Mason v. Scully

Decision Date07 February 1994
Docket NumberNo. 963,D,963
Citation16 F.3d 38
PartiesTerrence E. MASON, Petitioner-Appellee, v. Charles J. SCULLY, Superintendent, Green Haven Correctional Facility, Respondent-Appellant. ocket 93-2632.
CourtU.S. Court of Appeals — Second Circuit

Georgia J. Hinde, New York, New York (Vivian Shevitz, New York, New York, on the brief), for petitioner-appellee.

Linda Cantoni, Assistant District Attorney, Kew Gardens, New York (Richard A. Brown, District Attorney for Queens County, Steven J. Chananie, Robin A. Forshaw, Assistant District Attorneys, Kew Gardens, New York, on the brief), for respondent-appellant.

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

KEARSE, Circuit Judge:

Respondent Charles J. Scully, Superintendent of New York State's Green Haven Correctional Facility (the "State") appeals from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, granting the petition of Terrence E. Mason, a New York State prisoner convicted of robbery, for a writ of habeas corpus on the ground that his trial counsel's performance was so inadequate as to violate his rights under the Sixth and Fourteenth Amendments to the Constitution. On appeal, the State contends that the district court erred in concluding that the quality of trial counsel's representation fell below professional standards and that the inadequacy prejudiced Mason's defense. We disagree and affirm the judgment of the district court.


On December 21, 1986, four men--three blacks and one hispanic--entered Golden City Jewelers (the "Store") in Queens, New York, drew guns, and stole approximately $100,000 worth of jewelry. During the following month, George Rivera, Christopher Arthur, Kevin Moore, and Mason were arrested, and each was charged with one count of first-degree robbery, in violation of N.Y.Penal Law Sec. 160.15 (McKinney 1981), and one count of second-degree robbery in violation of id. Sec. 160.10; Mason was also charged with other counts that were subsequently dismissed. Rivera, Arthur, and Moore pleaded guilty to second-degree robbery. Mason elected to stand trial. His defense was misidentification.

A. The State-Court Trial

At Mason's jury trial in New York Supreme Court in June 1987, none of the three men who had pleaded guilty to the robbery was called to testify. Nor was there any evidence that Mason's fingerprints were found in the store, or in the getaway car, or on any of the stolen jewelry that was recovered.

The recovered jewelry was found in the apartment of Arthur's girlfriend; there was no evidence that Mason had any association with anyone connected with that apartment. Rather, the State's evidence at Mason's trial consisted principally of the testimony of investigating police detective Phillip Fuhr and three eyewitnesses: (1) Sam Rouhani, the Store's owner, (2) Mohammed Weiss, a salesman, and (3) Larry Taylor, a security guard. A fourth eyewitness did not testify.

Rouhani and Weiss had not been asked to view Mason in a pretrial lineup or a photographic array and testified that they could not recall any distinguishing features that would permit them to identify him. They were able to identify him at trial, however. He was the only black man sitting at the defense table.

Taylor, who likewise was unable to recall any distinguishing features, identified Mason both in a pretrial lineup and at trial. According to Taylor's trial testimony, on the afternoon of December 21, 1986, Mason and three other men entered the Store. Mason told Taylor his name was "Gerard" and asked about the price of a gold nameplate. Taylor told him it cost $550; when Mason said he had only $20 with him, Taylor told him that was not enough to start a layaway plan. Mason said he would ask his wife for more money; he then left the store and Taylor followed, returning when he saw Mason go to a telephone. Mason soon reentered the Store and said that his wife would not give him more money; Taylor told him he could give the boss the $20 and bring in more money later. At that point, Mason and the three other men drew their guns and robbed the store.

Taylor testified that his conversation with Mason had lasted 8-15 minutes. Through Detective Fuhr, trial counsel brought out evidence that in the six-man lineup conducted a month after the robbery, it had taken Taylor three minutes to identify Mason.

A report describing the statements of the eyewitnesses given to the police shortly after the robbery (the "police report") was quite different from Taylor's trial account of the event. According to the police report, the four men simply entered, produced guns, and proceeded to rob the Store. On the day following the robbery, after the police received a tip from a confidential informant (see below), the four eyewitnesses were shown a photographic spread, and one or more of them identified photographs of Rivera and Arthur. The police report stated that the

[w]itnesses said that Rivera appeared to be in charge of the robbery and added that he came into their store the day before the robbery & gave an order for a gold nameplate "GERARD" to the owner.

The police report contained no indication that any of the witnesses said he had spoken with any of the robbers other than Rivera, or that Taylor said he had had a sale-related conversation with any of the robbers on the day of the robbery, or that any witness said any of the robbers had left the store on the day of the robbery and returned. Mason's trial counsel made no attempt to use the police report to impeach Taylor's testimony.

The State's other principal witness was Detective Fuhr, who investigated the robbery. According to the police report, after the robbery a confidential informant had informed the police that three of the men who had robbed the Store were Rivera, Arthur, and Moore; the informant had not seen and could not identify the fourth man. Fuhr testified that between January 6 and January 13, 1987, he arrested Rivera, Arthur, and Moore. The prosecutor then proceeded to question Fuhr as follows:

Q. And, after the lineup [in which Taylor identified Rivera], was a conversation held with George Rivera?

This is a yes or no question.

A. Yes.

Q. And, after this conversation with George Rivera, were you looking for somebody?

A. Yes, I was.

Q. And, who were you looking for?

A. Terrence Mason.

Mason's trial counsel had requested at the start of trial that the prosecution not be allowed to introduce any evidence of statements by Mason's nontestifying codefendants In his summation, the prosecutor argued:

and the trial court had cautioned the prosecutor to be mindful of that problem. Nonetheless, trial counsel made no objection to the prosecutor's questions eliciting that Fuhr's conversation with Rivera had led Fuhr to look for Mason. Nor did trial counsel move to strike or otherwise limit the prosecutor's use of that testimony.

What else does Philip Fuhr do?

He asks around. He conducts a police investigation. Eventually, he makes a number of arrests.

.... It was brought out that Kevin Moore, Christopher Arthur were apprehended....

Later, we have the arrest of George Rivera. More conversations, more information.

Eventually, the Defendant, Terrence Mason, is apprehended.

Mason's trial attorney made no objection to the summation.

The jury deliberated, then asked to have read back Taylor's testimony and the "testimony of Detective Fuhr, relating to the apprehension of the Defendant." Mason's trial counsel made no objection; the testimony was read to the jury. Sometime later, the jury advised the court that it was not able to reach a verdict and that even if it deliberated for days it would not be able to decide the issue. The court delivered an Allen charge (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)). Later that day, the jury returned a verdict of guilty. The court sentenced Mason to two concurrent terms of 10-20 and 6-12 years' imprisonment.

B. The State Postconviction Proceedings

In connection with his state appeal and post-conviction proceedings, Mason was represented by new counsel ("appellate counsel"), who argued that Fuhr's testimony, by implying that Fuhr had begun looking for Mason as a result of a statement by Rivera, violated Mason's right to confront his accusers. Mason's conviction was affirmed by the Second Department, which ruled that because his trial counsel had failed to object, Mason had failed to preserve his confrontation claim for review. See People v. Mason, 170 A.D.2d 464, 565 N.Y.S.2d 552 (2d Dept.), leave to appeal denied, 77 N.Y.2d 997, 571 N.Y.S.2d 923, 575 N.E.2d 409 (1991). The court also ruled that, "in any event, any error in this regard was harmless beyond a reasonable doubt ... in view of the overwhelming evidence of guilt...." Id. Leave to appeal to the Court of Appeals was denied. See People v. Mason, 77 N.Y.2d 997, 571 N.Y.S.2d 923, 575 N.E.2d 409 (1991).

In the meantime, Mason's appellate counsel had asked trial counsel why there had been no objection to the prosecution's elicitation and use of the Fuhr testimony as to the conversation with Rivera and why there had been no impeachment of Taylor with the police report. As to the latter, trial counsel responded that he "must not have noticed" the contents of the police report; as to the former, he made no response. Appellate counsel petitioned the trial court pursuant to N.Y.Crim.Proc.Law Sec. 440.10 (McKinney 1981) to set aside the conviction on the ground that the performance of Mason's trial attorney had been constitutionally ineffective. The trial court denied the petition. Leave to appeal this order to the Appellate Division was denied.

Mason also filed a complaint with the State Bar Grievance Committee with respect to trial counsel's performance. Trial counsel, notwithstanding his earlier statement to Mason's appellate counsel that he "must not have noticed" the contents of...

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