Henry v. Poole

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Kearse
• Citation: Henry v. Poole, 409 F.3d 48, 2005 WL 1220468 (2nd Cir. 2005)
• Decision Date: 24 May 2005
• Docket Number: Docket No. 03-2884.
• Parties: Dwayne HENRY, Petitioner-Appellant, v. Thomas POOLE, Superintendent Five Points Correctional Facility and Eliot L. Spitzer, Attorney General of New York, Respondents-Appellees.

409 F.3d 48

Dwayne HENRY, Petitioner-Appellant, v. Thomas POOLE, Superintendent Five Points Correctional Facility and Eliot L. Spitzer, Attorney General of New York, Respondents-Appellees.

Docket No. 03-2884.

United States Court of Appeals, Second Circuit.

Argued: February 17, 2005.

Decided: May 24, 2005.

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Reed Smith, New York, New York (Lawrence T. Hausman, The Legal Aid Society, Criminal Appeals Bureau, New York, New York, on the brief), for Petitioner-Appellant.

Donna Aldea, Assistant District Attorney, Kew Gardens, New York (Richard A. Brown, District Attorney for Queens County, John M. Castellano, Assistant District Attorney, Kew Gardens, New York, on the brief), for Respondents-Appellees.

Before: OAKES, KEARSE, and SACK, Circuit Judges.

Judge SACK concurs, in a separate opinion.

KEARSE, Circuit Judge.

Petitioner Dwayne Henry, a New York State ("State") prisoner convicted of robbery, appeals from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he received ineffective assistance of counsel when his trial attorney elicited and emphasized an alibi that was clearly given for the wrong day. The district court denied the petition on the ground that the state court's rejection of Henry's ineffective-assistance-of-counsel claim was neither contrary to nor an unreasonable application of clearly established federal law, as determined by the United States Supreme Court, see 28 U.S.C. § 2254(d)(1). On appeal, Henry contends that the state court's rejection of his claim constituted an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("Strickland"). For the reasons that follow, we agree and reverse the judgment; we instruct that a new judgment be entered, ordering that Henry be released unless the State affords him a new trial within 90 days.

I. BACKGROUND

The present case arises out of the armed robbery of Richard Mitchell, a livery cab driver in Jamaica, Queens, in the early-morning hours of Thursday, August 10, 1995. The only evidence connecting Henry to the crime was his identification by Mitchell.

As testified to at trial, Mitchell complained to the police that, at 12:10 a.m. on August 10, five men robbed him at gunpoint, stealing $130 and his cab. Two of the robbers had been passengers in the cab, one of whom sat in front (the other three robbers approached the cab when it arrived at the requested destination). At trial, Mitchell described the front-seat passenger as a dark-skinned black man, 20-22 years old, 5'9" tall, 160-165 pounds, with a gold tooth, and wearing a striped shirt.

Some three weeks after the robbery of Mitchell, Henry, a black teenager, was arrested in an unrelated case and was placed in a lineup that was viewed by Mitchell. Mitchell selected Henry as the robber who had been the front-seat passenger, and Henry was charged with one count each of first-degree and second-degree robbery.

A. Henry's Defense at Trial

Henry's position at trial, as stated by his attorney Patrick Watts in his opening statement to the jury, was that Mitchell was mistaken in his identification of Henry. Watts told the jury that he would call as a witness Lakesha Person, Henry's girlfriend, who would give Henry an alibi for the time of the robbery, and that the case would turn on the jury's assessments of the credibility of Mitchell and Person.

Watts cross-examined Mitchell thoroughly in an effort to show that his identification of Henry was mistaken, bringing out discrepancies between Mitchell's initial description of the front-seat robber to the police and Henry's actual appearance. Watts introduced the police complaint report reflecting the initial description that Mitchell had given just 20 minutes after the robbery occurred. Although it appears that Mitchell, some two days after the robbery, gave the police a description of the front-seat robber that more closely matched the description he gave at trial, the description given by Mitchell immediately after the robbery was that the front-seat robber was 20 years old, 5'5" tall, and weighed 120 pounds; he had short hair and was wearing a white T-shirt or tank top.

Watts thereafter cross-examined Police Detective Peter Primerano, who arrested Henry on an unrelated matter on August 31, three weeks after the robbery of Mitchell. Primerano had taken Henry's pedigree information: Henry was 18 years old, was 5'9" tall, and weighed 160 pounds. There is no dispute that, when arrested, Henry had no gold tooth; and the photograph taken of him at that time showed him with a full head of hair. Further, according to the police complaint report, Mitchell initially told the police that the front-seat robber was wearing a T-shirt or tank top; Henry, however, had a large tattoo on his chest that Watts argued would have been visible above a tank top, and Mitchell had made no mention of a tattoo.

Before the arrest of Henry, Primerano had not been assigned to the Mitchell robbery case. After arresting Henry, Primerano called Mitchell to view Henry in a lineup, and Mitchell identified Henry as the front-seat robber. Watts introduced a photograph of the lineup to show that Henry was taller than any of the other participants, arguing that the lineup was suggestive. Primerano testified that he did no follow-up investigation in connection with the robbery of Mitchell. He "drew up the case with the Queens District Attorney's office," and "[t]hat was about it." (Tr. 274.)

Although Watts challenged Mitchell's identification of Henry in many respects, there was no question as to the date and time of the robbery of which Henry was accused—August 10 at 12:10 a.m. Mitchell so testified; the police complaint report introduced by Henry so indicated; and the State's bill of particulars, served on Henry in response to his pretrial discovery request, so stated. Nonetheless, when Watts called Person as a witness, instead of asking her about the early morning hours of Thursday, August 10, he asked her only about events on "th[e] night" of August 10:

Q..... On August the 10th 1995, was [Henry] your boyfriend?

A. Yes.

Q. And where was Mr. Henry living at that time?

A. With me ....

....

Q. Now, Miss Person, directing your attention ... to August the 10th, 1995, tell the jurors in your own words, just tell them where you and Mr. Henry were on that date and at approximately around twelve o'clock that night.

A. Well, the day started off as usually, get up in the morning, and then early afternoon, like morning to afternoon time, we went to the park with my daughter, me him and my little daughter. And we stayed there for awhile until like it started getting dark like toward the evening time, because the sun was just going down and it was turning like mid-evening time. Then we went home.

We stayed home for a little while. We were outside for a little while. Then we were supposed to go to the movies, but we wasn't able to go. My mother, she didn't want to watch my daughter for me, so I didn't have no babysitter, so we just stayed in the house that night.

Q. Did Dwayne ever leave your sight that night?

A. No, he did not. We stayed in.

(Trial Transcript ("Tr.") 283-84 (emphases added).)

Q.... [W]hy do you remember August the 10th?

A. Because that was the opening date of the movie ["Virtuosity"] that we were supposed to go see and I just calculated back to what we did and everything, and that's how I came to that conclusion that we was, we went to the park and we were supposed to go to the movies that day.

(Id. at 286.) Person also testified that Henry had a prominent tattoo on his chest and that in the four years she had known him, she had never seen him with a gold tooth (see Tr. 285-86), even one that was removable jewelry (see Tr. 305-07).

The Assistant District Attorney ("ADA"), cross-examining Person, sought—and received—confirmation that Person was giving Henry an alibi only for the afternoon and night of August 10 rather than for the early morning hours:

Q. You're testifying that you were with the defendant on Thursday, August 10th, that's your testimony; right?

A. Yes.

Q. And you're testifying that Thursday, August 10th, that morning or that day you went to the park with the defendant, right?

A. Yes.

Q. And then you're testifying that that night you slept with the defendant and he never left your sight, right?

A. Yes.

Q. So that would be Thursday going into Friday, right?

A. Yes.

Q. Okay. And that was, you testified in the grand jury as well, as you spoke about with Mr. Watts, right?

A. Yes.

Q. And when you testified in the grand jury, you also were speaking about Thursday night into Friday that you were with the defendant, right?

A. Um-hm.

Q. Okay.... Were you certain of the date when you went into the grand jury?

A. Yes, I was certain.

(Tr. 287-88 (emphases added).)

Q. And you're certain that Virtuosity came out that date. That's your testimony; right?

A. Yeah.

....

Q. And last question, Miss Person, Thursday night, August 10th, you were with the defendant and you slept in the same place with the defendant, never lost sight of the defendant until the next morning; right?

A. Yes.

(Tr. 305, 308 (emphases added).)

Watts had been given a copy of Person's grand jury testimony, in which the alibi period to which she testified was Thursday night into Friday morning, prior to making his opening statement at trial. On redirect examination, Watts had Person confirm that she had told the grand jury that Henry was with her on August 10 and had her reiterate that he was with her on that date; and he again made no effort to ask Person whether Henry was with her in the early morning hours of that date. (See Tr. 308-11.) On recross-examination, the ADA again elicited that Person,...