Margaret E. Knight, for appellant.
D. Mazer, for respondent.
trial court did not abuse its discretion as a matter of law
in admitting a phone call between defendant and his
ex-girlfriend as an adoptive admission. Once the People
satisfied the threshold evidentiary requirements for
admissibility, the call was properly placed before the jury
to weigh its import and significance. That the call was
recorded while defendant was incarcerated does not change our
was charged with several counts of assault, trespass and
criminal mischief, all arising out of incidents involving him
and his ex-girlfriend. The proof at trial established that
they had a tumultuous relationship. The People introduced
evidence of separate crimes from different dates. One
involved defendant purposefully breaking the victim's
cable box and hitting her in the face; another involved him
pushing her to the ground and stomping on her chest,
ultimately breaking two of her ribs; and the third involved
him entering her apartment without her permission and
remaining until he was arrested. As the People conceded, the
victim was not the most reliable witness. She had problems
with alcohol and drugs, a criminal history which included
violence toward other ex-partners, mental health issues
related to depression and schizophrenia, and had, on more
than one occasion, either lied to or been less than
forthcoming with the police and the District Attorney's
Office. She did not appear for her scheduled testimony at the
start of trial and had to be forcibly brought to court in
handcuffs. The jury was aware of these issues.
the trial, the court, upon the People's application,
allowed the prosecutor to play a telephone call made from
defendant to the victim while he was incarcerated. The People
sought to introduce the call as an adoptive admission by
silence, which defendant opposed. During the conversation,
the victim repeatedly accused defendant of breaking her ribs.
Defendant never denied the allegations, and instead gave
non-responsive and evasive answers. For example, after she
forcefully stated many times that he had broken her ribs and
shown no sympathy, his response was "so I'm a threat
to you?" When she said he needed time to think and
change so he would not do this to anyone else, he responded
by asking whether his brother had called her. They also
discussed a potential jail sentence, when he accused her of
"not caring" if he got "a year."
trial court allowed defense counsel to craft a limiting
instruction, and counsel offered the following, which the
court read to the jury before the call was played and again
during its final charge:
I'm allowing the conversation into evidence for the
limited purpose of having you determine if such failure to
respond and to remain silent is indeed an admission, and if
you so find, give such admission whatever weight you deem
appropriate in determining its significance.
In making this determination, you should apply the same tests
you would use in your own everyday life in doing so.
You may wish to keep in mind, one, an individual['s]
silence may be attributable to his awareness that he is under
no obligation to speak.
Two: An individual's natural caution that arises from his
knowledge that anything he says may be used against him.
Three: An individual may refrain from speaking because he
believes that efforts to exonerate himself under the
circumstances would be futile.
Now, to the extent that the telephone call references the
potential jail sentence, the jury is to disregard ...