State v. Graham

• Decision Date: 23 March 1994
• Docket Number: No. 10501,10501
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Janet GRAHAM.

Page 852

636 A.2d 852

33 Conn.App. 432

STATE of Connecticut v. Janet GRAHAM.

No. 10501.

Appellate Court of Connecticut.

Argued Oct. 25, 1993.

Decided Jan. 25, 1994.

Certification Denied March 23, 1994.

Elizabeth M. Inkster, Asst. Public Defender, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were John M. Bailey, Chief State's Atty., and John M. Massameno, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and FREDERICK A. FREEDMAN, JJ.

DUPONT, Chief Judge.

The state charged the defendant in two separate substitute informations. The two cases were joined together for a single jury trial. In the first case, for actions allegedly occurring on July 15, 1988, the state charged the defendant with (1) unlawful possession of narcotics with intent to sell in violation of General Statutes § 21a-277, (2) unlawful possession of narcotics in violation of General Statutes § 21a-279(a), and (3) larceny in the sixth degree in violation of General Statutes § 53a-125b. In the second case, the state charged the defendant with (1) larceny in the sixth degree in violation of General Statutes § 53a-125b for actions allegedly occurring between September, 1987, and August, 1988, and (2) unlawful possession of a controlled substance in violation of General Statutes § 21a-279(c) for actions allegedly occurring during August, 1988. The jury found the defendant not guilty of the first count of the first information, unlawful possession of narcotics with intent to sell, and guilty on all of the remaining counts of both informations.

The defendant appeals from the judgments rendered in the two cases, alleging that (1) the trial court improperly admitted evidence of uncharged misconduct, (2) the trial court improperly charged the jury regarding consciousness of guilt, (3) the trial court improperly charged the jury regarding the effect of good character evidence, (4) the evidence was insufficient to sustain the larceny conviction in the second case, and (5) the trial court imposed a condition of probation that was improper.

The jury could have reasonably found the following facts. In May of 1988, an unaccounted for loss of narcotics was discovered at the University of Connecticut's John Dempsey Hospital. At the time, the distribution of narcotics to individual patients was monitored by means of proof-of-use notebooks. The hospital pharmacy, which delivered narcotics to hospital nursing stations, required the nurses to store narcotics in locked boxes and to log the distribution of narcotics. For each disbursement of narcotics, the nurse involved was required to enter on the proof-of-use sheets the date, time, and dosage of the distribution, as well as the names of the patient receiving the narcotic, the physician ordering the narcotic, and the nurse distributing the narcotic.

After a review of proof-of-use sheets, the hospital pinpointed the loss of narcotics as having occurred at the nursing station on the fourth floor. In response to the discovery, a hospital pharmacist went to the fourth floor station and encountered the defendant, who was a nurse assigned to the station. According to the pharmacist, the defendant said three times that the narcotics box was left open and anyone could have gotten inside the box.

The loss triggered a hospital investigation directed by Barry Gordon, an agent for the department of consumer protection. After discovering further losses in June of 1988, Gordon asked the hospital to assign each nurse to a particular floor. When narcotics losses began to occur on the seventh floor, Gordon conducted a video surveillance of the seventh floor nursing station. The first videotape, although of poor quality, showed the defendant, who was then assigned to the seventh floor, removing the proof-of-use notebook from the counter adjacent to the narcotics box, and going through the narcotics box for a long period of time without removing narcotics from the station.

A second videotape, recorded on July 15, 1988, showed the defendant going through the proof-of-use notebook for a long period of time without making any entries. The tape showed that after the defendant removed narcotics from the locked storage box, she failed to relock the box. The defendant also brought her pocketbook into the nursing station, and moved it to an area under a sink. Gordon compared the defendant's actions to those of other nurses, and found her actions to be unusual.

After determining that the defendant had made an unusual entry in the proof-of-use notebook, Gordon and Theodore Pawlich, the hospital's assistant director of public safety, sought out the defendant on July 15, 1988. The defendant saw them in a corridor and then entered a bathroom, carrying her pocketbook and a flowered tissue box. Gordon instructed Ann Horbatuck, the nurse manager of the seventh floor, to follow the defendant into the bathroom and to instruct her to come to Gordon's office for questioning.

As Horbatuck entered the bathroom, the defendant exited a stall while a toilet was flushing. The defendant agreed to speak with Gordon and Pawlich. A few minutes later, Horbatuck and Pawlich searched the bathroom and found, in a stall disposal can, a flowered tissue box that contained a packet each of the narcotics MS Contin and Dilaudid. Pawlich testified at trial that the tissue box found in the bathroom was the same box that he had seen the defendant carrying when she entered the bathroom. Gordon and Pawlich also discovered that proof-of-use sheets for MS Contin and Dilaudid were missing from the seventh floor station.

Further investigation revealed that the defendant was the only person who was assigned to work during every period of time when a loss of narcotics occurred. The investigation also disclosed that there were no losses during two periods of time in July when the defendant was not working.

On the date of the defendant's arrest, the Bristol police received an anonymous telephone call directing them to search for a brown plastic bag in a dumpster behind St. Joseph's Church in Bristol. The police found the bag, which contained a prescription container bearing the name of the defendant's daughter, as well as a variety of pharmaceutical items. The police contacted the hospital because they believed that the items had been taken from the hospital. The director of the hospital's pharmacy, Michael Rubino, examined the bag. At trial, Rubino testified that he believed that several items had come from the hospital, and that the items were removed wrongfully from the hospital. Testimony also revealed that the dates and labels of other pharmaceutical items found in the bag indicated that they were taken from several nursing homes between 1984 and 1988. The defendant had worked at those nursing homes during this period of time.

I

The defendant claims that the trial court improperly admitted two sets of uncharged misconduct evidence. The first set of evidence concerned unaccounted for drug losses at the hospital on various dates during the two month period prior to July 15, 1988, which the state claimed was admissible in the first case as misconduct evidence that satisfied an exception to the prior uncharged misconduct rule. The second set of evidence concerned the items from the plastic bag that were identified as being from nursing homes where the defendant had worked, which the state claimed was similarly admissible in the second case. ¹ The state argued that the evidence was admissible as uncharged misconduct evidence that satisfied the identity, intent, and common scheme exceptions to the uncharged misconduct rule. The trial court admitted both sets of evidence over the defendant's objections. ²

Evidence of a defendant's uncharged misconduct is inadmissible to prove that the defendant committed the charged crime or to show the predisposition of the defendant to commit the charged crime. State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145, cert. denied, --- U.S. ----, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991); State v. Sierra, 213 Conn. 422, 428, 568 A.2d 448 (1990). Exceptions to this rule have been recognized, however, to render misconduct evidence admissible if, for example, the evidence is offered to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. State v. Mooney, supra; State v. Sierra, supra. Such evidence may also be used to establish knowledge; State v. Ulen, 31 Conn.App. 20, 28, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993); or to complete the story of the charged crime "by placing it in the context of nearby and nearly contemporaneous happenings." (Internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 424-25, 630 A.2d 1043 (1993).

Uncharged misconduct evidence must satisfy a two part test in order to be admitted under one of the exceptions. First the evidence must be relevant and material to at least one of the claimed exceptions, and, second, the evidence's probative value must outweigh its prejudicial effect. State v. Cooper, supra, 227 Conn. at 425, 630 A.2d 1043; State v. Mooney, supra, 218 Conn. at 127, 588 A.2d 145; State v. Sierra, supra, 213 Conn. at 429, 568 A.2d 448. Since the admission of uncharged misconduct evidence is a decision within the discretion of the trial court, we will draw every reasonable presumption in favor of the trial court's ruling. State v. Cooper, supra, 227 Conn. at 426-27, 630 A.2d 1043. We will reverse a trial court's decision only when it has abused its discretion or an injustice has occurred. Id., at 427, 630 A.2d 1043; State v. Mooney, supra.

In order for uncharged misconduct evidence to have any probative value with regard to the issue of intent, the state must make a preliminary showing sufficient to support a jury finding that it was the defendant who committed the misconduct. State v. Wilson, 199 Conn. 417, 449, 513 A.2d 620 (1986). In ...