People v O'dell

[*1] People v O'dell 2003 NY Slip Op 51486(U) Decided on December 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 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.

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 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 children. The Arizona and Pennsylvania State Police investigations revealed that the Arizona storage unit had been rented [*2]by Ms. O'Dell for over ten years, and that Ms. O'Dell had also lived in Sullivan County, New York for an 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, had an unattended birth to a 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, various and lengthy statements of this defendant, were 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 [*3]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 her infant's remains in. Candidly, the prosecutor admits that the case had been closed because of a lack of evidence by the New York State Police, 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 the defendant 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.

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.

The sole legal issue before this court is whether or not the facts and circumstances surrounding the birth and disposal of defendant's first baby in 1972 and the discovery of the remains in 1989 are admissible under Molineaux and its progeny in the prosecution's case in chief.

It is well established, as a general rule, that the People may not introduce evidence in its case in chief of prior uncharged crimes or prior bad acts of the defendant if its purpose is to demonstrate the defendant's propensity to commit the crime(s) for which the defendant is being tried. [*4]

However, the Court of Appeals in People v Molineaux, 168 NY 264 (1901) set the rule that certain prior conduct may be admitted if said conduct is relevant, establishes collateral issues and the probative value of said conduct overcomes the prejudicial effect.

"Despite its age, the Molineaux rule has never been calcified or brittle its progeny have seen to that."

People v Rojas, 97 NY2d 32 (2001).

New York courts have identified categories of collateral issues wherein prior uncharged crimes or prior bad acts may be admitted in the prosecution's case in chief, though the list is illustrative and not exhaustive. People v Rojas, supra; People v Santorelli, 49 NY2d 241 (1980).

These categories include, but are not limited to, motive [People v Schwartzman, 24 NY2d 241 (1969); People v Morse, 196 NY 306 (1909)]; intent [People v Swartzman, supra; People v Bayne, 82 NY2d 673 (1993)]; absence of mistake or accident [People v Henson, 33 NY2d 63 (1973)]; identity [People v Carter, 77 NY2d 95 (1990)]; common scheme or plan [People v Duffy, 212 NY2d 57 (1914)]; modus operandi [People v Beam, 57 NY2d 241 (1982)]; character of defendant's activity [People v Goldstein, 295 NY 65 (1946)]; state of mind [People v Chavis, 99 AD2d 584 (3rd Dept., 1984)]; People v Lisk, 76 AD2d 942 (3rd Dept., 1980)];

material fact [People v LeGrand, 76 AD2d 706 (2nd Dept., 1980)];

to rebut an insanity defense [People v Santorelli, supra].

New York courts have held that for admissibility to be established requires a two part inquiry; first, as a threshold matter, the prosecution must identify a relevant issue other than a propensity to commit the alleged crime(s) and, second, that the court must weigh the probative value of the evidence against the prejudicial effect or its "potential for mischief" before placing the evidence before the fact finder. People v Hudy, 73 NY2d 40 (1988); People v Alvino, 71 NY2d 233 (1987); People v Allweiss, 48 NY2d 40 (1979).

This Court finds necessary that a third inquiry, remedial as it may be, must be made. Before the trial court decides whether the issue raised by the prosecution is relevant or whether the probative value outweighs the prejudice, it must decide whether the facts and circumstances raised by the People establish either a prior uncharged crime or a prior bad act.

Herein, the People request to introduce evidence concerning the facts and circumstances surrounding the death of the defendant's new born infant in 1972 whose "mummified" remains were discovered in 1989.

The People argue that the facts and circumstances attendant

to the first born child in 1972 and the three infants deaths indicted herein have commonality which show, inter alia, common scheme or plan, state of mind, motive, absence of mistake or accident, character of defendant's activity, modus operandi and overcoming an insanity defense and the prosecution cites numerous case law for said admission.

On the other hand, the defense opposes the People's motion on the sole ground that the prejudicial effect far outweighs any probative value but does not cite any authority thereto.

No criminal charges were levied against the defendant herein following the 1989 discovery of the "mummified" remains of the infant born in 1972. No 'criminality" is alleged [*5]with respect to

the 1972 birth or death of that fetus and the People accept an "innocent" explanation for the death of that infant.

Thus, the facts and circumstances surrounded this 1989 discovery do not satisfy the inquiry of prior uncharged crime. If the People feel that the death of the first born infant rise to the level of a crime than they may make an application to amend the indictment with another count of murder. [There is no period of limitation to prosecute a class A felony. See, CPL §30.10(2)(a)].

On the other hand, this Court finds that the facts and circumstances surrounding the 1972 birth regarding no pre-natal care, birthing in a bathroom, unknown relationship as to father, secreting the dead body in a box, keeping and moving the remains from place to place each time defendant's residence changed and failing to properly follow public health laws as to birth and disposal of bodies is a prior bad act or acts and is similar to the indicted homicides of the defendant's babies in 1982, 1983 and 1984/85. However, this finding does not end the court's analysis.

Having decided that the facts and circumstances surrounding the first born infant fits the Molineaux inquiry of a prior bad act we now turn to whether the facts and circumstances are relevant as to collateral issues other than a propensity to commit the crime charged. It must be noted that the defendant in this case does not dispute that she is the biological mother nor that she secreted the three births and kept the remains in storage with her for decades.

This Court finds that the facts and circumstances surrounding the first born infant go to collateral issues, including but not limited to, modus operandi, common scheme or plan to dispose of the fetus/infant in secret and then keep the remains with her for decades. It is also noted that although the defendant filed of a Notice to Offer Psychiatric Testimony, the defense has withdrawn the notice and will offer no psychiatric testimony.[FN7]

The third, and last inquiry, seeks the balancing test between the probative value of the evidence offered and the prejudicial effect on the trier of fact that the defendant has the propensity to commit the crime charged.

This court finds that the evidence offered has some probative value as to the collateral issues raised above. However, the prejudicial effect for the jury would be so overwhelming that even repeated limiting jury instructions would not overcome the effect of the evidence as showing a propensity to commit the murders charged.

The motion of the prosecution to use the facts and circumstances surrounding the first born infant in

the People's case in chief under Molineaux is denied.

However, said evidence may be admissible in rebuttal if circumstances arise wherein the defense opens the door or for Ventamiglia purposes for cross examination of the defendant.

This court shall review subsequent applications on an individual basis and rule thereon. [*6]

Based upon the above, it is

ORDERED, that the motion of the prosecutor to use the facts and circumstances surrounding the first born infant in the People's case in chief under Molineaux is denied.

This shall constitute the Decision and Order of this Court.

DATED: December 3, 2003

Monticello, N.Y.

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate

Decision Date: December 03, 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).

Footnote 7: The defense made this decision in court, on the record, after the defendant was examined by a psychiatrist of their choice. No CPL §730 issue was ever raised.