judge king decision 4.7.15

7/21/2019 Judge King Decision 4.7.15

1/10

1,

..

~ t ~ . L : ; ,

. 1 . J J . . ~ ~ J l .

1 - , . . , ~

l.i

, , : . . c : : . ;

- - ~ . - - - ~ : -

e ~ J ~ T ; ;

; : , ~

:

:

:;:

i

.; f.-

1 :;;

,: IJ \\,

1

. \ 1 1

..

.11

_

. : . : : ; . ~ _

, , . : ; ~ .

ll

l

i r ~

.

}

'I 'l

A 1jt \

I

::

.".

n

1

.:.,,J

L

JJ

: \

j

l"r.i

iJ

I

\j

~

;

f f Y

I

L_i'

'\""f

lo

,,o_.

Fl'

'

l

: : : ~ 1

5 . t : . 6 .

J ~ t l . \ S

. f L _

~ = - - -

At a

T er

mo

f the

Sup

erior

Cou

rt, h

eld in

an

d fo

rthe

Cou

nty

of O

sweg

o at

the

Cou

rtho

use in

Os

weg

o, N

ew Y

ork,

on

the

t '-d

ay

of Ap

ril, 2

015.

PRE

SEN

T:

HO

N. D

ANIE

L

R.

KIN

G

A

ctin

gOs

weg

oC o

unty

Jud

ge

COU

NTY

C O

URT

C

OU

NTY

OF

O SW

EG

O

ST

ATE

OF

NEW

YO

RK

P

eop

le o

f the

State

of N

ew

York

v

s.

GARY THIB ODEAU,

De

fend

ant.

APP

EAR

ANC

ES:

G

R EG

O R

YS

. OAK

ES,

ES Q

.

M

OTIO

N D

ECIS

ION

In dictment No.: 94-0161

M

ARK

MO

ODY

, ES

Q., O

F C

OUN

SEL

Os

weg

oCo

unty

Dist

rict A

ttor

ney's

Off

ice

KIN

G

D R

J

L

ISA

A. PE

EBL

ES,

ESQ

Fe

dera

l Pu

blic D

efe

nder

Attor

ney

for D

efen

dan

t

By

Affir

mati

on d

ate d

Jan

uary

30, 2

015

,and

filed

on

Febr

uary

3, 2

015 ,

Def

enda

nt's

a

ttorn

ey, L

isa

A. Pe

eble

s, E s

q., s

eeks

an O

rd e

rper

mitti

ng a

dmis

sion

into

evid

ence

cert

ain

do

cum

ents

cre

ated

by M

icha

el B

ohre

r in

his o

wn

hand

-writ

ing,

bein

g E

xhibi

t 53

in t

he

pre

sent

hea

ring.

The

D e

fense

m a

kes

the fo

llow

ing a

rgum

ent

s: 1)

Exh

ibit 5

3 is

adm

issib

le

as a

de c

lara

tions

aga

inst

Bohr

er's

pena

l inte

rest

;2) f

ailur

eto

adm

it E x

hibit

53 m

ay v

iolat

e

the

defe

ndan

t's c

ons

titutio

nal

right

to

pre s

ent a

def

ense

; an

d 3)

Exh

ibit

53 s

hou l

d be

admitted fo r the limited purpose to show Bohrer's personal know ledge.

Th

eP eo

ple,

by A

ffirm

atio

no

f Mark

Mo

ody ,

Esq

., da

ted F

ebru

ary

6, 20

15,

oppo

se

t

he re

lief

soug

ht by

the

Def

ens e

.

-1-


2/10

DISCUSSION

I Admissibility of Michael Bohrer s Hand-Written Notes. Exhibit 53. as

Declarations Against Penal Interest

A Legal Standards

The declaration against penal interest exception to the hearsay rule 'recognizes the

general reliability of such statements ... because normally people do not make statements

damaging to themselves unless they are true'. (People v. Shabazz, 22 N.Y.3d 896, 898

[2013], quoting People v. Brensic, 70 N.Y.2d 9, 14 [1987].) This exception has four

components: (1) the declarant must be unavailable to testify by reason

of

death, absence

from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must

be

aware at the time the statement is made that it is contrary to penal interest; (3) the

declarant must have competent knowledge of the underlying facts; and (4) there must be

sufficient proof independent of the utterance to assure its reliability. (People v. Levaughn

McArthur, 113 A.D.3d 1088 [4th Dept. 2014], quoting People v. Shabazz, supra. at 898.)

With regard to the fourth factor, the reliability of third-party declarations that tend to

exculpate a defendant are subject to a more lenient standard, and will be found sufficient

if the supportive evidence establishes a reasonable possibility that the statement might

be true . (People

v.

McFarland, 108 A.D.3d 1121, 1122-1123

[4th

Dept. 2013], Iv

denied

-

N.E.3d - -

[201

S][the Appellate Division, Fourth Department, remitted the matter

to

Supreme Court to conduct a hearing to determine whether the third party is unavailable

and, [only] if so. whether there is 'competent evidence independent of the declaration to

assure its trustworthiness and reliability' [emphasis supplied and citation omitted] .)

B

The Defendant s Arguments

The Defense states that Exhibit 53, being the Bohrer Investigation Documents ,

were compiled by Michael Bohrer during his own investigation into the disappearance of

Heidi Allen. One such interview involved a psychic named Trudie Lortie. Based upon

that interview, as well as his own investigation, Bohrer compiled notes

in his hand-writing

that reflected his investigative efforts .

During Bohrer's meeting with this psychic , she disclosed certain information that

resulted in Bohrer stating the psychic knew things that she couldn't know . (Peebles

Affirmation,

1J5,

at 2.) The Defense asserts that this statement is

an

admission by Bohrer

that, taken together with additional evidence establishing his [Bohrer's] culpability, should

-2-


3/10


4/10

(Moody Affirmation, 1110 at 2.) This Court sustained the objection

on

both grounds.

Exhibit 53 was not admitted.

The People contend that Exhibit 53 should not be admitted because Bohrer's notes

are not based upon Bohrer's personal knowledge. (Moody Affirmation, 4 at 3.)

Additionally, the People argue that upon the present facts, Exhibit 53 contains double

hearsay and is not admissible, citing People

v.

Molson, 83 [sic-89] A.D.3d 1539 (4

1

h

Dept.

2011)

[ Iv

denied 18 N.Y. 960 (2012)]. (Moody Affirmation, 1115 at 3.)

Declaration gainst Penal Interest

The People state that Exhibit 53 is inadmissible as a declaration against penal

interest because it fails to fulfill any

of

the four prerequisites set forth in People v.

McFarland, supra. at 1122. (Moody Affirmation, 1T1117-18 at 3.) The People assert that

while declarations that exculpate a defendantO are subject to a more lenient standard ,

pursuant to McFarland, this rule does not apply to the first three prerequisites

4

citing

People

v.

Shabazz, 22 N.Y.3d, supra. at 898-899; People

v.

McFarland, 108 A.D.3d at

1122-1123. (Moody Affirmation,

1T1120-21

25-26 at 4-5.)

First, the People argue that because Bohrer testified at the hearing, the Defense

has failed to prove that Bohrer was unavailable (see People

v.

Shabazz, 22 N.Y.3d at 898

[first prerequisite].) (Moody Affirmation,

1127

at 5.) Thus, the People state that Exhibit 53

may not be admitted pursuant to this exception.

Second, the People assert that the Defendant has failed to prove that when Bohrer

made his notes (Exhibit 53),

he

did not know that they could be statements against his

penal interest (see People v. Shabazz, 22 N.Y.3d at 898 [second prerequisite]). (Moody

Affirmation, 1128 at 5.) The People state that Bohrer could not know that his [written]

analysis of what other people had done or said to him could be later interpreted as his own

statements against penal interest. (Ibid.) Accordingly, the People argue that Exhibit 53

may not be admitted pursuant to this exception.

Third, the People contend that Exhibit 53 is a collection

of

Bohrer's handwritten

notes, all

of

which are based upon statements

of

other people, rather than upon Bohrer's

. personal knowledge. (Moody Affirmation, 1130 at 6.) Thus, the People assert that Bohrer

4

These three prerequisites are: (1) the declarant must be unavailable to testify by reason

of

death,

absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the

time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of

the underlying facts. (See People v. Shabazz, 22 N.Y.3d at 898.)

-4-


5/10


6/10


7/10

in making this application, the Defense is merely seeking to circumvent the rules o

evidence. (Moody Affirmation,

1123

at 4.)

Ill. Admission of Exhibit 53 to Show Bohrer s Personal Knowledge of Heidi

Allen s Disappearance

A

Legal Standards

It is well-established that extra-judicial statements are not hearsay where they are

not offered for their truth, but to establish that they were made (see People v. Daniels, 265

A.D.2d 909 [4 h Dept. 1999], Iv denied 94 N.Y.2d 878 [2000], citing People v. Davis, 58

N.Y.2d 1102, 1103 [1983]), and that the statements were relevant to indicate

circumstantially the speaker's knowledge, reason, belief, intent, emotion or other state or

condition o mind (35 Carmody-Wait 2d 194:73).

B The Defendant s Arguments

The Defense .seeks admission o Exhibit 53 for the limited purpose o showing

Michael Bohrer's personal knowledge o Heidi Allen's disappearance. (Peebles

Affirmation, 111112-13 at 5-6.) AttorneyPeebles asserts, in pertinent part, that Bohrer's

notes demonstrate his personal knowledge based upon his description o the

manner o Heidi Allen's death and the fact that her body was burned ; Bohrer's

statement that the psychic with whom he met knew things that she couldn't know ; and

that Bohrer had knowledge o Heidi Allen's status as an informant . (Peebles

Affirmation, 111112 at 5.)

C

The People s Arguments

The People oppose the admission o Exhibit 53 for the asserted purpose, stating

that Bohrer's statement that Trudie Lortie couldn't know certain things, without more,

does not reasonably support a conclusion that Bohrer had personal knowledge

o

Heidi

Allen's disappearance. (Moody Affirmation, 111133-35 at 6.)

Further, the People contend that if Exhibit 53 is admitted into evidence

to

demonstrate Bohrer's personal knowledge o Heidi Allen's disappearance, this is

clearly being offered for the truth

o

the matter asserted, based upon the Defendant's

conflicting argument at the hearing in support o the admission o this Exhibit. (Moody

Affirmation,

111136

38 at 6-7.)

-7-


8/10

N LYSIS ND DETERMIN TIONS

I Declarations gainst Penal Interest

The Court determines that Michael Bohrer's handwritten notes, which constitute

the entirety o Exhibit 53, are hearsay. Bohrer's notes themselves are out-of-court

statements sought to be admitted for the truth

o

their contents. Further, the notes

relating to Bohrer's conversations with others, including Trudie Lortie, are double

hearsay. (See People v. Molson, 89 A.D.3d 1539

[4 h

Dept. 2011], Iv denied 18 N.Y.

960 [2012].) Hearsay is not admissible absent a recognized exception.

The Defense states that Bohrer's notes are his declarations against penal

interest, which are exceptions to the hearsay rule. The Court disagrees, as the

Defense has failed to provide sufficient proof o any o the four prerequisites set forth in

People v. Shabazz, 22 N.Y.3d, supra. at 898.

First, Bohrer was not unavailable at the hearing because he testified and was

subjected to extensive cross-examination.

Second, there has been no showing that Bohrer could have been aware at the

time he made his notes, that the notes could later be contrary to his penal interest.

Third, the Defense has not shown that Bohrer had competent knowledge o the

underlying facts based upon his handwritten notes. Rather, the most reliable evidence

shows that Bohrer developed his notes upon the statements, oral or written, of other

people.

Fourth, the Defense has also failed to establish the reliability o the contents o

Exhibit

53,

even pursuant to the lenient standard that is applied

to

declarations that

tend to exculpate a defendant. (See People v. Shabazz, 22 N.Y.3d, supra. at 898-899;

People

v.

McFarland, 108 A.D.3d at 1122-1123.)

Even if Bohrer told Tyler Hayes,

in

the year 2000, about some o Bohrer's beliefs

related to Heidi Allen's disappearance, Bohrer made no reference

to

any reason for his

conclusions. The Court will not presume Bohrer's personal knowledge in light of

overwhelming evidence to the contrary.

Bohrer said to Danielle Babcock, sometime

in

2002 - 2003, I'll do you like I did

to

Heidi . Yet, Ms. Babcock testified that she believed this was a vague threat . In any

case, the alleged statement requires no personal knowledge o any facts, and the Court

will not presume such knowledge.

Tonya Priest's sworn statement dated February 28, 2013, was admitted into

evidence upon consent o the parties. The portions o Priest's statement relating to

-8-


9/10

statements attributed to James Steen, constitute hearsay for which the Defense has

failed to establish an exception

7

The taped telephone conversation between Tonya Priest and Jennifer Westcott,

recorded

in

early March

of

2013, was admitted into evidence upon consent

of

the

parties. This Court has reviewed the statements attributed to Ms. Westcott and

determines that they are so mutually inconsistent as to be wholly unreliable.

II

The

Defendant s Constitutional Right to Present a Defense

The Court determines that the Defense has failed to establish that the

application of New York State's hearsay rule, in the instant matter, would violate the

Defendant's constitutional right to present a defense, even applying a more lenient

standard

for

admission (see People v Shabazz, 22 N.Y.3d, supra.

t

898-899). This

conclusion is required upon the Court's analysis and denial

of

the Defendant's request

to admit Exhibit 53, pursuant to a declaration against penal interest

8

Specifically, the

Defense has failed to establish the reliability of the contents of Exhibit 53. (See

ANALYSIS AND DETERMINATIONS , paragraph numbered I. )

Ill Admission to

Show

Personal Knowledge

The Court determines that Exhibit 53 may not be admitted to show Michael

Bohrer's personal knowledge of the facts surrounding Heidi Allen disappearance.

7

Priest's sworn statement is hearsay, despite the parties' consent to its admission into evidence. James

Steen's alleged statements to Priest would be admissible

if

they constituted his declaration against penal interest.

However, the evidence fails to support that conclusion.

Most precisely, the Priest statement fails the first prerequisite in People v Shabazz, 22 N.Y.3d at 898. Mr

Steen was not unavailable as he testified and was subjected to cross-examination. This determination, alone,

would preclude admission

of

the pertinent portions

of

the Priest statement.

Further, the Priest statement also fails the fourth prerequisite in Shabazz, even upon the more lenient

standard (see People v Shabazz, 22 N.Y.3d, supra. at 898-899; People v McFarland, 108 A.D.3d at 1122-1123).

The alleged admissions by Steen to Priest, and other alleged admissions or purported evidence of Mr Steen's

involvement

in

Heidi Allen's abduction, similarly constitute hearsay. The admissions and evidence are sufficiently

inconsistent as to severely undermine their trustworthiness and reliability. Additionally, the asserted incidents

involving

Mr

Steen, which form the basis

of

this evidence , occurred many years before their disclosure, without

adequate explanat ion for this delay. The evidence taken as a whole (see People v. Tankleff, 49 A.D.3d 160, 163 [2 '

Dept. 2007]) is simply untrustworthy.

8

While the asserted evidence may formO a critical part

of

the defense (see Chambers v. Mississippi, 410

U.S. at 302), it follows that the same must be said of the prosecution. Accordingly, it is most judicious to disallow

admission of this unreliable evidence on behalf

of

either party.

-9-


10/10

.

Initially, this Court determined herein that there has been no showing that

Bohrer had competent knowledge of the underlying facts

The Court further determines that the Defense has failed to submit sufficiently

trustworthy evidence to support the admission o

Exhibit 53 for this purpose. This is.

particularly important

in

this matter as proof o Bohrer's personal knowledge very

closely equates to proof

o

the truth

o

the matters asserted . As such, this Court must

deny the request.

CONCLUSIONS

Based upon the foregoing, the Defendant's motion is

DENIED

ENTER.

Dated: April

l 1 ~

2015.

Lowville, New York

7

Hon. Daniel

R.

King

Acting Oswego County Court Judge

9

See ANALYSIS AND DETERMINATIONS, paragraph numbered I.

-10-