Tyrone Hicks - Mistaken Witness Identification

Hicks, Tyrone ; sexual assault; NRE: mistaken witness identification

[785:15]; 1st dept. 10/12/04; affirmed

"The verdict was not against the weight of the evidence...The evidence warrants the conclusion that the victim had an adequate opportunity to observe [Hicks] [???] during the crime, and that any discrepancies between her description of [Hicks] and his actual appearance were minor and readily explainable."

[981:81]; 1st Dept. 2/27/14; Bronx Cty. Ct. grant of motion to vacate (not in Westlaw) affirmed

"The conviction was based upon the brutal and violent sexual attack of a female victim that occurred in the early hours of February 23, 1998, in a dark alleyway. The victim testified that she struggled, resisted the attack as much as she could and continually fought her attacker. She further testified that the attacker had his hand on her throat during the assault. The assault was brought to an end only when someone from an apartment above the alley yelled, causing the attacker to flee.

"A sexual assault evidence kit was collected which included material from the victim's fingernails...Approximately three weeks later...the victim identified [Hicks] in a police lineup.

"At trial, the victim's eyewitness identification provided the sole evidence linking [Hicks] to the crime. The [prosecution] presented no physical evidence linking [him] to the crime, including no evidence that [his] DNA was present at the crime scene. The defense raised issues about the reliability of the victim's identification and pointed the jury to discrepancies in the several descriptions she gave of her attacker during the investigation. The defense also produced an alibi witness, [Hicks'] son-in-law, who testified that [Hicks] was at home with the witness when the attack occurred.

"In 2009 [some 9 years after Hicks was convicted], the Office of the Medical Examiner...tested and compared the DNA material from the victim's fingernails...with [Hicks'] DNA...[T]he genetic material did not match [Hicks'] DNA."

232 F.Supp.3d 480; S.D.N.Y. 2/8/17; civil suit

"Immediately after the attack, T.T. [the complainant] told the police that her assailant had 'a bald head and mustache...was between 5'11" and 6'0" tall, 25 years old, and had a "pocked mark" face.'...At trial, T.T. testified that the perpetrator was 'perhaps between 5'8" and 5'10" and that he might have weighed only between 160 and 170 pounds.'... Hicks did not match either description; at the time of his arrest, Hicks was 6'2"...weighed 210 pounds...[was] 41 years old...did not have a mustache...[nor] a pock-marked face...[was] not bald...[and had] Alopecia Areata,' which 'leaves bald patches unevenly distributed on the afflicted person's cranium' that 'create a distinct and unique look.'"

[It seems absurd that Hicks would even have been charged with this crime -- much less convicted. ]

NRE synopsis (by Maurice Possley):

"The victim helped police create a composite sketch of her attacker and after it was published in the media, a tipster (who was never identified) called police and said the sketch resembled 41-year-old Tyrone Hicks.!

"While Hicks was in prison, he wrote to the Post-Conviction Project at Pace Law School. After his release in 2007, Post-Conviction Project students discovered the fingernail scrapings, which had never been tested."

"The DNA profile was only a partial profile that was sufficient to exclude Hicks, but was not sufficient to send to the FBI's DNA dataset to determine if it matched to a convicted felon.

"The Post-Conviction Project filed a motion for a new trial. At the suggestion of the Post-Conviction Project, police began to reinvestigate the cluster of rapes and sexual assaults that occurred in the same Bronx neighborhood at the time of the attack for which Hicks was charged. There was biological evidence from the rape which was submitted for DNA testing and a profile was developed and submitted to the FBI database.

"In 2012, the profile was matched to James Martin, who was in a Pennsylvania prison after being convicted of killing his wife."

"On May 15, 2014, the Bronx County [DA] dismissed the charges.

"Hicks subsequently filed a claim for compensation with the New York Court of Claims that was settled for $1.5 million. He also filed a federal civil rights lawsuit that was dismissed, but in January 2018 was reinstated by the Second Circuit U.S. Court of Appeals. In March 2019, Hicks settled the case for $3.25 million."