| People v Thibeault |
| 2010 NY Slip Op 03812 [73 AD3d 1237] |
| May 6, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Charles R.Thibeault Sr., Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland, for respondent.
Kavanagh, J. Appeal from a judgment of the County Court of Cortland County (Campbell,J.), rendered April 23, 2009, upon a verdict convicting defendant of the crimes of murder in thesecond degree, burglary in the first degree, criminal possession of a weapon in the third degreeand criminal contempt in the first degree.
On the evening of May 26, 2008, the bloody and half-clad body of defendant's estrangedwife was found at the bottom of the staircase inside their home. An autopsy subsequentlydetermined that the victim had been assaulted and while she lay at the bottom of the staircase hervoice box was crushed and she was strangled to death. At the time of the victim's death, theparties' 23-year marriage had badly deteriorated and they were living apart pursuant to an orderof protection that the victim had obtained because defendant had previously assaulted her and,during the course of that assault, attempted to choke her. After traces of defendant's DNA werefound on the blood-stained shirt that the victim was wearing on the day of her death and herDNA was recovered from a blood spot found on a truck that defendant was driving on the nightof the attack, defendant was charged by indictment with murder in the second degree, burglary inthe first degree, criminal possession of a weapon in the third degree[FN1]and criminal contempt in [*2]the first degree. After trial,defendant was convicted as charged and an aggregate prison term of 25 years to life wasimposed as his sentence. Defendant now appeals.
Defendant has consistently maintained that he is innocent of any wrongdoing, and on thisappeal argues, among other things, that his conviction of these crimes is not supported by legallysufficient evidence, the jury's verdict is against the weight of the credible evidence and evidencewas improperly admitted that served to deprive him of a fair trial.[FN2]We disagree.
Throughout this trial, the prosecution based much of its claim that defendant committed thismurder on the fact that circumstantial evidence found at the crime scene strongly suggested thatthe perpetrator knew the victim, had access to her home and entered it intending to harm her. Inthat regard, it was established that force was not used to gain entry into the victim's home, nordoes it appear that any money or property was forcibly taken from the victim during theattack.[FN3]In addition, the post-mortem examination confirmed that, while the victim had been battered andbruised during the attack, she was not sexually assaulted. Moreover, the manner of herdeath—the sheer ferocity of the attack and the fact that the victim died from manualstrangulation after she was seriously injured and while she lay helpless on the bottom ofthe staircase—provides compelling corroboration for the prosecution's contention that thiswas an attack deliberately aimed at the victim by someone who harbored a deep-seated hatred forher.
The evidence at trial established that the only person in the victim's life who had such amotive and posed a genuine threat to her physical well-being at the time of her death wasdefendant. As previously noted, an order of protection was in place at the time of the murderbarring defendant from the marital residence and prohibiting him from having any contact withthe victim. It was also established that, in the days leading up to the murder, defendantrepeatedly violated the terms of this order and, in retrospect, engaged in conduct that hadominous implications for the victim's welfare and physical safety. For example, on May 12,2008, some two weeks prior to the murder, defendant was caught on film by a store securitycamera walking behind the victim as she entered a local grocery store and then leaving the storewithout making any purchases immediately after the victim had exited the premises. It alsoappears from the video that the victim, at some point while in the store, realized that defendantwas present because she suddenly ends her shopping, abandons her grocery cart and abruptlyleaves the premises without making any purchases or carrying any packages. In addition, afterhis arrest, defendant admitted to his sister that on the night prior to the murder he had been in thevicinity of the marital residence surveilling the victim. This conduct certainly puts in its properperspective why the victim felt the need to have friends stay overnight with her at the marital[*3]residence and why she told them of her mortal fear ofdefendant. Also, evidence was produced at trial that defendant knew the victim would be aloneuntil 7:00 p.m. on the night she was murdered and, on that date, had keys that gave him readyaccess to the premises. In addition, defendant was seen later that evening with fresh scratchmarks on his arm not long after the attack on the victim had taken place. Finally, the DNAfindings provided a link that connected defendant with the crime scene and the victim and, whenconsidered with the other evidence, established his guilt beyond a reasonable doubt and that theverdict was supported by the weight of the credible evidence (see People v Romero, 7 NY3d633, 643-644 [2006]; People vSmith, 63 AD3d 1301, 1303 [2009], lv denied 13 NY3d 862 [2009]).
In making this determination, we have taken into account defendant's arguments made attrial as to the condition of the patio door and the timeline of his activities on the day of themurder, which he claims serve to create a reasonable doubt as a matter of law as to his guilt.However, even if the jury fully embraced defendant's interpretation of this evidence, it still didnot make it impossible or even improbable that he committed this crime. Weighing theconflicting testimony and conflicting inferences that flowed from this evidence, and given thedeference that is traditionally accorded a jury's credibility determinations, we conclude that "thejury was justified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342,348 [2007]; see People v Levy, 52AD3d 1025, 1026 [2008]).
We disagree with defendant's contention that it was error for County Court to allow intoevidence a description of the circumstances that led to the issuance of the order of protection orto permit testimony regarding statements made by the victim to third parties to the effect that shewas afraid of defendant. The order of protection, as well as its terms and conditions, wereadmitted to prove an essential element of the criminal contempt charge (see Penal Law§ 215.51 [b]), and evidence regarding the surrounding circumstances that led to it beingissued was relevant in establishing defendant's "motive and intent to assault his victim," as wellas to provide "necessary background information" on the status of the victim's relationship withdefendant at the time of her murder (People v Dorm, 12 NY3d 16, 19 [2009]; see People v Till,87 NY2d 835, 837 [1995]; People vColbert, 60 AD3d 1209, 1212 [2009]; People v Timmons, 54 AD3d 883, 885 [2008], lv denied12 NY3d 822 [2009]; People vBeriguete, 51 AD3d 939, 940 [2008], lv denied 11 NY3d 734 [2008]; People v Westerling, 48 AD3d965, 966 [2008]; People vGorham, 17 AD3d 858, 860 [2005]). Moreover, County Court advised the jury in whatcontext this evidence could be considered and gave appropriate instructions regarding its limitedrelevance (see People v Poquee, 9AD3d 781, 782 [2004], lv denied 3 NY3d 741 [2004]). We also note that the court'sdecision to admit this evidence was part of a measured effort to achieve an appropriate balancethat addressed the legitimate needs of defendant as well as the prosecution and, in that vein,denied the prosecution's request to present other evidence of domestic violence involvingdefendant and his former wife.
As for the testimony of the witnesses who stayed overnight with the victim to provide herwith company and protection, no claim has been made that this arrangement did not exist or thatdefendant was not aware of it. In fact, defendant does not contend that his wife never madestatements—attributed to her by these witnesses—that she feared defendant or thatat the time of her death he was not aware that she was deeply afraid of him. Instead, he arguesthat this testimony and, in particular, any reference to statements made by the victim to thesewitnesses constituted hearsay and should not have been admitted as evidence at trial. While it istrue that these witnesses did describe what the victim had told them about defendant, thistestimony was needed to establish why they were staying with the victim overnight at her homeand why, [*4]instead of sleeping in her own room, the victiminsisted on staying on the floor next to her guests while they slept on the living room couch(see People v Dorm, 12 NY3d at 19; People v Till, 87 NY2d at 837). Moreover,the credibility of these witnesses and the reliability of their testimony has not been seriouslyquestioned, and its relevance to the core issue raised during this trial—defendant's identityas the perpetrator of this brutal crime—is undeniable (see People v Casper, 42 AD3d 887, 889-890 [2007], lvdenied 9 NY3d 990 [2007]; People v Martinez, 257 AD2d 410, 411 [1999], lvdenied 93 NY2d 876 [1999]; People v Malizia, 92 AD2d 154, 160 [1983],affd 62 NY2d 755 [1984], cert denied 469 US 932 [1984]). As previously noted,defendant does not deny knowing why these witnesses stayed with the victim and her statementsmade at that time were admissible to demonstrate her state of mind, especially during the periodimmediately prior to her murder (seePeople v Wise, 46 AD3d 1397, 1398 [2007], lv denied 10 NY3d 872 [2008]; People v Wlasiuk, 32 AD3d 674,679-680 [2006], lv dismissed 7 NY3d 871 [2006]; see generally Prince,Richardson on Evidence § 8-106 [Farrell 11th ed]).
As for his conviction for criminal possession of a weapon, the prosecution was required toprove that defendant exercised dominion and control over the area where the firearm was found(see Penal Law § 265.01 [1]; § 265.02 [1]; People v Manini, 79NY2d 561, 573 [1992]; People v Kirby, 280 AD2d 775, 779 [2001], lv denied 96NY2d 920 [2001]). Here, defendant undoubtedly had access to the building where and at thetime this weapon was recovered, and records produced at trial established not only that he hadpurchased the weapon, but that he had previously sought to register it on an application for apistol permit (see People vEdwards, 39 AD3d 1078, 1079 [2007]).
We do agree with defendant that the weapons possession charge had no relevance to theother charges in the indictment, and his motion for a severance should have been granted(see CPL 200.20 [2] [a]; compare People v Casiano, 138 AD2d 892, 894 [1988],lv denied 72 NY2d 857 [1988]). Here, no claim has been made by the prosecution thatthe firearm was used in the attack on the victim or had any connection with the circumstancessurrounding her death. However, the jury was repeatedly informed that the firearm was not usedin the homicide and that defendant's alleged possession of it had nothing whatsoever to do withwhether he was responsible for the victim's murder. Accordingly, we are unwilling to concludethat this charge played any role in the jury's decision to convict defendant of murder (seePeople v Williams, 256 AD2d 138, 138 [1998], lv denied 93 NY2d 880 [1999];People v Ferringer, 120 AD2d 101, 111 [1986]).
We also find that it was inappropriate for the prosecutor to make any reference during thevoir dire to defendant's right not to testify at trial. These comments were clearly ill-advised andshould not have been made. However, County Court reacted appropriately by immediatelyinstructing prospective jurors that they should not draw an adverse inference against defendantshould he exercise his constitutional right to elect not to testify. It repeated this instructionthroughout the voir dire and reiterated it in its final charge to the jury given prior to itcommencing its deliberations. As such, we find that these statements made by the prosecutor didnot serve to deprive defendant of a fair trial (see People v Greene, 13 AD3d 991, 993 [2004], lv denied5 NY3d 789 [2005]; People v Halm, 180 AD2d 841, 843 [1992], affd 81 NY2d819 [1993]) and did not, under all of the circumstances, constitute reversible error (seePeople v Crimmins, 36 NY2d 230, 237 [1975]).
Defendant also claims that photographs from the crime scene—in particular, those ofthe victim's body—should not have been admitted into evidence because they had limited[*5]probative value and were unduly prejudicial. "[P]hotographsare admissible if they tend 'to prove or disprove a disputed or material issue, to illustrate orelucidate other relevant evidence, or to corroborate or disprove some other evidence offered or tobe offered.' They should be excluded 'only if [their] sole purpose is to arouse theemotions of the jury and to prejudice the defendant' " (People v Wood, 79 NY2d 958,960 [1992], quoting People v Pobliner, 32 NY2d 356, 369-370 [1973], certdenied 416 US 905 [1974]). Here, the photographs, while graphic and disturbing, didcorroborate the prosecution's principal contention that this attack on the victim and, in particular,her manual strangulation was not a random act of violence but, instead, the end result of anunbridled fit of anger (see People vWright, 38 AD3d 1004, 1006-1007 [2007], lv denied 9 NY3d 853 [2007];People v Blanchard, 279 AD2d 808, 811 [2001], lv denied 96 NY2d 826 [2001]).In addition to documenting the nature and extent of the victim's injuries, the photographs servedto accurately depict the location of her body in the marital home when it was discovered by herneighbors. Moreover, County Court repeatedly admonished the jury to view the photographs"objectively, without emotion" and consider them only as they were relevant to the issues thathad been raised at trial (see People vFord, 43 AD3d 571, 574 [2007], lv denied 9 NY3d 1033 [2008]). Under thecircumstances, the court's decision to admit these photographs as evidence and have them shownto the jury did not constitute an abuse of its discretion (see People v Alvarez, 38 AD3d 930, 931-932 [2007], lvdenied 8 NY3d 981 [2007]; People v Mastropietro, 232 AD2d 725, 726 [1996],lv denied 89 NY2d 1038 [1997]).
Finally, defendant's claim that his sentence was the result of County Court's bias is whollyunpersuasive, especially when viewed in light of the particularly heinous nature of the crimes forwhich he stands convicted (see People v Berrios, 176 AD2d 547, 548-549 [1991], lvdenied 79 NY2d 824 [1991]).
To the extent not specifically addressed herein, defendant's remaining contentions have beenreviewed and found to be lacking in merit.
Cardona, P.J., Mercure, Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: During their investigation, thepolice recovered an unloaded .357 Smith and Wesson revolver in a barn located on the maritalproperty.
Footnote 2: We note that at trial defendantfailed to make a specific motion detailing his claim as to why the evidence was not legallysufficient to support the murder, burglary and criminal contempt charges and, therefore, failed topreserve this claim for our review (seePeople v Adamek, 69 AD3d 979, 980 [2010]; People v Mann, 63 AD3d 1372, 1373 [2009], lv denied 13NY3d 861 [2009]; compare People vRoberts, 63 AD3d 1294, 1296 [2009]).
Footnote 3: The victim's purse, which wasfound by the police in the dining room of her home, had $200 in it.