Robert "Calvin" Boyette - Mistaken ID

Boyette, Robert (Calvin); attempted murder; NRE: mistaken witness identification, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence

[540:702]; 2nd Dept. 4/24/89; affirmed

"[W]e are satisfied that the verdict was not against the weight of the evidence..."

[607:402]; 2nd Dept. 2/7/94

Kings Cty. Ct. had previously (that case apparently not in Westlaw) granted motion to vacate conviction. But now, 2nd Dept. reinstates conviction, saying Boyette was not entitled to vacation of judgment based either on newly discovered evidence nor nonproduction of Brady material. Opined that Boyette failed to exercise 'due diligence' re: newly-discovered evidence, and that it wouldn't have affected outcome anyway. Also opined that he failed to show he'd ever been denied Brady materials.

1997 WL 1068708; E.D.N.Y. 12/8/97; writ denied

"[Boyette's] conviction stems from the brutal burglary and assault of Regina Ehrlich in her apartment on February 21, 1982. During the burglary, the two perpetrators repeatedly hit, kicked, and pistol-whipped Ehrlich, then tied her up with a telephone cord. After stealing Ehrlich's jewelry, the perpetrators rubbed lighter fluid in her face, set her on fire, then set fire to the apartment. Ehrlich was rescued by New York City firefighters. She told police that [she] was attacked by two men, one a tall black male whom she knew as 'Calvin' and who lived in the building across from her. In an interview with police several weeks later, she described the taller assailant as a male in his teens, sloppy, with missing teeth. Over eight months after the assault -- after her injuries had improved sufficiently for her to do so -- the victim reviewed photographs and identified...Calvin Boyette as the taller assailant.

"[Boyette]...maintained his innocence and argued that the prosecution had the wrong man. The first trial ended in a mistrial after the jury could not reach a unanimous verdict.

"Kings County [Court]...found...that the prosecution had failed to turn over a 'tremendous quantity' of evidence, including:

-- notes from an interview with the prosecutor in which the prosecutor told a fire marshal that the victim's description of the assailant did not match Boyette;

-- a note on the back of a phone message for the prosecutor, written in the prosecutor's handwriting, which read 'Rule out Boyette,' and

-- a police report indicating that a confidential informant had identified another person as a suspect in the crime instead of [Boyette].

"The Rosario [Brady] material identified by the Court included a handwritten note regarding a possible other suspect whose first name, like [Boyette's], was the name the victim said she thought was the name of her assailant. Finally, the court identified certain newly discovered evidence, including testimony by a witness who remembered seeing two men he knew, other than [Boyette], who matched the victim's description better than [Boyette], fleeing the area near the date of the crime."

1999 WL 890425; E.D.N.Y. 10/12/99; 2nd writ, also denied

"Boyette's defense was mistaken identity, and he put on a series of alibi witnesses [who testified that Boyette was in Virginia at the time of the crime].

"Kathryn Cosenza, a school crossing guard and friend of Boyette's family...testified to having met Regina Ehrlich in the summer of 1983...Ehrlich told Cosenza that three men had taken part in the robbery and that she had heard one of them use the name 'Calvin.'...Ehrlich said she had not seen any of the men's faces...Cosenza asked Ehrlich how she could have based her identification on the use of the name Calvin, when there 'could be hundreds of Calvins.' According to Cosenza, Ehrlich reponded: 'I made a statement. . .and I can't change it.'

"Just before Boyette's sentencing date, his sister, Sheila Boyette, obtained copies of all the documents related to the case from his attorney at the second trial, John Corbett. One of these documents was an index listing police reports related to the case. She checked the police reports given to her by Corbett against this index and discovered that two were missing (reports 26 and 33)...At Calvin's first sentencing date...Sheila asked Corbett about the missing reports, and he said that he had given her everything he possessed. Sentencing was adjourned so that Calvin's new attoney, Joel Dranove, could familiarize himself with the case.

"On the sentencing day...the prosecutor in the case, Kevin Murphy, provided Sheila Boyette with police report 26...This report, completed by Detective John Rulz...said that he had received 'information from a confidential informant that a suspect in this case is' one Bobby Mason. The report included Mason's address...and said that a criminal background check revealed nothing on Mason.

"Dranove...told the court that he had recently sent an investigator to find witnesses for the case and that he had 'found, in police reports, the name and address of an alleged perpetrator of the crime for which my client stands convicted and a further report from the police with respect to that person that they didn't bother. . .to pursue.'

"In his affirmation accompanying the [post-conviction] motion, Dranove...said that after sentencing, he began an investigation based on the Bobby Mason police report provided by the prosecutor to Sheila Boyette...He found two witnesses...who described Mason as being tall, in his late teens, and missing one of his front teeth, all characteristics consistent with one of the descriptions Ehrlich gave of the perpetrator."

"Boyette [later] filed a second motion...this time citing newly discovered evidence...Boyette offered the affidavit of Dwayne W. Johnson, who said that he saw Bobby Mason and Johnny Beale running very early on a Sunday morning in February 1982 near the housing project where the crime occurred. Johnson further averred that Mason told him two weeks later that he and Beale had committed the robbery and assault on Ehrlich."

246 F.3d 76 (2nd Cir. 4/3/01)

Found that state court determination that Boyette was not prejudiced by failure to turn over Brady material was an unreasonable application of clearly established law, which warranted grant of writ of habeas corpus.

from NRE synopsis (by Stephanie Denzel):

"In April 2011, the...Second Circuit vacated Boyette's conviction...Boyette was released in June 2001, after the Brooklyn [DA's] office decided not to retry him.

"In 2005, Boyette settled a wrongful convicton lawsuit against the City of New York for $350,000. Boyette settled a similar lawsuit against the State of New York for $150,000."

[All emphases added unless otherwise noted.]