State v. Morowitz

• Decision Date: 15 July 1986
• Citation: 200 Conn. 440,512 A.2d 175
• Parties: , 82 A.L.R.4th 899 STATE of Connecticut v. Lawrence J. MOROWITZ.
• Court: Connecticut Supreme Court

Page 175

512 A.2d 175

200 Conn. 440, 82 A.L.R.4th 899

STATE of Connecticut v. Lawrence J. MOROWITZ.

Supreme Court of Connecticut.

Argued May 6, 1986.

Decided July 15, 1986.

Raymond B. Rubens, with whom was Veronica E. Reich, Bridgeport, for appellant (defendant).

Susan C. Marks, Deputy Asst. State's Atty., with whom, on brief, were Bruce Hudok, Asst. State's Atty. and Eugene J. Callahan, Former State's Atty., for appellee (state).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

PETERS, Chief Justice.

The sole issue on this appeal is whether evidence of the defendant's prior misconduct was properly admitted at his trial. The defendant, Lawrence Morowitz, was convicted of sexual assault in the second degree, in violation of General Statutes § 53a-71(a)(2), ¹ and sexual assault in the fourth degree, in violation of General Statutes § 53a-73a(a)(1)(B), ² and sentenced to a term of imprisonment of four years. He appeals from this judgment.

The jury could reasonably have found the following facts. In early 1983, the victim consulted the defendant, a practicing podiatrist in Stamford, concerning problems she was having with her feet. Following the initial examination, the defendant scheduled surgery in his office for the victim on several dates over the next few months. On at least two such occasions, having given the victim medication and an injection to put her to sleep, the defendant sexually assaulted her. The defendant was subsequently arrested in connection with these incidents.

During the trial, over defense objections, the state presented testimony that the defendant had committed a similar sexual assault on a female patient approximately three years prior to the incidents here at issue. On appeal, the defendant claims that the trial court erred in admitting this testimony because: (1) its prejudicial impact outweighed its probative value, the two assaults being neither sufficiently similar nor proximate in time; and (2) the charges resulting from the earlier assault had been dismissed and the records erased following the defendant's successful completion of the conditions of his accelerated rehabilitation, granted pursuant to General Statutes § 54-56(e). We find no error.

The rules governing the admissibility of evidence of a criminal defendant's prior misconduct are well established. Although evidence of prior unconnected crimes is inadmissible to demonstrate the defendant's bad character or to suggest that the defendant has a propensity for criminal behavior; State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); State v. Shindell, 195 Conn. 128, 133, 486 A.2d 637 (1985); State v. Braman, 191 Conn. 670, 675, 469 A.2d 760 (1983); McCormick, Evidence (3d Ed.1984) § 190, pp. 557-58; such evidence may be admissible for other purposes, such as "to prove knowledge, intent, motive, and common scheme or design, if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency." State v. Lizzi, 199 Conn. 462, 468, 508 A.2d 16 (1986); State v. Brown, supra, 199 Conn. at 56, 505 A.2d 1225; State v. Shindell, supra, 195 Conn. at 133-34, 486 A.2d 637. Our analysis of the defendant's initial claim, therefore, turns on an inquiry into first, whether the evidence was relevant and material to an acceptable purpose, and second, if so, whether its probative value outweighed its prejudicial tendency.

The trial court admitted the evidence of the earlier sexual assault as tending to establish a common design or plan to assault sedated female patients, and thus as probative of the defendant's motive and intent in the present case. When evidence of prior misconduct is offered to show a common plan or design, "the marks which the [earlier] and the [present] offenses have in common must be such that it may be logically inferred that if the defendant is guilty of one he must be guilty of the other." State v. Esposito, 192 Conn. 166, 172, 471 A.2d 949 (1984). It is not enough that the two offenses are similar. To establish a common design, the characteristics of the two offenses must be sufficiently distinctive and unique "as to be like a signature." McCormick, Evidence, supra, 560; State v. Mandrell, 199 Conn. 146, 152, 506 A.2d 100 (1986); State v. Braman, supra, 191 Conn. at 677, 469 A.2d 760. In the present case, the trial court found "the circumstances ... so unique, the factual situation so unusual, and the similarities between the alleged incidents ... so striking" that they established a common design. In order to resolve the defendant's claim, therefore, we must examine the proffered evidence and compare it to the charged offense.

At a hearing held outside the presence of the jury, the victim of the earlier assault testified that, in January, 1980, she had consulted the defendant concerning problems with her feet. At the time, she was a twenty-six year old married woman. After an initial examination, the defendant scheduled her for foot surgery. He instructed her to take a capsule of nembutal one half hour before coming to his office for the surgery. She followed these instructions and arrived at the defendant's office feeling "light-headed" and "a bit unsteady." Only the defendant was present in the office when she arrived. The defendant instructed the witness to remove her street clothes and to put a surgical gown over her underwear. The defendant then assisted her into the treatment room, helped her into a reclining chair, and gave her an injection of valium. Following the injection, the witness fell asleep, returning to consciousness some time later when she "became aware of ... a penetrating sensation inside [her] vagina." She fell asleep again, and next became aware of the defendant massaging her thighs and breast. When she opened her eyes, she saw that the defendant was holding her underwear.

We agree with the trial court that the details of the earlier assault, as related by the former victim, are sufficiently similar to the details of the presently charged assault to be probative of a common design or plan on the part of the defendant to use his position as a podiatrist to assault sedated female patients. The present victim testified that, at the time she first consulted the defendant in 1983, she was a twenty-nine year old married woman. Following an initial consultation, the defendant scheduled her for foot surgery on various dates in early 1983. Prior to each scheduled date, the defendant instructed her to take two tablets containing a tranquilizer one half hour before coming to the office. When she arrived at the defendant's office after having taken the tranquilizers, the defendant instructed her to remove her clothes and to put a surgical gown over her underwear. She was placed on a reclining chair in the defendant's treatment room and given an injection of valium. She fell asleep, and, on at least two separate occasions, awoke to find the defendant engaged in sexual intercourse with her. Although the defendant's female assistant had been present when the victim arrived, she had been sent out of the office on each occasion prior to the assault.

The defendant argues that the evidence of the earlier offense should have been excluded because most of the similarities between the incidents reflect standard podiatric practices rather than criminal activities. We reject the defendant's argument for two reasons. First, the state presented expert testimony that neither the defendant's use of sedatives to induce sleep nor his practice of having patients disrobe was considered standard podiatric practice for the type of ambulatory surgical procedure performed by the defendant. Consequently, even the defendant's podiatric procedure can be considered unusual. Second, and more important, the fact that some of the similarities between the offenses were legal or relatively common occurrences when standing alone does not, as the defendant argues, negate the uniqueness of the offenses when viewed as a whole. It is the distinctive combination of actions which forms the "signature" or modus operandi of the crime; State v. Esposito, supra, 192 Conn. at 171-72, 471 A.2d 949; State v. Braman, supra, 191 Conn. at 679, 469 A.2d 760; and it is this "criminal logo" which justifies the inference that the individual who committed the first offense also committed the second. State v. Mandrell, supra, 199 Conn. at 151-52, 506 A.2d 100; State v. Esposito, supra, 192 Conn. at 171, 471 A.2d 949. In both the present case and the prior offense, the defendant exploited his professional position to isolate, sedate, and assault young female patients who were rendered incapable of resisting by the use of tranquilizing drugs. We conclude that the trial court correctly determined that the circumstances of both offenses were sufficiently similar to be probative of a common design or plan. See State v. Hauck, 172 Conn. 140, 146-47, 374 A.2d 150 (1976); People v. Wojahn, 169 Cal.App.2d 135, 140, 147, 337 P.2d 192 (1959); Rhine v. State, 336 P.2d 913, 916-17, 922 (Okla.Crim.1959).

Having determined that the proffered evidence was relevant to a proper purpose, we must next review whether the probative value of the evidence outweighed its prejudicial impact. The primary responsibility for conducting the prejudicial-probative balancing test rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion. State v. Mandrell, supra, 199 Conn. at 152, 506 A.2d 100; State v. Shindell, supra, 195 Conn. at 136, 486 A.2d 637; State v. Johnson, 190 Conn. 541, 548-49, 461 A.2d 981 (1983). We will make every reasonable presumption in favor of upholding the trial court's ruling. State v. Johnson, supra, 190 Conn. at 549, 461 A.2d 981.

After a hearing held outside the presence of the jury, the trial court ruled that the probative value of the evidence surpassed its prejudicial impact. In reaching...