Matter of Mayyhew (People--Days)

[*1] Matter of Mayyhew (People--Days) 2011 NY Slip Op 52054(U) Decided on October 11, 2011 County Court, Westchester County Warhit, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 11, 2011
County Court, Westchester County

IN RE THE CRIMINAL CONTEMPT OF COURT OF Cherlyn Mayyhew COMMITTED UPON THE WILLFUL DISOBEDIENCE OF A LAWFUL MANDATE OF COURT (JUDICIARY LAW § 750) CONCERNING THE PROCEEDINGS ENTITLED

against

PEOPLE V. SELWYN DAYS,



01-0469



THEODORE BRUNDAGE, ESQ.

Attorney for Cherlyn Mayhew

500 Mamaroneck Avenue, Suite 320

Harrison, New York 10528

HON. JANET DiFIORE

District Attorney, Westchester County

111 Dr. Martin Luther King, Jr. Boulevard

White Plains, New York 10601

BY:ADA Perry Perrone

ADA Christine O'Connor

PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP

Attorneys for Selwyn Days

1285 Avenue of the Americas

New York, New York 10019

BY:Roberto Finzi, Esq.

William A. Clareman, Esq.

EXONERATION INITIATIVE

Attorneys for Selwyn Days 350 Broadway, Suite 1207

New York, New York 10013

BY:Glenn A. Garber, Esq.

Barrry E. Warhit, J.

On September 7, 2011 this court issued a Certificate Pursuant to CPL § 640.19(3) and Recommendation for Immediate Custody certifying Cherlyn Mayhew to be a material witness in regard to the criminal trial of People v. Selwyn Days. Days stands indicted, under indictment number 01-0469, for two counts of Murder in the second degree.

Days initially stood trial under this indictment in 2003. In connection with that indictment, Mayhew testified before the grand jury and subsequently testified before a petit jury at Days' first trial which ended in a hung jury. At the time of Days' second trial, a judge in South Carolina declined to sign a Material Witness Order upon a finding that an illness suffered by Mayhew's son presented a significant hardship which prevented her from traveling to New York. As a consequence, Mayhew was found unavailable within the meaning of New York State Criminal Procedure Law (hereinafter "Criminal Procedure" Law or "CPL") § 670.10 and did not testify live at Days' second trial. Days was convicted.

In 2009, pursuant to Criminal Procedure Law Article 440, Days' conviction was vacated upon grounds of ineffective assistance of counsel based upon his original counsel's failure to investigate and present a seemingly viable alibi defense. Days was afforded a third trial.

Mayhew refused to testify voluntarily at the third trial and was compelled, pursuant to a Material Witness Order, to do so in February 2011. This court presided over that trial and had the opportunity to observe Mayhew's demeanor and testimony which will be discussed in detail, infra. The third Days trial ended in a mistrial.

At this, Days' fourth trial, Mayhew refused to testify voluntarily and was again compelled to do so by a Material Witness Order. In connection with this court's Certificate Pursuant to CPL § 640.10(3), Mayhew was summoned before the Court of General Sessions in Sumter County, South Carolina on September 16, 2011. The proceedings resulted in a Material Witness Order being executed directing Mayhew to appear and provide testimony before this court at this Days trial. Mayhew was not taken into custody, despite her status as a material witness, and has at all times remained at liberty.

Pursuant to an arrangement agreed to between Mayhew and the Westchester County District Attorney's Office (hereinafter "WCDAO"), the WCDAO paid Mayhew's flight and travel expenses and she was flown to New York on September 21, 2011.[FN1] On September 21, 2011, this court appointed counsel to advise Mayhew in connection with her obligations as a material witness. [*2]

On September 22, 2011, Mayhew was called as a People's witness. She entered the courtroom after a delay requested by her counsel for the stated purpose that she required time to compose herself. Upon taking the witness stand, Mayhew affirmed she would provide truthful testimony. To virtually every substantive question concerning her knowledge of Selwyn Days and events relevant to the trial, Mayhew responded, in substance, "I don't remember" or "I don't know". Her dearth of recollection was all encompassing, not limited to mere details. Mayhew steadfastly maintained an utter lack of recall as to the intimate relationship she had shared with Selwyn Days and as to every event she had previously reported to law enforcement and testified to before a grand jury on February 14, 2001 and at Days' first trial on November 21, 2003.

The People made repeated attempts to refresh Mayhew's recollection. Reading excerpts of her testimony at the previous trial and during grand jury [FN2] was of no avail. Having the transcripts read aloud to her was also not fruitful.[FN3] Mayhew testified the transcripts were useless to refresh her recollection as to her relationship with Selwyn Days and events that had transpired between them. She further maintained the transcripts did not assist in helping her recall having testified before both a grand jury and a petit jury at Days' first trial. Mayhew was excused as a witness stand without Days' defense team posing a single question to her.

In summary, Mayhew testified she had not a shred of memory as to the intimate relationship she shared with Days circa 2001. She maintained an utter loss of recall with respect to having called the Mount Vernon Police and having sought and received an emergency response to her report that Days was choking her and had threatened to kill her. Mayhew claimed complete memory loss as to having sought and received an Order of Protection against Days in relation to this conduct and also denied any memory that, on two separate occasions and under differing circumstances, Days admitted to her he had killed two people in Eastchester. As indicated above, Mayhew testified that reading and being read the transcripts of her prior testimony concerning these events failed even to refresh her recollection as even as to the fact that she previously testified before the grand jury in 2001 or at Days' first trial in 2003.

The People moved for this court to hold Mayhew in contempt for feigning memory loss. This court, having presided over Days' third trial, had sufficient reason to disbelieve Mayhew's repeated protestations of complete memory loss and her utter inability to have her memory refreshed as this court has an independent recollection of her demeanor and the substance of Mayhew's testimony when she was compelled to testify in February 2011. Importantly, Mayhew's testimony, on September 22, 2011, was in marked contrast to her February, 2011 testimony. On September 22, 2011, despite her apparent improved health,[FN4] her stronger voice [*3]and no claims of pain, Mayhew denied even having recall of having testified before the grand jury or at Days' first trial. Additionally, her recall of her relationship with Selwyn Days was better in February 2011, than in September, 2011.

In February, Mayhew appeared before this court in apparent physical extremis which she related was due to a flare-up of Reflex Sympathetic Dystrophy (hereinafter "RSD"). At that time, Mayhew's barely audible testimony was punctuated by long pauses and moans of pain. Nevertheless, even in that condition, Mayhew testified that, although she could not recall the events about which she was being asked to testify, she did recall having testified previously in 2001 and 2003. Mayhew testified that as she was unable to recall the events about which she had testified, she could not state her testimony in 2001 and 2003 was accurate. Mayhew unequivocally attributed her inability to recall to RSD, which she stated causes short and long term memory loss.

Although this court recognized significant differences between Mayhew's February 2011 testimony and that which she provided on September 22, 2011 and despite this court's belief her stated memory loss was feigned, in light of Mayhew's representation, under oath, that RSD causes short and long term memory loss, this court believed it prudent to hear proof as to whether Mayhew's stated inability to recall was attributable to her medical condition before finding her to be contumacious (see, Goodman v. Salia, 268 AD 826 (2d Dept. 1944)(holding although criminal contempt which occurs in the court's presence may be punished summarily, there is no requirement that the court forego formal proof).

Mayhew's counsel objected, or more precisely adopted an objection interposed to the contempt inquiry by Days' counsel.[FN5] This court finds and found flawed reasoning which would require it to ignore the apparently contumacious conduct before it and become a party to Mayhew's subterfuge; this court has a duty to preserve the integrity of the proceedings before it (see, Foster v. Hastings, 263 NY 311, 314 (1934)(when it appears a witness denies knowledge or recollection of a fact to evade and answer as to matter within her recollection, the court may refuse to aid the subterfuge and may compel an answer).

Criminal contempt, under the Judiciary Law, is an offense against judicial authority and a contempt proceeding is appropriate where, as in this case, the contemptuous behavior is primarily an offense to the court (People v. Leone, 44 NY2d 315 (1978). The primary purpose of a criminal contempt proceeding brought pursuant to the Judiciary Law is to protect the integrity of judicial process and compel respect for its mandates (Dep't of Environmental Protection of the City of NY v. Dep't of Evironmental Conservation fo the State of NY, 70 NY2d 233 (1987); McCormick v. Axelrod, 59 NY2d 574 (1983), amended 60 NY2d 652).

This court is responsible to insure the integrity of the process before it and, as such, to [*4]inquire whether Mayhew truly lacks recall or whether she is pretending in an effort to avoid answering lawfully posed questions. A court cannot permit a witness to feign memory loss as doing so offends and mocks the entire judicial process. Whether a witness, who professes a lack of recall or memory, is doing so willfully, is properly the subject of judicial determination (see, Second Additional Grand Jury of Kings Co. V. Cirillo, 19 AD2d 555 (2d Dept. 1963)(finding contempt); and see, People v. Finklestein, 202 Misc. 1080 (1953)(not finding contempt); see also, People v. Kammell, 170 Misc. 868 , affirmed, 258 AD 723 (1939)(upholding finding of contempt).

This court was aware Mayhew gave contradictory testimony and was further aware, based upon an affirmation submitted by ADA Perry E. Perrone in connection with the People's Request, on or about September 7, 2011, for a Certificate Pursuant to CPL § 640.10(3), that Mayhew had been uncooperative and openly hostile to members of the WCDAO. Accordingly, before commencing the contempt proceeding, this court painstakingly advised Mayhew, in the presence of her counsel,[FN6] of the allegation that she had testified contemptuously. This court explained the nature of the contempt inquiry as well as the potential ramifications she could face if she was found to have testified willfully and contumaciously.[FN7]

For the purposes of the contempt inquiry, the People called the following members of the WCDAO: Investigator Arthur Muhammed, Investigator Michael LaRotunda, Senior Investigator Edward Murphy and ADA Christine O'Connor. The People also called Dr. Richard Weinstein to give expert testimony with respect to Mayhew's medical condition. ADA Julia Cornaccio and Captain Christopher Michael Calabrese, of the Westchester County Department of Public Safety, were called as witnesses on Mayhew's behalf. This court found that every witness testified credibly.Upon the credible, relevant and admissible testimony and the documentary evidence moved into evidence at the contempt hearing, as well as upon its observations of Mayhew and knowledge of her testimony, this court finds sufficient proof has been adduced with reasonable certainty, indeed beyond a reasonable doubt, that on September 22, 2011, Cherlyn Mayhew was willful and contumacious in her failure to answer legal and proper questions posed and that she did not obey the mandate of the Material Witness Order that she provide testimony at the Days trial (Judiciary Law § 750(5)). The court's decision is based upon the following.

ADA Christine O'Connor testified that subsequent to the February 2011 court appearance, Mayhew did not return phone calls she made or those made by her colleague ADA Perrone. ADA O'Connor and Investigators Muhammed and LaRotunda testified to having made a trip to South Carolina in mid-August 2011 to assess Mayhew's cooperation and physical health. They provided consistent and uncontradicted accounts of Mayhew's open hostility to them. They detailed her screams upon learning of their presence and of her demands to be taken away from them. Each recounted Mayhew's refusal to speak to them. [*5]

Mayhew adamantly refused to speak about Selwyn Days or to be prepared to testify. Of particular importance, Mayhew did not tell the members of the WCDAO she could not speak to them about Days because she lacked memory. Rather, she spewed anger over her perception that the WCDAO had not treated her well or cared about her when she was sick and lamented having been provided insufficient funds for food during her previous trip. She complained about not having received reward money for providing information about Selwyn Days which is notable, to the extent the reward of concern was discussed with Mayhew at or around the time of her first contact with law enforcement concerning Days in or about 2001 and, according to ADA O'Connor, the program under which a reward was or may have been offered was disbanded years ago.

Further evidence that Mayhew's lack of cooperation is grounded in something other than true memory loss or an inability to recall is found in the transcripts of the material witness proceedings held in Sumter, South Carolina. On September 16, 2011, while appearing before a judge in South Carolina in connection with the People's request for a Material Witness Order, Mayhew was persistent in her attempts to convince the South Carolina judge not to sign the requested Order. Toward that end, Mayhew claimed this court and the WCDAO were abusive to her:

"[T]hey were abusive to me. . .And, I'm telling the truth

mentally abused. Because I got sick. . . So the whole

time I was there with them, and they were yelling and

screaming. And I said you are hurting me physically

and mean to my children. . ."

(Transcript, Third Judicial Circuit of the State of South Carolina, Court of General Sessions, Sumter County (hereinafter "South Carolina Transcript"), September 16, 2011, p. 4, lines 16-18).

Moreover, when asked whether there was any reason she could not be a witness in the Days case, Mayhew informed the South Carolina judge it would be deleterious to her health She described in detail how RSD caused her to suffer episodes of excruciating pain, even paralysis, and that the flare ups of the illness can come on suddenly and are exacerbated by stress (Id at page 5, lines 4 -7). She reported requiring a lot of medication to control the illness (Id.).

Critically, Mayhew neglected to tell the South Carolina Judge that her long term or short term memory had been adversely impacted by RSD. This omission is glaring as the judge specifically invited her to provide him with "any reason why you think I should not sign this order and have you transported to New York" (Id. at page 3, lines 13-16).[FN8] Indeed, a colloquy between the South Carolina judge and Mayhew reveals that, as of September 16, 2011, Mayhew could recall at least some relevant facts concerning Days and her testimony. In response to question, Mayhew was able to advise the judge she was not a direct witness to the alleged [*6]murders, that she had never lived in Eastchester, and that she resided in Mount Vernon from November 1996 through sometime around 2001 (Id. at page 6, lines 1 to 15). It is notable that less than one week later, on September 22, 2011, Mayhew struggled to respond to similar questions posed by the People.

Mayhew's appearance before a judge in South Carolina on January 27, 2011, prior to being compelled to testify at the February 2011 trial, is significant. Upon being advised by the South Carolina judge her testimony was required at the Days trial, Mayhew spontaneously stated: "Your Honor, I don't want any part of that" (Transcript, Third Judicial Circuit of the State of South Carolina, Court of General Sessions, Sumter County (hereinafter "South Carolina Transcript"), January 27, 2011, p. 11, lines 10-15). Additionally, ADA O'Connor testified to a conversation she had with Mayhew at about that time during which Mayhew stated, in substance, "Tell me how long I have to stay in jail because I'm not testifying".

This court is mindful Mayhew has been asked to testify to events which occurred a decade ago and is not unsympathetic to the possibility that, over time, memories may fade or dim. Moreover, despite the fact that this court is cognizant that merely because a witness' memory cannot be jogged by a document, record or other item supplied to aid her memory, a conclusion of willful and contemptuous conduct is not automatic (see, People v. Finkelstein, 202 Misc. 1080 (1953). The facts presented require such a finding.

Mayhew proclaims complete and sweeping loss of memory which is not limited to minor details or specifics. A complete lack of memory as to events of the magnitude at issue, which happened to her and which she experienced first hand, defies understanding and is belied by the evidence. Mayhew had memory of these events in April 2008. Investigators Muhammed and LaRotunda testified that they visited Mayhew in South Carolina on or about that date and that upon hearing they were there in relation to Days, she immediatelyproclaimed words to the effect of "Is he out? Is he out" and preceded to scream and become panicked. Neither considered Mayhew to be an emotionally disturbed person and each testified that, upon calming down, she was able to engage in a substantive and detailed conversation about Selwyn Days and the events about which she had previously testified.

Investigator Muhammed and Senior Investigator Murphy testified to an additional visit they made to Mayhew's home on or about April 20, 2009 to advise her the WCDAO had become aware of what they believed to be a credible threat against her life.[FN9] The investigators testified Mayhew responded with alarm and agitation. According to Sr. Investigator Murphy, Mayhew became tearful and expressed fear stating, in substance,"you can't protect me, they know where I live." Importantly, according to the investigators' testimony, Mayhew's memory was intact. She was able to discuss substantive issues concerning the Selwyn Days matter.

Significantly, testimony at this contempt proceeding revealed that, in August 2011, Mayhew's husband, Darnell Getter, sought and received proof from ADA O'Connor of the alleged threat. Additionally, proof adduced at this contempt inquiry revealed the possibility that Mayhew was afraid to testify. ADA Julia Cornaccio and Captain Mike Calabrese each testified that they had observed Mayhew before she entered the courtroom on September 22, 2011. Each [*7]conveyed details of her reluctance to enter the courtroom and expressed a personally held belief that she was afraid. Importantly, Mayhew told neither Cornaccio nor Calabrese she was afraid or provided a specific basis for her fear. Additionally, she did not inform either of them she was suffering from memory loss and, accordingly to ADA Cornaccio, prior to entering and after exiting the courtroom, Mayhew commented to her that she recognized a man in the hallway as looking like or being Selwyn Days' brother.

In light of the credible threat conveyed to Mayhew by law enforcement, this court finds it wholly understandable that Mayhew may have trepidation about testifying. Nevertheless, any conclusion that Mayhew is afraid to testify is grounded only in speculation. She has not informed this court, the court in South Carolina, or the People that she is afraid to testify. Even if Mayhew is afraid, fear does not justify her calculated decision to willfully attempt to evade answering lawfully posed questions by feigning memory loss.

Unlike in February 2011, this court has now heard testimony from a physician familiar with RSD and its treatment. Dr. Richard Weinstein, a Board Certified and widely published orthopedist with a sub-speciality in sports medicine, testified that he is knowledgeable about RSD (which he informs is also known as Complex Pain Regional Syndrome), its etiology and its symptoms and that he has treated patients who suffer from the syndrome. Dr. Weinstein testified that, without exception, RSD does not affect the brain and does not cause memory loss. Further, he testified that he reviewed Mayhew's medical records, including but not limited to an MRI of her brain, and she has not suffered a traumatic brain injury. According to Dr. Weinstein, there is simply no credible medical explanation for Mayhew's alleged memory loss.

Absent a medical basis for Cherlyn Mayhew's utter and complete lapse in memory, her inability to recall significant, even traumatic events, is wholly inexplicable other than as being feigned. The questions posed to Cherlyn Mayhew required recollection of broad events, not minuscule details. She was not asked to recall details of the sort commonly forgotten, such as the exact date of an event, what she was wearing or the weather. Her consistent lack of memory or recollection of all events concerning Selwyn Days is not understandable as other than a deliberate and contemptuous evasion of the questions posed. This is especially so in light of her vivid recall of the alleged mistreatment she received from the WCDAO and her ability to recall she had been advised of a reward circa 2001 or 2003, but had not received reward money.

Based upon the foregoing, this court finds Cherlyn Mayhew intentionally feigned memory loss in an unlawful attempt to evade answering lawfully posed questions after she took the witness stand and affirmed to tell the truth (Judiciary Law § 750(5)). Her actions constitute a contumacious and unlawful refusal to answer highly relevant and legally posed questions at the homicide trial of Selwyn Days.

Accordingly, it is therefore ordered and adjudged that Cherlyn Mayhew is guilty of criminal contempt of court based upon the conduct specified herein; and it is further

ORDERED and ADJUDGED that as punishment for such contempt of court, as defined by the Judiciary Law, Cherlyn Mayhew is to be committed to and imprisoned in the jail of Westchester County for a period of five (5) days;[FN10] and it is further

ORDERED, that as this sentence is imposed under the rules of the Judiciary Law, not the [*8]Penal Law, Cherlyn Mayhew shall be permitted to purge the within finding

of contempt upon notice to this court (see, Trice v. Ciurios, 127 Misc 2d 289 (1985)).

The foregoing shall constitute the opinion, decision and order of the Court.

Dated: White Plains, New York

October 11 , 2011

HON. BARRY E. WARHIT

WESTCHESTER COUNTY COURT JUDGE

.

Footnotes

Footnote 1: Since her arrival in Westchester County, the WCDAO has paid all of Mayhew's expenses related to her accomodations, meals and transport to and from court.

Footnote 2:Testimony presented at this contempt proceeding bore out that copies of these transcripts had also been provided to her in August, 2011.

Footnote 3:Mayhew's counsel read to her outside the presence of the jury.

Footnote 4:Judicial notice is taken that on October 4, 2011, after the Appellate Division denied her attorney's application for an immediate stay of the contempt proceeding, for the first time since arriving in Westchester on September 21, 2011, Mayhew entered the courtroom in a wheelchair and throughout the proceeding closed her eyes and slumped.

Footnote 5:It is beyond cavil Days lacks standing to object to a witness adverse to him being subjected to a contempt proceeding. While Days is obviously not a party to the contempt proceeding, to the extent the contempt inquiry arose within the context of, albeit separately from, his homicide trial, this court granted Days' counsel the opportunity to cross-examine witnesses at the contempt proceeding in the event any testimony provided or the outcome of the contempt proceeding was to bear directly upon or could relate to Days' criminal trial.

Footnote 6:Testimony commenced on September 22, 2011. However, a privilege was asserted and the court struck all testimony and commenced the matter anew on September 23, 2011.

Footnote 7:The Days criminal trial was held in abeyance at all times the contempt hearing was in session. The jury empaneled for the Days trial was not present for and had no reason to be aware of the contempt proceeding.

Footnote 8:On September 16, 2011, Mayhew was accompanied by Darnell Getter, her husband, when she appeared before the judge in South Carolina. He advocated on Mayhew's behalf that the Material Witness Order not be signed and never advised the judge of his wife's alleged suffering from pervasive memory problems or a specific inability to recall matters relating to Selwyn Days.

Footnote 9:It is conceded that the threat did not name Mayhew and was aimed at the former girlfriend who had testified against him.

Footnote 10:This court has elected not to impose a fine upon Cherlyn Mayhew.