Brathwaite v. Manson

Citation527 F.2d 363
Decision Date03 May 1976
Docket NumberD,No. 235,235
PartiesNowell A. BRATHWAITE, Petitioner-Appellant, v. John R. MANSON, Commissioner of Correction of the State of Connecticut, Respondent-Appellee. ocket 75--2093.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Martha Stone, West Hartford, Conn. (David Golub, West Hartford, Conn., of counsel), for petitioner-appellant.

Bernard D. Gaffney, Asst. State's Atty. (George D. Stoughton, State's Atty., State of Connecticut, of counsel), for respondent-appellee.

Before KAUFMAN, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge:

On this appeal from an order of the District Court for Connecticut denying a state prisoner's petition for habeas corpus, we are confronted, as we recently were in United States v. Reid, 517 F.2d 953, 965--67 (2 Cir. 1975), with a defendant's claim that his constitutional rights were compromised by the prosecution's display of his photograph singly to a witness for identification. Although the facts are much less favorable to the prosecution than in Reid, the State claims to be entitled to prevail under the Supreme Court's latest identification decision, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). 1

I.

The district court was not asked to conduct an evidentiary hearing, and we take the facts, as it did, from the state trial record.

Trooper Glover of the Connecticut State Police, who had been assigned to the Hartford narcotics squad in an undercover capacity, went with an informant, Henry Brown, around 7:45 p.m. on the evening of May 5, 1970, to an apartment on the third floor of a building at 201 Westland Street. 2 He knocked at the door of the apartment. When it was opened, he observed a man standing in front of a woman and asked for 'two things' of narcotics. The door was closed for a few moments and then was reopened. The man had two glassine envelopes containing a white powder, later determined to be heroin, for which Glover paid $20. 3 Glover was within two feet of the seller and observed his face for two or three minutes; natural light was coming through a window at the hallway and Glover claimed to have had no difficulty in seeing.

When Glover left the building, he reported to a back-up officer outside, Detective D'Onofrio. He described the seller as being 'a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt.' D'Onofrio went back to the police records division and obtained a photograph of petitioner Brathwaite. D'Onofrio testified that he selected this photograph because he recognized Brathwaite as the person described by Glover and that he had previously seen Brathwaite 'several times, mostly in his vehicle.' 4 D'Onofrio took the photograph to the office of Glover's squad. On May 7 Glover identified it as depicting the seller of the narcotics. For reasons not disclosed by the record, Brathwaite was not arrested until late July, 1970; the arrest took place in Mrs. Ramsey's apartment at 201 Westland Street, see n. 2.

At the trial in January, 1971, Glover testified to the photographic identification and also made an in-court identification of Brathwaite, who was sitting at the defense counsel table. He had no doubt about the identifications. The state presented no other evidence to show that Brathwaite was the seller.

Brathwaite testified that at the time of the sale he was at home, suffering from a variety of ailments including a serious back condition which had kept him from going out for several days. On the following day, May 6, he went to a doctor's office pursuant to a previously made appointment. According to him, Mrs. Ramsey was a friend of the family, who had driven his car when his back condition prevented him from doing so; she had called for him after he had had a myelogram at a hospital in July and also had driven him to her apartment on the day he was arrested there. Mrs. Brathwaite confirmed that her husband had been ill at home all day on May 5 and testified that Mrs. Ramsey had driven him to a doctor's office on May 6. Dr. Vietzke testified that Brathwaite had been assigned to him as a clinic patient on April 15; that he had found a lack of sensation in Brathwaite's legs which could (and ultimately was found to) indicate a disc involvement; that Brathwaite 'moved like a man in great discomfort'; and that he referred Brathwaite to Dr. Owens, a neurosurgeon. Brathwaite's May 6 appointment was at the neurosurgical clinic where he was seen by Dr. Owens.

The jury having returned a verdict of guilty, Brathwaite appealed his conviction to the Supreme Court of Connecticut which affirmed, State v. Brathwaite, 164 Conn. 617, 325 A.2d 284 (1973). The portion of its opinion dealing with the identification issue is as follows, 164 Conn. at 619, 325 A.2d at 285:

The defendant claims that the court erred in permitting officer Glover to make an in-court identification of the defendant. The defendant asserts that the court should have determined whether evidence of Glover's observance of the defendant's photograph shortly after the sale was prejudicial before it allowed the in-court identification of the defendant. There was no objection or exception to the evidence when offered and this claim first appears in the defendant's brief. The defendant has not shown that substantial injustice resulted from the admission of this evidence. Unless substantial injustice is shown, a claim of error not made or passed on by the trial court will not be considered on appeal. State v. Bausman, 162 Conn. 308, 315, 294 A.2d 312; State v. Fredericks, 154 Conn. 68, 72, 221 A.2d 585.

This was followed by a petition for federal habeas and its denial by the district court.

II.

We must first consider the effect of the lack of objection to either the incourt or the photographic identification. As Judge Blumenfeld noted, this had two closely related aspects--the failure to exhaust state remedies and the effect of the state's contemporaneous objection rule on the availability of federal habeas.

As we read the opinion of the district judge, he regarded the consideration of petitioner's identification argument by the Supreme Court of Connecticut as meeting the exhaustion requirement of 28 U.S.C. § 2254(b) and (c). We are not so sure. It is, of course, true that plenary consideration of such an objection by a state appellate court meets the exhaustion requirement even though, under ordinary procedural rules, the court was not obliged to give this. However, our reading of its opinion leads us to believe that the Supreme Court of Connecticut considered the point on a more limited basis, namely, whether even if petitioner's objections were sound, 'substantial injustice resulted' from receipt of the identifications. It is doubtful whether such limited review would meet the exhaustion requirement if Connecticut provided a method for raising the federal claim in a collateral attack. The presentation to a state appellate court which obviates any need for resort to state collateral proceedings, Brown v. Allen, 344 U.S. 443, 448--49 n. 3, 73 S.Ct. 397, 97 L.Ed. 469 (1953), is predicated on a disposition on the merits which would foreclose a successful collateral proceeding. We believe, however, that the Connecticut Supreme Court's disposition of petitioner's claim, while less than a full consideration on the merits, would be considered by the Connecticut courts to be enough to bar a subsequent collateral proceeding since 'Connecticut's rule (is) that (state) habeas corpus cannot serve as an appeal for questions which might have been raised for direct review,' United States v. Menser, 247 F.Supp. 826, 829 (D.C.Conn.1965); Wojculewicz v. Cummings, 143 Conn. 624, 628, 124 A.2d 886, 890--91 (1956). If this be so, the exhaustion requirement of 28 U.S.C. § 2254 would pose no obstacle to petitioner since ' § 2254 is limited in its application to failure to exhaust state remedies still open to the habeas applicant at the time he files his application in federal court.' Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837 (1963).

However, it is unnecessary to decide this since the respondent has not here raised a claim of failure to exhaust state remedies, and the requirement is not jurisdictional but merely a principle of comity, id. at 434--35, 83 S.Ct. 822. For the same reason, namely, the State's failure to raise the point here, we need not consider whether Fay v. Noia, supra, 372 U.S. at 426--34, 438--40, 83 S.Ct. 822, would be read today as relieving Brathwaite, in federal habeas, of his counsel's procedural default, even though, for the reason indicated above, we doubt whether the Connecticut Supreme Court's limited consideration of Brathwaite's objections would bring the case within the principle of Warden v. Hayden, 387 U.S. 294, 297 n. 3, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), that a state may not assert 'deliberate by-pass' when a petitioner's constitutional claims have in fact been passed upon by a state court despite breach of a contemporaneous objection rule.

III.

Respondent concedes that exhibition of the single photograph of Brathwaite to Glover was 'impermissibly suggestive' within many decisions of this court. See, e.g., United States ex rel. Gonzalez v. Zelker, 477 F.2d 797, 801 (2 Cir. 1973), cert. denied, 414 U.S. 924, 94 S.Ct. 254, 38 L.Ed.2d 158 (1974); United States ex rel. John v. Casscles, 489 F.2d 20, 24 (2 Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1975); United States v. Reid, supra. Not only was it impermissibly suggestive 5 but, despite the unexplained statement to the contrary in respondent's brief, it was unnecessarily so. There was no emergency that prevented D'Onofrio from assembling a suitable array of photographs...

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