People v. ThibodeauPeople v. Thibodeau
People v Thibodeau (
| People v Thibodeau |
| June 14, 2018 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to |
| As corrected through Wednesday, September 16, 2018 |
[*1]
| The People of the State of New York, Respondent, v Gary Thibodeau, Appellant. |
Argued April 26, 2018; decided June 14, 2018
People v Thibodeau,
Lisa A. Peebles, Federal Public Defender, Syracuse (James P. Egan and Mellisa A. Tuohey of counsel), for appellant.
Gregory S. Oakes, District Attorney, Oswego, for respondent.
Memorandum.
The order of the Appellate Division should be affirmed.
Heidi Allen, an 18-year-old convenience store clerk, disappeared from her job shortly before 7:55 a.m. on Easter Sunday morning in 1994. She has not been seen or heard from since then. Defendant was convicted in 1995 upon a jury verdict of kidnapping in the first degree in connection with her abduction. The evidence at trial established that no more than 13 minutes had elapsed between the time when Allen, the only employee in the store, recorded the last sale in the cash register at 7:42 a.m., a sale of cigarettes to defendant's brother, Richard Thibodeau, and the time at 7:55 a.m., when a police officer called his dispatcher from the scene after being told by a customer that Allen was missing from the store. During that brief time period, an eyewitness observed two men and a woman in the parking lot of the convenience store, positioned outside of a distinctive "whitish blue" van, which the eyewitness subsequently identified as Richard's van. The eyewitness accurately described the van as having two black/dark blue doors in the rear and two similarly colored doors on the right side, as well as a six-inch-wide stripe across the center of the right rear panel. That eyewitness further testified that he observed one of the men restraining and struggling with the woman. A second eyewitness, who made the purchase that was registerеd at 7:41 a.m., one minute before Richard's transaction, also identified Richard's van as the van he saw in the{**
In 2014, defendant moved to vacate the judgment of conviction based on an alleged Brady violation for a failure to disclose certain information and newly discovered evidence (
"Although we are prohibited from weighing facts and evidence in noncapital cases, we are not precluded from exercising our 'power to determine whether in a particular judgmental and factual setting there has been an abuse of discretion as a matter of law' " (People v Jones,
Defendant's claim of newly discovered evidence consisted of allegations that three men (James Steen, Roger Breckenridge{**
At the hearing defendant called as witnesses all three declarants of the hearsay statements proffered as admissions against penal interests, as well as additional witnesses who testified to inculpatory statements alleged to have been made by each of the declarants. The declarants denied making the admissions and any complicity in Allen's kidnapping. Nevertheless, enabled by the speculative nature of the disparate admissions containing few details, defendant pursued more than one theory of complicity at the hearing—attempting to establish that, either singly or in combination, the declarants were involved in the kidnapping or the murder or the disposal of Allen's body (compare People v Tankleff,
Contrary to defendant's argument on appeal, the courts below did not abuse their discretion in holding that, as to those witnesses who the court found credible, the hearsay testimony of third-party culpability was inadmissible at trial under the exception for declarations against penal interest. In order to be admissible under that exception,
"the following elements must be present: first, the declarant must be unavailable as a witness at [the hearing]; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability" (People v Settles,[*3]46 NY2d 154 , 167 [1978] [emphasis added and citations omitted]).{**31 NY3d at 1159}
"The rationale for allowing these statements, of course, stems from the assumption that a person would not ordinarily make a statement which jeopardizes his interest by subjecting himself or herself to criminal prosecution and incarceration. As with all generalizations, however, human motivation and personality renders the stated reason for permitting these declarations immediately suspect" (Settles,
Assuming, without deciding, that the declarants were unavailable to testify within the meaning of Settles, notwithstanding their testimony at the hearing, the record supports County Court's determination that the independent corroboration necessary for admissibility of the declarations against penal interest was not sufficient. The requisite independent evidence circumvents fabrication and augments the trustworthiness of the declaration. "By imposing such a requirement[,] a balance is struck between the interest of defendant to introduce evidence on his own behalf and the compelling interest of the State to preserve the integrity of the fact-finding process in this aspect of criminal prosecutions" (Settles,
"involves a delicate balance of diverse factors and is entrusted to the sound judgment of the trial court, which is aptly suited to weigh the circumstances{**31 NY3d at 1160} surrounding the declaration and the evidence used to bolster its reliability. The crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself" (Settles,46 NY2d at 169 ; see People v Shortridge,65 NY2d 309 , 313 [1985]).
Defendant's attempt to adduce some independent evidence at the hearing in order to secure a new trial proved unavailing. In contrast to the evidence presented at trial, there was no independent credible evidence at the hearing that any of the declarants were at or near the scene of Allen's kidnapping that morning, let alone in the limited window of time left open by the trial evidence. There was not even any credible evidence the declarants owned a van.[FN3] In fact, the evidence failed to demonstrate that Steen and Breckenridge even knew Bohrer at the time of the offense.
The speculative link between the declarations and Allen's kidnapping was evidenced when defendant presented a witness, Richard Murtaugh, whose family owned a local scrap processing facility and who knew both Steen and Breckenridge in 1994. Murtaugh testified that while defendant was incarcerated in this matter he and [*4]Breckenridge removed an inoperable van from defendant's property and "scrapped" the vehicle. Breckenridge likewise testified that he and Murtaugh had removed the van from defendant's property after Allen was kidnapped. Although the men apparently discussed the possibility that this particular van could have been used by the Thibodeaus to abduct Allen, Murtaugh concluded based on his own search of the van that Allen's body was "[a]bsolutely not" inside the vehicle. Steen also testified that in his employment аs a driver for a business that transported scrapped vehicles to Canada, he did business with Murtaugh. Breckenridge told Steen that a van Steen had "scrapped" in Canada was connected to Allen's kidnapping, thereby implying that Steen had unwittingly been involved in disposing of the body in Canada. While interesting, this testimony does not provide any independent support for the declarations attributable to Steen or Breckenridge that they were involved in the kidnapping or the disposal of the body in Canada.{**
Similarly, the attempt to produce independent evidence to corroborate declarations that Allen was taken to a certain cabin following her abduction failed as well. As the Appellate Division pointed out, the fact that cadaver dogs alerted to the possible presence of human remains near a "collapsed structure" in the woods two decades after the crime does not provide the corroboration necessary to ensure the reliability of such a speculative theory. Indeed, a forensic examination conducted at the site by the Medical Examiner's Office yielded no evidence of human remains and this scientific result was roundly supported by the hearing testimony that the structure was already partially or totally collapsed at the time of the crime in 1994, which was inconsistent with the allеged admissions. Moreover, given the absence of the requisite independent corroboration of the hearsay evidence, the "sheer number" of the statements proffered did not, in itself, establish trustworthiness as a matter of law, particularly considering the conflicting and varied nature of the claimed admissions.[FN4]
Nor did defendant's invocation of the criminal histories of the declarants provide the requisite corroborative evidence. Specifically, the reverse Molineux evidence of Bohrer's prior{**
There is also record support for the affirmed finding that certain witnesses—whose live testimony was subject to full examination and evaluated by the hearing court, allowing for fair consideration of such factors as motivation and recollection—were simply not credible. County Court clearly did not engage in any mechanical or categorical rejection of the witnesses' testimony (compare Tankleff,
The dissent, while acknowledging this Court's jurisdictional inability to disturb the credibility determinations of the hearing court, nonetheless engages in a de novo and rather skewed analysis of the weight of the evidence at both the trial and the hearing in favor of defendant's search for a plausible hypothetical to interject his theory of a second van (see People v Calabria,
In short, considered as a collective whole, defendant's newly discovered evidence was comprised of uncorroborated hearsay{**
Finally, defendant's Brady claim lacks merit.
Rivera, J. (dissenting). Defendant Gary Thibodeau has been incarcerated for over two decades—almost a third of his life—for the kidnapping of a young woman who disappeared one morning and was never seen again. No physical or forensic evidence connected defendant to the abduction, and no witness ever identified defendant as the kidnapper or placed him at the scene where the victim was taken. Nor has defendant confessed to having committed the crime; rather, he has always maintained his innocenсe. He now asserts that newly discovered evidence points to three men who have admitted to abducting and murdering the victim. Turning to the state courts, defendant asks for an opportunity to present this third-party culpability evidence to a jury, which would once again decide his fate. I believe the law affords him such opportunity.
County Court decided otherwise and denied defendant's
The People separately tried defendant and defendant's brother, Richard, for the kidnapping of the 18-year-old victim. Riсhard was initially arrested and charged alone approximately one month after the disappearance. He admitted to being at the store with his van during the time the People proposed the victim was kidnapped, and there was evidence of a store receipt for the purchase of cigarettes at 7:42 a.m., around the time the victim disappeared, which the People established were bought by Richard. The police later decided that defendant and Richard acted together and indicted defendant, notwithstanding the alibi provided by defendant's girlfriend, who stated that they were together at defendant's home the morning of the crime.
The People's narrative as presented at defendant's trial was that defendant and Richard kidnapped the victim between 7:41 a.m. and 7:45 a.m. on Sunday, April 3, 1994, outside a convenience store where she worked, and put her in Richard's van, which defendant then drove away from the scene. The People presented no physical, forensic, or [*5]motive evidence to support defendant's involvement. Instead, the only evidence connecting defendant to the crime was testimony about the general appearance of one of the kidnappers—a description that matched defendant's appearance—and testimony from two inmates concеrning comments defendant allegedly made about the victim while the three were briefly incarcerated together, though none of those comments constituted confessions to either kidnapping or murder.
One witness, John Swenszkowski, who made a purchase at the store at 7:41 a.m., testified that he saw a "pretty beat up van" with "a lot of rust" parked outside the store. He could not recall the color of the van. Upon leaving the store, Swenszkowski testified that he saw a man enter, whom he described as between 5 feet 6 inches and 5 feet 7 inches, 145 pounds with a mustache. It is undisputed that this description fit Richard's{**
Another witness, David Stinson, testified that he arrived at the store at about 7:41 a.m. He did not see the victim or any other vehicle in the store parking lot. He flagged down an officer who sent a notice at 7:55 a.m. about the victim's disappеarance. The officer found no signs of a struggle inside the store.
The only witness who claimed to see anyone interacting with the victim in the convenience store parking lot on the day of her disappearance was Christopher Bivens. Five days after the disappearance, Bivens told the police that as he drove by the store between 8:00 a.m. and 8:30 a.m. on the day of the abduction, he saw two men and a woman arguing outside the store, near a vehicle, although he could not give a description of either the people or the vehicle. Ten days later—not long after a reward was posted—Bivens again spoke to the police. This time, he said that the van was light blue with dark trim. Richard's van was white, with black doors and a black stripe, and was rusted in certain places. Two days later, the police drove Bivens past Richard's van and Bivens told them the van's style matched, but that the color was wrong. The next day the police showed Bivens a photograph showing the side and back doors of Richard's van, and again Bivens stated that Richard's van was not the one he saw at the store. When the police then showed him a photograph of the van's black side doors, Bivens said he was still uncertain. The following day, for a third time, the police showed Bivens pictures of Richard's van. At that point, Bivens identified the van as the one he saw thе day the victim was abducted.
At trial, Bivens testified that the woman he saw was the victim, one of the two men he saw was holding her in a bear hug, and the other man was walking towards the van. He{**
Nancy Fabian testified that at approximately 7:45 a.m., a van came up fast behind her, swerving back and forth. She saw a white male with dark hair and what appeared to be a beard and mustache driving while using his right arm to control something in the back of the van. Even though the abduction occurred in April, she reported this in June. Nancy had only been able to see the front of the van through her rearview mirror, and first described it as light blue with something in the middle, possibly a stripe. She then identified Richard's van from a photograph as the vehicle she saw that morning.
Prior to his arrest for the victim's kidnapping, defendant was arrested on an unrelated offense. At trial, two inmates who had been at the same out-of-state facility as defendant testified to statements he made regarding the victim's abduction, including that he knew the victim was dead and would not be found, that her head was bashed in with a shovel, and that, because there was no struggle at the store, she must have known the abductors. Defendant also allegеdly stated that he and Richard spoke to the victim regarding a disagreement over a drug deal and drove her [*6]to the woods near his house to talk, after which Richard drove her back to the store. When Richard later went to the store, she was gone. According to these inmates, defendant would hear about the progression of the investigation from his brother and would pass details on to them. The two inmates never testified that defendant admitted to the victim's abduction, or to causing her any harm. On the contrary, their testimony amounted to defendant having last seen her alive and well, on her way back to the store.[FN2]
Richard testified on behalf of defendant that he saw the news about the abduction the same day and called the police. Within a week, Richard had consented to a search of his van, which the police examined comprehensively. Carpeting from the van was analyzed by an FBI lab, but no blood was found, and the hairs and fibers collected did not match the victim, nor did the{**
As with the testing of Richard's van, there was extensive analysis of defendant's home, and no evidence of the crime was found there either. The police and FBI's search and analysis of items from the house turned up no evidence linking defendant to the victim. This was not for lack of trying: material from defendant's furnace was tested and found to contain no evidence; bone fragments in a pile of soot were examined but proved not to be of human origin; and knives, saws, and a shovel were tested and found to contain no trace of the victim.
Defendant took the stand in his defense and testified that he was at his home with his girlfriend from late Saturday night through Sunday evening. Shortly after 10:00 a.m. on Sunday he received a call from Richard. His girlfriend, with whom he lived, testified to the same. Although three witnesses testified that Richard's van, or a van that matched its description, was at defendant's residence the morning of the victim's disappearance, defendant testified that he had no contact with his brother that day, and two of defendant's neighbors stated that they did not see or hear Richard's van at defendant's home that morning. Regarding the inmates' testimony, defendant acknowledged that he would receive updates from his brother about the investigation while in jail and would relay information from those conversations to the two men.
The jury returned a guilty verdict, and defendant's conviction was affirmed on appeal (People v Thibodeau,
Years later, defendant learned of new evidence that supported his claim of innocence. Defendant moved to vacate the judgment pursuant to
Defendant presented an affidavit that Tonya Priest provided to the police in 2013 claiming that in 2006, Steen vividly described to her and her friend how he, Bohrer, and Breckenridge abducted and murdered the victim. The police subsequently recorded a conversation between Priest and Jennifer Wescott, who was Breckenridge's girlfriend [*7]for years after the abduction, and the call was presented at the hearing. Unaware that the call was being monitored, Wescott stated that Bohrer, Steen, and Breckenridge brought the victim to Breckenridge's house in a van, against the victim's will, but Wescott did not implicate herself in the crime. Wescott claimed to have had an argument with Steen over the fact that there was an "innocent man in prison," and said that she could not talk to Priest about what the men did because "they scared [her]."
At the hearing on the motion, defendant presented additional testimony by various witnesses implicating Bohrer, Steen, and Breckenridge in the abduction, including confessions by these three to the victim's abduction and murder. Regarding Bohrer, one person testified that, having just met Bohrer in a bar one night, Bohrer confided, "the Thibodeaus . . . they're not the ones that did it," "I know who did it," and "I know the whereabouts of [the victim's] body." According to the witness, Bohrer was sobbing and continued that he had "been dealing with this too long" and "didn't want to deal with it any more (sic)." Another witness, a former cоworker of Bohrer's, testified that he had told her and her sister that "he would do [them] like he did [the victim]."
{**
Braley and four other people testified that Breckenridge had either discussed murdering the victim outright or made other inculpatory remarks in their presence. Braley disclosed that at a different social gathering, Breckenridge said "he took that bitch to the scrap yard in the van, they had it crushed, and that she was shipped to Canada," and "nobody's ever going to find her." Christopher Combes described how, when he worked with Breckenridge in the early 2000s, Breckenridge told him, "[w]e chopped her up, we put her in a wood stove and put her in a vehicle and sent her tо Canada." Another three witnesses related similar statements by Breckenridge, including "the bitch ain't going to be found," "[s]he's a rat," "[i]t's a waste of [the] government's time to be finding her," "she was going to break him on selling drugs," and "that [bitch] is long gone."
At the hearing, Wescott testified that Breckenridge told her he knew the victim was burned in a stove and "taken care of" in a van. Defendant also presented evidence from the renewed police investigation—including from the location where the men had reportedly killed the victim—which tended to confirm many of the key details of these confessions.
On consent of defendant and the prosecutor, Bohrer, Steen, and Breckenridge testified at the hearing. All three men generally denied making the incriminating statements. Nevertheless, Steen acknowledged that he hauled scrap materials in 1994 for Richard Murtaugh, sometimes to Canada, and that he knew Breckenridge and Wescott. Steen testified that he did not know what happened to the victim's remains, but that if he did know, he would not tell. He started discussing that he may have "unknowingly" destroyed the victim's body in the white {**
After the hearing, the court denied defendant's motion for a new trial. As to the third-party culpability evidence, the court concluded that Pierce's identification of Steen was not credible, Wescott's admissions to Priest during the recorded phone call were not reliable and therefore inadmissible, and that the hearsay confessions by Steen, Breckenridge, and Bohrer were not sufficiently corroborated for admission as statements against penal interest. The Appellate Division affirmed the denial of the motion, with one Justice dissenting (Thibodeau,
Pursuant to
We have stated that denials of
"Although we are prohibited from weighing facts and evidence . . . we are not precluded from exercising our power to determine whether in a particular judgmental and factual setting there has been an abuse of discretion as a matter of law because, in so doing, we are not passing on facts as such, but rather considering them to the extent that they are a foundation for the application of law" (24 NY3d at 630-631 [internal quotation marks and citation omitted]).
A finding that, as a matter of law, certain evidence is inadmissible is reviewable.
I agree with the majority that there is no error attributable to the hearing court's determinations that one witness, William Pierce, was not credible and the evidence of Bohrer's past crimes was inadmissible.[FN3] That is where my agreement ends, as I disagree with the entirety of the majority's analysis regarding the admissibility of Bohrer, Steen, and Breckenridge's inculpatory statements. Contrary to the majority's conclusion, those statements were adequately corroborated and "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" (
An out-of-court statement introduced to prove the truth of the matter asserted constitutes hearsay, though it may be admissible if it falls within a hearsay exception and the proponent demonstrates its reliability (see People v Brensic,
This Court has developed four criteria to guide a judge "in reaching a conclusion that the assurances of truthfulness of a particular statement are adequate or inadequate to warrant admission" (id. at 298). We have explained:
[*9]"[t]o qualify fоr admission into evidence as a declaration against the [declarant]'s penal interest the following elements must be present: first, the declarant must be unavailable as a witness at trial; second, when the statement was made the declarant must be aware that it was adverse to [their] penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability" (People v Settles,46 NY2d 154 , 167 [1978] [citations omitted]).
The last criterion requires "some evidence, independent of the declaration itself, which fairly tends to support the facts asserted therein" (id. at 168). "Supportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true" (id. at 169-170). Even "[c]ircumstances of seeming indifference may still harmonize the declarant's statement so as to furnish the necessary link" (id. at 169).
When assessing the sufficiency of the supportive evidence, courts must consider the critical rule that "declarations that exculpate the defendant . . . are subject to a more lenient standard" (People v Soto,
"In a criminal case, reconciliation of the search for truth with concern for fairness to the defendant must proceed with great care. And, where the declaration is inculpatory in character, scrutiny of its reliability should, if possible, be even more circumspect because of the due process protections afforded those charged with crime, including, of course, the requirement that guilt be proved beyond a reasonable doubt" (Maerling,46 NY2d at 298 ).
The concerns attendant to inculpatory statements do not logically extend to declarations that exculpate a defendant, and therefore the reliability of the statement need only meet a "more lenient standard" (see Soto,
As to the proper exercise of judicial discretion in deciding whether to admit the statement, the court must not weigh in the balance either its own opinion of the declaration's truth or the People's ability to persuade the jury of defendant's guilt. "Whether a court believes the statement to be true is irrelevant, and the question of admissibility is to be resolved without regard to the seeming strength or weakness of the People's case" (Settles,
The majority here assumes without deciding that the first criterion, which requires that a declarant be unavailable, presents no barrier to the admissibility of a statement against penal interest when the declarant takes the stand and denies having made the statement (majority op at
1159). I would adopt this position as a matter of law, because, where the other three criteria are met, admission of the statement protects defendant's constitutional rights, furthers our legal system's truth-seeking function, and comports with the underlying reasons for the hearsay exception.{**
Rules excluding evidence from criminal trials "do not abridge an accused's right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve" (United States v Scheffer,
Another rationale for admitting statements against penal interest despite declarants' availability is the opportunity to subject the declarants to cross-examination, the method by which the statements' "reliability can best be determined" (Crawford v Washington,
Other jurisdictions also admit third-party statements against penal interest where the declarants have testified and denied the statements. In Hines v Commonwealth, for example, the Supreme Court of Virginia stated, "if [a declarant] were present and testifying, but denying that [they] made any such confession, then [their] own original testimony would not be available, and it would be competent and proper to introduce proof of the alleged confession by others who heard it, and let the jury determine as to the credibility of the testimony" (136 Va 728, 745,
"[T]he unavailability of a declarant who has allegedly confessed to the crime would not make [the] hearsay testimony more reliable—it would make it less reliable. If the hearsay declarant is available, as here, the declarant can take the stand and clarify or refute the confession that [the declarant] allegedly made. If the declarant is unavailable, however, no such opportunity exists. Indeed, the unavailability of the declarant actually would help witnesses concoct falsified 'confessions' by absent third parties, because they would know that the missing declarant will not be around to deny their claims" (State v Cazares-Mendez,350 Or 491 , 519,256 P3d 104 , 119 [2011]).
The United States Supreme Court's analysis in Chambers is instructive. There, the Court held a third-party confession admissible, notwithstanding the hearsay rule. The Court noted that "if there was any question аbout the truthfulness of the extrajudicial statements, [the other suspect] was present in the courtroom and was under oath. [That third party] could have been cross-examined by the State, and his demeanor and responses weighed by the jury" (Chambers,
"[W]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice" (id. at 302). Just so here, where excluding statements made by Bohrer, Steen, and Breckenridge would deprive defendant of his right to a fair trial by keeping evidence of defendant's possible innocence and third parties' guilt from the jury. Thus, if defendant satisfies the other criteria for admission of a statement against penal interest, the declarants' willingness to testify and deny making inculpatory statements does not bar the admission of those statements.
As to the second criterion, all the statements evince the respective declarant's awareness that the statements were{**
With respect to the last criterion that "there must be some evidence, independent of the declaration itself, which fairly tends to support the facts asserted therein" (Settles,
Here, contrary to the mаjority's reference to the testimony as a "speculative theory" lacking any independent support (majority op at
1161), defendant presented an exhaustive amount of corroborating evidence for the confessions.[FN4] First, while the hearing court said that the three declarants did not know each{**
Second, defendant provided corroboration for the affidavit he sought to introduce from Priest, which described how Steen had told her in 2006 that he, Bohrer, and Breckenridge brought the victim to Breckenridge's house on Rice Road, at which Wescott was present, and that the three men took turns beating the victim to death, cut up her body, hid her under floorboards in a cabin in the woods, and burned her clothes in a wood stove in the same cabin. Defendant's evidence established that there was a dilapidated cabin at the location described. In July 2014, investigators responded to a report by the current resident of the house—who stated that she had seen two people emerge from the woods where the cabin is located the previous night—and noted the "collapsed" cabin appeared to have been "sifted through." Three cadaver dogs subsequently indicated the cabin had the scent of human remains.[FN6] Moreover, a witness at the hearing testified that Wescott lived on Rice Road at the time of the crime; there was,{**
The majority writes that "there was no independent credible evidence at the hearing that any of the declarants were at or near the scene of
Allen's kidnapping that morning" (majority op at 1160). Yet, "we have never held that there must, in every case, be proof directly linking the third party to the crime scene; indeed, we have recently held that, in certain circumstances, third-party culpability evidence may be admitted absent such direct evidence" (DiPippo,
Defendant also provided corroborative motive evidence: police files showing the victim was a confidential informant helping with drug investigations, evidence that Steen and Breckenridge were involved in drug use or sales, and testimony by four people who heard Breckenridge or Steen make related comments, such as that the victim "was going to break [them] on selling drugs." In addition, a police deputy had accidentally left the victim's confidential [*13]informant index card and photograph in a parking lot in front of the D&W store from which she was later abducted. Bohrer's notes indicated he knew the victim's card had been found in the lot, despite the card's disappearance never having been made public. The foregoing evidence is, in accordance with Settles, "some evidence . . . [that] fairly tends to support the facts asserted therein," and thus "establishes a reasonable possibility that the statement[s against penal interest] might be true" (Settles,
That conclusion is strengthened when the evidence is considered in its totality and in context. "When considering the reliability of a declaration, courts should also consider the circumstаnces of the statement, such as, among other things, the declarant's motive in making the statement—i.e., whether the declarant exculpated a loved one or inculpated someone else, the declarant's personality and mental state, and the internal consistency and coherence of the declaration" (DiPippo,
Moreover, the singular driving concern of the hearsay rule—to avoid admission of fabricated evidence—is not present here. There is no еvidence that the witnesses concocted these powerful third-party statements of guilt for defendant's benefit, nor of a motive for the declarants to inculpate themselves in a kidnapping and murder or exculpate defendant (compare with People v Shortridge,
Contrary to the People's argument, it is not insignificant or irrelevant to our analysis that the various statements connected these declarants and pronounced their guilt of abducting the victim, her murder, and the subsequent cover-up. Far from suggesting fabrication or misperception, the interconnected and mutually-confirming nature of the statements reaffirms their reliability and the "hallmark of trustworthiness" attributed to declarations against penal interest (Maerling,
{**
According to the majority, record support exists for the conclusion that "certain witnesses . . . were simply not credible" (majority op at
1162). As noted above, however, the only question properly before the hearing court was whether the admissible evidence was "of such character as to create a probability" that a jury would render a more favorable verdict (see
Careful examination of the testimony establishes that the court often had no rational basis for its conclusion that the witnesses were rendered incredible as a matter of law by factual inconsistencies. As an example, the majority points to Priest's affidavit, in which defendant sought to introduce Priest's description of how Steen had told her in 2006 that he, Bohrer,{**
[*14]The hearing court similarly erred as a matter of law by discrediting Combes' testimony—that Breckenridge told him, "[w]e chopped her up, we put her in a wood stove and put her in a vehicle and sent her to Canada"—on the basis that Combes did not believe Breckenridge to be speaking truthfully. The question is the underlying reliability of the statement itself, not the witness' personal beliefs about that statement. As this Court has made clear, it is for the jury to decide what weight, if any to accord, the statement and to what extent the evidence informs the jury's determination of defendant's guilt (see e.g. Settles,
Defendant met his burden of showing by the preponderance of the evidence that "[n]ew evidence has been discovered . . . which is of such character as to create a probability" of a verdict "more favorable to the defendant" (see
Chief Judge DiFiore and Judges Stein, Fahey and Garcia concur; Judge Rivera dissents in an opinion in which Judges Wilson and Feinman concur.
Order affirmed, in a memorandum.
Footnote 1:Defendant and his brother, Richard, were indicted jointly, but tried separately. Richard Thibodeau was acquitted after trial.
Footnote 2:The need for corroborating evidence is especially apparent in high-profile cases, as it is not uncommon—for a variety of reasons—for individuals to make statements claiming responsibility for notorious crimes they did not commit (see e.g. State v Paredes,
Footnote 3:The dissent inexplicably views the trial testimony from witnesses who identified Richard's van as the vehicle they saw—both at the scene and driving erratically on the morning of the abduction—as corroboration for the declarant's statements (see dissenting op at 1176 n 4).
Footnote 4:The dissent's suggestion that the quantity of "interconnected and mutually-confirming . . . statements" found unreliable by the courts below somehow "reaffirms their reliability" (dissenting op at 1180) completely undermines our evidentiary rule of independent corroboration to ensure the reliability of the declaration against penal interest and is plainly inconsistent with Chambers. The Supreme Court has
"recognized that state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials . . . Only rarely [has the Court] held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence. See Holmes [v South Carolina,547 US 319 , 331 (2006)] (rule did not rationally serve any discernible purpose); Rock v. Arkansas,483 U.S. 44 , 61 (1987) (rule arbitrary); Chambers v. Mississippi,410 U.S. 284 , 302-303 (1973) (State did not even attempt to explain the reason for its rule); Washington v. Texas,388 U.S. 14 , 22 (1967) (rule could not be rationally defended)" (Nevada v Jackson,569 US 505 , 509 [2013] [internal quotation marks omitted]).
In Chambers, the Supreme Court did not dispense with the need for reliability of the evidence but observed that the statements at issue were made "under circumstances that provided considerable assurance of their reliability," including that they were made to close acquaintances shortly after the crime and were corroborated by other evidence in the case (see
Footnote 1:As pointed out by the dissent below, Richard could have returned to the van and been the driver, given that at least one minute elapsed between when the man Swenszkowski described as Richard entered the store and when Swenszkowski eventually saw the van move.
Footnote 2:Defendant argued at trial and on this appeal that the inmates were not credible because they received favorable deals in exchange for speaking with prosecutors, who sentenced them to probation on their respective pending charges, and because of inaccuracies in their accounts.
Footnote 3:William Pierce, an eyewitness who did not come forward until after the trial, testified at the hearing that he saw Steen hit the victim in the back of the neck and drag her into a white van. Pierce had first told the police that the defendant was the perpetrator, but upon seeing a photo of Steen in the newspaper realized it was Steen who he had seen that morning.
Footnote 4:Defendant also relied on evidence from his trial. For example, Fabian and Bivens testified that a light-colored van was involved in the abduction, which Bivens first told police was the style of Richard's van but a diffеrent color. Defendant now argues that indeed there was a light-colored van used in the victim's abduction, but it was other than his brother's: Breckenridge and Steen both stated that that they used a van to kidnap and then dispose of the victim's body, and Steen specified that it was Bohrer's white van. The fact that the trial witnesses' accounts either barely or not at all conflict with Steen and Breckenridge's retelling lends credence to their statements. Bivens also testified to seeing one of her abductors hold the victim in a "bear hug" in front of the van, which matches Steen's description of the abduction:
"[Steen] went in some side door, Roger went in the front doors to keep her distracted while [Steen] came in and grabbed her from behind the counter, Michael stayed [in the] van. [Steen] said once he grabbed her, Roger helped grab her and they went back out the side door, when they got outside the doors of the van were open, [Steen] described bear hugging her and slamming her into the van."Footnote 5:As further evidence of Murtaugh's involvement, Wescott texted him soon before her interview with the police. She told the police she had done so "[b]ecause supposedly Tonya said the van was junked there." In fact, Priest revealed no such detail on the call, and never mentioned Murtaugh's name.
Footnote 6:According to the majority, "the structure was already partially or totally collаpsed at the time of the crime in 1994, which was inconsistent with [Steen's] alleged admissions" (majority op at 1161). Conflicting evidence does not render such statements inadmissible (see e.g. DiPippo,
Footnote 7:Chambers presented a similar case to this one. At his murder trial, defendant Leon Chambers introduced Gable McDonald's sworn statement confessing to shooting the victim, along with two eyewitnesses to McDonald's involvement. On cross-examination by the State, McDonald repudiated his confession and testified that he did not shoot the victim. Chambers endeavored to introduce testimony of three of McDonald's friends, who each stated that McDonald had confessed the crime to them. The trial court excluded the testimony on hearsay grounds. The Supreme Court held that "[t]he testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest," and "[t]hat testimony also was critical to Chambers' defense" (Chambers,
Footnote 8:The majority adopts the hearing court's credibility analysis of Priest, in part because Priest was not called by the defense to testify at the hearing (majority op at 1162). The majority ignores that, during the proceedings regarding admission of the affidavit, defense counsel explained that they believed Priest's testimony was unnecessary given her sworn statement and wanted to avoid subjecting Priest to additional harassment. This concern was not unfounded. According to Wescott, Priest moved with her children to Michigan because she was afraid of her ex-husband. The hearing court considered the issue and admitted Priest's affidavit into evidence. Of course, defendant would have to present Priest at trial (see DiPippo,
Footnote 9:The majority quotes Judge Cardozo's concurrence in People v Shilitano (
Footnote 10:The majority complains that I have engaged in a de novo and skewed analysis of the weight of the evidence at both the trial and the hearing in favor of defendant (majority op at 1162). Putting aside the majority's hyperbole, I have done exactly what we are authorized and required to do: "exercising our power to determine whether in a particular judgmental and factual setting there has been an abuse of discretion as a matter of law" (Jones,