquez: H. 63.)

Several hours after Harris arrived at the 26th Precinct, Detective Henriquez reentered the room and began asking Harris questions about robberies Goodman had committed. (Henriquez: H. 66.) Detective Henriquez spoke with Harris about the robberies for about forty minutes, walking in and out of the interview room about ten or fifteen times during this time. (Henriquez: H. 68, 72.) In response to these questions, Harris told Detective Henriquez information about Goodman and the other individuals with whom Harris had been walking. (Henriquez: H. 72-73.) Harris told Detective Henriquez that these other individuals had participated in robberies, that they were gang members, that they possessed many guns, and that they had participated in the "slashing" of a girl in their gang. (Henriquez: H. 73-77.) Detective Henriquez did not do anything during this discussion to make Harris believe he was the target of any criminal investigation. (Henriquez: H. 74.) Detective Henriquez did not ask Harris if he had committed any crimes. (Henriquez: H. 68.) Moreover, Detective Henriquez did not ask Harris about the Jacqueline Frezza homicide during this discussion of the robberies. (Henriquez: H. 68.)

Detective Henriquez asked Harris if he could collect forensic evidence from Harris' person such as "shedding skin," "fibers," "sweat" and "prints," to make sure Goodman did not try to claim that Harris had participated in the robberies. (Henriquez: H. 78-79.) Harris replied "no problem." (Henriquez: H. 79.) Detective Henriquez stuck a piece of tape on Harris' fingers and placed the tape on a card. (Henriquez: H. 79.) He rubbed a Q-tip across Harris' forehead and placed it in a cigar tube that looked like a test tube. (Henriquez: H. 79.) Detective Henriquez read aloud numbers that had no significance. (Henriquez: H. 79.) Detective Henriquez handed the materials to Detective Felder and told him to "get the chopper to take it to the lab." (Henriquez: H. 80.) Again, all of this was deception, and nothing was ever taken to a lab. (Henriquez: H. 80, 148.)

At one point, Harris asked to use the bathroom. (Henriquez: H. 81, 143.) Detective Henriquez pointed Harris in the direction of a bathroom across the squad room, but did not escort Harris to the bathroom. (Henriquez: H. 81.) Harris entered the bathroom labeled "men; no prisoners allowed." (Henriquez: H. 82, 151.) After Harris exited the bathroom, he "just walked back," returning to his previous seat in the interview room. (Henriquez: H. 82, 152.)

Later, Harris lay down on the bench in the interview room and slept for over an hour. (Henriquez: H. 82-84; Felder: H. 222-23, 284-85.) After Harris awoke, Detective Henriquez asked him if he wanted to eat or drink, assuring him that the government would pay for the food, but Harris declined. (Henriquez: H. 84.) Harris remained calm and "picture perfect" throughout the time he was in the interview room. (Henriquez: H. 85.)

Harris' Initial Incriminating Statement

At around 7:15 PM, Harris asked Detective Henriquez, "'I want to know what I'm doing here. What is it that I'm here for? I want to know. I want to know now.'" (Henriquez: H. 85, 87.) Detective Henriquez stood up, placed two Polaroid pictures of Jacqueline Frezza's body on the table in front of Harris, and said in a calm voice, "'This is why you're here, because you did this.'" (Henriquez: H. 86, 89. 149, 153.) Harris turned his head to the side and said, "'Take them away. I don't want to see them.'" (Henriquez: H. 88, 153-54.) Detective Henriquez picked up the pictures and left the interview room. (Henriquez: H. 89, 154.)

Detective Henriquez discussed strategy with Detective Felder. (Henriquez: H. 90. 154-56.) Detective Henriquez told Detective Felder, who had previously only spoken to Harris when he had confirmed Harris' pedigree information, to "go in to speak to Shaun Harris." (Henriquez: H. 90, 154-56; Felder: H. 283, 288-89.) At around 7:30 PM, Detective Felder entered the interview room with Detective Johnson, introduced himself, and told Harris that he did not have to speak with the detectives if he did not want to. (Felder: H. 226.) Harris nodded his head and said it was "okay." (Felder: H. 226.) Detective Felder sat down across the table from Harris and spoke to him in a "usual," "soft spoken" voice. (Felder: H. 227.) Detective Felder told Harris that "at this point we are comfortable that we have the right person and our thing now is to find out if it was done intentionally or if it was a mistake." (Felder: H. 227, 286-87, 289.) That was said as a statement, not a question. (Felder: H. 227.) Harris, with his voice "real low" and his "eyes . . . teary," replied, "it was a mistake." (Felder: H. 227, 250, 256, 289.) Detective Felder said, "[D]on't say anything else. We are going to step out and when I come back in, you can tell us what happened." (Felder: H. 227, 290.) Detectives Felder and Johnson left the room to confer with their supervisor. (Felder: H. 228.)

Harris' First Three Mirandized Statements

Detective Felder reentered the interview room at 7:35 PM and read Harris his Miranda warnings from a card. (Felder: H. 228-29, 290, 297.) When Detective Felder finished reading, "You have the right to remain silent and to refuse to answer questions," he asked Harris if he understood. (Felder: H. 230.) Harris said, "yeah," so Detective Felder asked for, "yes or no." (Felder: H. 230, 298.) Harris shook his head and remained quiet. (Felder: H. 230.) Detective Felder read the warning again, and this time Harris replied "yes." (Felder: H. 230, 298.) Detective Felder informed Harris of his other Miranda rights, including the right to counsel during questioning and the right to remain silent until having the opportunity to consult with an attorney, and Harris indicated that he understood all of his rights. (Felder: H. 230-31.) Harris signed the Miranda card and consented to answer questions. (Felder: H. 229, 231.) Harris remained calm during these warnings, appearing physically normal, and looking directly at Detective Felder. (Felder: H. 231.)

Detective Felder handed Harris a pad and pen and asked him to write down in his own words what had happened on April 15, 1999. (Felder: H. 232.) Detectives Felder and Johnson left the interview room while Harris wrote his statement. (Felder: H. 232, 295.) Harris wrote his name, date of birth, address and the time he started the statement, 8:02 PM, at the top of the page. (Felder: H. 234, 290-95.) Harris then wrote:

I Shawn Harris left my house that morning, I had an old bike. I needed some money. I didn't leave my house thinking about hurting anyone or anyone's family but I rode the bike from 125th Street and Broadway up to by 3170. [I approached] this lady, first I didn't want to use the gun, but she didn't understand me, so the gun was just to get her scared. When I pulled it out after a few seconds she swung . . . at the hand with the gun . . . I believe it is accident, the gun went off. I got scared and rode off down the hill to Amsterdam and 125 Street, rode to Morningside, left the bike in the park. I didn't in the name of God mean to hurt the lady. This is not normal for me. It was a mistake.

(Felder: H. 234-35.) Harris signed and dated the bottom of the page. (Felder: H. 235.) After returning to the room at about 8:25 PM and reading the statement, Detective Felder asked Harris to write another, this time being more specific about locations, since Harris had referred to "up the hill" and things like that, which would not be understandable to those not familiar with the neighborhood. (Felder: H. 236, 298, 300, 306.) Again, Detectives Felder and Johnson left the room while Harris wrote his next statement. (Felder: H. 236-37.)

Harris' second statement substantively mirrored his first and indicated that: "[I] asked her for money. She says something and then I pull out the .38 gun, and the hammer pulled back and a few seconds later she tried to swing, I guess, and the gun went off." (Felder: H. 238.) Harris signed and dated the statement at the bottom of the page and wrote the time he completed the statement, 8:35 PM. (Felder: H. 239, 302.)

At 8:55 PM, Detective Felder reentered the interview room and asked Harris to dictate what had happened in his own words. (Felder: H. 239-40, 303-04, 306.) Detective Felder sat across from Harris and wrote down what Harris told him. (Felder: H. 240.) Detective Felder read everything he wrote to Harris so that Harris could correct any mistakes. (Felder: H. 240-41.) The statement read:

I, Detective Terrance

Felder present at the 26th Squad Room, present with Shawn Harris, date of birth 10/31/80, to conduct interview regarding homicide. Witnessed by Detective William Johnson, Manhattan North Homicide Squad. The time started at 2055 hours, 6/3/99. Mr. Harris states that on day of incident he left his apartment, he went to first floor party room and removed a black mountain bike, then rode to 125th Street and Broadway from 430 west 125 Street. Then proceeded south on Broadway at 125th Street on sidewalk . . . east side of Broadway. Rode bike up hill at Broadway and 125th Street passing Twin Donuts, stationary store and train entrance and exit. Then approached female white who was walking a few feet further up on Broadway, pass stores and a little pass the entrance of 3170 the Broadway between 3150 Broadway. Mr. Harris states he rode up to the female who turned when she heard bike that was clicking as he pedaled toward her. He states he cuts her off. He cuts her off from continuing walking, said, give me your money. And when the victim grumbled and attempted to walk pass Mr. Harris he pulled out a .38 caliber revolver and said, give me your money. Then pulled back the hammer, cocking the gun, pointing it at her. Mr. Harris states victim tried to knock the gun away from him which caused the gun to discharge firing one round which struck victim. Mr. Harris states he said, oh, shit, paused for a second, then rode bike from front of 3150 Broadway making a left on to LaSalle Street, continuing down hill to Amsterdam, making a left on to Amsterdam, continuing to 125th Street, where Mr. Harris makes a right turn, riding-- biking from 125th Street to Amsterdam to Morningside Drive, making a right turn at 125th Street and then travel one block to 124th Street and Morningside Park, entering the park where he left the bike besides a park bench. Mr. Harris states he left park and went home, took off his jacket and went into the bathroom and threw up because he felt nauseous after realizing what he had done. I have asked Mr. Harris what did he do with the .38 caliber revolver? He said he used it in the shooting. He said Pat came to his block about two days later looking for Mr. Harris to get the gun that he had lent him on 4/14/99, the day before he shot the lady. I asked Mr. Harris did he tell any one what happened? He said, no. This isn't something I would tell anybody because it was an accident. Mr. Harris states he needed money to pay off a debt of $50 that he owed to Travis from uptown because he lost approximately $60 worth of marijuana that he was holding, leaving it on a basketball court inside his hat. Mr. Harris further states that he was wishing the whole thing didn't happen, didn't mean to hurt that lady at all. He felt as if he showed her the gun she would give up the money and not resist. (Felder: H. 243-45.) Harris, Detective Felder and Detective Johnson signed the statement and wrote the time it was completed, 9:30 PM. (Felder: H. 245, 304.) Following the completion of this third statement, Detective Felder again offered Harris some food, and Harris requested (and received) Chinese food. (Felder: H. 246.)

Harris' Fourth, Fifth and Sixth Mirandized Statements

Detective Henriquez, who last spoke with Harris at 7:15 PM, next spoke with Harris at 10:30 PM. (Henriquez: H. 90-91, 156.) Detective Henriquez told Harris that he was aware that Harris had given previous statements to Detective Felder that he had killed Frezza. (Henriquez: H. 91.) Detective Henriquez asked Harris whether he was telling the truth and whether he had given the statements voluntarily. (Henriquez: H. 91.) Harris told Detective Henriquez that "he never wanted to kill her" and that "she swung something, like she swung . . . her arm at him; and she didn't want to give him the money; and the gun had gone off; and she fell to the ground; and he . . . didn't take anything from her." (Henriquez: H. 91.) Harris told Detective Henriquez that he had had the gun in his coat pocket, and that after the shooting, he had thrown the coat away. (Henriquez: H. 91-92, 94.) Harris told Detective Henriquez that, "he never used a gun in a robbery before." (Henriquez: H. 92.) Harris said that after the gun went off that he "got scared and he took off" on his bicycle without taking anything from the victim. (Henriquez: H. 93.) Harris was very calm and polite, seemed to be in a "better mood," relaxed and "a little bit more friendly . . . more casual with us." (Henriquez: H. 95.) This interaction took no more than five minutes. (Henriquez: H. 95.) Detective Henriquez asked Harris again if he wanted anything to eat, and Harris ordered Chinese food. (Henriquez: H. 95.)

At 11:30 PM, Detective Felder entered the interview room and had a discussion with Harris about the gun he had used in the homicide. (Felder: H. 247, 304-05.) Harris had indicated that he had used a .38 caliber revolver in his second and third written statements. (Felder: H. 247.) A shell casing found at the scene and the ballistics report indicated that a .25 caliber gun was used to kill Frezza. (Felder: H. 247.) Harris indicated that a .38 caliber was the only gun that he thought he could "get [his] hands on quick," since "Pat had sold the other gun, the .25" caliber. (Felder: H. 247, 248.) Detective Felder told Harris to write this, his fifth statement. (Felder: H. 248-50.) Harris did so, and explained that he said it was a .38 because that was the only gun he could give the detectives, since Pat had sold the .25. (Felder: H. 250.)

At midnight, Detective Felder conducted a lineup with Harris and five "fillers." (Felder: H. 250-51, 307-08.) At 12:15 AM, Melvin Wallace viewed the lineup and identified Harris as the "male on a bicycle" Wallace had witnessed "pull out a gun and shoot" Jacqueline Frezza. (Felder: H. 256, 259-60.)

On June 4, 1999, at around 12:30 AM, Assistant District Attorney Tom Shields conducted a videotaped interview with Harris. (Felder: H. 260.) Harris was again read his Miranda rights. (Felder: H. 260-62.) Again, Harris acknowledged that he understood his rights and waived them, agreeing to answer questions. (Felder: H. 260-62.) Harris reiterated the details of the statements he had given earlier that night. (Felder: H. 260-62; see Dkt. No. 8: Ans. App. Ex. A: 12/1/00 J. Wittner Decision at 7, describing videotaped confession; Ans. App. Ex. C: State 1st Dep't Br. at 17-18, 42-44, describing videotaped confession.)

The Defense Evidence at the Suppression Hearing

The defense called Alvin Hodge, Harris' older brother, as a witness at the suppression hearing. (Hodge: H. 324-25.) On June 3, 1999, at around 2:00 PM, Hodge was walking his dog in front of his apartment on 125th Street when a neighbor told Hodge that Harris had been "picked up." (Hodge: H. 325-27, 337-38.) Around 2:30 PM, Hodge went to the 26th Precinct and spoke to a "PA," someone Hodge described as working "in the precinct taking affidavits and reports[,] . . . [t]he first person you see before you see an officer." (Hodge: H. 327-28, 338-39.) Hodge asked whether Harris was at the 26th Precinct, and was told he was not. (Hodge: H. 328.) Hodge left to go to the 28th Precinct, but "ran into one of the guys that was picked up with Shaun," who told Hodge that "[t]hey still have [Harris] upstairs on the second floor of the 26." (Hodge: H. 328-29.)

Around 3:00 PM, Hodge returned to the 26th Precinct and spoke to the same PA, who inquired and told Hodge that someone would be down in a few minutes to talk to him. (Hodge: H. 329, 339.) Ten minutes later a detective came down to speak with Hodge and told him Harris was not being charged and was "just being questioned." (Hodge: H. 329-31.) When Hodge asked if he could go up and speak to Harris, the detective told him he could not. (Hodge: H. 331.) Hodge asked if Harris could be brought down so that he could speak with him, and again Hodge was told no. (Hodge: H. 331.) Hodge asked, "if he is not being charged, can he leave with me?" and again the detective told him no. (Hodge: H. 331.) Hodge left the precinct and returned home. (Hodge: H. 331-32.)

Hodge called his mother, Helen Hodge, and told her about Harris. (Hodge: H. 332, 340.) Helen Hodge hurried home, called the precinct at approximately 6:00 PM, and asked to speak with Harris but was not allowed to. (Hodge: H. 332-33, 340.) At approximately 9:30 PM, Helen Hodge called the precinct a second time and asked to speak to the detective, but was told that he had gone home for the night. (Hodge: H. 334, 341.) When Alvin Hodge called the precinct in the morning, he learned that Harris had been arrested. (Hodge: H. 334.)

The Suppression Hearing Decision

On December 1, 2000, Justice Wittner issued a written decision denying Harris' motion to suppress his initial and six post-warning statements. (Dkt. No. 8: Ans. App. Ex. A: 12/1/00 J. Wittner Decision.) Justice Wittner held that Harris' initial, un-Mirandized statement (that "it was a mistake") was made voluntarily and "was not the product of custodial interrogation as [Harris] was neither in 'custody' nor 'interrogated.'" (Id. at 8.) She held that "all [of Harris'] subsequent statements were knowingly and voluntarily made after [Harris] was properly advised of his Miranda rights." (Id.) In the alternative, Justice Wittner found that even if Harris' "first statement was the product of custodial interrogation, it in no way tainted his later, voluntarily made, oral and written statements." (Id.)

Justice Wittner found that Harris was not in custody when he voluntarily made his initial statement. (Id. at 10-11.) Justice Wittner reasoned that because Harris voluntarily accompanied Detective Henriquez to the police station, "was not told he was under arrest or placed in a holding cell," and remained at the precinct for five hours, a time period "well within the limits for non-custodial station house encounters," a reasonable innocent person would conclude that he was not in custody at the time Harris made his initial statement. (Id.)

Further, Justice Wittner found that Harris' initial statement was not the result of interrogation. (Id. at 11.) She reasoned that "[a]t this juncture, Detective Felder had not asked [Harris] any specific questions about the homicide," "but rather informed him of the evidence they had." (Id.) As soon as Harris made his "spontaneous" statement that "'it was a mistake,'" Detective Felder "immediately administered the Miranda rights" to Harris. (Id.) Therefore, Harris' initial "statement 'it was a mistake' was freely and voluntarily made, not the product of custodial interrogation." (Id.)

Moreover, Justice Wittner found that Harris made all of his "subsequent oral and written statements and the videotaped statement," after being advised of and waiving his Miranda rights. (Id.) "Nothing in the record suggests that [Harris'] statements[, following his initial statement, 'it was a mistake,'] were the product of continuous custodial interrogation." (Id. at 12.) The "[d]etectives did not question [Harris] about the Frezza homicide until Miranda warnings were administered." (Id.) "There [was] no evidence that [Harris] was psychologically or physically coerced in any way." (Id. at 11.) Harris "was given food and drink and allowed to use the bathroom." (Id.) Harris appeared "attentive" when he "again waived his Miranda rights" in the videotaped confession. (Id. at 12.) "Nor does the record support the contention that [Harris'] simple utterance, 'it was a mistake,' committed him to the subsequent detailed confessions that he later gave to the detectives and the assistant district attorney." (Id.) Therefore, "[a]ssuming arguendo that the first statement was the product of custodial interrogation, it in no way tainted his later, voluntarily made, oral and written statements." (Id. at 8.)

The Prosecution's Case at Trial

On February 28, 2001, the prosecution began presenting its case to the jury. (Trial Transcript ["Tr."] 29.)*fn1 The prosecution's chief witnesses were eyewitness Melvin Wallace, and Detectives Victor Henriquez and Terrance Felder, who essentially repeated their testimony given during the earlier suppression hearing described above. (Henriquez: Tr. 258-399; Felder: Tr. 399-515.)*fn2

Wallace testified that on April 15, 1999, at about 9:00 AM he looked out his apartment window facing Broadway and observed a struggle between a man and a woman. (Wallace: Tr. 91.) Wallace had a clear view of the woman, who appeared to be trying to get away as she struggled with a man straddling a bicycle. (Wallace: Tr. 92-93.) The man struck the woman in her chest, pushing her back against the iron rail of a fence bordering the sidewalk. (Wallace: Tr. 95-96.) The man put his right hand in his right pocket, raised a gun in his right hand and shot the woman. (Wallace: Tr. 95, 98-99, 101.) Wallace watched the man flee on his bicycle out of view under the canopy of Wallace's building. (Wallace: Tr. 97.) Wallace ran to his other window and watched the man come out from under the canopy and ride down LaSalle Street on the sidewalk toward Amsterdam Avenue. (Wallace: Tr. 97, 101.) Wallace had a view of the man's face during this, and his view improved as the man rode away from the victim and toward Wallace's window. (Wallace: Tr. 101, 105.) Wallace could see all of the features of the man's face and testified that while it was hard to describe a face, "seeing the man anywhere I would know the man." (Wallace: Tr. 103.) Wallace called 911. (Wallace: Tr. 109-10.) On June 3, 1999, at around midnight, Wallace went to the 26th Precinct to view a lineup, at which he identified Harris as the man who shot and killed Jacqueline Frezza. (Wallace: Tr. 117-19.) Wallace identified Harris at trial as the shooter. (Wallace: Tr. 119-20.)

The Prosecution's Motion to Exclude Defense Witness Avlin Hodge at Trial

On March 8, 2001, the prosecution moved to preclude the testimony of defense witness Alvin Hodge, Harris' brother, as irrelevant. (Tr. 540.) The defense planned to have Hodge repeat his testimony from the suppression hearing, which the defense argued was relevant to establish Harris' presence at the 26th Precinct, to shed light on the nature of the police questioning, and to show that Harris was in custody. (Tr. 541.) The defense also claimed it went to the police's credibility. (Tr. 544-46.)

The prosecution argued that Hodge's testimony was irrelevant to the issues of custody and voluntariness, describing the issue as "whether or not an innocent person found under similar circumstances as the defendant would be free to leave[. W]hether or not someone shows up at the Precinct is irrelevant. Whether or not a family member calls is irrelevant. What the police officers know is irrelevant in terms of deciding that standard." (Tr. 546.)

Justice Wittner agreed with the prosecution and excluded Hodge's testimony, finding that Hodge's testimony about his efforts on June 3, 1999 to locate and speak to Harris at the 26th Precinct was irrelevant to the issue of whether Harris' statements were voluntary. (Tr. 540-41, 547.)

"It is the defendant's state of mind that is dispositive on the voluntariness." (Tr. 547.) Hodge's testimony "has no legal import. There is no inference the jury could draw from that set of facts" about the voluntariness of Harris' confessions. (Tr. 548.) "There is no law at [Harris'] age [18, that the police] have to contact a parent." (Tr. 548.) Justice Wittner concluded that she "will give the instruction that tells [the jury that] if they believe he was in custody at the time he made the statement [that] it was a mistake, they should not consider that statement. ...


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