Bagby v. Kuhlman

• Decision Date: 30 April 1991
• Docket Number: No. 790,D,790
• Parties: 32 Fed. R. Evid. Serv. 1032 Vernon BAGBY, Petitioner-Appellee, v. Robert KUHLMAN, Respondent-Appellant. ocket 90-2404.
• Court: U.S. Court of Appeals — Second Circuit

Page 131

932 F.2d 131

32 Fed. R. Evid. Serv. 1032

Vernon BAGBY, Petitioner-Appellee, v. Robert KUHLMAN, Respondent-Appellant.

No. 790, Docket 90-2404.

United States Court of Appeals Second Circuit.

Argued Jan. 10, 1991.

Decided April 30, 1991.

Joseph M. Latino, Asst. Dist. Atty. (Carl A. Vergari, Dist. Atty. of Westchester County, Richard E. Weill, Second Deputy Dist. Atty., of counsel), White Plains, N.Y., for respondent-appellant.

David L. Lewis (Lewis & Fiore, of counsel), New York City, for petitioner-appellee.

Before WINTER and ALTIMARI, Circuit Judges, and WEXLER, District Judge. ^*

ALTIMARI, Circuit Judge:

Appellant Robert Kuhlman appeals from a judgment, entered in the United States District Court for the Southern District of New York (Pierre N. Leval, Judge ), granting appellee Vernon Bagby's petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1988). Bagby was convicted in Westchester County Court of possession of controlled substances and criminal use of drug paraphernalia. After exhausting available state remedies, Bagby sought federal habeas relief, claiming, inter alia, that his rights under the confrontation clause of the sixth amendment were violated when a witness, who initially testified on behalf of the government, invoked her fifth amendment privilege upon being recalled by the defense. The district court determined that the petitioner had been denied his sixth amendment rights and granted the requested habeas relief.

For the reasons set forth below, we reverse the judgment of the district court and remand the case for further proceedings.

BACKGROUND

On December 26, 1978, members of the Mount Vernon Police Department executed a warrant to search the second floor apartment of a two-family house located at 127 South 12th Avenue in Mount Vernon, New York. The apartment was leased by Sandra Mann, who at the time was married to Vernon Bagby. The officers entered the unoccupied apartment and found quantities of controlled substances, including cocaine and amphetamines, and a variety of drug paraphernalia. The contraband was seized, and Bagby was subsequently arrested and charged with several counts of possession of controlled substances and criminal use of drug paraphernalia. Bagby was released on bail pending trial.

The case was prosecuted in Westchester County Court and was tried to the court. At trial, the prosecution essentially sought to establish that Bagby had been residing in Mann's apartment at the time the contraband was seized or, in the alternative, that Bagby exercised sufficient dominion and control over the apartment to infer that he had constructive control over the contraband. Accordingly, the prosecution presented a variety of evidence demonstrating Bagby's presence in, and access to, the apartment. Most significantly, Bagby's ex-wife Mann (they were divorced prior to trial) testified pursuant to subpoena.

On direct examination, Mann stated that in December of 1978 Vernon Bagby was living with her at 127 South 12th Avenue and had a key to the premises. Mann denied possessing, or even being aware of, any of the drugs discovered in her apartment. Further, Mann testified that prior to trial Bagby had threatened to harm her, and her mother, father and daughter, "if anything went wrong with this case." Defense counsel, Howard Rukeyser, conducted a thorough and vigorous cross-examination, during which Mann continued to attest that Bagby had lived with her in December of 1978. Further, during cross-examination, Mann recalled that she had actually given Bagby two keys to her home, i.e., a key to the front door of the building and a second key to the door of her apartment. Finally, in response to defense counsel Rukeyser's pointed questioning, Mann explicitly denied that any member of the Mount Vernon Police Department, particularly Detective Garcia, had pressured her to testify against Bagby.

When Mann was excused from the stand, the Assistant District Attorney ("ADA") made an application to revoke Bagby's bail. Although the application was denied, the court endorsed the ADA's suggestion that, henceforth, Bagby not "go anywhere near the witness or the witness's family...."

The day after Mann's testimony, defense counsel Rukeyser informed the trial judge that Mann had contacted him and said that she wanted to recant her testimony. Consequently, Rukeyser announced that he planned to recall Mann as a defense witness. The trial judge immediately appointed counsel to advise Mann. In response to these events, the ADA alerted Mann's newly appointed counsel and the court to the fact that Mann had previously provided the District Attorney's Office with a sworn statement which was wholly consistent with her trial testimony. Moreover, the ADA indicated that "if the testimony [on recall] is materially different there is a good likelihood of a perjury prosecution." The court then recessed to afford Mann an opportunity to confer with her counsel.

When the trial resumed, defense counsel recalled Mann to the stand and proceeded to question her as follows:

Q: Miss Mann, you recall you testified previously in this case, I think last Wednesday, do you remember that?

A: Yes.

Q: At that time, I believe, that you testified that during the month of December, 1978, up until December 26th, that your husband, the defendant had been living with you at 127 South 12th Avenue in Mt. Vernon, was that a correct statement?

A: I take the Fifth Amendment.

* * * * * * Q: Was the defendant living with you during December of 1978?

A: I take the Fifth Amendment.

Q: Did the defendant have keys to the outer door of the premises at 127 South 12th?

A: No, he did not.

At this point, the ADA objected, arguing that Mann should not be permitted to invoke her fifth amendment privilege selectively. In response, Mann's counsel explained that the witness intended to invoke the privilege with respect to all substantive questions and had inadvertently responded to the last question. The trial judge therefore sustained the objection to the last question, effectively striking Mann's reply from the record.

The trial judge then held a brief in camera conference with Mann and her counsel. After the conference, Mann retook the stand and again stated that she intended to assert her fifth amendment privilege in response to all questions propounded. The judge excused Mann and the trial proceeded. The court ultimately found Bagby guilty.

On direct appeal, Bagby's conviction was reversed by the Appellate Division, 100 A.D.2d 625, 473 N.Y.S.2d 588 (2d Dep't 1984), and reinstated by the New York Court of Appeals, 65 N.Y.2d 410, 492 N.Y.S.2d 562, 482 N.E.2d 41 (1985). Bagby subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. In support of his petition, Bagby claimed, inter alia: that he was deprived of an opportunity to confront Mann; that there was insufficient evidence to support a finding that he possessed the contraband; that evidence introduced at trial was obtained as a consequence of an unlawful search and seizure; and that he was prevented from cross-examining a police officer regarding the gender of a confidential informant.

The district court proceeded to consider Bagby's claim that he was denied an adequate opportunity to confront Mann, while holding the remaining claims in abeyance. A hearing was held at which Howard Rukeyser and Sandra Mann were called as witnesses. Rukeyser testified that Mann had contacted him the day after she appeared at Bagby's trial. According to Rukeyser, Mann admitted that she had lied on the stand and explained that Detective Garcia had threatened to prosecute her for drug possession unless she implicated Bagby. Mann's testimony, however, contradicted Rukeyser's version of events. Although unable to recall the specific details concerning her trial testimony, Mann indicated that she did not testify to anything she believed to be false. Further, Mann specifically denied that Detective Garcia pressured her to testify. Rather, Mann explained that it was Bagby whom she feared and recounted that he had hit and beaten her on numerous occasions. Mann also confirmed that she was being truthful when she testified that Bagby had threatened to harm her "if anything went wrong with [the] case."

The district court ultimately issued an opinion addressing Bagby's confrontation clause claim. See Bagby v. Kuhlman, 742 F.Supp. 137 (S.D.N.Y.1990). While expressing doubt as to the genuineness of Mann's alleged desire to recant and suggesting that Bagby was afforded an adequate opportunity to cross-examine Mann, Judge Leval nevertheless believed that under the circumstances of the present case reversal of the conviction was required. See id., 742 F.Supp. at 143-45. Accordingly, Judge Leval granted Bagby's petition for a writ of habeas corpus. See id. at 145. This appeal followed.

DISCUSSION

The confrontation clause of the sixth amendment provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." It has long been understood that:

The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination 5 J. Wigmore, Evidence Sec. 1395, at 150 (Chadbourn rev. 1974) (emphasis in original), quoted in Delaware v. Fensterer, 474 U.S. 15, 19-20, 106 S.Ct. 292, 294-95, 88 L.Ed.2d 15 (1985) (per curiam) and Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974). Equally well-settled is the concept that the confrontation clause, while guaranteeing "an opportunity for effective cross-examination," does not guarantee "cross-examination that is effective in whatever way, and to whatever extent, the defense might...