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At a Term of the Superior Court, held in


and for the County of Oswego at the
Courthouse in Oswego, New York, on
the t"'-day of April, 2015.

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PRESENT:

HON. DANIEL R. KING


Acting Oswego County Judge

COUNTY COURT
COUNTY OF OSWEGO

STATE OF NEW YORK

People of the State of New York

MOTION DECISION
vs.
GARY THIBODEAU,

Indictment No.: 94-0161


Defendant.

APPEARANCES:

GREGORY S. OAKES, ESQ.


MARK MOODY, ESQ., OF COUNSEL
Oswego County District Attorney's Office
LISA A. PEEBLES, ESQ ..
Federal Public Defender
Attorney for Defendant

KING. D.R .. J.
By Affirmation dated January 30, 2015, and filed on February 3, 2015, Defendant's
attorney, Lisa A. Peebles, Esq., seeks an Order permitting admission into evidence certain
documents created by Michael Bohrer in his own hand-writing, being "Exhibit 53" in the
present hearing. The Defense makes the following arguments: 1) Exhibit 53 is admissible
as a declarations against Bohrer's penal interest; 2) failure to admit Exhibit 53 may violate
the defendant's constitutional right to present a defense; and 3) Exhibit 53 should be
admitted for the limited purpose to show Bohrer's personal knowledge.
The People, by Affirmation of Mark Moody, Esq., dated February 6, 2015, oppose
the relief sought by the Defense.

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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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be admitted into evidence pursuant to the exception to the hearsay rule that allows
"statements against penal interest." 1 (Peebles Affirmation, 1f5, at 3.)
In reaching this conclusion, the Defense proffers as such "additional evidence"
certain statements that Bohrer made to Danielle Babcock2 and Tyler Hayes 3 (Peebles
Affirmation, 1f6, at 3).
The Defense states that in evaluating an "exculpatory" statement, courts apply a
"less exacting" standard (citing People v. McFarland, supra. at 1122) to all four factors to
be considered in determining whether a statement is one made against the declarant's
penal interest (see People v. Shabazz, 22 N.Y.3d at 898). (Peebles Affirmation, 1!7 at 3.)
Accordingly, the Defense asks that this Court admit Exhibit 53 into evidence in the
instant hearing.

C.

The People's Arguments

Hearsav
The People opposes the admission of Exhibit 53 into evidence.
Initially, the People state that Bohrer testified that he created the notes that make
up Exhibit 53 "to try to sort things out." (Moody Affirmation, 1!7 at 2.) A portion of this
Exhibit represents Bohrer's notes from his meeting with Trudy Lortie, a "self-proclaimed
psychic". (Moody Affirmation, 1!1!7-8 at 2.)
During the hearing of the Defendant's motion, the Defense offered Exhibit 53 for
admission into evidence. Attorney Moody objected on grounds of relevance and hearsay.

Generally speaking, the hearsay rule excludes as evidence any extra-judicial declaration offered to prove

the truth of the matter asserted.


2

Ms. Babcock testified that in or about 2002 - 2003, Bohrer said, "I'll do you like I did to Heidi". Ms.
Babcock also testified that she thought this was only a "vague threat."
3

Mr. Hayes testified !~at in November of 2000, Bohrer told Hayes about certain conclusions that Bohrer
had made regarding Heidi Allen's disappearance.

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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, 1114 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 (41h Dept.
2011) [.Iv denied 18 N.Y. 960 (2012)]. (Moody Affirmation, 1115 at 3.)
Declaration Against 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 prerequisites4 , 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

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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did not have "competent knowledge of the underlying facts" (see People v. Shabazz, 22
N.Y.3d at 898 [third prerequisite]). (Ibid.) It follows, the People argue, that Exhibit 53 may
not be admitted pursuant to this exception.
Fourth, the People argue that the Defense failed to establish the reliability of the
contents of Exhibit 53 (see People v. Shabazz, 22 N.Y.3d at 898 [fourth prerequisite]).
(Moody Affirmation, ~31 at 6.) Rather, the People assert that Bohrer's statement to Tyler
Hayes was based upon Bohrer's "theory" about "where ... [Heidi Allen] was buried and
who was responsible". (Ibid.) The People state that Bohrer's notes "detail[] what a psychic
and others told Mr. Bohrer" and not Bohrer's personal actions to abduct Heidi Allen, or to
dispose of her body. (Ibid.) The People contend that Bohrer's statement to Danielle
Babcock "is not about what Mr. Bohrer did or did not do". (Moody Affirmation, ~32 at 6.)
For all of these reasons, the People take the position that Exhibit 53 may not be
admitted pursuant to this, or any of the four exceptions articulated in Shabazz.

II.

Failure to Admit Exhibit 53 May Violate the Defendant's Federal and State
Constitutional Rights to Present a Defense
A.

Legal Standards

Pursuant to Chambers v. Mississippi, 410 U.S. 284 (1973), the application of certain
evidentiary rules may violate a defendant's constitutional right to present a defense.
Accordingly, courts have allowed the introduction of hearsay evidence where a state's
evidentiary rule is arbitrary, arbitrarily applied, or strictly applied in a manner that does not
promote the rule's purpose, but only .upon factual "circumstances that provided a
considerable assurance of reliability". (Id. at 300; see~ People v. Robinson, 89 N.Y.2d
648 [1997)[grand jury testimony]; Green v. Georgia, 442 U.S. 95 [1979)[arbitrary
evidentiary rule that precluded spontaneous hearsay statement made to a close friend by
a co-defendant where the content was amply corroborated]; Crane v. Kentucky, 476 U.S.
683 [1986)[arbitrary evidentiary rule that precluded admission of evidence of conditions
surrounding involuntary confessions]; Holmes
South Carolina, 547 U.S. 319
[2006][arbitrary evidentiary rule precluded third-party guilt evidence]; People v. Oxley, 64
A.D.3d 1078 [3'd Dept. 2009J[the result of a strict application of evidentiary rule was
disproportionate to the purpose it was designed to serve, when it precluded exculpatory
hearsay statements by third-party, the content was of the statement was amply supported
by non-hearsay evidence, and the statement bon~ persuasive assurances of
trustworthiness].)

v.

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It is noted, however, that "(w]hile a defendant has a constitutional right to present


a defense, ... [this right] does not give criminal defendants carte blanche to circumvent
the rules of evidence (citations omitted)." (People v. Hayes, 17 N.Y.3d 46, 53 (2011], cert
denied 132 S.Ct. 844, 181 L.Ed.2d 553 (2011].)

B.

The Defendant's Arguments

The Defense states that a court's failure to allow certain hearsay statements may
deprive a defendant of his "fundamental right to present a defense". (Peebles Affirmation,
'IJ7, at 3.) The Defense argues that where a hearsay statement "forms a critical part of the
defense", as in the present matter, a more lenient standard for its admission should be
applied (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973]), only after considering
"the likely cumulative effect of the new evidence" (citing People v. Tankleff, 49 A.D.3d 160,
163 [2nd Dept. 2007]).
The Defense asserts the following as such additional evidence, under Tankleff, in
5
the instant case: James Steen's alleged "admissions" to Tonya Priest that inculpated
Michael Bohrer (Peebles Affirmation, '1110, at 4); Jennifer Westcott's recorded telephone
conversation in which she allegedly acknowledged that Bohrer, Steen and Roger
6
Breckenridge were present at her home shortly after Heidi Allen was abducted (Peebles
Affirmation, '1110, at 4-5); and the aforementioned statements made by Bohrer to Tyler
Hayes and Danielle Babcock (Peebles Affirmation, 'IJ10, at 5).
Thus, the Defense requests that this Court admit Exhibit 53 into evidence in the
instant hearing.

C.

The People's Arguments

The People state that Exhibit 53 is not admissible upon Defendant's claim of his
constitutional right to present a defense, stating: "[T]he right to present a defense does not
give criminal defendants carte blanche to circumvent the rules of evidence", citing People
v. Hayes, 17 N.Y.3d 46, 55 (2011 ). (Moody Affirmation, 'IJ22 at 4.) The People assert that

Tonya Priest's sworn statement dated February 28, 2013, was admitted into evidence at the hearing upon
consent of the parties, but Ms. Priest was not called to testify. Mr. Steen testified at the hearing, and was crossexamined. He denied the entirety of the Priest statement that related to him.
6

This telephone conversation between Priest and Westcott in early March of 2013, was monitored and
recorded by the Oswego County Sheriffs Department. The recording was admitted into evidence at the hearing,
upon consent of the parties.

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in making this application, the Defense is merely seeking to circumvent the rules of
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 of mind" (35 Carmody-Wait 2d 194:73).

B.

The Defendant's Arguments

The Defense .seeks admission of Exhibit 53 for the limited purpose of showing
Michael Bohrer's "personal knowledge" of 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 of the
"manner of 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 of Heidi Allen's status as an informant". (Peebles
Affirmation, 111112 at 5.)

C.

The People's Arguments

The People oppose the admission of 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 of 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 of Heidi Allen's disappearance, this "is
clearly being offered for the truth of the matter asserted," based upon the Defendant's
conflicting argument at the hearing in support of the admission of this Exhibit. (Moody
Affirmation, 111136, 38 at 6-7.)

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ANALYSIS AND DETERMINATIONS

I.

Declarations Against Penal Interest

The Court determines that Michael Bohrer's handwritten notes, which constitute
the entirety of Exhibit 53, are hearsay. Bohrer's notes themselves are out-of-court
statements sought to be admitted for the truth of 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 of any of 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 of 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 of the contents of
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 of 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 of 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 of the parties. The portions of 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. at 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 interest8 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.

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 explanation 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" 9
The Court further determines that the Defense has failed to submit sufficiently
trustworthy evidence to support the admission of Exhibit 53 for this purpose. This is.
particularly important in this matter as proof of Bohrer's personal knowledge very
closely equates to proof of "the truth of 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

See ANALYSIS AND DETERMINATIONS, paragraph numbered "I."

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