PEOPLE v. JAUDON (2019)

After a Sirois Hearing conducted on May 1, 2019, this Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

The Defendant stands charged with the crime of Assault in the Third Degree, in violation of PL § 120.00-1, a class A Misdemeanor.

The charge against Defendant is based upon the written complaint, and sworn deposition, of the Defendant's ex-girlfriend at the time, “Brittany B.”(hereinafter referred to as the “victim” or “Brittany” ’). The victim's sworn deposition details the following allegations:

On January 11, 2019, at approximately 11:30 in the evening, the Defendant came to the victim's home to retrieve some of his personal belongings, and thereafter confronted her about “who had been to the apartment.” The argument turned physical when the Defendant punched the Brittany in the mouth, and knocked her to the ground. While the victim laid on the floor, curled in a fetal position, the Defendant proceeded to kick and stomp on her head, and body, with both his feet, while screaming “This is what you deserve” and “You're lucky I don't kill you.” During the assault, Brittany fell in, and out, of consciousness.

Before departing, the Defendant tipped over the victim's television set, and threw a rotating fan at her, as she laid on the floor. After calling a friend for help, Brittany crawled out of her bedroom window, and to the car of her waiting friend, who transported her to the local emergency room.

As a result of the alleged assault, the victim suffered a concussion, two black eyes, multiple lacerations to her body, contusions to her face and her side, a displaced clavical, loss of consciousness, loss of hearing, and severe bleeding from her left ear.

On January 12, 2019, Brittany presented herself to Gloversville Police Department, where she filed a formal complaint against the Defendant. A copy of the victim's sworn, written statement, was admitted into evidence at the time of the hearing. During her interview with police, and within her written statement, Brittany identifies her assailant as the Defendant, Michael Jaudon, and states that the incident “wasn't the first time.”

Photographs of Brittany, taken by police on January 12, 2019, and also admitted into evidence at the time of the hearing, display injuries consistent with the victim's description of the assault. In addition to providing a written statement, and permitting police to take photographs of her injuries, Brittany agreed to email screen shot images of a text exchange between herself and Defendant, shortly after the assault. The text exchange, captured by screen shots, was sent to police, from Brittany's email account, on January 14, 2019. In those messages, Brittany tells the Defendant that she is getting a restraining order. The Defendant replies, “if u think this is over ur sadly mistaking [sic]” “who you had in there” “Tell me u only gonna make it worst [sic]” “Right now I really do care I will really hurt u n deal with the consequences” “u wanna tell me or do I have 2 come over there.”

When the victim replies that she is going to “press charges” and that she has “broken bones” and a “concussion” Defendant retorts “Bitch idc hope that nut was worth it cause im not done u dirty hoe” and “I'll do worst bitch idc [sic]” and “idf bad 4 u I shouldve kill u bitch.” When the victim replies “u don't wanna go to jail” the Defendant answers “u don't wanna die.”

Based upon an accusatory filed in this Court on January 14, 2019, the Defendant was arrested on January 23, 2019, and charged with Assault in the Third Degree. At the time of Defendant's arraignment, this Court issued a full stay away Order of Protection directing the Defendant to stay away from the victim's home and person, and to refrain from any and all contact or communication with the victim. The order of protection was served on the Defendant, while he was present in Court.

In addition to the assault which purportedly took place on January 11, 2019, the hearing record revealed several prior instances of domestic disturbances between the parties.

On July 5, 2017, at 1:21 am, Officer Melinda Harrington testified that she had responded to victim's home, after receiving a domestic violence complaint from neighbors. Upon arrival, the Officer identified both the victim, and the Defendant, Michael Jaudon, as the only two occupants in the home. When questioned by the officer about the disturbance, Brittany denied that a physical altercation had occurred, and the investigation into the incident, was therefore closed.

On February 23, 2018, Officer Ronald Rue responded to the victim's home, after receiving a report, from an identified eye witness, who states that she had just observed a male, hitting a female, inside a gray car, parked in her neighbor's driveway.

When Rue arrived at the scene, he observed a gray parked in the driveway. Upon approach of the vehicle, Rue observed the only two occupants of the car as the victim, and the Defendant, Michael Jaudon. When questioned by the police, Brittany denied the eyewitness's account of events. When asked if she would be willing to step out of the vehicle and speak privately with police, Brittany refused. The investigation into the incident, was therefore closed.

On February 26, 2018, Officer Quattrocchi responded to the Walmart in Gloversville, after an employee called police to report a domestic incident that he had observed. When police arrived at the scene, one eyewitness, identified as Jennifer Clause, informed police that she had observed a couple arguing inside the store. A second eyewitness, Michael Banovic, told police that he had observed that same couple exiting the store, still arguing, and enter a parked car. Shortly after entering the car, Banovic observed the male exit the vehicle, drag the female from the car, and strike her. A third eyewitness, Heather Perkins, told police that the female had walked to the other side of the store.

Officer Quattrocchi located the female described by the witnesses, and approached her for interview. The female identified herself as Brittany, but was reluctant to speak with police. When questioned about the incident described by the eyewitnesses, Brittany denied their version of events, and offered police a fictitious name for the man she had been seen with earlier. The investigation into the incident was thereafter closed.

On March 1, 2019, at 2:22 am, approximately five weeks after the Defendant was arrested on the current assault charges, Officer Harrington responded to Brittany's residence, in the City of Gloversville, after receiving a welfare check request, from an identified caller, Shyla Gonzalez. Gonzalez reported that her friend, Brittany had called Gonzalez and reported that she was arguing with her ex-boyfriend, Michael Jaudon. Gonzalez could Jaudon yelling in the background, heard them struggle, and heard Brittany scream “don't take my phone.” Moments later, the call was disconnected.

Officer Harrington, having been advised by dispatch that a current order of protection was in place prohibiting contact and communication between Jaudon and Brittany, responded to the victim's last known address to conduct a welfare check.

Upon arrival, Harrington observed that all the lights were off inside the home, and despite knocking for several minutes, received no response. Harrington, did, however, observe Jaudon's vehicle parked in the driveway.

In addition to the details of the various domestic disputes between the parties, this Court takes judicial notice of the following:

On March 1, 2019, the Defendant was arrested by Gloversville Police and charged with Criminal Contempt in the Second Degree, for a violation of a Stay Away Order of Protection issued for the benefit of the victim.

On March 29, 2019, the Defendant was arrested, again, by the Montgomery County Sheriff's Department, on charges of Criminal Contempt in the Second Degree, after being discovered in the company of victim, while in the Village of Fonda, County of Montgomery, State of New York.

On April 17, 2019, the People advised this Court that Brittany was no longer responding to communications from their office, and expressed their concerns that the Defendant may be tampering with the witness.

On April 18, 2019, this Court addressed these matters with the Defendant, on the record, and the Defendant was thereafter admonished by this Court to have no further contact with the victim while the Order of Protection remained in effect.

On April 23, 2019, while Defendant was present in Court, the People brought to light, information they had obtained from the county jail, by way of recorded inmate telephone calls, purportedly made by the Defendant, to Brittany between the dates of April 18, 2019 and April 25, 2019. During this period, the jail recorded a total of twenty-six (26) separate telephone calls, made by the Defendant, to Brittany, lasting approximately 20 minutes each.

Each call made from the Defendant, to the victim, was purportedly disguised by the Defendant's use of another inmate's pin number, evincing a deliberate attempt to evade detection of his illegal contact with the victim. The recordings of each call made by the Defendant, during his periods of incarceration, were admitted into evidence at the Sirois Hearing.

During the calls, Defendant, his voice clearly recognizable, identifies himself as either “Michael” or “Michael Jaudon” and discusses the specific nature of the charges against him, the details of his bail status, complaints about his bail-bondsman, the identity of his attorney, and the day on which his birthday falls.

The receiver of the calls is a female, who the Defendant repeatedly refers to as “Brittany” while calling her by name. “Brittany” identifies the day on which her birthday falls, and makes repeated reference to the specifics of the pending criminal case against the Defendant, including reference to their order of protection, and the assault charge.

During these conversations, both the Defendant and “Brittany” discuss what appears to be her recently discovered pregnancy, an up-coming doctor appointment, and Defendant's desire to name the baby “Michael DeShawn Jaudon, Jr.” The pair also discusses the fact that the prosecution has made allegations to the Court that he has been tampering with her, as a witness.

This Court agrees with the prosecution that the content of these voice calls, including reference to specific facts, issues, and matters, unique to this particular case, and their relationship, make the voice recordings self authenticating. There is no doubt, after listening to the recordings, that the caller is the Defendant, Michael Jaudon and the receiver of the calls is the victim.

During the recordings, the Defendant is heard calling the victim a “hoe” and a “Bitch.” In many of the calls, the Defendant degrades her by making statements such as “You're pissing me off, you stupid bitch” and by calling her “stupid.” In at least three (3) of the calls, the Defendant blames the victim for his legal problems, and the fact that he is currently incarcerated.

On April 22, 2019, the Defendant placed a call to Brittany, and during the call orders her to “Get on your job. Call who you gotta call and get me the fuck out!” During that same call the Defendant tells the victim “you're pissing me off, stupid bitch. I'm done, bitch.” When the victim becomes quiet, Defendant says “yeah, you're quiet now, because you're fucking stupid.”

On April 21, 2019, the Defendant telephones the victim, and during the call, accuses her of wrong doing, by asking “What you been doing in the streets while I'm in here? You been fucking around?

On April 21, 2019, the Defendant makes reference to his possession of assault rifles purportedly stored in his closet, that are “fully loaded.”

In a call placed from the Defendant, to the victim on April 22, 2019, the Defendant is heard telling the victim to “plead the fifth.” Brittany responds, “I'm just not gonna show up.”

In a call placed from the Defendant, to Brittany on April 22, 2019, the victim is heard saying “I hope our OP gets dropped.” The Defendant responds “It should, if you don't pop up.” The victim then responds “I'm not. I'm not going.”

In a called placed from the Defendant, to Brittany on April 22, 2019, the victim is heard saying “I didn't know they had you on the assault” and the Defendant replies “Yeah, because of you. Let's not forget why I'm here, because of you.”

In a call placed from the Defendant, to Brittany on April 19, 2019, the Defendant is heard saying “It's gonna be an open and shut case because no witnesses are coming in.”

In a call placed from the Defendant, to Brittany on April 19, 2019, the Defendant is heard saying “I'm talking to your lawyer everyday.” Brittany then replies, “I'm not going to jail over this.”

CONCLUSIONS OF LAW

This Court has considered the Defendant's argument as to the admissibility of the recorded jail calls, and finds that argument to be without merit.

At the time of the hearing, the People offered the testimony of Marc Hallenbeck, an investigator employed by the District Attorney's Office for the past four (4) years. During the course of his employment, Hallenbeck described one of his duties as retrieving and re-recording voice calls made by inmates while incarcerated at the Fulton County jail. Hallenbeck described with reasonable clarity, the system on which inmate's calls are recorded, how he is able to retrieve digital recordings of those calls by direct access to the jail server, and the method by which relevant recordings are transferred to a compact disc.

Hallenbeck testified that on April 22, 2019, he was contacted by the District Attorneys' office to search the jail server for any calls made by Michael Jaudon to Brittany, and later, more specifically, for any calls made from the jail to Brittany's phone number. The search Hallenbeck conducted against that telephone number returned a result of twenty-six (26) calls between the dates of April 18, 2019 and April 25, 2019.

Hallenbeck then placed the recordings of those calls, into a “queue” and from the “queue” downloaded the recordings onto a compact disc. The compact disc was then turned over the District Attorney's office, who then moved to have the disc, and the calls, admitted into evidence.

While Hallenbeck was not a party to the conversations between the Defendant and Brittany, there is no evidence of tampering, or alteration, and this Court finds sufficient proof of authenticity, to warrant their admissibility.

The credibility of Hallenbeck, the person who authenticated the transfer of the jail calls to a compact disc, and any motive he may have had to alter the evidence, or the recordings, would go to the weight to be accorded the recordings, rather than their admissibility. See 33 NY Jur 2d, Crim Law § 2221. Furthermore, a speaker's identity may be proven through circumstances surrounding the recorded conversation, which, if they include sufficient indica of reliability, such as the substance of the conversation which confirms the identity of the parties, they are admissible into evidence. See 33 NY Jur Crim Law § 2221.

As to whether the evidence offered at the time of the hearing permits the introduction of Brittany's prior statements at trial, this Court relies on the holdings of the United States Supreme Court and the New York State Court of Appeals that a Defendant's sixth amendment right to confront their accuser is not absolute, and that “out of court statements may be admitted as direct evidence where a witness is unavailable to testify a trial, and the proof establishes that the witness' unavailability was procured by misconduct on the part of the Defendant.” See People v. Geraci, 85 NY2d 359, NYS2d 469 (Ct. App. 1995); See, Snyder v. Massachusetts, 291 U.S. 97, 106; Diaz v. United States, 223 U.S. 442, 452-53; Illinois v. Allen, 397 U.S. 337, 342-43; Reynolds v. United States, 98 U.S. 145, 159.

The law will not allow a person to take advantage of their own wrong. Thus, if a Court finds that a witness' silence has been procured by the misconduct of the defendant, whether by trickery, manipulation, or threats, the Defendant will be precluded from asserting either “the constitutional right of confrontation, or the evidentiary rules against the admission of hearsay, in order to prevent the admission of the witness's out-of-court declarations.” See, People v. Cotto, 92 NY2d 68 (1998).

“Any other result would mock the very system of justice the confrontation clause was designed to protect.” See, United States v. Thevis, 665 F.2d 616, 630-31 (5th Cir.); See also, United States v. Mayes, 512 F.2d 637, 648-51 (6th Cir.), cert. denied, 442 U.S. 1008; United States v. Balano, 618 F.2d 624, 628-29 (10th Cir. 1979), cert. denied, 449 U.S. 840; United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied, 431 U.S. 914.

It remains undisputed that Brittany initiated the criminal action against the Defendant, by voluntarily offering a sworn deposition to police, on January 12, 2019, which included details of what can only be described as Defendant's brutal assault upon her, the night before. Since there were no other eye witnesses to the purported assault, Brittany remains a crucial, and indispensable witness for the prosecution - a fact which has not escaped the Defendant's notice. As stated often by Defendant, during his calls to the victim, the people have no case, without her testimony.

Despite the apparent voluntariness of Brittany's criminal complaint to police on January 12, 2019, and her subsequent cooperation with police in the days following the assault, by March 1, 2019, the police were responding to Brittany's home, for a welfare check, after receiving reports of the victim and Jaudon together. Upon arrival, police observed the Defendant's vehicle in Brittany's driveway, leading to the reasonable inference that Defendant was engaged in conduct that directly violated the Order of Protection.

Later that same day, on March 1, 2019, and again on March 29, 2019, the Defendant was arrested on charges of criminal contempt in the second degree, for a violation of the terms of the Order of Protection.

The test of whether the Defendant's actions, towards the victim, in the weeks and months leading up to his trial, resulted in her unwillingness to testify, is whether the Court can reasonably conclude, at the time it is faced with the question, whether there is a “distinct possibility that the defendant participated in making the witness unavailable.” See Holtzman v. Hellenbrand (NY App Div 1983).

This Court finds that the Defendant's persistent, illegal contact with the victim, documented by two (2) separate arrests for criminal contempt, and documented by the recordings of twenty-six (26) telephone calls made from the Defendant, to the victim, between April 18th and April 25th, illustrates Defendant's blatant misconduct against the victim, and is sufficient to conclude that the Defendant's actions, and his unlawful communications with the victim directly resulted in her unavailability, and refusal to testify at trial.

To be clear, in order to admit an unavailable witness' prior statements into evidence, during the People's direct case, the prosecution is not required to demonstrate that the defendant made direct threats to the victim, or that those threats resulted in her unwillingness to testify. So long as the People can show that the Defendant wrongfully made use of his relationship with the victim in order to pressure her to violate her duty to testify, the People have satisfied their burden of proof. See People v. Jernigan, 41 AD3d 331. And, because of the “inherently surreptitious nature of witness tampering” circumstantial evidence may be used to establish, in whole, or in part, that a witness' unavailability was procured by the defendant. See People v. Geraci, 85 NY2d at 360.

This Court finds that the evidence of four (4) separate domestic incident reports, where Brittany consistently denies eye witness accounts of a direct altercation between herself and the Defendant; Defendant's repeated violation of the Order of Protection, including twenty six (26) calls to the the victim, wherein he repeatedly tells the victim that the prosecution has no case, without her testimony, blames her for his legal problems, and tells her to plead the fifth, provides a direct, causal relationship between the Defendant's misconduct and Brittany's refusal to testify. Brittany's constant reassurances to the Defendant, over the phone, that she isn't going to testify, and that she isn't going to come to court, represents direct evidence, in the eyes of this Court, that the Defendant's misconduct against the victim secured the desired result.

Accordingly, this Court rules that the People have established, by clear and convincing evidence, that Defendant has engaged in misconduct against the victim, and as a consequence, Brittany's out of court statements may be admitted as direct evidence if she is unavailable to testify a trial, which shall included any refusal to testify; the exercise of her rights under the fifth amendment, or; if she testifies in a manner that is inconsistent with her prior oral and written statements to police.

The foregoing constitutes the Decision and Order of this Court.

Traci L. DiMezza, J.