Floyd Batten - Mistaken ID / Inadequate Defense

Batten, Floyd; NRE: mistaken witness identification, inadequate legal defense, withheld exculpatory evidence

[529:843]; 2nd Dept. 6/20/88; affirmed

"The evidence adduced at trial establishes beyond a reasonable doubt that...[Batten] [???] and an accomplice murdered the owner of a furniture store...The chief witness for the prosecution, an employee at the store, observed the two men at close range for several minutes prior to the incident...He then observed the two men as they closed the door to the store, and as they approached the store owner. According to this witness, [Batten] produced a .25 caliber automatic and his accomplice produced a revolver. They demanded that the store owner give them his money. The owner complied, but [Batten] demanded more. The two men then ordered the witness to move backwards towards the rear of the store. As the witness did so, he heard two gun shots and then fled through a store window. After reentering the store, the witness observed the victim lying on the floor fatally wounded. The victim later died as the result of wounds inflicted by a .25 caliber bullet which penetrated his heart and lung.

"Later that day, the witness selected a photograph of [Batten] from a photographic array and identified him as one of the assailants. This identification was made despite the fact that [Batten], at the time of the incident, had a different hair style and different facial hair than he had at the time the photograph was taken. Also, this witness observed [Batten], by accident, a few days later at the police precinct.

"At trial, [Batten's] position was that he was the victim of a mistaken identification. He produced certain witnesses in support of his alibi defense...[I]n light of the extremely reliable nature of the eyewitnesses' identification* in this case, we do not beleive that the verdict is against the weight of the evidence."

[* And yet, the NRE says this was a mistaken eyewitness identification case.]

2003 WL 22284187; E.D.N.Y. 8/26/03; writ granted, due to Brady violations and ineffective assistance of counsel

"Batten proclaims his innocence and argues that his conviction is due primarily to Brady violations and his trial lawyer's ineffectiveness.

"Although [Robert] Evans[, an employee at the store,] testified that the perpetrators had touched various items of furniture at the store, none of the usable fingerprints or palm prints recovered from the store matched [Batten's]. No physical evidence linking [Batten] to the crime was recovered.

"Evans told police after the incident and testified at trial that the shooter was 'clean-shaven,' had a 'little moustache,' no beard, and no goatee...but...[Batten] -- as evidenced by the arrest photograph taken days after the incident -- had prominent sideburns, mustache and goatee.

"The jury did not learn of several additional pieces of evidence. First, a woman named Fortunio Clark told police detectives and an [ADA] that she was in the furniture store with her aunt before the shooting. She left when a 'Spanish man with an Afro' came in who 'looked suspicious'...She and her aunt left the store and, two or three minutes later, heard a commotion and soon saw the police arrive...The trial court noted that her testimony might be probative because it contradicted Evans' testimony about being alone in the store with the perpetrators and his boss, and that it might call into question the length of time he spoke with the perpetrators. In addition, Clark viewed a lineup with [Batten] in it but did not recognize him.

"Second, the jury did not hear from several other alibi witnesses.

"Third, the jury did not learn that a confidential informant, who claimed to be a friend of the victim, called police five days after the [November 4, 1983] shooting -- after [Batten] had been arrested for the crime. The informant stated, in sum, that prior to the robbery his girlfriend was approached by an employee of another furniture store owned by the victim, and that the employee asked her if she 'had any friends that would rob the store for him on Thursday or Friday [November 3 or November 4].'...When the informant asked the employee whether he worked for the furniture store, the employee cursed and asked if he were going to give the information to the police. The detective who took the statement noted, 'In view of the above stated facts, it is requested that the case be further investigated and marked open.'...This detective's report does not appear to have been turned over to Batten until 1990, six years after his trial, in response to a Freedom of Information Law ('FOIL') request."

from NRE synopsis (by Maurice Possley):

[The murder victim was a man named Khutorsky, who was the owner of the store.]

"The second robber was never identified."

"Batten testified in his own defense. He said he spent the morning with acquaintances, mostly doing errands with a man named 'Rocky,' whom he had recently met. Batten said he was in the car with Rocky and two other acquaintances from 9:15 a.m. to 11:55 a.m. Then he visited his godfather at the elementary school where his godfather was a teacher to borrow $20 for a haircut.

"Batten's godfather testified that Batten was with him from 12:12 p.m. to 12:35 p.m. Another witness who was in the car said he was with Batten from about 10 a.m. until 11:53 or 11:54 a.m. The testimony of the two witnesses provided an alibi for Batten for all but about 18 minutes -- the time between 11:54 a.m. and 12:12 p.m."

"[The] prosecution called a police officer who testified that the elementary school and the furniture store were 3.2 miles apart, and that the distance could be covered in noontime traffic in 13 minutes -- suggesting that Batten could have committed the crime during the 18-minute gap in his alibi testimony."

[But that makes no sense: Batten would have to have gone to the furniture store, committed the robbery/murder, and then gotten back , all in less than 18 minutes, which would have been impossible.]

"On September 6, 1984, the jury convicted Batten...He was sentenced to 20 years to life in prison.

"After Batten's convictions were upheld on appeal. he filed a series of requests for information under the Freedom of Information Law and obtained police reports that had never been disclosed to his defense attorney.

"One report said that after Batten was arrested an informant told police that one of Khutorsky's employees asked the informant's girlfriend if she knew someone who would rob the store for him on November 3 or...4.

"Months later, police questioned the store employee, Douglas Barnes, who denied involvement. The report said that Barnes was 'believed to be the individual implicated in the incident by an informant.' Barnes, who had illegally entered the U.S. from Jamaica, was turned over to immigration authorities, which meant he would be unavailable to the defense, and the reports were not disclosed to the defense.

"Batten filed a post-conviction motion seeking to vacate his conviction, but the motion was denied in 1994. Batten then filed a federal petition for a writ of habeas corpus.

"In August 2003, U.S. District Judge Jack Weinstein granted the writ and vacated Batten's convictions.

"Weinstein ruled that Batten had received a constitutionally unfair trial when his lawyer failed to pursue measures under the material witness provisions to bring in Clark to testify. The defense lawyer's efforts were 'inadequate and cannot be excused as reasonable trial strategy,' Weinstein ruled.

"Weinstein also found 'most disturbing' the defense lawyer's failure to call two other prospective alibi witnesses -- security guards at the school where Batten went to see his godfather. One guard had told the defense lawyer prior to trial that he saw Batten sometime between 11 a.m. and 1:30 p.m. and the other said he saw Batten there between 12:05 and 12:10 p.m."

"The Kings County [DA's] office filed a notice of appeal with the Second Circuit...Batten was released from custody in December 2003. In February 2004, the prosecution withdrew its appeal and the charges against Batten were dismissed.

"In 2004, Batten filed a lawsuit in Kings County...seeking damages from the detectives in the case. In 2015, the Appellate Division...dismissed the case."

[All emphases added unless otherwise noted.]