Brayboy v. Scully

• Citation: 695 F.2d 62
• Decision Date: 09 December 1982
• Docket Number: No. 332,D,332
• Parties: McDaniel BRAYBOY, Petitioner-Appellant, v. Charles S. SCULLY, Warden, Green Haven Correctional Facility, Robert Abrams, Attorney General, State of New York, Carl A. Vergari, District Attorney, Westchester County, Respondents-Appellees. ocket 82-2150.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 62

695 F.2d 62

McDaniel BRAYBOY, Petitioner-Appellant, v. Charles S. SCULLY, Warden, Green Haven Correctional Facility, Robert Abrams, Attorney General, State of New York, Carl A. Vergari, District Attorney, Westchester County Respondents-Appellees.

No. 332, Docket 82-2150.

United States Court of Appeals Second Circuit.

Argued Oct. 19, 1982.

Decided Dec. 9, 1982.

David Seth Michaels, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for petitioner-appellant.

Richard E. Weill, Asst. Dist. Atty., Westchester County, White Plains, N.Y. (Carl A. Vergari, Dist. Atty., Westchester County, Gerald D. Reilly, Asst. Dist. Atty., Westchester County, White Plains, N.Y., of counsel) for respondents-appellees.

Before OAKES and WINTER, Circuit Judges, and MacMAHON, District Judge. ^*

WINTER, Circuit Judge:

McDaniel Brayboy appeals from an order of the United States District Court for the Southern District of New York, Judge Abraham D. Sofaer, denying his petition for a writ of habeas corpus. Judge Sofaer granted a certificate of probable cause and Brayboy claims here, as he did below, that the writ should issue on the grounds that a pre-trial identification procedure was impermissibly suggestive and that the trial court unconstitutionally shifted the burden of proof as to criminal intent in instructing the jury. We affirm.

I

The facts are not in dispute. Brayboy was convicted on two counts of attempted murder in the second degree after a jury trial in New York's Westchester County. Central to the prosecution's case was the identification testimony of the victim, Katherine Kolkmann. Before admitting her testimony, the trial court held a hearing to determine whether her proposed identification of Brayboy was the result of unduly suggestive methods used by the police.

That hearing revealed the following. On April 28, 1975, at approximately 10:00 p.m., a Fred Baldoni was driving Kolkmann to a friend's house in Westchester County, when a station wagon bumped Baldoni's vehicle from behind. He pulled over to inspect for damage and to talk to the driver of the wagon. After a brief conversation with the driver, Baldoni returned to his car. He leaned toward the glove compartment and left the car again. At that point, Kolkmann observed a man exit the passenger side of the station wagon and move toward her vehicle. As he approached on the passenger side, the man drew a gun and fired a shot into the car which grazed her head. As Kolkmann dove for the baseboard of the car, other shots were being fired outside. After 30 seconds, the station wagon drove away.

A three-year investigation followed, during which Kolkmann was unable to identify her assailant from police photographic files or describe him in sufficient detail to permit a police artist to draw an accurate portrait. On June 8, 1978, she was shown a photo array which included a photo of Brayboy but she made no identification. Nine days later she was driven from Yonkers to Grand Central Station. Though she had already surmised as much, she was told the purpose of the trip was to make a possible identification. When she arrived, she entered the Station through the Vanderbilt Avenue entrance and walked through the terminal. She exited at 42nd Street and proceeded west toward Vanderbilt Avenue. Petitioner was working on a scaffold located at the corner of Vanderbilt and 42nd Street. Recognizing petitioner as her assailant, she returned to the police and so informed them. They in turn drove her back by the scaffolding. While crouching in the car, she made a second identification.

On the basis of these facts, Kolkmann's identification testimony was admitted. Following her identification of Brayboy at the outset of the trial, the defense was allowed to present its evidence on the identification issue, namely, testimony that only four of the Conrail employees who work with Brayboy are black. It was also stipulated that Brayboy was 5'7" (Kolkmann had identified her assailant as approximately 5'7") and that he had perfect vision (Kolkmann had described the man who shot her as having worn slightly tinted glasses). Thereafter, the prosecution resumed its main case and offered accomplice testimony by a Thomas Hutchinson, who corroborated Kolkmann's overall story as to the events of April 28, 1975.

Brayboy was charged with two counts of attempted murder as well as the lesser included offenses of criminal assault and criminal possession of a weapon. Petitioner's principal defense was one of mistaken identification. However, he did not concede that the assailant intended to kill Kolkmann, a necessary jury finding to convict on the charge of attempted murder.

In charging the jury on the attempted murder counts, the trial judge issued the following instruction:

'Intent' is defined as follows: A person acts intentionally with respect to a result or to conduct described by a Statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

Further, I charge you that a man is deemed to intend the natural consequences of his act, and unless the act was done under circumstances or conditions which preclude the existence of such intent, you have a right to find from the result produced an intent to effect the result.

The same language was used in instructing on the attempted murder of Baldoni.

In his general instruction on intent, the trial judge stated:

Each of the charges involved here is a crime which requires the element of an intent. Proof of intent involves the operation of a person's mind. Whether the criminal intent existed at the time of the commission of the alleged criminal act must, of necessity, be inferred and found from other facts which in their nature are the subject specific proof. And for this reason, it must ordinarily be left to the Jury to determine from all the circumstances whether the criminal intent existed. You must discover and determine intent in accordance with your own experience and understanding of how people operate. The facts of what was done, what was said, what the person's reaction was and other circumstances and surrounding facts in arriving at what you consider was the intent, you must seek to apply the facts as they appear to you to have been at the time itself. A person is ordinarily deemed to intend the natural and logical consequences of his acts.

The jury convicted Brayboy on the two counts of attempted murder, and he appealed to the Appellate Division, challenging Kolkmann's identification testimony and the charge on criminal intent. The Appellate Division affirmed the conviction without opinion. Leave to appeal to the New York Court of Appeals was subsequently denied. On October 19, 1981, Brayboy filed his petition for a writ of habeas corpus. Judge Sofaer denied the petition, concluding that the identification procedure was not prejudicially suggestive and that any error in the challenged portions of the jury instructions had been cured by ameliorative language. He also concluded that intent was not an issue "since petitioner's defense was that he was not the person who fired the gun." Memorandum and Order, No. 81-6089 at 2 (S.D.N.Y. March 26, 1982).

II

Neither the identification claim nor the issue of the instruction on criminal intent warrants issuance of the writ. As to the former, the level of suggestiveness did not approach that which other courts have condemned. Although only four of Brayboy's Conrail co-workers are black, there were other black workmen in the station. In fact, of the 20 workmen viewed by Kolkmann, most were black. Moreover, Kolkmann was not directed to Brayboy in any way other than being taken to Grand Central and did not see him until the end of her tour. Although she obviously knew she was going to Grand Central for purposes of a possible identification, such knowledge is not impermissibly suggestive. Were such knowledge alone sufficient to preclude use of the identification at trial, any procedure would be vulnerable since witnesses to a crime always know they are viewing photo arrays and line-ups in order to make a possible identification. In the present case, both the state trial judge and Judge Sofaer found that Kolkmann knew only that she might make an identification and had not been told that her assailant was definitely in the station.

In contrast to the facts here, the decisions finding impermissible suggestiveness involved identifications in which a suspect simply stood alone or in which a single photograph was shown to a witness, see Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (single photo); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (single show-up); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (single show-up in hospital room); Styers v. Smith, 659 F.2d 293 (2d Cir.1981) (single show-up), or procedures in which witnesses viewed the suspect prior to the line-up or the line-up or photo array singled out one person, see Jackson v. Fogg, 589 F.2d 108 (2d Cir.1978) (suspect marched by witness in stationhouse before being viewed in line-up); Styers v. Smith, supra (photo array contained two color photos of the two suspects along with black and white mug shots of other non-suspects). In contrast, Kolkmann's "array" at...