New York v. Santiago - 2003 NY Slip Op 51034(U) (Sup. Ct.)

Rule:

In domestic abuse cases, attempts to become unavailable as a prosecuting witness cannot be viewed as the court might see voluntary withdrawal in a case where the complainant and the defendant are strangers to one another. Nor, can such withdrawal be viewed as having been made without the misconduct of the defendant when it is attempted during the honeymoon phase of a cycle of violence filled, as it is here, with a mix of fear, false hope, a sense of guilt and weakness of will all resulting from the defendants prior behavior.

Facts:

Defendant Victor Santiago was charged with Aggravated Criminal Contempt and two counts of Criminal Contempt in the First Degree based on Angela R.'s allegations that he violated an Order of Protection which was issued to protect her from a long history of domestic violence. She and Santiago have lived together for many years, and the record was replete with instances when Angela R. sought help for Santiago assaulting her. Notably, however, she would later on retract her complaints and tell authorities that she was all right, that she lied, or that she wanted to drop the charges. Similarly, prior to trial for the instant case, Angela R. declared that she no longer wished to press charges, that she would decline to testify at trial, and that if she were made to testify she would declare that all the allegations she previously made to the police, prosecutor, and Grand Jury were fabricated by the police and the District Attorney. In view of that, the People moved for an order permitting them to use Angela R.'s Grand Jury testimony and her other out of court statements during the presentation of their direct case against Santiago. The People's theory was that Santiago’s longstanding pattern of physical and emotional abuse toward Angela R. effectively forced her to become unavailable as a witness for the People at trial. Santiago opposes this motion, arguing that Angela R. is available and willing to testify at trial, and that her credibility is a matter for the jury.

Issue:

Should the People be allowed to present evidence of Angela R.’s prior statements and Grand Jury testimony regarding this incident to the trial jury?

Answer:

Yes.

Conclusion:

Angela R. has been physically and emotionally abused by the defendant for many years, and her suffering has gone unchecked and untreated since, at least, 1996. The credible evidence at this hearing made very clear that Angela R.'s current attitude toward testifying was a classic example of a battered woman's reaction to what has been described as the honeymoon phase of the abusive relationship. Angela R. was frightened that separation will leave her isolated and without help in caring for her child and her home. The evidence showed that in the past she has feared, and she continues to fear, that Santiago’s violent behavior will be directed toward her again and conceivably toward her child. The evidence established Santiago’s contribution to the Angela R.’s low self-esteem and sense of helplessness. Her interaction with those seeking to help her demonstrated her lack of confidence in herself and her inability to speak up in her own defense. The evidence showed that in the past Santiago had taken steps to isolate Angela R. from those who tried to assist her and that he prevented her from having access to social support agencies. The evidence revealed that Santiago threatened to hurt her if she sought help, he intercepted phone calls from a counselor and he took her Order of Protection (one of many), leaving Angela R. to believe that he could not get the help of the police without it. In general, Santiago's behavior toward Angela R. has been abusive, demeaning and humiliating. According to the testimony, Santiago sought help quite often, but only when she was in acute distress, hurt or terrified. However, the testimony also established that she was unwilling to follow through when people try to help her because her feelings of shame and humiliation prevent her from discussing her plight publicly. The record also showed Angela R.'s repeated withdrawal of her complaints to law enforcement. In every case that she initiated, she eventually recants and she takes the blame for incidents in which she has been the wounded party. Indeed, the hearing evidence establishes in this case Santiago’s contribution toward Angela R.’s sense of guilt for the predicament she currently finds herself in. Over time, Santiago has violated one court Order of Protection after another with impunity because, as he testified, Angela R. never testifies against him.

Once again, Angela R. has declined to testify against the defendant. However, in this instance there was clear and convincing evidence that her unwillingness to continue with the prosecution comes after persistent efforts by Santiago to reconcile with her and convince her to do what is necessary to get him out of jail. Santiago, in over 100 conversations with her (each of which seems to have constituted another violation of an Order of Protection), has used Angela R.’s desires for a normal and loving relationship to his own end. Angela R. feared that continued prosecution will make Santiago suffer in prison, hurt their relationship and likely lead to additional acts of violence. Obviously, the avoidance of any jail time was a tremendous incentive for Santiago to place extraordinary pressure upon her. Indeed, Santiago testified that he has regularly discussed with Angela R. his urgent desire to be out of jail, and his view that it is up to her to get him out of jail and home to her.

In this case the conclusion was inescapable that this abused complainant sought to make herself unavailable as a witness because of the pattern of misconduct directed toward her by Santiago. The defense noted that in recent weeks Santiago has not threatened the witness but has spoken to her only in terms of endearment, seeking her forgiveness and expressing his desire to return to a harmonious relationship with her. While that claim may be true to some extent, it was clear that Santiago’s promises were not to be trusted and, in any event, always contained the implicit threat that the complainant's unwillingness to cooperate with him will result in dire consequences for her. Angela R.’s decision not to cooperate with this prosecution was, without a doubt, strongly, if not totally influenced by the long history of domestic abuse that appeared to affect all the decisions made by the complainant with respect to this defendant. It was true that the evidentiary consequences would be different in this case if the complainant's choice not to go forward were premised exclusively on feelings of love and loyalty to the defendant. However, the violent domestic history of these two people, and Santiago's recent persistent importuning of the complainant to withdraw from this prosecution, have made clear that Angela R.'s choice with respect to continuing this prosecution was not made without fear of Santiago and the complex mix of emotions one might expect to find in a person suffering from Battered Women's Syndrome. Indeed, abuse of the complainant by Santiago was the recurrent theme in the relationship between these two parties.