Terrence Mason - "Overwhelming Evidence"

Mason, Terrence; robbery; NRE: mistaken witness identification, perjury/false accusation, inadequate legal defense; "OVERWHELMING"

[565:552]; 2nd Dept. 2/4/91; affirmed

"[I]n view of the overwhelming evidence of guilt..."

[The 2nd Dept. 'justices' who signed off on this opinion are Guy J. Mangano, Geraldine T. Eiber, Thomas R. Sullivan, and Vincent R. Balletta. ]

16 F.3d 38; 2nd Cir. 2/7/94; previous grant of writ (not in Westlaw) affirmed, due to evidentiary error and ineffective assistance of counsel

"On December 21, 1986, four men -- three blacks and one hispanic -- entered Golden City Jewelers...in Queens...drew guns, and stole approximately $100,000 worth of jewelry. During the following month, George Rivera, Christopher Arthur, Kevin Moore, and Mason were arrested...Rivera, Arthur, and Moore pleaded guilty...Mason elected to stand trial. His defense was misidentification.

"At Mason's jury trial...none of the three men who 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 investigative police detective Philip Fuhr and three eyewitnesses: (1) Sam Rouhani, the store's owner, (2) Mohammed Weiss, a salesman, and (3) Larry Taylor, a security guard."

[* That fact speaks volumes: Had the prosecution truly believed Mason was involved, it would have made testifying against him a mandatory part of the the plea deal taken by at least one of the three (actual) perpetrators.]

"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.

[* This is an indication that detectives were not at all confident that Mason was involved.]

"Taylor, who likewise was unable to recall any distinguishing features, identified Mason both in a pretrial lineup and at trial."*

[* So, the only (3) eyewitnesses the prosecution produced 'identified' Mason, despite a lack of any distinguishing features.]

"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.*

[* Thus, the only eyewitness who was asked to view a line-up took three minutes to 'identify' Mason. What, exactly, happened during that time?]

"[A] conversation with Rivera led the police to focus on Mason.

"The State's evidence against Mason was certainly not overpowering."

[And yet, the four above-named 2nd Dept. 'justices' said it was "overwhelming." ]

from NRE synopsis (by Maurice Possley):

"[At trial, Robert] Taylor, the security guard, gave an elaborate account of the robbery. He said that on the afternoon of the crime, Mason and three others came into the store. Mason told Taylor his name was 'Gerard' and asked about the cost of a gold nameplate. Taylor said he told Mason the price was $550. When Mason said he only had $20, Taylor said this was not enough to start a layaway plan.

"According to Taylor, Mason and the others left the store. Taylor said he went outside and saw Mason go to a public telephone. Mason and the other three men soon returned to the store and Mason said his wife wouldn't give him any money. Taylor told Mason that he could give the store owner the $20 and bring in more money later. At that point, Mason and the other three men drew their guns and robbed the store. Taylor testified that he had spoken with Mason for as much as 15 minutes in the two conversations.

"The prosecution then called Detective Fuhr, who testified that after Rivera was identified in a lineup, he had a conversation with Rivera. Following the conversation, Fuhr said he arrested Mason. The prosecutor elicited this testimony even though the judge had cautioned the prosecutor against introducing any evidence of statements implicating Mason by the three co-defendants who had pled guilty. Mason's defense lawyer did not object to Fuhr's testimony and did not object later on when the prosecution emphasized that testimony in its final argument to the jury.

"During deliberation, the jury asked that Fuhr's testimony be read back, which it was without objection from Mason's lawyer. After first reporting that they were deadlocked, the jury continued to deliberate. In June 1987, the jury convicted Mason of two counts of robbery. He was sentenced to 10 to 20 years in prison.

"In preparing to appeal the conviction, a different lawyer asked Mason's trial lawyer why he failed to object to Fuhr's testimony and why he failed to cross-examine Taylor with a police report which included a detailed description of the robbery that was very different from Taylor's trial testimony.

"The police report, which was based on accounts from the other witnesses, said that the robbers walked in, drew their guns and robbed the store. One of the witnesses said that Rivera had seemed to be in charge of the heist and recalled that the day befoe the robbery, Rivera came in and placed an order with the store owner for a gold nameplate. There was no reference to any conversations with Mason or that any of the robbers had been in the store, left and then returned.

"Mason's trial lawyer said he 'must not have noticed' the police report. He never said why he didn't object to Fuhr's testimony."

"In 1993, Mason filed a federal petition for a writ of habeas corpus, claiming that his attorney provided ineffective legal assistance because he did not object to Fuhr's testimony and failed to use the police report of the robbery to undercut Taylor's testimony.

"In September 1993, U.S. District Judge Edward R. Korman granted the petition, vacated Mason's convictions and ordered a new trial. The court held that the failure to object to Fuhr's testimony and to the prosecution's focus on that testimony in closing argument was sufficient to require a new trial. The court also said that the lawyer's failure to impeach Taylor was a significant error because 'all but one of the eyewitness identifications wasn't worth very much and the one (Taylor) that arguably the jury was more impressed with could have been subject in my judgment to very damaging cross-examination.'

"In February 1994, the 2nd Circuit...upheld Korman's ruling. In March 1994, Mason was released on bond pending a retrial. In November 1995,* the Queens County [DA's] Office dismissed the case."

[* Thus, the DA left Mason 'hanging' for over 18 months.]

"Mason later filed a complaint in the New York Court of Claims seeking compensation, but the complaint was dismissed."

[All emphases added unless otherwise noted.]