930 F.2d 1 (2nd Cir. 1991), 1319, Mitchell v. Hoke

Docket Nº:1319, Docket 90-2576.
Citation:930 F.2d 1
Party Name:Vincent MITCHELL, Petitioner-Appellee, v. Robert HOKE, Superintendent, Eastern Correctional Facility, Respondent-Appellant.
Case Date:April 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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930 F.2d 1 (2nd Cir. 1991)

Vincent MITCHELL, Petitioner-Appellee,

v.

Robert HOKE, Superintendent, Eastern Correctional Facility,

Respondent-Appellant.

No. 1319, Docket 90-2576.

United States Court of Appeals, Second Circuit

April 3, 1991

Argued April 2, 1991.

Ernest Burstein, Asst. Dist. Atty., Kew Gardens, N.Y. (John J. Santucci, Dist. Atty., Queens County, Kew Gardens, N.Y., of counsel), for respondent-appellant.

Sam A. Schmidt, Barocas & Schmidt, New York City, for petitioner-appellee.

Before LUMBARD, WINTER and WALKER, Circuit Judges.

PER CURIAM:

This is an appeal from a judgment granting Vincent Mitchell's application for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1988). Mitchell and a co-defendant were convicted in 1985 in New York State Supreme Court, Queens County, of robbery and menacing. The trial court permitted a police officer to testify concerning a lineup at which a witness to the robbery, who was not called to testify, identified Mitchell as the perpetrator. Judge Weinstein concluded in a thorough and well-reasoned opinion that the admission of this hearsay testimony violated Mitchell's Sixth Amendment right to confront the witnesses against him and granted the writ. 745 F.Supp. 874. We agree and affirm.

The state's case against Mitchell consisted of the testimony of Bobby Jones, one of the victims of the robbery, and Detective Robert De Leon. Jones testified that on the night of the robbery, he was with three friends, Elliot Primus, Mitchell Warren, and Jerome Trim. At approximately three o'clock in the morning, five or six armed men attempted to hold them up. Warren and Trim ran away. The robbers stole Jones's ring, a gold chain, and a jacket. Jones testified that Mitchell participated in the robbery. Jones had seen Mitchell occasionally, the most recent encounter having been some four and a half years prior to the crime. Jones admitted to having had a couple of beers immediately prior to the robbery but denied having smoked marijuana that evening.

Detective De Leon testified as follows:

Q Detective, I would ask that you look at [a photograph of the lineup] ... I asked you who it was that viewed that particular line-up?

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A Elliot Primus.

Q And can you tell me who was in position number four in that line-up?

A Vincent Mitchell.

Q And Detective, did Mr. Primus pick anyone out of that line-up?

...

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