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BAGBY v. KUHLMAN

July 13, 1990

VERNON BAGBY, PETITIONER,
v.
ROBERT KUHLMAN, RESPONDENT.



The opinion of the court was delivered by: Leval, District Judge.

OPINION AND ORDER

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.*fn1

Background

On December 26, 1978, police detectives conducted surveillance of the apartment building located at 127 So. 12 th 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 So. 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.*fn2 (A28)

Leroy Matthews, the U.S. Postal Service carrier for the neighborhood, also testified that he delivered mail addressed to Vernon Bagby to 127 So. 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.*fn3 (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.*fn4

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:

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

MS. MANN: 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 So. 12th
  Avenue in Mt. Vernon, was that a correct
  statement?

A: I take the Fifth Amendment.

THE COURT: I did not hear ...


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