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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
.
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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
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(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.)
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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.)
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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
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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.
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.
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.
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