Boyette v. Lefevre
| Decision Date | 09 June 2000 |
| Docket Number | Docket No. 99-2674 |
| Citation | 246 F.3d 76 |
| Parties | (2nd Cir. 2001) ROBERT CALVIN BOYETTE, Petitioner-Appellant, v. EUGENE S. LEFEVRE, Superintendent, Franklin Correctional Facility, Respondent-Appellee. Argued: |
| Court | U.S. Court of Appeals — Second Circuit |
ROBERT J. BOYLE, New York, NY, for Petitioner-Appellant.
HOWARD A. GETZLER, Assistant District Attorney, Kings County, Brooklyn, NY (Charles J. Hynes, District Attorney, Kings County, and Leonard Joblove, Assistant District Attorney, on the brief).
Before: Calabresi and Pooler, Circuit Judges, and Cedarbaum, District Judge*
Petitioner Robert Calvin Boyette ("Calvin Boyette, Boyette, or Calvin")1 appeals from a judgment of the United States District Court for the Eastern District of New York (Gleeson, J.) that denied his application for a writ of habeas corpus. Boyette contends that the Kings County District Attorney's office withheld exculpatory materials from him in violation of Brady v. Maryland, 373 U.S. 83 (1963). When Boyette first raised this claim in the course of a post-conviction proceeding, the Supreme Court of the State of New York for Kings County (Moskowitz, J.) found that the prosecutor withheld material exculpatory documents and vacated Boyette's conviction. However, the New York State Appellate Division, Second Department, reversed because its "review of the hearing record" convinced it that "the defendant failed to demonstrate that he had, in fact, been denied certain materials to which he was entitled;" certain of the items allegedly withheld were not Brady material; and even if the materials were not delivered and were Brady material, no prejudice resulted to defendant. People v. Boyette, 201 A.D. 2d 490, 491 (2d Dep't 1994).
Because the state appellate court did not identify which materials were not withheld and which were not Brady material, we confront the difficult question of the application of the deferential review standards imposed by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") to unclear findings. We conclude that full AEDPA deference is due only to factual findings and mixed findings of fact and conclusions of law that we can fairly infer from the state court opinion.
This appeal involves an unusually brutal crime. In the early hours of February 21, 1982, two young men robbed and brutalized 47-year old Regina Ehrlich and then set her apartment on fire, leaving her to die. Ehrlich identified Boyette, a neighbor, as one of her attackers. Through two trials, two state post-conviction procedures, and two appeals, Boyette maintained a defense of mistaken identity and alibi. In the face of this defense, the first jury could not reach a verdict. However, the alibi apparently failed to convince a second jury, which convicted Boyette on all counts. Some of the documents the prosecutor allegedly withheld cast doubt on the certainty of Ehrlich's identification. Therefore, we focus first on Ehrlich's descriptions of her attackers and on Boyette's alibi evidence. To address the question of whether the prosecutor failed to turn over Brady material in context, we also set out the history of Boyette's two trials as well as the subsequent post-conviction proceedings and appeals.
On February 21, 1982, Fire Marshal Bollman interviewed Ehrlich at six and eleven a.m. In his report concerning the first interview, Bollman states that Ehrlich said two men attacked her and that "she believes the tall slim boy was Calvin who lives in the building just in front of hers to the right and lives on the third floor." Ehrlich also "said she would recognize them if she can see but her eyes are burned." After the eleven a.m. interview, Bollman reported that Ehrlich said that one subject "may be Calvin Boyett[e]." Ehrlich also said she would like to see a photograph of Boyette to be certain of her identification. Finally, she said that both subjects wore masks.
On April 5, 1982, New York City Housing Detective John Ruiz interviewed Ehrlich and attempted to show her a photo array including Boyette's picture. According to Ruiz, Ehrlich told her that one of her attackers was over six feet tall and the other was about five feet five. The taller man "was a male black in his late teens, sloppy, with missing teeth." Because Ehrlich could not see well enough to make an identification, Ruiz did not show her the photos. Ehrlich did not identify either of her attackers by name. Ruiz, who arrested Boyette, testified that Boyette had no missing teeth but that he had "an underbite, where his bottom teeth and jaw protrude out more than his top teeth." At a Wade2 hearing before Boyette's first trial, Ehrlich admitted that she initially told police that it looked like her attacker's front teeth were missing.
On October 25, 1992, Ehrlich selected Boyette's photo from a photo array and identified him as one of her attackers.
At Boyette's second trial, Ehrlich gave the following testimony concerning her identification of Boyette. Boyette lived in the next building, she knew him, and she saw him a few times a week in passing over a several year period. On February 21, 1982, she arrived home at around 12:36 a.m. As soon as she got out of the elevator in her building, two young men pushed her through the door of her apartment. Once inside the apartment, Ehrlich fell on the floor. The perpetrators then kicked her and dragged her by her hair to the back bedroom. There, they continued to kick and hit her and handcuffed her. Once the handcuffs were on, "Calvin" took off his ski mask and started to rub the handcuffs in an apparent attempt to remove his fingerprints. Ehrlich said, Ehrlich continued to be able to see Boyette for "a few minutes"3 while he and the other assailant, who did not wear a mask, battered her. The two men then tied Ehrlich's feet with a telephone cord, rubbed some kind of fluid that smelled like paint or lighter fluid on her mouth, and drew a wire around her neck. Ehrlich passed out, and when she woke up, both she and the apartment were burning. On cross-examination, Ehrlich denied having said that the man she identified as Calvin Boyette had missing teeth. She claimed instead that she told Ruiz "that it looked like [Boyette's] teeth were missing because his jaw was protruding, one over the other." Ehrlich also claimed that "right away after the accident," she told Ruiz and another detective that "it was Calvin Boyett[e], and I feel sorry for his mother."
A defense witness, Kathryn Cosenza, testified that she had a chance encounter with Ehrlich in the summer of 1982 or 1983. Although Cosenza had not known Ehrlich previously, she began talking to Cosenza about having been burned. Ehrlich said that there were three attackers and although she had not seen their faces, she had heard one of the men call another Calvin. When Cosenza asked, Ehrlich responded, "I made a statement... and I can't change it." Cosenza admitted that she knew Boyette's mother, and Ehrlich denied ever having had a conversation with Cosenza or with anyone else during which she admitted she did not see her assailant's face.
The defense called six witnesses in an effort to substantiate Boyette's claim that he was in Virginia at the time of the crime. Sheila Boyette ("Sheila"), defendant's sister, testified that on January 25, 1982, she took a bus with him to Norfolk, Virginia. According to Sheila, she remained in Virginia for about two weeks, and Calvin stayed after she left.
Barbara Ruiz ("Barbara"), Calvin's aunt, testified that her nephew stayed with her from January 25, 1982, until the early winter of 1983, when he left for Dodge City, Kansas where he was to attend college. Barbara also testified that Calvin's girlfriend, Melissa Smith, gave birth to his baby while Calvin was in Virginia. On February 20, 1982, Barbara saw Calvin from around 11:30 in the morning until 6 o'clock at night when he went out with his cousins David and Denise Ruiz. Calvin, David, and Denise returned to the house about nine in the evening and then left again. Calvin came back just before midnight, and Barbara saw him again the following day.
Denise Ruiz ("Denise") testified that Calvin lived with her, her mother, her brother David, and her sister Jody during February 1982. She identified Melissa Smith as Calvin's girlfriend and testified that on February 14, 1982, Calvin, she, and Melissa went to a dinner party at Lawrence Leo Hawkins' residence. She identified a picture of Calvin and Melissa taken at the dinner party and testified that later that night, Melissa had a child. Finally, Denise said that she saw Calvin on February 20, 1982, when Hawkins, who was her boyfriend, took her, Jody, David, and Calvin to Bradlee's, a clothing store, to buy baby clothing. She believed that they arrived around seven in the evening.
David Ruiz ("David") testified that he, Calvin, Denise, Jody, and Hawkins purchased clothes for Calvin's newborn son at Bradlee's on February 20, 1982, then returned to his mother's house, and finally went to Newport News to drop off the clothing. He claimed that he saw Boyette the next day as well.
Melissa Smith testified that Calvin Boyette was the father of her son and identified the picture that showed her and Calvin in Hawkins' house on February 14, 1982. She claimed that after the dinner at Hawkins' house, Calvin took her to his Aunt Ellen Walker's house and then to the hospital for the birth of their baby. Smith said she saw Calvin virtually every day the next week including February 21, 1982, when Calvin and his cousins brought over clothing for the baby.
Ellen Ross Walker, defendant's aunt, testified that she began...
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