People v O'dell

[*1] People v O'dell 2003 NY Slip Op 51481(U) Decided on December 8, 2003 County Court, Sullivan County, Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.


Digest-Index Classification:Crimes—Proof of Other Crimes
Decided on December 8, 2003
County Court, Sullivan County,

THE PEOPLE OF THE STATE OF NEW YORK

against

DIANE O'DELL, Defendant.



Ind.# 100-03



Sullivan Legal Aid Bureau, Inc.

11 Bank St.

Monticello, N.Y. 12701

By: Stephan Schick, Esq., of counsel

Attorney for the Defendant

Hon. Stephen F. Lungen

Sullivan County District Attorney

Sullivan County Courthouse

Monticello, N.Y. 12701

Attorney for the People

Frank J. LaBuda, J.

Defendant is charged under Indictment #100-03 with three counts of murder in the second degree for causing the deaths of her three infants born between 1982 and 1985. The skeletal remains of these three infants were found in a storage bin in the State of Arizona on May 12, 2003. Defendant rented said storage bin when she lived in Arizona and continued to pay rent over the

at least the next three years while she lived in the Commonwealth of Pennsylvania.

On December 3, 2003 this Court denied the People's Molineaux motion to include in their case in chief facts and circumstances surrounding the 1972 "stillborn birth" of defendant's first baby, whose skeletal remains were discovered in a suitcase in the trunk of defendant's Volkswagen in 1989.

The People immediately requested reargument before opening statements in the jury trial. Reargument was granted and oral arguments were heard on December 4, 2004.

The statement of facts from this Court's December 3, 2003 Decision and Order is restated herein for continuity purposes.

[*2]

STATEMENT OF FACTS

On May 12, 2003 the Graham County Sheriff in Arizona was notified of an unusual discovery in a locked storage bin #6 that had been opened by the landlord because the renter, Diane O'Dell, the defendant herein, had defaulted in her lease agreement. Three dead and "mummified"[FN1] infant bodies were discovered in three cardboard boxes, along with numerous personal and household items and family photographs, in the storage unit in Safford County, Arizona. Pursuant to that discovery, the Arizona Sheriff authorities began a police investigation regarding the remains of the three infants [FN2] which led them to the Commonwealth of Pennsylvania where Diane O"Dell was currently residing with her paramour and her children. The Arizona and Pennsylvania State Police investigations revealed that the Arizona storage unit had been rented by Ms. O'Dell for over ten years, and that Ms. O'Dell had also lived in Sullivan County, New York for extended periods of time and had several other children born here.

The defendant had a total of eight children born alive in hospitals and raised by her at home. Of these eight, three were the issue of her marriage to James O'Dell and were born in 1978, 1979, and 1981. The other five children were born between 1986 and 1999 and were the issue of her live-in relationship with Robert Sauerstein her current significant other.

The defendant is currently charged by Indictment 100/2003 with multiple counts of murder in the second degree under New York Penal Law, Section 125.25 (1)and(2) for intentionally, or by depraved indifference, causing the deaths of three infants that were born alive to her between 1982 and 1985 at the defendant's home(s) in Bethel, Sullivan County, New York. By the defendant's statements to the police, each birth took place in secret in her home's bathroom, and each infant showed some form of life at the time of their birth. In Indictment #100-03 the prosecution specifically alleges that in each of these three alleged infanticides the defendant hid her pregnancies, had no medical pre-natal care, gave unattended birth to live fetus in the bathroom of her home, kept secret that she gave birth to any of the infants and secretly kept the remains in a box in a shed. Additionally, the prosecutor argues that unlike the eight living children there was absolutely no prenatal care with respect to these three babies, the births were unattended, kept secret and the cause of death for each infant was some form of traumatic asphyxia, ie, suffocation [FN3].

With respect to the living eight children, they were all born in a hospital and were the product of an existing relationship or marriage. The three babies that are the subject

of the indictment were all born out of wedlock and not the product of any voluntary lasting relationship as was the first dead baby which is subject of the present Molineaux application.

During the Huntley hearing, the various and lengthy statements of this defendant, were [*3]found to be admissible by this Court should the People intend to use them.

According to the defendant's extensive written and verbal statements to the police,[FN4] it was the lack of a relationship that caused her to hide the pregnancies and birth from her mother. In the defendant's initial interview with the Pennsylvania/Arizona authorities and, a later interview with New York State Police, she said that the babies were born to unknown fathers as she was

unable to even recall who they were or any details about the relationships. With respect to the first baby, who was born in 1972, the defendant originally claimed she had been raped.

The prosecutor argues that the one clear distinguishing feature among the eight children born alive and raised by the defendant and the three infants who are the subject of this

indictment is that the three infants were in the words of the

defendant, " bastard children", and were born outside of a voluntary lasting relationship.

With respect to the Molineaux issue and the first deceased infant the prosecution submits the following: On March 14,1989, an owner of a junkyard in Bethel, Sullivan County, New York reported finding the skeletal remains of an infant in the trunk of a vehicle being readied for destruction. Investigation by the New York State Police revealed that a mummified fetus or baby in a plastic bag, wrapped in bed coverings was placed in a suitcase and then placed in the trunk of a vehicle last registered to Diane O'Dell, age 35. Further police investigation revealed that O'Dell, secretly delivered an apparently stillborn fetus in the early part of 1972 in the bathroom of the apartment she shared with her mother in Kauneonga Lake, Sullivan County, New York. O'Dell took the dead infant, placed it in a suitcase and secreted it in the apartment. She subsequently moved numerous times during the following years, always taking the suitcase containing the mummified baby remains with her. In 1981 she placed the suitcase in the trunk of her Volkswagen station wagon, which later became inoperable. The vehicle and the suitcase were left unattended in Bethel, New York, when she moved again, this time to Cohecton, Sullivan County, New York in January 1988.

O'Dell had identified the suitcase as being the one she placed the remains in. Candidly, the prosecutor admits that the case had been closed by the New York State Police because of a lack of evidence, based on investigation, consultation, and approval of the Sullivan County District Attorney's Office. No charges were instituted or are pending from this 1972 birth. And, at the time when the remains were first discovered in 1989, the then, and present, District Attorney of the Sullivan County,[FN5] conferred with and advised Senior State Police Investigators that he and his office could not disprove the explanation/statement of Diane O'Dell and she could not be charged with murder. The District Attorney also advised, in 1989, that in the interests of justice, he would not seek criminal action against any of the other actors potentially involved, specifically: O'Dell's mother Mabel Molina, or others. [*4]

The prosecutor brings this Molineaux [FN6] application immediately prior to jury selection to allow the People, in their case in chief, to introduce evidence of the first baby born to the defendant in 1972, whose remains were discovered in 1989 and no charges were filed thereon, then or now.

PEOPLE'S REARGUMENT

The People disagree that the failure to charge the defendant for the first infant (born in 1972; remains found in 1989) was the prosecution's acceptance of an innocent explanation.

The People argue that the defendant told investigators that the day prior to the her giving birth in her mother's bathroom in 1972 she spent the day and night in the company of her father in his apartment in Jamaica, County of Queens, State of New York. Her father beat her severely about the body and her stomach upon being told that she was pregnant. That she was in terrible pain when she returned home the next day and in pain when she gave birth to the "stillborn baby" in her mother's bathroom the following night.

The People argue that the defendant's version of the 1972 baby's birth or death could not be disproved because the defendant hid and destroyed evidence, the defendant's father had died about eight years before the infant's remains were found in 1989 and, thus, he, and other potential witnesses, could not be questioned and because the People's pathologist could not tell whether the baby was born dead or alive because of the significant decomposition and mummification to the infant's remains. (Also, the defendant withheld the fact that she was hiding three other dead babies in the closet). See, Reargument Hearing Transcript P 5.

There was insufficient evidence to make any other determination but there would have been a crime charged (in 1989) if the People were aware in 1989 of the fact of the three other infant's deaths the defendant is now presently charged with (found in 2003, died between 1982 and 1985 and kept hidden in the defendant's closet while she was being interviewed in 1989 by the police). See, Reargument Hearing Transcript P 5-6.

Second, the People argue that the collateral issues such as motive, absence of mistake, modus operandi, character of defendant's activity and state of mind make this evidence admissible and relevant and because the facts and circumstances surrounding the first baby (birth 1972, found 1989) and those facts and circumstances surrounding the indicted three babies (born 1982 through 1985, found 2003) are so similar, indeed identical, and so unique that the probative value is not outweighed by the prejudice. See, Reargument Hearing Transcript P 7-9.

Lastly, the People argue that the uncharged first baby's death tells the jury "why" the defendant kept the three corpses with her and goes directly to the motive and unique modus operandi in regard to the defendant's continual moving and hiding of the indicted three infant's remains. The People argue that the defendant knew in 1989 that she got away with murder when the remains of the first infant's remains were found but she was not charged and, thus, she kept the three subsequent births (and deaths) secret, hidden and continually in her possession so she would not get caught again like she almost got caught in 1989. This theory was argued initially but it was not articulated correctly. See, Reargument Hearing Transcript P 10-16.

The principle behind Molineaux is for the trial court only to allow, in the People's case in [*5]chief, prior bad acts or prior uncharged crimes that are relevant to show a collateral issue and that the probative value of such evidence outweighs its prejudice. See, People v Rojas, 97 NY2d 32 (2001); People v Hudy, 73 NY2d 40 (1988); People v Alvino, 71 NY2d 233 (1987);

People v Molineaux, 168 NY 264 (1901).

The People argue, first, that if the prosecution knew, at the time of the finding of the first infant remains in 1989, of the three infants for which the defendant is now indicted he would have been able to complete the police investigation and would have charged her with a crime. This is notwithstanding that the pathologist in 1989 could not establish whether the baby was born dead or alive and there was no other evidence to make a criminal determination. See, Reargument Hearing Transcript P 5-6.

The District Attorney argues that he would have charged her with a crime, notwithstanding the above, because the facts and circumstances surrounding the 1989 discovered remains and the three indicted deaths are so unique that, circumstantially, she killed the indicted three infants thus she also killed the first born infant. The potential danger for the jury concluding the same propensity, in juxtaposition, is exactly what Molineaux forbids.

Next, the People argue that the facts and circumstances common to both the 1989 infant and the three indicted infants are so unique to show motive and modus operandi that the probative value outweighs the prejudice to the defendant.

This Court does not agree. It is Molineaux itself which articulated that:

"The very fact that it is much easier to believe in

the guilt of an accused person when it is known or

suspected that he has previously committed a similar

crime proves the dangerous tendency of such evidence

to convict, not upon the evidence of the crime."

People v Molineaux, 168 NY 264, 313 (1901).

Lastly, the People argue that the unique modus operandi between the 1989 infant and the three indicted infants explains for the jury the "why" that the defendant would keep the three remains with her and pay rent on the storage unit for over ten years.

Admittedly, though unique modus operandi may be an exception to Molineaux, if relevant and probative value outweighs prejudice, it is generally used as a means of identity linking a prior uncharged crime with the current criminal charge(s).

See, People v Mateo, 93 NY2d 327 (1999); People v Condon, 26 NY2d 139 (1970). In the present case the defendant admits to the police and stipulates for trial that she is the biological mother and gave birth to all three infants in secret in her bathroom.

In addition, this Court is not convinced that the facts and circumstances surrounding the 1989 infant remains constitute a prior uncharged crime for Molineaux purposes but, assuming arguendo, it is a crime the exclusion of this evidence must still stand.

Finally, the durable and pervasive taboo of Molineaux continues to be the overriding prejudicial effect that this extremely emotionally charged evidence would have on the jury. [*6]

It is this Court's determination that admission of the evidence herein, in the People's case in chief, would be so highly prejudicial, even with repeated limiting instructions, that it would undermine the granite foundation on which Molineaux firmly resides.

Based upon the above, it is

ORDERED, that the motion of the People to reargue the admission of the facts and circumstances surrounding the infant born to defendant in 1972 which remains were found in 1989 is denied.

This shall constitute the Decision and Order of this Court.

DATED: December 8, 2003

Monticello, N.Y.

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate

Decision Date: December 08, 2003 Footnotes

Footnote 1: The infants had apparently been "mummified" by natural dehydration and left in the storage unit for over twelve years.

Footnote 2: Three infants are the corpus delicti of the present indictment and the a fourth infant, allegedly born in 1972, is the subject of the present Molineaux application.

Footnote 3: Homicidal cause of death will be testified to by Dr. Michael Baden, former Chief Medical Examiner for the City of New York.

Footnote 4: following Huntley hearing all statements were deemed admissible.

Footnote 5: Hon. Stephen F. Lungen, who has diligently and painstakingly prepared this case.

Footnote 6: People v Molineaux, 168 NY 264 (1901).