Bagby v. Kuhlman, 86 Civ. 6358(PNL).
| Decision Date | 13 July 1990 |
| Docket Number | No. 86 Civ. 6358(PNL).,86 Civ. 6358(PNL). |
| Parties | Vernon BAGBY, Petitioner, v. Robert KUHLMAN, Respondent. |
| Court | U.S. District Court — Southern District of New York |
David L. Lewis, Lewis & Fiore, New York City, for petitioner.
Joseph Latino, Asst. Dist. Atty., White Plains, N.Y., for respondent.
Vernon Bagby ("Petitioner") petitions for a writ of habeas corpus. Petitioner was convicted on October 31, 1979, at a bench trial, of possession of a controlled substance in the First, Third, Fifth, and Eighth Degrees, and two counts of criminal use of drug paraphernalia, before the Supreme Court of Westchester County. Petitioner was sentenced to a term of fifteen years.1
On December 26, 1978, police detectives conducted surveillance of the apartment building located at 127 South 12th Avenue, in Mount Vernon, New York, in which petitioner's ex-wife, Sandra Mann now Shannon resided. They observed a car which met the description of petitioner's drive by, and then, a short time later, saw petitioner standing at the door of the building. The detectives announced their presence. Petitioner then fled the scene. The detectives gave chase but did not catch petitioner.
The detectives then proceeded to execute a search warrant at Ms. Mann Shannon's unoccupied apartment. After a thorough search, they seized certain amounts of cocaine, amphetamines, diazepam, and drug paraphernalia.
Petitioner was charged with several counts of possession of controlled substances, including cocaine and amphetamines, and criminal use of drug paraphernalia. The main issue at trial, which took place during the month of October, 1979, was whether petitioner had constructive possession of the seized drugs and paraphernalia.
At trial, the court heard testimony from several of the detectives who participated in the surveillance and search of 127 South 12th Avenue on the issue of petitioner's access to the apartment. Detectives Alfred DiMaio and Nicholas LaSorsa testified that they observed petitioner standing near the front door with a key in his hand. (A170; A243) Neither was able to say whether the key appeared to be a house key or a car key. (A197; A243) Mount Vernon Police Lieutenant Joseph Campbell also testified to seeing a large key in petitioner's hand, and stated that because of its size, he believed the key to be a house key. (A365)
Detective James Garcia testified that upon entering the apartment, the detectives found a note addressed to petitioner on the kitchen table inside the apartment.2 (A28)
Leroy Matthews, the U.S. Postal Service carrier for the neighborhood, also testified that he delivered mail addressed to Vernon Bagby to 127 South 12th Avenue during the early fall of 1978, but that he stopped delivering such mail prior to Christmas, 1978. (Tr. at 425.)
The government's main witness on the issue of petitioner's access to the apartment was petitioner's ex-wife Ms. Mann Shannon, who testified pursuant to subpoena. She testified on direct that petitioner lived in the apartment during December, 1978, when the search took place, and that he had a key to the house.3 (A392)
Ms. Mann Shannon was cross-examined fully by the defense counsel, Mr. Howard Rukeyser. On cross, she again stated that petitioner had keys to the outer door of the house and to the door of the apartment. (A397) She was cross-examined as to her divorce from petitioner. Specifically, she was cross-examined with an affidavit she submitted to divorce court, which stated that Bagby had not lived with her for over a year prior to May 1979. Nonetheless, she did not change her testimony. Instead, she replied that she had been asked to state "approximately how long" it had been since petitioner lived with her. (A409) The defense questioned her on her history of bringing criminal charges against petitioner from time to time and then withdrawing them, and her problems with petitioner in Family Court, and on the note left to petitioner, which she testified had been "stuck in the door," not left on the kitchen table. (A416-18)
The day after Ms. Mann Shannon concluded her testimony, defense counsel advised the trial judge that Ms. Mann Shannon wished to recant her testimony, and that she was going to be recalled as a defense witness. The judge appointed counsel for her. The Assistant District Attorney stated that in addition to her previous sworn testimony, he had a prior statement sworn to by Ms. Mann Shannon, and that if the new testimony was materially different, there would be a "good likelihood of a perjury prosecution." (A464) He provided Ms. Mann Shannon's counsel with a copy of the sworn statement.
In that statement, made a few days prior to trial, Ms. Mann Shannon indicated that petitioner had had regular access to the apartment at the time the drugs and drug paraphernalia were seized. She stated that petitioner had lived with her and that he had a key to the apartment.4
A few days later, Ms. Mann Shannon again took the stand, this time as a defense witness. Her entire testimony at that time consisted of the following:
The judge struck the last question and answer, after the witness's counsel stated that the witness did wish to invoke the Fifth Amendment, and upon invoking it, she had expected not to be questioned further. (A476) The court then had a conference with the witness in camera. She took the stand again and stated that she intended to invoke her Fifth Amendment right on each and every question to be propounded to her. She was excused by the trial judge. (A482) The defense counsel then stated that he would have asked the witness, had she not been excused, whether or not she had been threatened by Detective Garcia to testify against the defendant, whether the defendant had a key to her apartment, and whether the defendant had threatened her. (A486)
Petitioner then took the stand in his own behalf. He testified that he did not live at 127 South 12th Avenue, although he visited there fairly often, and that he did not have a key to the outside door of the house or to the apartment. (A506, 507) He testified that on the evening in question, he believed that Ms. Mann Shannon would either be at her apartment, or at her mother's house across the street. (A565) He denied threatening Ms. Mann Shannon.
The trial judge found petitioner guilty of several counts of possession of a controlled substance and criminal use of drug paraphernalia on October 31, 1979. The court stated that the primary issue in the case was whether the defendant was in joint possession of the apartment at 127 South 12th Avenue, and whether he had dominion and control over those premises. The court concluded that the defendant had had such dominion and control, and listed the evidence he had considered:
The court found the defendant's description of events incredible, and convicted the defendant.
Petitioner's conviction was reversed by the Appellate Division, 100 A.D.2d 625, 473 N.Y.S.2d 588 (). A sentence of fifteen years to life imprisonment was subsequently commuted to a term of eight and one-third years to life.
Petitioner makes five arguments in support of a grant of a writ of habeas corpus. First, he argues that his due process right to a fair trial was denied, because he could not confront Ms. Mann Shannon and test the truth of her testimony when she invoked her privilege against self-incrimination. Petitioner assigns as error the failure to strike her earlier testimony. Second, he argues that he was deprived of a full and fair opportunity to litigate Fourth Amendment claims concerning the search warrant. Third, he argues that the defense was prevented from cross-examining the police officer on the gender of the confidential informant. Fourth, he argues that the search warrant was not supported by probable cause. Fifth, he argues that he was released on bail in violation of N.Y. C.P.L. § 530 and should be given credit towards his sentence for the period he was out on bail.5
This court held hearings on petitioner's first claim, that his due process rights were violated by denial of his right to confront a witness against him. Defense counsel Rukeyser testified that the day after her testimony at trial, Ms. Mann came to his office, unbidden by him, and informed him that she had lied on the stand, and wished to recant her testimony. Rukeyser testified that Ms. Mann Shannon told him that she had lied on the stand because Detective Garcia had threatened her with a drug prosecution if she did not...
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Bagby v. Kuhlman
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