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Monticello — "For what I hope
is the last time in my life, I will say I did not kill my children,"
Diane Odell said yesterday at her murder sentencing in Sullivan County
Court.
Odell was convicted Dec. 16 on
three counts of second-degree murder in the deaths of her newborn
babies in 1982, 1983 and 1985 in Kauneonga Lake.
Their mummified remains were
found in May 2003, among the contents of a Safford, Ariz., storage
shed Odell's family had rented while living there in 1992.
Odell, 50, wept quietly as the
prosecutor called her selfish and without remorse for the deaths of
four newborn babies.
She may have raised eight
children, District Attorney Steve Lungen argued yesterday, but a jury
found that she killed the ones she didn't want.
Judge Frank LaBuda told Odell
the jury found her guilty of depraved-indifference murder, and the
verdict was just.
"The sentence the court will
impose upon you is a sentence that will not and cannot put those
babies back in a closet," LaBuda said. "I am not unmoved by the
quality of your children, by the letters I received from you children
asking for mercy."
LaBuda gave Odell 25 years to
life in prison. She got 15 to life for the 1982 baby, 20 to life for
the second and 25 to life for the third, but the sentences are to run
concurrently. She will be eligible for parole in 2029.
She faced a maximum of 75 years
to life.
"You have violated a basic
tenet, a basic principle, a basic belief that all Americans have: A
right to life and liberty," LaBuda told Odell. "It is a dark tale. It
is a tale that you wrote, and you must accept responsibility."
Lungen spent part of his
argument attacking Odell's statements in an interview she gave to the
Times Herald-Record while in the county jail.
In that interview, Odell said
her mother was present for all the births and may have been
responsible for the deaths. She said she never told police about this
because she feared her mother, who she describes as overbearing and
cruel, even after her mother died. Odell said she loves all of her
children — and she loved and wanted the ones who ended up in the
Arizona shed.
Lungen said the story Odell
told in that interview was the seventh version of events since she
spoke to state police about her very first child: A newborn who was
born and died in 1972. That conversation happened in 1989, after the
remains of that infant were found in a junked car Odell left behind in
Kauneonga Lake. She has never been charged in that case.
"She didn't tell them about the
three babies rotting in the closet," Lungen said.
"Nowhere does she take any
responsibility or show any real remorse," Lungen argued. "The truth is
what the jury found. They [the dead babies] were unwanted, and they
were 'the bastard children.'"
Odell wept as her lawyer,
Stephan Schick, argued that she was a good and loving mother to her
eight living children, and that society would gain nothing but
vengeance from any sentence over the minimum.
"The idea that my client has no
remorse for the deaths of these babies has no basis in reality,"
Schick said. "She is a haunted woman. She is a person who has lived a
life of incredible hardship and a life of incredible abuse, from the
age of nine years old."
Odell stood to speak. She wore
an orange jail jumpsuit and brown jail-issue jacket. Her voice shook.
"I have been in a jail of my
own making for most of my life. I want to know: When does my suffering
end?" she said. "I will apologize for not making conscious, educated
decisions. And I hope that one day truth and justice will set me
free."
Odell's common-law husband,
Robert Sauerstein, and three of the couple's five children — Jeffrey,
13; Robert, 14; and Jonathan, 15 — sat in the gallery. As the
sentencing ended, deputies allowed Odell to briefly hug her sons and
Sauerstein. The boys' eyes reddened as they clung to her.
Then the deputies handcuffed
her and led her back to the jail.
Brenda Kuhr, one of the jurors
who voted to convict Odell, said she doesn't believe Odell's tale of
abuse.
What she and other jurors
looked at, Kuhr said in a telephone interview, were the most basic of
things. Odell's stories changed. Odell didn't know if the babies were
boys or girls, and she didn't name them. The babies' bodies were found
packed away with old blankets.
"One juror was upset that [one
baby] didn't even have a nightie on it — just naked in a garbage bag,"
Kuhr said. "She deserved to get it [the sentence]."
At Odell's trial, the defense
rested without calling a single witness — a decision that rankles
Sauerstein.
"He went against Diane's wishes
to have her brother and [Diane's daughter] Lisa testify," Sauerstein
said. "I'm not satisfied. There were a lot of things he could have
done in there."
The defense has filed an appeal
in the case. It's still unclear what will happen to the infants'
bodies. Sauerstein has asked that the remains be given to him so he
can give them a burial.
Diane Odell Faces Life in Prison
Diane Odell Faces Court and Jury
The Arizona Republic
May 21, 2003
MIDDLETOWN, N.Y. - New York state police charged a
Pennsylvania woman with three counts of second-degree murder after
three infants' remains were found in Safford, Ariz.
Diane O'Dell drove to New York on Monday night to
be questioned by police. She was arraigned on three counts of
second-degree murder and ordered held without bail in Sullivan County
Jail. There was no immediate comment on the cause of death.
O'Dell admitted this weekend that she gave birth to
the three children whose mummified remains were found last week in the
abandoned contents of a storage locker. The children were born between
1981 and 1984, she said.
They were fine when she went to bed and dead when
she woke up, O'Dell told Graham County sheriff's deputies who tracked
her to a small eastern Pennsylvania town.
She took their remains - one wrapped in a
bedspread, the other two wrapped in plastic - as she traveled the
country, living in Utah, Arizona and Texas.
She dropped another bombshell on investigators:
There was a fourth child, before the others, that she had at 16. That
child also had gone to bed healthy and was dead when O'Dell woke up.
That was in New York, where all the births and deaths happened,
according to O'Dell, who since has had eight children.
"There are still a lot unanswered questions," said
Kenny Angle, Graham County's prosecutor.
"There's a lot of answered questions, but a lot
more that don't have answers, and really, we don't know what happened.
Our investigation isn't over. Not at all."
Because the deaths happened in New York, the Graham
County Sheriff's Department transferred the case to New York
authorities. On Monday, two New York State Police detectives traveled
to Waverly, N.Y., to begin investigating there after meeting with
Graham County detectives.
Arizona detectives interviewed O'Dell, whose age
was unavailable, and her common-law husband, Robert Sauerstein, on
Saturday.
"They asked her if she knew there were three dead
bodies in her storage locker," Graham County Sheriff Frank Hughes
said. "She said no. But her reaction was so calm. That's when our
investigators knew something was up."
O'Dell and Sauerstein both consented to giving DNA
samples and to taking a polygraph test the next day.
Sauerstein showed up Sunday, but O'Dell didn't.
When detectives visited her again in her South Gibson, Pa., home - not
necessarily to reinterview her but to get her fingerprints, which they
had forgotten to record on Saturday - she admitted the babies were
hers.
Her admission filled in some holes, but tore open
plenty of others.Much of the investigation will focus on why O'Dell
carted the bodies of the three children around for nearly a decade.
Another part will focus on who Diane O'Dell was,
and why she spent so little time in the Graham County town of Pima,
eight miles west of Safford. She arrived in late 1991 and stayed only
seven months, long enough for Sauerstein to be charged twice with
assaults on minors.
The charges were dropped the first time, and the
second time they had moved out of the state after abruptly pulling
their three children out of the school just weeks before graduation.
The only details available on the charges Monday
were that they involved O'Dell's children.
"No one remembers her," Pima Police Chief Ray
Landry said. "We interviewed the teachers at the school, and none of
them even remembered the children."
The couple lived in a ramshackle house, clapped
together with a travel trailer built into the structure. It's gone,
now, torn down in 2000.
No one can remember if they worked, although
records in the storage locker indicate they were receiving state aid.
Leroy Smith rented O'Dell the storage locker. He
doesn't remember her. She paid by check, but she didn't pay often. She
disappeared in April 1992, but continued to pay the storage bill,
usually late, until 1994. Smith gave it little mind. He has a lenient
attitude, he said, maybe too lenient.
Now, like everyone else in this town, he wonders
what happened, and he hopes it was nothing more than a young, scared
mother who couldn't afford to pay the funeral expenses.
But that doesn't answer what investigators have
been referring to as "the $64,000 question." Why carry the mummified
remains of dead babies around? And why leave them after packing them
with you for more than a decade?
Upstate New York has had other high-profile cases
of women killing several children over the course of many years.
In 1987, Mary Beth Tinning of Schenectady was
convicted of second-degree murder in the 1985 death of her 3 1/2
-month-old daughter Tami Lynne. Beginning in 1972, nine of Tinning's
children died before age 5, some as young as 7 days old. Tinning is
serving 20 years to life in prison.
In 1995, Waneta Hoyt of Newark Valley, south of
Syracuse, was convicted of murdering her five young children from
1965-1971. Hoyt died in prison, serving a sentence of 75 years to
life.
A landmark 1972 study cited the deaths of Hoyt's
children as evidence that Sudden Infant Death Syndrome, or SIDS, ran
in families.
People v Odell 2006
NYSlipOp 00572
February 2, 2006
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary
Law § 431.
The People of the
State of New York, Respondent,
v
Dianne Odell,[FN*] Appellant.
Crew III, J. Appeal from a judgment of the County
Court of Sullivan County (LaBuda, J.), rendered January 27, 2004, upon
a verdict convicting defendant of three counts of the crime of murder
in the second degree.
On May 14, 2003, Arizona authorities discovered the
severely decomposed bodies of three newborn children contained in a
storage unit rented by defendant. The Arizona authorities determined
that defendant was a resident of Pennsylvania and, on May 17, 2003,
interviewed defendant at the Pennsylvania State Police barracks in
Towanda. Following several more interviews over the next three days,
the last of which took place in the Village of Liberty, Sullivan
County, defendant was indicted and charged with intentional and
depraved indifference murder in connection with the deaths of each of
the three infants. Following a jury trial, defendant was found guilty
of depraved indifference murder regarding each infant and was
sentenced to concurrent indeterminate terms of imprisonment of 15, 20
and 25 years to life. [*2]Defendant now appeals.
Initially, defendant contends that County Court
erred in failing to suppress the statements given by her to law
enforcement officials. The gravamen of defendant's contention is that
defendant's husband, as well as defendant, advised the police that
defendant wished to consult a lawyer before questioning and that, as a
consequence, all statements made thereafter were inadmissible. We
disagree.
To understand the context of the situation, a brief
recitation of the facts is necessary. On May 17, 2003, the Arizona
authorities arrived in Pennsylvania, and defendant was called at her
place of work and asked to come to the Pennsylvania State Police
barracks. She did so and, upon arrival, disavowed any knowledge of the
deceased babies or how they came to be in the storage locker.
Defendant then returned to work. The following day, defendant's
husband was at the barracks for fingerprinting, a polygraph and the
giving of DNA samples and was asked to call his wife and persuade her
to come to the barracks to be fingerprinted. At that point, the
husband testified, he told the police that defendant had told him she
wanted to speak to an attorney before speaking with the police. In any
event, the husband called defendant and she agreed to come to the
barracks to be fingerprinted. While there, she conversed with
Pennsylvania State Police Investigator Gerald Williams, who inquired
whether she would talk with him about the deceased infants and whether
she wanted an attorney. Defendant responded that she wanted to consult
with a lawyer regarding the custody of one of her sons and who would
care for him if she were unable to do so. Williams specifically
questioned defendant about this representation to be sure it related
only to her son and not the investigation regarding the deceased
children. He impressed upon her that she did not have to speak with
him and was free to go at any time. Finally, Williams testified that
defendant expressed her willingness to talk with him about the
deceased children and did not want an attorney in that regard.
Initially, we note that a defendant's right to
counsel, invoked in a noncustodial setting, will not attach where such
request may be seen as equivocal (see People v Glover, 87 NY2d 838,
839 [1995]). Here, assuming County Court credited Williams' testimony,
which it clearly did, defendant's desire for counsel was not only
equivocal, it was totally unrelated to the investigation being
undertaken. However, even assuming that the desire for counsel related
to the investigation at hand, it was clearly made in a noncustodial
setting and could be and was withdrawn (see People v Davis, 75 NY2d
517, 522-523 [1990]). With regard to defendant's remaining contentions
concerning the statements given by her, we find that they were given
freely and made while defendant was not in custody and, at the point
that she became a suspect in New York, she was given proper
constitutional warnings, which she knowingly and intelligently waived.
Next, defendant argues that County Court
impermissibly permitted cameras in the courtroom necessitating
reversal. We disagree. Although we recently held that issuance of a
writ of prohibition was an appropriate vehicle to prevent the use of
cameras in the courtroom (see Matter of Heckstall v McGrath, 15 AD3d
824 [2005]), no such application was made here. Hence, reversal is
required only if defendant demonstrates that she was deprived of a
fair trial due to actual prejudice resulting from the presence of the
cameras during trial (see e.g. People v Nance, 2 AD3d 1473, 1474
[2003], lv denied 2 NY3d 764 [2004]), which she failed to do.
We likewise reject defendant's contention that it
was error to allow the People's forensic expert to testify as to the
cause and manner of death based, in part, on defendant's statements to
[*3]law enforcement personnel. It is axiomatic that expert testimony
is admissible where, as here, the conclusions drawn from the facts
depend upon professional knowledge not within the ken of the ordinary
juror (see People v Eberle, 265 AD2d 881, 882 [1999]). Such expert may
rely on facts in evidence, as well as material outside the record, so
long as such material is "of a type reasonably relied upon by experts
in the field in forming their professional opinions" (People v Yates,
290 AD2d 888, 889 [2002]).
We do, however, find that County Court
inappropriately permitted the People's expert to opine that the
infants' deaths constituted "homicides." Such characterization
improperly invaded the province of the jury (see People v Langlois, 17
AD3d 772, 774 [2005]). We note, however, that the complained of
testimony was not the subject of objection, and the issue is thus not
preserved for our review (see People v Burdick, 266 AD2d 711, 713
[1999]). Moreover, if we were to review this error in the interest of
justice, we would find it to be harmless inasmuch as the expert
defined the medical definition of homicide and stated that he was not
drawing a legal conclusion in that regard, nor was he making a
determination regarding any culpability for the infants' deaths.
We also reject defendant's contention that County
Court erred in refusing to charge the lesser offense of criminally
negligent homicide. We note that after requesting such charge, defense
counsel acknowledged that if such a charge constituted a waiver of
defendant's protection under the statute of limitations, defendant did
not want the charge. Inasmuch as a request for such charge would
result in defendant's waiver of her statute of limitations defense
(see People v Mills, 1 NY3d 269, 274 [2003]), County Court properly
declined to so charge. We have considered defendant's remaining
contentions and find them equally without merit.
Cardona, P.J., Spain, Mugglin and Lahtinen, JJ.,
concur. Ordered that the judgment is affirmed.
Footnotes
Footnote *: Although defendant's name is sometimes
spelled "O'Dell," the proper spelling and that which appears on the
indictment is "Odell."