Opinion
No. CR07 022 20 67-T
May 6, 2008
MEMORANDUM OF DECISION RE MOTION TO CONSOLIDATE
On separate dates between 1990 and 1993, the bodies of four women were discovered within a mile and a half area on the east side of Bridgeport. The four cases remained unsolved for ten years until the defendant's DNA, obtained as a result of a manslaughter conviction in Georgia, was matched to evidence from each of the four cases.
The state estimated the area to be approximately 8,000 feet by 5,000 feet.
The defendant is presently charged in two informations with four counts of murder. The state seeks a consolidated trial of all four charges. The defendant objects to consolidation, and seeks a separate trial for each murder count. On May 1st and 5th, 2008, a hearing was held on the state's motion. For the reasons set forth below, the motion to consolidate is granted in part.
FACTUAL PROFFER
The state has proffered the following facts in support of its motion to consolidate:
During the years 1990 to 1993 a number of homicides of women occurred in Bridgeport's East End. Over the past several years these cases were assigned to the Bridgeport Police Department's "cold case" unit. Recent investigation has developed DNA matches among four of these homicides as a result of comparison to a DNA database sample obtained following the defendant's conviction for a fifth homicide of a woman that occurred in Vidalia, Georgia on July 10, 1994. The defendant is charged with the murders of Sharon Cunningham on or about April 1, 1990, Minnie Sutton or about March 28, 1992, Elizabeth Gandy on or about April 16, 1993, and Sheila Etheridge on or about June 28, 1993.
On Saturday, April 1, 1990 at 12:48 p.m. the Bridgeport Fire Department was dispatched to Crescent and Bunnell Street on a report of a car fire. This location is situated approximately three blocks from the defendant's residence at 537 Carroll Avenue. After the fire was extinguished, firefighters discovered the body of Sharon Cunningham, age 39, in the front passenger seat of the vehicle, nude from the waist down and disfigured by extensive burns, particularly about the face. The victim had a ligature wrapped around her neck. Vaginal smears taken at an autopsy revealed multiple intact spermatozoa, which contained the defendant's DNA. The cause of death was determined to be asphyxia due to strangulation
On Saturday, March 28, 1992 at 1:42 p.m. the Bridgeport Police Department was sent to the home of Minnie Sutton, age 29, at 16 Webster Avenue in the city's East End on a report of a homicide. Sutton's home was about eight blocks from the defendant's residence. The victim's partially clothed body was lying on her right side in her living room. Sutton had sustained stab wounds to the neck, left chest, forehead, and stomach areas. Sutton's three year old son was found unharmed inside the home. Detectives collected evidence from the crime scene including two partially smoked cigarette butts from near Sutton's body, one of which contained the defendant's DNA. An autopsy determined that the cause of death was multiple stab wounds and strangulation.
On Monday, April 19, 1993, the body of Elizabeth Gandy, age 33, was discovered in an abandoned building at the corner of Stratford and Fifth Street, approximately six blocks from the defendant's residence. Gandy's pants were partially unfastened in front and her bra was pulled up so as to expose her breasts. Blood spatter evidence was noted on one of the walls and extended to a height of approximately six feet from the floor. It was believed the suspect might have been injured in the attack. Suspected blood was recovered and retained as potential evidence. Autopsy results concluded that Gandy was killed by blunt force trauma to the head and strangulation. Blood from the crime scene and fingernail scrapings from the victim's body contained the defendant's DNA.
On Monday, June 28, 1993 at 6:41 a.m. the body of Sheila Etheridge, age 29, was found in her home at 695 Bishop Avenue, ten blocks from the defendant's residence. Etheridge had been missing for a few days. Etheridge's father and a friend entered Etheridge's apartment through a window where they found her dead inside her bedroom. An autopsy concluded that "the scene and the circumstances surrounding the death of the lady are suspicious. There is anatomic suggestion (left eye petechial hemorrhage and neck muscle discoloration) of an asphyxial strangulation cause of death." Both the final cause of death and the manner of death were undetermined due to decomposition. A beer can recovered from the scene contained the defendant's DNA.
The defendant resided in Bridgeport from at least 1990 through August 1993, when he relocated to Georgia. During this time he was employed as a construction worker.
On Sunday, July 10, 1994 the body of Evelyn Charity, age 37, was found in her home in Vidalia, Georgia. Investigation concluded that Charity suffered injuries consistent with strangulation and a knife wound to the neck. The defendant was apprehended and offered a confession, in which he claimed that Charity died during "wild sex" and that he staged the scene to resemble a robbery when he realized she had died. He plead to involuntary manslaughter. As a consequence of his conviction, his DNA was taken and entered into the CODIS data base. When the cold case unit renewed the investigation of the murders of women in the East End which occurred during the 1990s, the items of physical evidence recovered from each crime scene were submitted to the State Police Forensic Science Laboratory for DNA analysis. Evidence from four of the cases, viz.: the murders of Cunningham, Sutton, Gandy, and Etheridge, contained DNA matching the defendant's sample in the CODIS data base.
Supplemental Memorandum In Support of the State's Motion to Consolidate and in Opposition to the Defendant's Motion to Sever.
In addition to the above, the state also presented testimony from Gregg McCrary, a consultant in the field of behavioral criminality. McCrary was previously employed as a Special Agent with the Federal Bureau of Investigation, having worked for ten years in the FBI's behavioral science unit. He has also written and taught in the field.
McCrary described a process of crime scene analysis whereby factors such as physical location, victimology, method and manner of the crime, medical examiner reports and laboratory reports are reviewed. The goal of this process is to determine whether multiple crimes are linked by signature or are not linked and distinguishable. He examined the homicides that are the subject of the present motion using this crime scene analysis method. His findings and opinion may be summarized as follows:
Between 1990 and 1994 there were 287 homicides in Bridgeport, Connecticut. Sheila Etheridge was not included in that number because the medical examiner could not make a determination that her death was a homicide. Out of the 287 total homicides, seven were by strangulation. Of the seven strangulations, three involved male victims and four involved female victims. Of the four strangulations involving females, the police made an arrest in one case and the other three were initially unsolved. Those three cases were for Sharon Cunningham, Minnie Sutton and Elizabeth Gandy. Strangulation is statistically unusual having been present in less than three percent of the homicides. There were indications of strangulation in the Sheila Etheridge case.
The term "backcloth" refers to the context of the case with respect to the victim. The Cunningham, Sutton, Gandy and Etheridge cases presented similar backcloth factors. All four women lived in the same area on the East Side of Bridgeport. All were non-prostitutes. All were drug users. All were part of the same circle in that they knew each other and were from the same socio-economic group.
There was a sexual component in all four cases. In Cunningham, a vaginal smear revealed the presence of sperm. In Sutton, her body was found clad in a housecoat with her lower torso exposed and no underwear. In Gandy, her shirt was pulled up, bra pushed up and her pants unzipped. In Etheridge, a used condom was found on the floor.
In addition to strangulation, Cunningham, Sutton and Gandy all had secondary injuries that disfigured each victim in some way. Although the type of secondary injury differed, such injuries were unnecessary to the homicide. It is this aspect that McCrary examined in the linkage analysis. As to Etheridge, the body was too decomposed to determine the presence of secondary injuries.
All four cases were linked forensically. The defendant's DNA was found at each scene.
McCrary's professional opinion was that the four cases were linked because the combination of similarities provided a unique signature such that it is likely that the same person did each crime. Moreover, in McCrary's opinion, the Georgia case involving Evelyn Charity was also linked to the four Bridgeport cases. This is based on the following similarities: 1) victim was a non-prostitute, 2) strangulation, 3) sexual component, 4) secondary injuries and 5) the defendant's confession.
The defendant offered testimony from Dr. Edward McDonough, Associate Medical Examiner. Dr McDonough reviewed the records for the four victims. He stated that in the Etheridge case, the cause of death was undetermined and that while all four cases were generally related because of evidence of strangulation, the other injuries differed. In Etheridge, there was no lethal trauma; in Sutton, there was strangulation plus stabbing; in Gandy, there was strangulation plus blunt trauma; and in Cunningham, there was both manual and ligature strangulation plus post-mortem burning.
The defense also pointed out differences in each crime scene and the fact that unknown DNA was present at all of the scenes.
I JOINDER
Our law provides that "Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise." General Statutes § 54-57. See also Practice Book § 41-19 (The judicial authority may, upon its own motion or the motion of any party, order that two or more informations . . . be tried together).
Trial courts enjoy broad discretion in connection with the decision to join informations for trial. State v. McKenzie-Adams, 281 Conn. 486, 519-21 (2007). Joinder is inappropriate, however, where it results in substantial prejudice to the defendant that is beyond the curative power of the court's instructions. Id.
A major consideration in the prejudice analysis is whether the evidence in each case would be cross-admissible in separate trials. "Where evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial." Id.
On the other hand, where evidence of one offense is not admissible at a separate trial of a second offense, substantial prejudice does not necessarily result. "Consolidation under such circumstances, however, may expose the defendant to potential prejudice for three reasons: First, when several charges have been made against the defendant, the jury may consider that the person charged with doing so many things is a bad person who must have done something, and may cumulate evidence against him. Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. Third, joinder of cases that are factually similar but legally unconnected presents the danger that a defendant will be subjected to the onmipresent risk that although so much of the evidence as should be admissible upon any one of the charges might not persuade the jury of the accused's guilt, the sum of it will convince them as to all." State v. Randolph, 284 Conn. 328, 337 (2007).
Despite the existence of these risks, our Supreme Court has consistently recognized a clear presumption in favor of joinder and against severance. State v. Davis, 286 Conn. 17, 29 (2008). Our Supreme Court has also, however, identified several factors that a trial court should consider in deciding whether severance is necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part; and (3) the duration and complexity of the trial. CT Page 7591 State v. Boscarino, 204 Conn. 714, 722-24 (1987). Where multiple cases are consolidated after consideration of these so-called Boscarino factors, it is imperative that the trial court instruct the jury that they must separate the evidence and give independent consideration to each case. State v. Davis, supra, 286 Conn. 33 n. 8.
There are, therefore, two avenues by which multiple charges can be consolidated in a single trial. First, consolidation is permissible where evidence of one case would be admissible as uncharged misconduct at the trial of the other. Such cross-admissibility mitigates the prejudice that might otherwise result from joinder of the offenses in a single trial. In such a situation, the jury would be instructed that they could use the evidence as proof of identity, common scheme or whatever was the basis for the admission of the uncharged misconduct. Second, consolidation is also permissible where the trial court, after consideration of the Boscarino factors, determines that the cases are sufficiently discrete such that the jury will not cummulate the evidence to the prejudice of the defendant. Where consolidation is permitted on this basis, the jury must be instructed to completely separate the evidence. See e.g. State v. Davis, supra 286 Conn. 17, 33 n. 8, 9 (quoting with approval the trial court's jury instructions regarding separation of the evidence).
While either of these avenues may permit joinder, they may not be combined in the same case. State v. Randolph, 284 Conn. 328, 363 (2007). This is because in a consolidation based on cross-admissible misconduct evidence, the jury may consider the evidence collectively; whereas, in a consolidation based on application of the Boscarino standards, the jury must be vigilant to separate the evidence. Id.
In the present case, the state asserts that the four homicides have the same modus operandi or signature such that evidence of each is cross-admissible on the issue of identity, common scheme or plan, or proof of an element of the crime. The state's claim turns on application of Connecticut's law regarding the admissibility of uncharged misconduct.
II UNCHARGED MISCONDUCT
As a general rule, evidence of prior misconduct is inadmissible to prove that the defendant is guilty of the crime of which the defendant is accused, and cannot be used to suggest that the defendant has a bad character or propensity for criminal behavior. State v. McKenzie-Adams, supra, 281 Conn. 521-22; accord Conn. Code of Evidence § 4-5. On the other hand, such uncharged misconduct evidence is admissible for other purposes such as identity, common plan or scheme or an element of the crime. Code of Evidence § 4-5(b). A two-part test is used to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of the evidence must outweigh its prejudicial effect. State v. Randolph, supra, 284 Conn. 340.
As noted above, the state asserts that three exceptions apply in the present case: identity, common scheme or plan, and to prove an element of the crime. A brief discussion of each of these is therefore presented.
A Identity
"Evidence of other crimes or misconduct of an accused is admissible on the issue of identity where the methods used are sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other." State v. Ibraimov, 187 Conn. 348, 354 (1982). Much more is required than the fact that the offenses fall into the same class. The device used must be so distinctive as to be like a signature. Id. There should be no significant differences in the context and modus operandi of the crimes. State v. Sawyer, 279 Conn. 331, 334 (2006).
In comparing the proffered misconduct evidence and the charged crimes, the fact that some of the similarities were relatively common occurrences when standing alone does not negate the uniqueness of the offenses when viewed as a whole. State v. Merriam, 264 Conn. 617, 665-66 (2003). "It is the distinctive combination of actions which forms the signature or modus operandi of the crime . . . and it is this criminal logo which justifies the inference that the individual who committed the first also committed the second . . . In other words, the process of construing an inference of identity . . . usually consists of adding together a number of circumstances, each of which by itself might be a feature of many objects, but all of which together make it more probable that they coexist in a single object only. Each additional circumstance reduces the chances of there being more than one object so associated. The process thus corresponds accurately to the general principle of relevancy." State v. Sawyer, supra 279 Conn. 334-35 (quoting State v. Merriam, supra, 264 Conn. 665-66).
CT Page 7593
B Common Scheme or Plan
The exception for common scheme or plan relates to the situation where the charged and uncharged crimes are integral parts of an overarching plan. State v. Randolph, supra, 284 Conn. 342. "To establish the existence of a true plan in the defendant's mind based solely on the marked similarities shared by the charged and uncharged crimes, the state must produce sufficient evidence to: (1) establish the existence of a signature, modus operandi, or logo; and (2) support a permissive inference that both crimes were related to an overall goal in the defendant's mind." Id., 355.C Element of the Crime
Uncharged misconduct evidence is properly admissible where it is relevant to prove an element of the crime charged. State v. Torres, 57 Conn.App. 614, 621-23 (2000).
III
Applying the legal principles summarized above with the proffered evidence, the court concludes that evidence is properly cross-admissible in three of the four cases and further that the evidence regarding the Georgia homicide is also admissible as uncharged misconduct.
As discussed above, admissibility of uncharged misconduct is determined by a two-part test. The first step is to determine whether the evidence is relevant and material to at least one of the exceptions. In the present cases, the court finds that proffered evidence is relevant to the identity of the defendant as the perpetrator. Three of the cases bear a combination of distinctive factors that amount to a signature. In the Cunningham, Sutton and Gandy cases, all of the victims (1) were killed by strangulation (a statistically rare cause of death), (2) had secondary injuries unnecessary to the homicide, (3) lived in the same area, (4) were drug users, (5) were not prostitutes, and (6) were from the same social circle. In addition, in each case there was evidence suggesting a sexual aspect to the homicide, and the defendant's DNA was found at each crime scene. Moreover, all three women were likely killed on a weekend and their bodies were discovered within ten blocks of the defendant's residence. While the defense has points to differences in each case, this is to be expected given the dynamic nature of crimes. The key point is the similarity of the three cases which, in the court's view, is striking.
The Georgia case involving Evelyn Charity has the same criminal logo in that she (1) was strangled, (2) had secondary unnecessary injuries, (3) was killed in a sex-related incident and (4) the defendant was present when she was killed.
The Sheila Etheridge case, however, lacks the degree of linkage to achieve signature status. The decomposed condition of her body prevented the medical examiner from making any finding as to strangulation, secondary injuries or even that her death was a homicide. While there are similarities between Etheridge and the other victims and the defendant's DNA was found at the scene, these factors are insufficient to constitute the criminal logo required.
The second part of the test is a determination of whether the probative value of the evidence outweighs its prejudicial effect. The court finds that the highly probative nature of the evidence does outweigh the potential prejudice.
Accordingly, the court finds that the evidence in the Cunningham, Sutton and Gandy cases is cross-admissible on the issue of identity. The court further finds that the uncharged misconduct evidence from the Georgia case is also admissible on the issue of identity.
Although the evidence is also arguably cross-admissible on the issue of common plan or scheme, the court declines to admit the evidence under this exception.
CONCLUSION
For the reasons set forth above, the motion to consolidate is granted as to the alleged murders of Sharon Cunningham, Millie Sutton and Elizabeth Gandy. The motion is denied as to the alleged murder of Sheila Etheridge. In addition, the state's motion to offer evidence pertaining to the homicide of Evelyn Charity in Georgia as uncharged misconduct on the issue of identity is granted.
So Ordered at Bridgeport, Connecticut this 6th day of May 2008.