STATE OF CONNECTICUT v. DICKIE E. ANDERSON, JR.
(SC 19024)
Supreme Court of Connecticut
Argued April 30—officially released September 15, 2015
Rоgers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js.
Marissa Goldberg, deputy assistant state’s attorney, with whom were Stephen M. Carney, senior assistant state’s attorney, and, on the brief, Michael L. Regan, state’s attorney, for the appellee (state).
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Opinion
PALMER, J. The defendant, Dickie E. Anderson, Jr., was charged in separate informations with the murders of Rene Pellegrino and Michelle Comeau in violation of
The following facts, which the jury reasonably could have found, and procedural history are relevant to our analysis of the defendant’s claims. On June 25, 1997, the police discovered the naked body of an adult Caucasian female in the travel portion of a rural roadway in the town of Waterford. The body had been posed, with knees bent, feet together and arms outstretched. No clothing or jewelry was found in the vicinity of the body. The victim was later identified as Pellegrino, a known prostitute from the New London area who recently had been released from prison. Pellegrino’s body was transported to the Office of the Chief Medical Examiner, where the medical examiner performing the autopsy determined her cause of death to be ‘‘asphyxia by neck compression,’’ with evidence of both manual and ligature strangulation. Pellegrino, who was seventeеn weeks pregnant at the time of her death, also had sustained occipital trauma, and her blood tested positive for cocaine. A vaginal swab taken from Pellegrino contained DNA from an unknown male, which was subsequently entered into a national DNA database (DNA database). After several months, the investigation into the Pellegrino murder went cold.
On May 1, 1998, the police located the naked body of another adult Caucasian female in the travel portion of a rural roadway in the town of Franklin, close to the Norwich line. The victim’s body was found with her arms and legs outstretched. The first witnesses to discover the body reported seeing a vehicle parked next to the victim that sped off as the witnesses approаched. No clothing or jewelry was found in the vicinity of the body. The decedent was later identified as Michelle Comeau, a convicted prostitute from the Norwich area who recently had been released from prison. The medical examiner determined Comeau’s cause of death to be ‘‘asphyxia by neck compression,’’ with evidence of both manual and ligature strangulation. Comeau’s blood also tested positive for cocaine, and, like Pellegrino, she had sustained occipital trauma. As with the Pellegrino murder investigation, the investigation into Comeau’s murder went cold after several months.
In 2008, authorities, through the DNA database, matched the unknown DNA from Pellegrino’s vaginal swab to the defendant, who subsequently was intеrviewed by the police. At first, the defendant denied knowing Pellegrino. After he was informed of the DNA match, however, the defendant admitted to having had sexual intercourse with Pellegrino the evening before and the morning of her death. According to the defendant, he gave Pellegrino crack cocaine in exchange for sex. Two witnesses, Arthur Moore and Toni Wilson, implicated the defendant in Pellegrino’s
When questioned about the Comeau murder, the defendant initially denied knowing Comeau but eventually admitted that she had been a frequent visitor at the home of his father, Dickie Anderson, Sr., in the city of Norwich, and that, on the day of her death, he had exposed his penis to her in a bathroоm at his father’s house. The defendant described himself to the police as a ‘‘trick artist’’ who traded crack cocaine for sex with prostitutes. The defendant denied killing Comeau, however, or ever having had sexual intercourse with her. Two witnesses, Tanya Anderson, the defendant’s sister, and Moore, the defendant’s former cellmate, implicated the defendant in Comeau’s murder. Moore reported to the police that the defendant had told him that a woman with whom he was having sexual relations overdosed on drugs while they were together and that he disposed of her body in Franklin. Tayna Anderson reported to the police that, after Comeau’s murder, the defendant told her that he had been sexually intimate with a woman whose body was found on a road in Norwich and that he had met the woman at their father’s house.
On June 1, 2010, the defendant was arrested and charged in an information with the murder of Pellegrino. On September 1, 2010, the defendant was charged in a separate information with the murder of Comeau. On November 21, 2011, the defendant filed a motion for a speedy trial in the Comeau case, and, shortly thereafter, on December 3, 2011, the state filed a motion to consolidate the cases based, in part, on the cross admissibility of the evidence. In a memorandum of law in support of its motion, the state argued, inter alia, that the evidence would be cross admissible to prove the identity of the killer based on the signature nature of the crimes and to show а common scheme or plan. Specifically, the state maintained that the murders shared a sufficient number of unique characteristics to support an inference that the same person had committed both crimes in furtherance of an overall plan, namely, ‘‘to murder prostitutes and display their dead bodies for others to find.’’
With respect to the signature nature of the crimes, the state’s memorandum of law set forth twenty-nine similarities between the murders, which may be summarized as follows: the crimes took place ten months apart in New London County during warm weather months; the victims’ naked bodies were found in the travel portion of a rural roadway approximately fifteen miles apart; the victims knew each other; there was evidence of posing in both cases; both victims were Caucasian and had dark hair; both victims were prostitutes who had recently been released from prison; no clothing or jewelry was found in the vicinity of either body; both victims were known to use crack cocaine and had cocaine in their blood at the time of death; both victims resided in New London County;
In an oral ruling following a hearing on the state’s motion for consolidation, the trial court granted the motion. Thereafter, the court granted the defendant’s motion for articulation of the ruling and issued a memorandum of decision explaining its reasons for consolidating the cases. In its memorandum of decision, the court stated that joinder was appropriate under the factors set forth in State v. Boscarino, 204 Conn. 714, 720–24, 529 A.2d 1260 (1987),2 because the cases involved easily distinguishable factual scenarios, the trial would not be long or overly complex, and the allegations in both cases, although serious, were not so shocking or brutal that there was any risk that one case would be tainted by the shocking or brutal nature of the other.
The court further concluded that joinder was also appropriate because the evidence was cross admissible to prove the defendant’s identity based on the signature nature of the crimes. In support of this conclusion, the court explained that ‘‘[e]ach of the characteristics of the crimes, when viewed in isolation, [was] not necessarily distinctive. When viewed as a whole, however, the characteristics reveal[ed] a distinctive combination of factors, one that strongly suggest[ed] a modus operandi inherent in the activities of but one perpetrator.’’
On January 16, 2012, the defendant filed a motion to sever the trials in light of this court’s then recent decision in State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012),3 in which we overruled our prior case law adopting a presumption in favor of joinder in criminal cases and imposed on the stаte the burden of establishing either that the evidence was cross admissible or that the defendant would not be unduly prejudiced by joinder upon application of the Boscarino factors. See id., 547–50. At the hearing on the defendant’s motion to sever, defense counsel argued that Payne required the court to conduct an adversarial hearing, similar to a suppression hearing, at which the state would be required to prove by a preponderance of the evidence that the evidence was cross admissible. The trial court rejected this contention, stating that Payne did not ‘‘in any way indicate that [the court] needs [to hold] an evidentiary hearing before it can [join cases for trial]. . . . I see nothing in the case that mandates an evidentiary hearing. It would be virtually a trial before a trial.’’ The court further
After a joint trial of both the Comeau and Pellegrino cases, the jury found the defendant guilty of the Pellegrino murder but could not reach a verdict in the Comeau case. The trial court rendered judgment in accordance with the jury verdict in the Pellegrino case and declared a mistrial in the Comeau case.
On appeal from the judgment of conviction in the Pellegrino case, the defendant claims that the trial court failed to hold the state to its burdеn, under Payne, supra, 303 Conn. 547–50, of establishing either that the evidence in the two cases was cross admissible or that the defendant would not be unduly prejudiced by joinder of the cases under the Boscarino factors. Although the defendant’s claim with respect to the cross admissibility issue is not crystal clear, he appears to argue that the state was required but failed to adduce actual testimony to provide a proper evidentiary basis for its offer of proof. The defendant argues that, instead of making such a showing, the state submitted a memorandum of law containing ‘‘[a] laundry list of alleged similarities between the two cases,’’ unsupported by any testimony or evidence, and, further, that the trial court should not have treated that submission as a ‘‘legitimate’’ offer of proof. We agree with the state that its offer of proof was sufficient for purposes of its claim that the evidence was cross admissible and that the trial court did not abuse its discretion in granting the state’s motion for consolidation on the basis of the cross admissibility of the evidence. We therefore need not engage in an evaluation of the Boscarino factors.
We first address the defendant’s contention that the trial court improperly treated the state’s memorandum of law in support of its motion for consolidation as an offer of proof for purposes of deciding that motion. We previously have stated that ‘‘[o]ffers of proof are allegations by the attorney . . . in which he represents to the court that he could prove them if granted an evidentiary hearing. . . . The purpose of an offer of proof has been well established by our courts. First, it informs the court of the legal theory under which the evidence is admissible. Second, it should inform the trial [court] of the specific nature of the evidence so that the court can judge its admissibility. Third, it creates a record for appellate review. . . . Additionally, an offer of proof should contain specific evidence rather than vague assertions and sheer speculation.’’ (Citation omitted; internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 771, 991 A.2d 1086 (2010). As we previously indicated, in its memorandum of law the state identified twenty-nine
To the extent that the defendant contends that an offer of proof to establish cross admissibility under Payne must be presented by way of an evidentiary hearing at which the state presents actual testimony, we reject that claim. As we have explained, ordinarily, an offer of proof, although evidentiary in nature, may consist of statements or submissions by counsel, and that approach was fully adequate for purposes of the present case. Of course, if a dеfendant were to call into question the factual validity of the state’s offer of proof, the trial court would be required to address the disputed issue and, if the court deemed it necessary to resolve the dispute, conduct an evidentiary hearing for that purpose. No such factual challenge to the state’s offer of proof, however, occurred in the present case.4
We turn, therefore, to the defendant’s claim that the trial court abused its discretion in granting the state’s motion for consolidation because the state failed to demonstrate that the evidence was cross admissible. The following legal principles guide our analysis of this claim. ‘‘[I]n deciding whether to [join informations] for trial, the trial court еnjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.’’ (Internal quotation marks omitted.) State v. LaFleur, 307 Conn. 115, 158, 51 A.3d 1048 (2012). ‘‘[W]hen charges are set forth in separate informations, presumably because they are not of the same character, and the state has moved in the trial court to join the multiple informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to
In Payne, ‘‘[t]his court . . . revisited the principles that govern our review of a trial court’s ruling on a motion for joinder.
‘‘As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. . . . Thе rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. . . . The fact that such evidence tends to prove the commission of other crimes by an accused does not render it inadmissible if it is otherwise relevant and material. . . . Such evidence is admissible for other purposes, such as to show intent, an element [of] the crime, identity, malice, motive or a system of criminal activity. . . .
‘‘Our analysis of whether evidence of the uncharged misconduct is admissible is two-pronged. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions to the propensity rule. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crimes evidence.’’ (Citations omitted; internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 161–62, 665 A.2d 63 (1995).
‘‘The first threshold for the use of evidence of other crimes or misconduct on the issue of identity is that the methods used be sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other. . . . [I]n proffering other crime evidence [t]o prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused . . . much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature. . . . In order to determine if this threshold criterion for admissibility has been met, [the court] must examine the proffered evidence and compare it to the charged offenses.’’ (Citations omitted; internal quotation marks omitted.) Id., 163.
Applying these principles to the present case, we have no hesitation in concluding that the trial court did not
As the state maintains, however, numerous other commonalities bring into sharp relief the signature nature of the crimes. As we previously indicated, both women were murdered shortly after being released from prison, both women were killed in a location other than where their bodies were found, both women sustained occipital trauma, both women had ingested cocaine immediately prior to death, no clothing or jewelry was found in the vicinity of either body, there was evidence that both women frequented the home of the defendant’s father, and the defendant admitted to having had a sexual encounter with each victim on the day of each murder. These additional factors, when considered together with the aforementioned factors, underscore the propriety of the trial court’s decision to join the cases for trial.
Accordingly, we find no merit in the defendаnt’s con-tention that the trial court abused its discretion in joining the cases for trial because some of the similarities between the murders—for example, both women were prostitutes, both women used crack cocaine, and both women resided in New London County—were not sufficiently unique or distinctive as to warrant an inference that the murders were committed by the same person. Indeed, even if we agreed with the defendant’s characterization of this evidence as commonplace, ‘‘[t]he fact that some of the similarities between the offenses [are] . . . relatively common occurrences when standing alone does not . . . negate the uniqueness of the offenses when viewed as a whole. It is the distinctive combination of actions [that] forms the signature or modus operandi of the crime . . . and it is this criminal logo [that] justifies the inference that the individual who committed the first offense also committed the second.’’ (Citations omitted; internal quotation marks omitted.) State v. Figueroa, supra, 235 Conn. 164. We therefore conclude that, even though some of the shared characteristics of the murders were not especially unique when viewed in isolation, the distinctive combination of elements fully justified
We also find no merit in the defendant’s contention that the trial court abused its discretion in consolidating the cases because many of the alleged similarities were not proven at trial. Specifically, the defendant argues that it was never proven that Pellegrino and Comeau knew one another, that Comeau knew the defendant, that Comeau’s body was posed or in the process of being posed at the time of discovery, that the murders occurred in warm weather months, that the bodies were discovered in rural areas, or that the victims both had dark hair. We do not agree with the defendant’s characterization of the evidence presented at trial. As the state maintains, and as a review of the record confirms, the state adduced evidence of all but two of the alleged similarities, namely, that the victims knew one another and that they had dark hair.5 But even if the state’s evidence fell short in some respects, it would not alter our conclusion regarding the propriety of the trial court’s decision to join the cases for trial because, as we recently have explained in addressing a similar claim, ‘‘it is well established that the trial court, in making the discretionary, pretrial decision to join multiple cases, rules on whether the evidence could be admissible, not whether the evidence actually is admitted. . . . Because the decision to join two cases occurs prior to the introduction of evidence, the trial court must make its decision on the basis of potential admissibility rather than what actually transpires at trial. It would not make sense for a reviewing court to overturn the trial court’s discretionary, pretrial decision to cоnsolidate solely on the ground that the parties did not ultimately introduce the evidence at trial.’’ (Citation omitted; emphasis omit-ted.) State v. Crenshaw, supra, 313 Conn. 89. Similarly, it would make no sense for this court to set aside a trial court’s pretrial decision to consolidate solely because the state ultimately failed to prove some of the facts alleged to be cross admissible when the evidence that was adduced was sufficient to support the determination that the evidence was cross admissible.
We also disagree with the defendant that the trial court abused its discretion in joining the cases for trial because some of the alleged similarities were duplicative of one another. Specifically, the defendant argues that the state’s separate allegations that the homicides took place approximately fifteen miles apart, that they took place in the same county, and that both victims resided in New London County, are really just another way of saying that the homicides occurred in ‘‘roughly the same geographic area.’’ (Internal quotation marks omitted.) The defendant also argues that the allegations that both victims ‘‘ ‘were known to use crack cocaine’ ’’ and ‘‘ ‘had cocaine in their blood when their bodies were found’ ’’ are also duplicative because ‘‘the use of cocaine . . . [is] a necessary condition of . . . having cocaine in one’s system . . . .’’ We do not agree that these allegations are duplicative. As the state maintains, it does not necessarily follow that a victim who uses crack cocaine will also have cocaine in her system at the time of her death. The fact that she does, however, is relevant not only for what it reveals about the victim’s drug habits, but also for what it reveals
The judgment is affirmed.
In this opinion the other justices concurred.