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Maldonado v. Burge

March 24, 2010



Petitioner Edwin Maldonado objects to Magistrate Judge Katz's Report and Recommendation [17] (the "Report"), which recommended that petitioner's petition for a writ of habeas corpus be denied. Respondent also objects to portions of the Report. After reviewing the record, the Report, and the relevant legal authorities, the Court concludes that petitioner's request for a writ of habeas corpus should be denied.


The background and relevant procedural history are set forth in more detail in the Report, familiarity with which is assumed.

The Robberies

On May 3, 2002, while German Guzman was stopped at a red light in his taxi in the Bronx, he felt someone reach into his shirt pocket and take his money. (See Trial Tr. Vol. 2, Sept. 11, 2003 ("Tr. B") at 118-19.) Mr. Guzman saw the robber's hand, but not his face. (Id. at 120-21.) After the robbery, Mr. Guzman told the officers called to the scene that the robber had worn a yellow jacket and blue jeans and that he believed the robber to be Hispanic. (Id. at 130, 132-33, 136-37.)

Melinda Barcene, stopped at the same red light, witnessed the robbery. (Trial Tr. Vol. 1, Sept. 10, 2003 ("Tr. A") at 12-14.) At one point, the robber crossed directly in front of her, and she was able to get a close, unobstructed view of his face. (Id. at 28.) A few days later, Ms. Barcene described the robber to Detective Benny Lucchese as a Hispanic male, 5'9 to 5'10 in height, about thirty years old, in need of a haircut, and with a scar on the right side of his mouth. (Tr. B at 169-70; Tr. A at 46-47.) Ms. Barcene also gave a clothing description of the robber that matched Mr. Guzman's. (Id.) From this description, and considering the location of the robbery, Detective Lucchese suspected petitioner of the robbery. (See Wade Hearing Tr. Vol.1, Sept. 3, 2003 ("Wade A") at 85-86, 103.) Detective Lucchese compiled a six photo spread consisting of petitioner and five other similarly featured men and showed it to Ms. Barcene. (Id. at 88-89.) Ms. Barcene identified petitioner as the man who committed the May 3, 2002 robbery. (See Wade Hearing Tr. Vol. 2, Sept. 8, 2003 ("Wade B") at 172.)

On May 21, 2002, a second robbery occurred. Tanya Simpson had paid her taxi fare and was waiting for change when a man approached the driver's window and snatched the money from the driver's front pocket. (Tr. B at 144-46, 149.) The robber then climbed into the taxi beside Ms. Simpson, held a pistol to her head, grabbed a chain from her neck, and took her wallet. (Id. at 145, 147.) The robber's unobstructed face was about two feet from Ms. Simpson's face during the robbery. (Id. at 150.) The driver never reported the robbery, but Ms. Simpson called 911 shortly after leaving the taxi. (Id. at 157-58, 225.) She met with police officers later in the day and described the robber as a light-skinned black or Hispanic male, about 5'7" in height, about thirty years old, weighing about 140 pounds, with a scar next to his mouth, and with black hair in a high "afro" hairstyle. (Id. at 158-60.) She also stated that he had been wearing a blue and red jacket, a blue tee shirt and blue jeans. (Id.) Ms. Simpson looked through a photo book with approximately seventy photos, including twenty-two Hispanic males, and after about twenty-five minutes, she picked petitioner out of the book. (See Wade A at 6-7, 42.)

Later on May 21, 2002, Detective Glenn Godino arrested petitioner, who was wearing a distinctive bright red "Phillies" baseball jacket with a blue collar and trim, a blue tee shirt with a distinctive caption on the front, and blue jeans. An arrest photo was taken. (See Wade A at 49; Cunningham Aff. Ex. 1 ("Arrest Photo").) Detective Godino frisked petitioner and searched his person, but did not find any physical evidence linking him to the robberies. (Tr. B at 257-61, 278.) The next day, Detective Godino organized a lineup with petitioner and five other Hispanic males. (Wade A at 16-17.) All of the men were sitting and wore black stocking caps. (Id. at 18, 67). A black plastic sheet was placed in front of the men to hide their clothing and thereby avoid undue suggestiveness. (Id. at 18, 67, 69.) However, photographs of the lineup reveal that the very tops of the men's shirts could be seen over the black sheet and that a small portion of petitioner's blue shirt was visible. (See Pet. Decl. Ex. B ("Lineup Photo").) It appears from the photo that petitioner's red "Phillies" jacket had been taken off. (Id.) Both Ms. Barcene and Ms. Simpson separately picked petitioner out of the lineup as the robber in the incidents they had witnessed. (Wade A at 20-21, 26.)

The Wade Hearing

On September 3, 4, and 8, 2003, the court held a Wade hearing to determine if any of the identification procedures had been unduly suggestive. See United States v. Wade, 388 U.S. 218, 232 (1967). During the hearing, the witnesses described the events as above, but Detective Godino, looking at a complaint report he had not prepared, testified that Ms. Simpson had described the robber as wearing a red shirt, rather than her actual description of him wearing a blue tee shirt under his red "Phillies" jacket. (Wade A at 70.) There was some discussion about whether Ms. Simpson had described a red or blue shirt, during which time the trial judge stated that "[i]f a blue shirt was at any point at all visible during the lineup and the witness has described the fact that a blue shirt was worn during the course of the lineup, that may or may not relate to the suggestibility of the proceeding." (Id. at 68-69.) However, Detective Godino affirmed that the report referred to a red shirt. (Id. at 71-72.)

At the conclusion of the Wade hearing, petitioner's counsel moved to suppress Ms. Barcene's photo-array identification, alleging that the array was tainted because petitioner was allegedly the only person in the photos with a scar. (Wade B at 193-95, 198.) The court rejected that motion, stating that the procedure was "eminently fair" and that all the photos showed men who looked very similar. (Id. at 204.)

The Trial

Petitioner's trial began on September 8, 2003. The prosecution called four witnesses- Ms. Barcene, Mr. Guzman, Ms. Simpson, and Detective Godino-and relied heavily on the eyewitness testimony of Ms. Barcene and Ms. Simpson's. Report at 13. Both women testified that they had a clear look at the robber's face and both made in-court identifications. (Tr. A at 16-18; Tr. B at 145-46, 150.) Ms. Simpson testified that the robber wore a blue shirt during the robbery, and that she had previously described the shirt as blue, not red-testimony that clearly called into question the accuracy of the report that Detective Godino had referred to during the Wade hearing. (See Tr. B at 159-61, 178-79.) Ms. Simpson positively identified the arrest photo of the defendant, which she was shown for the first time at trial. (See Tr. B at 161-64.)

Ms. Simpson then testified about the lineup where she had identified the defendant the day after the attack. She testified that during the lineup, all the men were covered up to their necks by a black plastic bag and that they were all wearing black hats. (Id. at 167-68.) Ms. Simpson did not mention that the tops of the men's shirts were visible over the black sheet and was not asked whether she had noticed this fact. (See id.)

Petitioner's trial counsel did not call any of its own witnesses, but relied on cross-examination of the prosecution's witnesses and a theory of misidentification. (See Report at 14.) Counsel pointed to inconsistencies in witnesses' testimony, and argued to the jury that the identification procedures were unfairly suggestive because petitioner was the only one wearing a blue shirt in ...

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