People v. ThibodeauPeople v. Thibodeau
Lead Opinion
It is hereby ordered that the order so appealed from is affirmed.
Memorandum: Defendant appeals from an order denying, after a hearing, his
In February 2013, a woman named Tonya Priest gave a sworn statement to the police alleging that James Steen told her in 2006 that he, Roger Breckenridge, and Michael Bohrer had abducted the victim using a van, brought her to Breckenridge’s residence, killed her, and disposed of her body and clothes at a nearby cabin. Steen also allegedly told Priest that Breckenridge’s onetime girlfriend, Jennifer Wescott, had been present when they brought the victim to the residence. In March 2013, Priest placed a recorded telephone call to Wescott, and Wescott seemed to confirm that Steen, Breckenridge, and Bohrer had brought the victim to the residence in a van. Wescott, however, made other seemingly contradictory statements during the call, including that she had, in essence, surmised well after the fact that the victim had been the person in the van, and that, as far as she knew, defendant had killed the victim. When interviewed a few days after the call, Wescott told the police that she had lied to Priest, that she and
In 2014, defendant’s appellate counsel reviewed the file kept by the trial attorney for defendant’s brother and found documents concerning the victim’s status as a confidential informant (Cl) for the police. Those documents established that a deputy had lost the victim’s “Cl file,” which included her personal information and a photograph, in late 1991 in the parking lot of the same store from which she was abducted in 1994, that another deputy had recovered the file about a month later, and that an investigator had located it in storage about a week before defendant’s trial began. Defendant’s trial counsel asserted in an affidavit that he had not seen those documents or the Cl file itself (collectively, Cl information), and that he could have used the Cl information at trial to establish that other people had a motive to harm the victim.
Defendant moved in July 2014 to vacate the judgment of conviction based on the People’s alleged Brady violation in failing to disclose the Cl information (see
With respect to the Brady claim, defendant’s trial counsel testified that he had not seen any of the Cl information. The trial prosecutor, by contrast, testified that the deputies’ reports concerning the victim’s status as a Cl and the loss of her file had been made available to the defense in December 1994, and that the investigator’s report and Cl file had been disclosed the day after the investigator found the file in storage.
With respect to the newly discovered evidence claim, Priest’s 2013 statement and a transcript of her recorded call to Wescott were admitted in evidence, but defendant declined to call Priest as a witness at the hearing. Shaw testified consistent with her 2013 statement, and defendant called several other witnesses to testify to admissions allegedly made by Steen, Breckenridge, and Bohrer. In some of the alleged admissions, the declarant described participating in the disposal of the victim’s body. In others, the declarant said that he had done something to the
Defendant also presented the testimony of William Pierce, who testified that he saw a man strike a woman in the head near a van at the store on April 3, 1994, and that he believed, after seeing a photograph of Steen in the newspaper, that Steen was the man he saw. Pierce further testified that the van he saw was not the van owned by defendant’s brother. Pierce admitted, however, that he had not reported his observations at any time prior to July 2014, that even then he had initially believed that defendant was the man he saw, and that he had been shown a photo array containing a photograph of Steen from 1988 and was unable to identify him. Pierce had also estimated that the man he saw was 35 to 45 years old. Defendant was 40 years old in April 1994, and Steen was 23.
Steen, who was sentenced to life in prison without parole in 2011 for killing his wife and his cousin in September 2010 (People v Steen,
The court denied defendant’s motion, concluding, inter alia, that the Cl information had been disclosed to his attorney, that the alleged third-party admissions were inadmissible hearsay rather than declarations against penal interest, and that Pierce’s testimony was not credible. The court did not specifically address defendant’s actual innocence claim.
We reject defendant’s contention that the court erred in deny
We also reject defendant’s contention that the court erred in denying that part of his motion alleging newly discovered evidence. The decision whether to vacate a judgment of conviction based on newly discovered evidence is addressed to the sound discretion of the motion court (see People v Backus,
First, we conclude that the court was entitled to determine, in view of the circumstances of Pierce’s identification of Steen, that his testimony was simply not credible (see People v Jimenez,
Next, we conclude that the court properly determined that
Even assuming, arguendo, that the willingness of Steen, Breckenridge, Bohrer, and Wescott to testify at the motion hearing does not preclude the applicability of the exception for declarations against penal interest (see People v Oxley,
Wescott’s statements in the recorded call, in particular, made little sense on their face, and she recanted them shortly thereafter (see People v Buari,
Apart from Pierce’s testimony, which we have concluded that the court properly discredited, there was no evidence independent of the alleged admissions that tended to link Steen, Breckenridge, or Bohrer to the crime (cf. People v DiPippo,
In view of the inadmissibility of the alleged third-party admissions, we conclude that the court properly determined that the newly discovered evidence was not “of such character as to create a probability that” the verdict would have been more favorable to defendant if it had been received at trial (
The remaining evidentiary rulings challenged by defendant did not violate his right to present a defense. Evidence of other crimes committed by Bohrer was not admissible as “reverse Molineux” evidence on the issue of identity (DiPippo,
Finally, we reject defendant’s contention that the court erred in “failing to address and grant his actual innocence claim.” Given the respective standards of proof for a newly discovered evidence claim and an actual innocence claim (compare People v Hamilton,
Dissenting Opinion
(dissenting). I respectfully dissent. I agree with the majority that County Court properly rejected that part of defendant’s motion alleging a Brady violation inasmuch as defendant did not meet his burden of establishing that the alleged Brady material was suppressed by the People. I further agree with the majority that the court properly precluded defendant from introducing certain evidence that did not involve third-party admissions. I also agree with the majority that defendant failed to establish his entitlement to relief through an actual innocence claim (see People v Deacon,
Eighteen-year-old Heidi Allen was working alone at a gas station convenience store on Easter morning, April 3, 1994, when she went missing. Heidi was never found and is presumed dead. In August 1994, defendant and his brother, Richard Thibodeau (Richard), were charged with her kidnapping. After separate jury trials, defendant was convicted of kidnapping in the first degree (
At the trial, the owner of the store, which was at the corner of Route 104 and 104B in the Town of New Haven, testified that the last transaction at the store as reflected on the cash register receipt was the purchase of two packs of cigarettes at 7:42 a.m., and no money was missing from the register. Richard was the customer who made that purchase. There was a purchase at 7:41 a.m. of a pack of cigarettes and two newspapers, which was confirmed by the testimony of that customer. He testified that he arrived at the store after passing a slow-moving van that he identified as a van that belonged to Richard. Richard’s GMC van was distinctive in appearance; it was a large white van with black doors on the sides and back, a black stripe down the side, and rust in spots. The customer made his purchase, testifying that there was no one else inside the store besides the clerk.
As the customer was exiting the store, he saw a man who was about five feet six inches or seven inches tall, weighed about 145 pounds, and had a mustache and wore a baseball cap. An investigator testified that Richard was five feet seven inches tall, weighed approximately 155 pounds, and had grey hair and a mustache, so the description given by the customer matched that of Richard, and in fact the customer testified that it looked like Richard. The man was standing outside next to the driver’s side of that same van the customer had passed, which was parked “about parallel” in front of the store and was running. They walked past each other as the man proceeded to the store and the customer walked toward his vehicle. After the customer entered his vehicle and pulled forward, he saw the van move forward as well, three or four feet toward the front double doors, with the passenger side of the van closest to the doors. Both vehicles stopped, and the customer then drove around the van and saw it move forward again. The People contend that this showed that someone else was in the van while Richard was in the store. However, the cash register receipt showed that Richard made his purchase just one minute after this customer, and the customer testified that he entered his vehicle and opened a pack of cigarettes before moving his vehicle. It therefore could have been simply Richard who entered the van and started moving it.
Another customer testified that he pulled into the convenience store parking lot at approximately 7:41 a.m. and did not see anyone in the lot. He went inside the store to buy a newspaper but no one was there. After waiting a few minutes and looking around the store, he went outside and flagged down a passing sheriffs deputy who was stopped at the intersection.
Five days after Heidi’s disappearance, Christopher Bivens, who does vehicle autobody repair, contacted the police about observations he had made on April 3, 1994, i.e., he saw two men and a woman arguing outside the store. He could not describe them or any vehicles that were present. He thought that there was a van there but he was not sure. The police interviewed Bivens on April 18th, and he said that the van was light blue with dark trim but could not say whether it had pinstripes. He admitted that the police drove him past Richard’s van on April 20th, and he told them that the van was the right style but the wrong color. The following day, the police showed him a photograph of Richard’s van showing the passenger side and back doors, and the witness did not think that was the van, either. He was shown a second photograph of Richard’s van showing the black side doors, and he was now 80% certain that was the van. When shown another photograph of Richard’s van the next day, the witness now said that he was positive it was Richard’s van that he saw the morning of Heidi’s disappearance because he recognized the rust spot over the rear wheel and the trailer hitch.
At trial, Bivens testified that, as he approached the store at approximately 30 miles per hour, he saw two white males and a white female outside the store, and the man closest to the store was holding the “struggling” female in a bear hug. Bivens described this man as “strong” and “husky.” The other man was older and was walking toward a van that the witness identified as Richard’s van. He said that the stripe on the van caught his attention because it was not ordinary to have it there and must have been painted on. He also noted the rust on the van, which, as an autobody repairman, he spotted all the time. Bivens told the police that both men appeared to be five feet eleven inches
Nancy Fabian testified that she left her house on Easter morning and arrived in the Village of Mexico at around 7:45 a.m. When she turned on Route 104, a van came up very fast behind her and was only two or three feet away. The van, which she identified as belonging to Richard, was swerving back and forth. A white male with dark hair and a “scruffy face,” like with a beard and mustache, was driving and was using his right arm to try to “control something in the back of the van or push something down.” Fabian reported what she observed to the police in early June and said that the van was light blue, which Richard’s van is not. She also knew that there was something on the middle of the van, but was not sure if it was a stripe. The police then showed her Richard’s van, and she made a positive identification.
Defendant testified that he and his girlfriend went to a friend’s house the night before Easter and stayed past midnight, then went straight home and remained there until they were awakened by Richard’s phone call shortly after 10:00 a.m. He denied seeing Richard on April 3, 1994. Some witnesses at trial corroborated his testimony, while others contradicted it. A bartender testified that defendant and Richard were at a bar drinking together the night before Heidi disappeared, and they left the bar between 12:00 and 12:30 a.m.
One of defendant’s neighbors testified that he drove past defendant’s house on Easter morning around 7:30 a.m. and saw tire tracks coming out of the driveway from the inch of wet snow they had, and there were no vehicles in the driveway. When he was pulling into a gas station, he saw Richard’s van as he approached an intersection with Route 104. The neighbor then returned home and saw Richard’s van and two other vehicles in defendant’s driveway. When the neighbor contacted the police two months after the incident, he did not tell them that he saw Richard’s van at an intersection; he did not remember seeing that until almost a year after the incident. The neighbor’s son testified that he heard yelling and screaming between a man and a woman from defendant’s house
Another neighbor, who was 13 years old at the time of her testimony, testified that she saw Richard’s van in defendant’s driveway on Easter morning at around 7:50 a.m. She did not tell anyone about the van until 13 months after Heidi disappeared. Another neighbor and his wife testified that, around 9:00 a.m. on Easter morning, they saw a van resembling Richard’s van parked on the road at the end of defendant’s driveway. They saw defendant standing outside the van talking to a man with grey hair on the passenger side of the van. They did not report this to the police until seven months after Heidi disappeared, even though they gave other statements to the police on earlier occasions.
On the other hand, two other neighbors testified that they never observed a van at defendant’s residence on Easter morning, and never heard any loud voices. Richard’s girlfriend testified that Richard left their residence around 7:30 a.m. and returned around 7:50 a.m. with two packs of cigarettes. They left their house around 8:30 a.m. to go to her grandparents’ house. The girlfriend’s relatives testified that Richard arrived at the grandparents’ residence around 8:45 a.m. or 9:00 a.m. that morning. Two of Richard’s neighbors testified that they saw his van parked in his own driveway between 8:15 a.m. and 8:45 a.m. Three other witnesses confirmed that they saw Richard’s van headed toward the grandparents’ residence around 8:45 a.m. Defendant’s girlfriend corroborated his testimony about being inside his residence on Easter and not seeing Richard that day.
Richard and his girlfriend testified that, after they saw something on the television while they were at the grandparents’ house, Richard called the police shortly after 10:00 a.m. to let them know he was at the store that morning, and also called defendant. The police went to the grandparents’ residence, saw Richard’s van in the driveway, and took a statement from Richard, who was cooperative and showed the packs of cigarettes that he had purchased. On April 9th, Richard consented to a search of his van. Prints were lifted from the van, but none was a match with Heidi. In addition, the van, which the police described as cluttered, was vacuumed and the material was sent to the FBI for processing; nothing matched Heidi. A forensic scientist testified that, if there was a struggle involved, it was more likely that there would be some sort of transfer. An investigator took impressions from tire marks left in the front of the store, which he believed looked like an ac
The other evidence admitted at trial included the testimony of Heidi’s boyfriend, who testified that he met defendant about five months before Heidi disappeared, and the boyfriend and Heidi saw defendant about four or five times at a bar or bowling alley during that five-month period. Defendant knew Heidi by name and commented to the boyfriend that he “had an attractive girlfriend.” Defendant admitted that he met Heidi on a couple of occasions.
Finally, the evidence at the trial included the testimony of two inmates. Defendant was incarcerated in Massachusetts in June 1994, where he was held in the same block as Robert Baldasaro and James McDonald, both of whom testified at trial that defendant implicated himself in Heidi’s kidnapping. Defendant testified that he would speak with Richard and his girlfriend over the phone while in jail, and they would give him updates on the investigation, which defendant would then discuss with the two inmates. Baldasaro testified that defendant, while not admitting his involvement in Heidi’s disappearance, told him that he knew she was dead and no one would find her. He also said that there was no struggle at the store so she must have known the person with whom she left. Baldasaro further testified that defendant said that he and Richard went to speak with Heidi regarding a disagreement over a drug deal, they drove her by the woods near defendant’s house to talk to her, and then Richard drove Heidi back to the store. When Richard returned to the store to get cigarettes, no one was at the store. Baldasaro asked defendant how she died, and defendant responded that her head had been bashed in with a shovel. McDonald testified that he was in the cell with Baldasaro and heard defendant say that he went to the store in Richard’s van, that Heidi was killed with his shovel, and that they would never find her.
Defendant was convicted as charged, and we affirmed the judgment of conviction on appeal (People v Thibodeau,
CPL 440 Motion and Hearing
On July 30, 2014, defendant moved to vacate the judgment pursuant to
The court held a hearing on the motion. William Pierce testified that he was stopped at an intersection in front of the store on Easter morning in 1994 and saw a man between 35 and 45 years old, husky, and with a beard strike a woman in the back of the head near a white van with a lot of rust on the side. The woman’s hair appeared dark; not black, but not real light, either. Someone inside the van opened the side door and the man outside the van grabbed the woman and started toward the door. Pierce kept driving. He had believed that this man was defendant after drawing a beard on a picture of defendant, thought it looked “close enough,” and figured that the police knew more than he did, so he never contacted the police. In July 2014, Pierce saw renewed news coverage of Heidi’s case and a statement by the sheriff that one thing that bothered him in his career was Heidi’s case. Pierce decided to come forward and report what he saw, and he confirmed with the police that defendant was the right person in custody. However, after seeing a picture in the newspaper about 10 days later of Steen with a full beard and mustache, Pierce realized that it had actually been Steen who he had seen striking the woman. This photo of Steen was taken at the time of an arrest in 2010. Pierce also testified that the van he saw was not Richard’s van. The police showed Pierce a picture of Steen from 1988 in which he did not have a beard, and Pierce was not able to identify him.
The parties agreed to allow witnesses to testify regarding alleged third-party admissions by Steen, Breckenridge, and Bohrer, and the court would reserve decision on the ultimate admissibility of those statements. The parties also consented to Priest’s statement being allowed into evidence. Priest stated that, in 2006, Steen told her that he, Breckenridge, and Bohrer
Megan Shaw testified that, in 2010, Steen told her that he disposed of Heidi’s body. While not admitting his involvement in her abduction or killing, he said that he helped others dispose of her body in a cabin in the woods. Ronald Clarke testified that, a few years after defendant’s trial, Steen told him that Heidi had “gone to Canada” and that defendant and Richard were not involved. Steen did not say that he abducted or killed Heidi.
Amanda Braley testified that, in 2003, when she was with Breckenridge and Wescott, someone mentioned Heidi’s name, and Breckenridge laughed and said “he took that bitch to the scrap yard in the van, they had it crushed, and that she was shipped to Canada.” Breckenridge then pointed to the sky and said, “See you, bye.” Wescott was “irritated” and backhanded Breckenridge and said, “You shouldn’t be talking about that s. . ., Rog,” to which Breckenridge responded, “What, Jen, it’s done and over with, and besides, nobody’s ever going to find her.” Around that same time period, something came on the television about Heidi, and Breckenridge laughed and looked at Wescott, prompting Wescott to say, “Don’t look at me Rog, I didn’t have anything to do with it. I only took the van to Murtaugh’s.” Braley further testified that, in 2006 or 2007, Steen made a comment that he was not afraid to go to jail, then paused and said, “I can, however, tell you I will never see a day in prison for what we did to Heidi.”
Christopher Combes testified that, in the early 2000’s, Breckenridge mentioned Heidi and told him that “[w]e chopped her up, we put her in a wood stove and put her in a vehicle and
The police recorded a phone call on March 2, 2013 between Priest and Wescott. Priest told Wescott what Steen had told her, i.e., that they took Bohrer’s van to the store and then “brought her to [Wescott’s] house” and Wescott “flip[ped] out.” Wescott responded that “in [her] own head” she “dropped that s.about ten years ago . . . but it took me a while.” Later, Priest asked Wescott if she even knew it was Heidi they had brought there, and Wescott said no, that “they didn’t even bring her in the house, they made her sit in the van.” However, she “put two and two together” and later knew it was Heidi. When Priest asked who actually killed her, Wescott said that she had no idea, that it did not happen around her. Wescott said that it “bother[ed] her to talk about it” and, at the time it happened, she could not say anything to anybody because she was scared of all of them. Wescott said that the police “swarmed Grandma Breckenridge’s house,” and she agreed with Priest that was why she and Breckenridge moved to Florida. She said that she never thought about turning in Breckenridge; she “would never open a can of worms like that,” she was “not doing the investigator’s job,” and they would just laugh in her face and say somebody has already been convicted.
Wescott testified at the hearing that she gave a statement to the police in March 2013 and again in August 2014. Before she gave her first statement, she texted Priest and asked if she was a cop. She also sent a text message to Richard Murtaugh, who runs a junkyard where Breckenridge used to work. After Wescott’s first statement to the police, Breckenridge, who was incarcerated, sent a message to her to keep her mouth shut about the Heidi case. Wescott told the police during her first interview, before she knew that the call with Priest had been monitored by the police, that she asked Priest “what the hell are you talking about,” and told Priest that she was crazy when Priest asked her about Heidi’s disappearance, but in fact Wescott made no such statements during that recorded conversation. She also told the police that she did not say
Wescott told the police that she did not know what happened to Heidi, that she would have known if Steen, Breckenridge, and Bohrer had done anything, and that she would have come forward if she knew anything. However, she admitted texting someone that she gave a false statement in connection with the investigation. In her August 2014 statement to the police, Wescott said that Breckenridge told her in 1995 that all he knew was that Heidi was burned in a wood stove and taken care of in a van, but he did not explain how he knew that information.
Wescott denied ever living on Rice Road. A witness testified that her father owned property on Rice Road and rented out a trailer on it to Wescott’s family in 1993 or 1994. Another witness, however, testified that she lived on that property from 1993 until 1996. A collapsed cabin was located off of Rice Road beyond a heavily wooded area, but not near railroad tracks, and there was no wood stove there. The Medical Examiner conducted a forensic examination of the site in July 2014 after a cadaver dog had indicated at a particular location; the examination found nothing of significance. In October 2014, two other cadaver dogs detected a scent of human remains at the area.
Steen, who is incarcerated for murdering his wife and his cousin in September 2010 (People v Steen,
Danielle Babcock used to work for Bohrer in 2001 and 2002 and testified that he would make comments that he would “do [her] like he did Heidi.” Bohrer testified that he started scrapping vehicles at Murtaugh’s junkyard prior to Heidi’s abduction. He denied threatening Babcock.
The court denied the motion, and we granted defendant leave to appeal.
Analysis
A court may vacate a judgment upon the ground that “[n]ew evidence has been discovered . . . which is 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” (
In my opinion, defendant met his burden of establishing all six factors by a preponderance of the evidence, and I therefore conclude that the court abused its discretion in denying the motion (see
A. Pierce’s Testimony
Pierce was the only person who provided eyewitness testimony at the hearing, as opposed to providing hearsay evidence on statements made by Steen, Breckenridge, or Bohrer. The court concluded that Pierce’s testimony was not credible and could not be the basis for a new trial. I disagree. An appellate
The court found that Pierce was not credible because he was unable to identify Steen from a photograph that the police showed him. However, Steen was 23 years old at the time of Heidi’s disappearance in 1994, and the police showed Pierce a photograph of Steen from 1988, when he was only 17 years old and without a beard. The court also found Pierce not credible because he testified that there was slush on the ground, but the photographs taken at the store showed only a partially wet road. Other witnesses at the trial, however, similarly testified that there was snow or slush on the road early that morning. Indeed, one of defendant’s neighbors testified that he saw tire tracks in the snow/slush that was in defendant’s driveway. The court also did not credit Pierce’s testimony because he did not call the police to report what he saw, but the same could be said of Bivens, who waited five days before contacting the police because he also did not want to get involved. Pierce explained that he did not come forward at the time of defendant’s trial because he believed that the police had the right person in custody. The court also suggested that Pierce’s memory of the man he saw that morning was tainted by the photographs he had seen in the newspaper. While that may be true, the same could be said of the witnesses at trial regarding their identification of Richard’s van, some of whom did not come forward until many months after the incident.
To be sure, some aspects of Pierce’s description of the events he saw that morning were questionable, such as his testimony that the woman he saw had dark hair, when Heidi’s hair was dirty blonde, and his testimony that the man he saw was 35 to 45 years old, when Steen was in fact only 23 years old at the time. However, there was no showing that his description of how the man otherwise looked, i.e., bearded and husky, was not consistent with how Steen appeared in 1994. In addition,
Fabian had identified Richard’s van as the one she saw that came up very fast behind her and swerved back and forth. She told the police that the van was light blue, but Richard’s van was white and black. In addition, the van remained behind her the entire time, and she saw only the front part of the van.
Bivens and Pierce were the only ones to witness Heidi’s abduction. In several respects, their testimony was similar. Both described the man abducting Heidi as strong, husky, and with a beard, and both testified that she was placed in a white van with rust on the side. Bivens identified the van he saw as Richard’s, but Pierce testified that it was not. This conflicting testimony, along with the absence of any forensic evidence tying defendant to the abduction and the absence of any eyewitness evidence identifying defendant as the perpetrator, leads me to conclude that Pierce’s testimony would probably change the result of the trial (see People v Bailey,
B. Hearsay Evidence
With respect to the remaining evidence, the court concluded that the evidence would not be admissible at trial because it was hearsay not within any exception, and therefore defendant did not establish his entitlement to a new trial. I agree that “[fimplicit in th[e] ground for vacating a judgment of conviction is that the newly discovered evidence be admissible” {Backus,
Out-of-court statements that are introduced to prove the truth of the matters they assert are hearsay, and are admissible only if they fall within a recognized exception to the hearsay rule (see People v Brensic,
Defendant submitted evidence at the hearing regarding statements made by Steen, Breckenridge, and Bohrer that he contends fall within the exception. All three of those witnesses testified at the hearing, thus seemingly showing that the first element cannot be met, but I conclude that this element is met where, as here, the witnesses testified but denied making the statements (see People v Oxley,
The court found that Priest was not credible because the cabin that was located on Rice Road was in thick brush in the woods, not near an open field, and it was not near railroad tracks and did not have a wood stove. There was, however, a cabin found off of Rice Road in the thick woods, and three different cadaver dogs alerted to the presence of human remains at that site, even though a forensic examination was unable to find anything of significance. The court also found that Braley’s testimony was not trustworthy or reliable because she did not recite Steen’s statements in the affidavit she gave to defense counsel in 2014. Braley lived with Wescott’s parents in 2002 or 2003 and knew Wescott, Breckenridge, and Steen. Braley’s affidavit stated in general that Steen and Breckenridge made admissions regarding a van being crushed at Murtaugh’s that was then transported to Canada. Braley testified that she did tell defense counsel about Steen’s specific statement, but it was not included in the affidavit. With respect to Combes, the court did not find him reliable because Combes himself did not believe Breckenridge and did not come forward until 2014. Combes worked with Breckenridge at the time he made his admission, and Combes testified that he did not report the admission to the police until the summer of 2014. He did not want to get involved, but he mentioned it to an officer who was a friend of his, who then had an investigator contact him. In determining the reliability of a declarant’s statement, “[w]hether a court believes the statement to be true is ir-revelant” (Settles,
In determining the admissibility of a declaration against penal interest, “[t]he crucial inquiry focuses on the intrinsic
Competent evidence independent of the declarations included the fact that witnesses testified that Heidi was abducted by men in a white van, Bohrer had a white van, and Steen, Breckenridge, and Bohrer worked for or did business with Murtaugh, and Steen hauled scrap for Murtaugh to Canada. Inasmuch as no eyewitnesses could place defendant at the store when Heidi was abducted, at the trial the People relied on testimony regarding the presence of Richard’s van at the store, on Route 104, and at defendant’s residence that morning. The evidence at the hearing now showed that there may have been another van at the store that morning. Priest said that she knew that Bohrer had a white van at the time of Heidi’s disappearance. Pierce testified at the hearing that he saw a man strike a woman outside the store and place her into a white van, but it was not Richard’s van. At the trial, Bivens and Fabian identified the van that they saw the morning of the incident as Richard’s van, but Richard’s van was also a white van, albeit with black doors and trim. Notably, Bivens told the police that he saw a van when he first reported the incident, but he was unable to identify Richard’s van as the van that he saw until the third time that he was shown a photograph of the van. Fabian testified at trial that she saw a man pushing something down in the back of the van, which was presumably the abductor trying to control Heidi. A forensic examiner testified that such a struggle was likely to leave some transfer of material. However, despite extensive searching of Richard’s van, the police never recovered any evidence that Heidi had been in that van. Priest stated that Steen told her that, after grabbing Heidi, they took off like a bat out of hell. The police found tire tracks at the store that looked as if someone left in a hurry, but those tire tracks did not match Richard’s van. Steen told Priest that defendant was implicated only because his brother had a white van.
The court noted that none of the witnesses could credibly place Steen, Breckenridge, or Bohrer at the store on the morning of Heidi’s disappearance, but the same is true regarding the evidence against defendant at his trial. There were only two eyewitnesses to Heidi’s abduction (Bivens and Pierce), and neither one identified defendant as the perpetrator. The court
With respect to Wescott’s recorded statement to Priest, I agree with the majority and the People that this constituted hearsay and did not technically fall within the exception of a declaration against penal interest because Wescott did not admit to being involved in Heidi’s abduction. However, the Supreme Court has cautioned that, “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice” (Chambers v Mississippi,
Further indicia of reliability of Wescott’s statement was the evidence that, before giving a statement to the police after this phone call, Wescott texted Murtaugh even though his name was never mentioned by Priest. Wescott also admitted that Breckenridge reached out to her after she gave her first statement to the police and told her to keep her mouth shut about the case. The People note that, when Priest asked Wescott if she knew which one killed her, Wescott responded, “No idea. As far as I know Tibadeau [sic].” That was near the end of the conversation, however, after Wescott mentioned that defendant had been convicted, and Priest responded, “That’s sad.” Wescott shut down after that when Priest tried asking more questions about it, and gave curt responses or said that she did not want to talk about it because she did not “want that stuff back in [her] head.”
As the majority notes, Wescott later recanted those admissions, but her supposed recantations changed during the police interview and at the hearing. Before she knew that the conversation had been recorded, Wescott told the police that she responded to Priest that she was crazy and asked what she was talking about when she brought up what Steen had told her. Before she knew that the recording had been monitored by the police, she claimed that Priest had tampered with the recording. Finally, she simply said that she told “a lot of lies” to Priest. Her deception continued at the hearing, where she gave absurd explanations for why she gave an alibi for Breckenridge when she supposedly did not know him, why she texted someone that she gave a false statement to the police, and why a friend was wrong when he claimed she texted him about not telling anyone that she went to Florida when Heidi went missing.
“When considering the reliability of a declaration, courts should . . . consider the circumstances 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
I therefore conclude that the testimony of Priest, Braley, and Combes, and the statement of Wescott, would be admissible at defendant’s trial, and that evidence would probably change the result of the trial (see Bailey,
Finally, I believe a new trial should be granted based simply on the totality of the new evidence introduced at the hearing. There were numerous third-party admissions attributed to Steen, Breckenridge, and Bohrer. This is not a case where there was just one off-hand remark about Heidi’s abduction, and I conclude that “[t]he sheer number of independent confessions provided additional corroboration for each” (Chambers,