Cutter v. State

ATTORNEY FOR APPELLANT

Annette K. Fancher

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

James A. Garrard

Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

LARRY CUTTER, )

)

Appellant (Defendant Below), )

)

v. ) Indiana Supreme Court

) Cause No. 49S00-9603-CR-204

STATE OF INDIANA, )

)

Appellee (Plaintiff Below). )

APPEAL FROM THE MARION COUNTY SUPERIOR COURT

The Honorable Gary L. Miller, Judge

Cause No. 49G05-9212-CF-172011

ON DIRECT APPEAL

March 17, 2000

BOEHM, Justice.

In October 1995, Larry Cutter was convicted of the murder, felony

murder, rape, and criminal confinement of Linda Berry. The trial court

merged the felony murder and criminal confinement convictions into the

murder conviction and sentenced Cutter to sixty years for murder and fifty

years for rape as a Class A felony, to be served consecutively. In this

direct appeal, Cutter argues that: (1) a search warrant was deficient; (2)

the trial court erred by admitting an inflammatory picture into evidence;

(3) two witnesses were not qualified to offer opinion testimony; (4) the

trial court erroneously denied his motion for judgment on the evidence on

all charges after the State=s case-in-chief; (5) the trial court

erroneously denied his tendered instruction on the weight of the evidence

necessary to sustain a conviction; (6) the trial court erroneously refused

his jury instruction regarding venue and violated his constitutional right

to be tried in the county in which the offense occurred; and (7) his

conviction for rape as a Class A felony violates the Indiana Double

Jeopardy Clause. We affirm the trial court on all issues except the last

and reduce the rape conviction to a Class B felony consistent with this

Court=s holding in Richardson v. State, 717 N.E.2d 32 (Ind. 1999).

Factual Background

On November 28, 1992, Jeff Toschlog, Lonnie Cox, Daryel Barngrover,

and Kevin Sites gathered at Barngrover=s house to drink alcohol and play

cards. Later that evening, they went to McShane=s Lounge on the east side

of Indianapolis in Marion County where they encountered Cutter and asked

him to join them at their table.

Linda Berry was also a patron of McShane=s Lounge that evening. Berry

arrived at McShane=s noticeably intoxicated. She first stumbled at the

waitresses= station and then blocked access to the bar. At some point,

Berry befriended Cutter. Several witnesses saw Berry dancing with Cutter

and sitting at his table. While Cutter and Sites were still in the lounge,

Cutter told Sites that he intended to offer Berry a ride home, and as Sites

exited, he saw Cutter helping Berry into Cutter=s car. Berry did not

return home.

Two days after Berry disappeared, Victoria Long, Berry=s life partner,

reported her missing. After another four days, Berry=s body was discovered

on the edge of Jack Jarrett=s farm in Delaware County. Berry was found

without undergarments and her dentures were missing. Her blouse was pulled

down below her breasts, and her jeans were pulled down to mid-thigh. The

pathologist testified that Berry=s injuries, including hemorrhaging of the

eyes and bruises on the neck, indicated that Berry had died from manual

strangulation. Berry=s other injuries were extensive. Her hands, back,

breasts, and face were bruised. Her vagina was bruised in a manner

inconsistent with sexual intercourse. She had two torn fingernails, one of

which had broken off at or below the quick and bled at the base. There

were scratches on her face, neck, and hands consistent with defensive

wounds. The pathologist concluded that all of these injuries were incurred

before death.

Cutter was linked to Berry=s disappearance by several eyewitnesses

from McShane=s Lounge. In addition, Jarrett reported to police that on

November 30, 1992, he had seen a car similar to the one owned by Cutter on

the edge of his property at approximately the same location where Berry=s

body was later found. When Cutter was first questioned by police, he

maintained that he slept in his car outside his house the night of Berry=s

disappearance. Cutter subsequently consented to a search of his car, where

investigators found one of Berry=s fingernails and several of her head and

pubic hairs. Finally, Cutter=s sperm was found on a vaginal swab taken

from Berry=s body.

I. The Search Warrant

Cutter first asks this Court to revisit an issue that he raised in an

interlocutory appeal to the Court of Appeals, namely, whether the trial

court erred when it denied his motion to suppress evidence obtained during

the execution of a search warrant. See Cutter v. State, 646 N.E.2d 704

(Ind. Ct. App. 1995), trans. denied. In that appeal, the Court of Appeals

made several determinations: (1) the police were authorized by the warrant

to seize Cutter in order to obtain body samples; (2) the warrant was

supported by probable cause; and (3) the warrant was not defective for

allegedly failing to describe Cutter with particularity, to state the

offense that had occurred, or to describe the place to be searched and the

property to be seized with sufficient specificity. See id. at 710-11, 713.

The Court of Appeals also determined that the probable cause hearing by

telephone substantially complied with Indiana Code ' 35-33-5-8, which

describes the procedure for establishing probable cause orally or by

telephone. See id. at 711-12.

The doctrine of the law of the case is a discretionary tool by which

appellate courts decline to revisit legal issues already determined on

appeal in the same case and on substantially the same facts. See

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817-18 (1988);

State v. Lewis, 543 N.E.2d 1116, 1118 (Ind. 1989). The purpose of this

doctrine is to promote finality and judicial economy. See Christianson,

486 U.S. at 815-16; Lewis, 543 N.E.2d at 1118. The doctrine of the law of

the case is applied only Ato those issues actually considered and decided

on appeal.@ 4A Kenneth M. Stroud, Indiana Practice ' 12.10 (2d ed. 1990)

(emphasis omitted); accord Riggs v. Burell, 619 N.E.2d 562, 564 (Ind. 1993)

(AQuestions not conclusively decided in a prior appeal do not become the

law of the case.@); Egbert v. Egbert, 235 Ind. 405, 415, 132 N.E.2d 910,

916 (1956) (A[T]he parties have the right to introduce new evidence and

establish a new state of facts; and when this is done, the decision of the

[court] ceases to be the law of the case . . . .@) (quoting Alerding v.

Allison, 170 Ind. 252, 258-59, 83 N.E. 1006, 1009-10 (1908)).

Cutter presents no new facts or issues for this Court to consider in

evaluating the trial court=s decision to deny Cutter=s motion to suppress.

Accordingly, we apply the doctrine of the law of the case, and the trial

court=s ruling denying Cutter=s motion to suppress is affirmed.

II. Autopsy Photograph

At trial, the State offered a photograph of the pathologist holding

open Berry=s vagina, and this photograph was admitted into evidence without

objection. The photograph was subsequently used by the pathologist to show

the jury the bruising to Berry=s vagina. Long was also shown this

photograph, and testified that Berry=s vagina appeared much larger than

usual in the photograph. Cutter contends that he was prejudiced by this

photograph=s admission into evidence, and that it was not Arelevan[t] to

any charge or issue properly before the jury.@ Failure to object to the

admission of evidence at trial normally results in waiver and precludes

appellate review unless its admission constitutes fundamental error. See

Willey v. State, 712 N.E.2d 434, 444-45 (Ind. 1999).

This Court reviews the trial court=s decision to admit photographic

evidence for an abuse of discretion. See Spencer v. State, 703 N.E.2d

1053, 1057 (Ind. 1999); Bufkin v. State, 700 N.E.2d 1147, 1149 (Ind. 1998);

Fentress v. State, 702 N.E.2d 721, 722 (Ind. 1998). Although a photograph

may arouse the passions of the jurors, it is admissible unless Aits

probative value is substantially outweighed by the danger of unfair

prejudice.@ Ind. Evidence Rule 403; accord Spencer, 703 N.E.2d at 1057;

Bufkin, 700 N.E.2d at 1149; Fentress, 702 N.E.2d at 722.

Here, the photograph shows the pathologist=s hand holding open Berry=s

vagina to display bruises that were relevant to the Aby force@ element of

the rape charge. See Ind. Code ' 35-42-4-1(a)(1) (1998). The photograph

bore on the State=s contention that the rape was of unusual force and

accompanied by penetration from an object Alike a fist.@ It also expanded

upon Long=s testimony that the vagina appeared unnaturally large. Although

autopsy photographs in which a pathologist distorts a victim=s body parts

are ordinarily objectionable, see Allen v. State, 686 N.E.2d 760, 776 (Ind.

1997), the distortion was necessary to show the jury Berry=s largely

internal injury. The trial court committed no error, let alone fundamental

error, by admitting this photograph into evidence.

III. Qualification of the Witnesses

A. Lay Testimony

Cutter claims that Long was not qualified as an expert to testify as

to the unusual dilation of Berry=s vagina. In this case, however, Long

testified as a lay witness, not as an expert. Indiana Rule of Evidence 701

permits lay witnesses to testify in the form of Aopinions or inferences

which are (a) rationally based on the perception of the witness and (b)

helpful to a clear understanding of the witness=s testimony or the

determination of a fact in issue.@ Ind. Evidence Rule 701; Angleton v.

State, 686 N.E.2d 803, 812 (Ind. 1997). Long testified that Berry=s

vagina, as pictured in the photograph, appeared larger than usual. From

this testimony, the jury could have reasonably drawn inferences that

penetration had occurred, and in concert with the bruise, that it was

accomplished by force. The trial court did not abuse its discretion under

the circumstances.

B. Expert Testimony

Cutter also claims that the pathologist was not qualified to testify

regarding the dilated state of Berry=s vagina.[1] At trial, the State

asked Dr. Willman, the pathologist, to render an opinion regarding whether

Berry=s vagina appeared to be unusually dilated at death, to estimate the

extent of that dilation, and to explain what would cause it. Cutter

objected, arguing that this called for speculation as to whether the

dilation was unusual for Berry, and if so, what caused it.

Generally, expert testimony in the form of opinion or otherwise is

admissible if the expert=s scientific, technical, or other specialized

knowledge assists the trier of fact in understanding the evidence or in

determining a fact in issue. Ind. Evidence Rule 702(a); accord Grinstead

v. State, 684 N.E.2d 482, 486-87 (Ind. 1997). Dr. Willman had performed

between 1000 and 1200 autopsies, and at trial Cutter did not challenge Dr.

Willman=s qualifications to testify as an expert witness. His testimony

regarding the dilated state of Berry=s vagina and the effects of death on

the appearance of the body falls into the area of specialized knowledge

within his scope of expertise and beyond the knowledge generally held by

laypersons. The trial court did not abuse its discretion in admitting this

testimony under the circumstances.

IV. Motion for Judgment on the Evidence (Directed Verdict)

Cutter alleges that the trial court erroneously denied his motion for

judgment on the evidence as to all charges[2] at the close of the State=s

case-in-chief. When a defendant moves for judgment on the evidence, the

court is required to withdraw the issues from the jury if: (1) the record

is devoid of evidence on one or more elements of the offense; or (2) the

evidence presented is without conflict and subject to only one inference,

which is favorable to the defendant. See Ind. Trial Rule 50(A); Jones v.

State, 697 N.E.2d 57, 58-59 (Ind. 1998); Stewart v. State, 688 N.E.2d 1254,

1258 (Ind. 1997). On review, this Court considers only the evidence most

favorable to the State, and the reasonable inferences to be drawn

therefrom. See Jones, 697 N.E.2d at 58-59. Therefore, in order to avoid

judgment on the evidence, the State need only present some evidence

supporting each element of each offense. See id.

In this case, Cutter claims that the State failed to present

sufficient evidence to establish that he was Berry=s killer. To prove

murder, the State must establish that A[a] person . . . knowingly or

intentionally kill[ed] another human being . . . .@ Ind. Code ' 35-42-1-

1(1) (1998). In its case-in-chief, the State presented the following

evidence. Cutter and Berry were patrons of McShane=s Lounge the night

Berry disappeared. Cutter danced and talked with Berry over the course of

the evening. Cutter eventually left McShane=s with Berry in tow. Police

later found Berry=s body at the edge of Jarrett=s cornfield. Jarrett saw a

car similar to that owned by Cutter near the location where Berry=s body

was found. Police also found strands of Berry=s hair and Berry=s broken

fingernail in Cutter=s car. Under the circumstances, it is reasonable to

infer that Cutter took Berry from McShane=s and knowingly or intentionally

killed her. The State=s evidence, together with all the reasonable

inferences therefrom, was sufficient to withstand a motion for judgment on

the evidence.

Cutter also claims that the State failed to present sufficient

evidence to establish that he raped Berry. To prove rape as a Class B

felony, the State must show that A[a] person . . . knowingly or

intentionally ha[d] sexual intercourse with a member of the opposite sex

when: (1) the other person [was] compelled by force or imminent threat of

force; . . . .@ Ind. Code ' 35-42-4-1 (1998). To prove rape as a Class A

felony, the State must also prove that the rape was committed by using or

threatening the use of deadly force. Id. In this case, the police

retrieved Berry=s partially clothed body from the edge of a cornfield. She

was found without undergarments; her blouse lay just below her breasts and

her jeans were pulled down to mid-thigh. The State presented expert

testimony and DNA evidence indicating that Cutter=s semen was found in

Berry=s vagina. The autopsy revealed that Berry=s vagina was unusually

dilated and bruised by penetration of, inter alia, an object the size of a

fist, and that she had died by strangulation. From this evidence, it is

reasonable to infer that Cutter had sexual intercourse with Berry by force

or threat of force. The trial court did not err by denying Cutter=s motion

for judgment on the evidence.

V. Jury Instructions

Cutter next argues that the trial court erroneously refused his

tendered instruction regarding the weight of the evidence required to

sustain his convictions. In reviewing a trial court=s decision to give or

refuse tendered jury instructions, the Court considers: (1) whether the

instruction correctly states the law; (2) whether there is evidence in the

record to support the giving of the instruction; and (3) whether the

substance of the tendered instruction is covered by other instructions

which are given. Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999). In

this case, the refused instruction states:

Evidence which merely tends to establish a suspicion of guilt, or

evidence which tends to establish mere opportunity to commit the

offense charged, is clearly insufficient to sustain a conviction. [A]

verdict based merely on suspicion, opportunity, probability,

conjecture, speculation, and unreasonable inference of guilt gleaned

from vague circumstances or evidence is not sufficient.

The trial court gave the jury the following preliminary and final

instructions:

Instruction No. 8

A reasonable doubt is a fair, actual and logical doubt that

arises in your mind after an impartial consideration of all the

evidence and circumstances in the case. It should be a doubt based

upon reason and common sense and not a doubt based upon imagination or

speculation.

To prove the defendant=s guilt of the elements of the crimes

charged beyond a reasonable doubt, the evidence must be such that it

would convince you of the truth of it, to such a degree of certainty

that you would feel safe to act upon such conviction, without

hesitation, in a matter of the highest concern and importance to you.

Instruction No. 16

The law presumes the Defendant to be innocent of the crimes

charged, and this presumption continues in his favor throughout the

trial of this cause.

It is your duty, if it can be reasonably and conscientiously

done to reconcile the evidence upon the theory that the defendant is

innocent, and you cannot find the defendant guilty of the crimes

charged in the information unless the evidence satisfies you beyond a

reasonable doubt of his guilt.

The content of Cutter=s tendered instruction was sufficiently

addressed in Instructions 8 and 16, and, therefore, the trial court did not

abuse its discretion in refusing his tendered instruction.

VI. Venue

Cutter claims that he was denied his right to be tried in the county

in which the offense occurred. Cutter raised the issue by first tendering

a jury instruction regarding venue, and, when that was rejected, by moving

for a directed verdict on the ground that venue was not established. The

right to be tried in the county in which the offense was committed is a

constitutional and a statutory right. See Ind. Const. art. I, ' 13; Ind.

Code ' 35-32-2-1(a) (1998); Weaver v. State, 583 N.E.2d 136, 140-41 (Ind.

1991). Venue is not an element of the offense. See Sizemore v. State, 272

Ind. 26, 31, 395 N.E.2d 783, 787 (1979). Accordingly, although the State

is required to prove venue, it may be established by a preponderance of the

evidence and need not be proven beyond a reasonable doubt. See id; Neblett

v. State, 396 N.E.2d 930, 932 (Ind. Ct. App. 1979).

Venue is commonly an issue for determination by the jury. See 16B

William Andrew Kerr, Indiana Practice ' 22.9f(2) (1998); see also Joyner v.

State, 678 N.E.2d 386, 390 (Ind. 1997) (venue issue submitted to the jury).

This is because venue typically turns on an issue of fact, i.e., where

certain acts occurred. If so, it is appropriate for the court to instruct

the jury on venue. See Weaver, 583 N.E.2d at 142. Even when venue turns

on issues of fact, however, a trial judge may refuse to instruct the jury

on venue if it presents no genuine issue. See United States v. Massa, 686

F.2d 526, 530 (7th Cir. 1982) (A[W]here venue is not in issue, no court has

ever held that a venue instruction must be given.@). Cf. Dudley v. State,

480 N.E.2d 881, 903 (Ind. 1985) (holding that the trial court=s instruction

to jurors that it had already determined venue as a matter of law did not

invade the province of the jury), habeus relief den=d, 693 F. Supp. 727

(N.D. Ind. 1986), judgment rev=d on other grounds, 854 F.2d 967 (7th Cir.

1988).

Cutter first raised the venue issue by submitting the following

proposed instruction, taken from Conrad v. State, 262 Ind. 446, 450, 317

N.E.2d 789, 791 (1974):

If you find from the evidence that the offense charged in the

information occurred outside of Marion County, Indiana, but that the

offenses were not part of a common plan, design, and intent to

confine, rape, and kill Linda Berry which originated in Marion County,

Indiana, and was not part of one continuous course of action by the

defendant, but was a separate and independent set of facts occurring

outside of Marion County, then the State would have no jurisdiction to

prosecute the defendant for the offenses as charged. You must find

the defendant not guilty.

Among other things, a trial court need not give a tendered instruction when

there is not evidence in the record to support the giving of the

instruction. See Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999).

We conclude that it was proper for the trial court to refuse Cutter=s

instruction because there was not evidence in the record to support the

giving of the instruction.[3] Cutter did not testify and the victim is

dead. No one else was present in the vehicle where at least some criminal

acts occurred. The two entered the car in Marion County, perhaps without

any crime yet in progress, and the victim=s body was found two counties

away. Thus, although there is no doubt that a crime was committed, it is

wholly speculative where the crime was committed. Although the right to be

tried in the county in which the offense occurred is grounded in the

Indiana Constitution, the Constitution does not contemplate exonerating

criminals simply because the nature of the crime itself makes venue

unknowable. Under these circumstances, the legislature has specifically

provided that trial is proper in any county in which an act Ain furtherance

of@ the offense occurred. Indiana Code ' 35-32-2-1 provides:

(a) Criminal actions shall be tried in the county where the

offense was committed, except as otherwise provided by law.

. . . .

(d) If an offense is committed in Indiana and it cannot readily

be determined in which county the offense was committed, trial

may be in any county in which an act was committed in

furtherance of the offense.

Subsection (d) is consistent with the constitutional mandate that,

where venue can be established, the defendant has a right to be tried in

that locale. By its terms, subsection (d) applies only where Ait cannot

readily be determined in which county the offense was committed.@ On this

record, the location of the charged offenses of murder and rape were left

to pure speculation even though there was overwhelming evidence that the

crimes occurred somewhere in central Indiana. Because the location of the

crime could not be established, subsection (d) applied, and the State was

required to show by a preponderance of the evidence only that an act in

furtherance of the offense occurred in Marion County. That was

undisputably done.

Several witnesses testified to seeing Cutter and Berry talking and

dancing at McShane=s Lounge in Marion County on the evening of November 28,

1992. Sites saw Cutter exit the lounge with Berry and help her into

Cutter=s car. As a matter of law, this step, which may itself have been

innocent, but nonetheless in furtherance of the crime, satisfied the

State=s burden of proving venue by a preponderance of the evidence. There

is no conflicting evidence. Accordingly, the trial court properly rejected

Cutter=s instruction and denied his motion for a directed verdict, without

violating his right to be tried in the county in which the offense

occurred.

VII. Double Jeopardy

Finally, Cutter argues that his conviction for murder, along with rape

as a Class A felony, as opposed to a Class B felony, violates the State

Double Jeopardy Clause. Rape as a Class B felony is defined by statute as

Aknowingly or intentionally ha[ving] sexual intercourse with a member of

the opposite sex when: (1) the other person is compelled by force or

imminent threat of force; . . . .@ Ind. Code ' 35-42-4-1 (1998). The

offense is elevated to a Class A felony Aif it is committed by using or

threatening the use of deadly force, if it is committed while armed with a

deadly weapon, or if it results in serious bodily injury to a person other

than a defendant.@ Id.

Cutter contends that the deadly force element of the rape charge

should merge with the deadly force element of the murder charge. Count I,

the murder charge, alleges death by manual strangulation. Count III, the

rape charge, alleges sexual intercourse by threat of deadly force or deadly

force. The language of these charges was read to the jury. In light of

this Court=s holding in Richardson v. State, 717 N.E.2d 32 (Ind. 1999), and

under the evidence presented in this case, Cutter=s rape conviction cannot

be elevated to a Class A felony by the same evidence of deadly force that

formed the basis of the murder conviction. The jury was presented with

evidence at trial that Berry was brutally raped. In addition to finding

Cutter=s semen on Berry=s pants and in her vagina, the pathologist

testified that the bruises to Berry=s vagina were such that a human penis

could not have inflicted them. Nonetheless, based on the charging

information and the jury instructions, it is highly likely that the same

evidence that constituted the essential elements of murder--the

strangulation as a Adeadly force@--was included among the evidence

establishing the Ausing or threatening the use of deadly force@ element of

rape as a Class A felony. Accordingly, pursuant to the Aactual evidence@

test set forth in Richardson, 717 N.E.2d at 52-55, we remand this case to

the trial court to reduce Cutter=s rape conviction to a Class B felony.[4]

CONCLUSION

We affirm in part, reverse in part, and remand to the trial court with

instructions to reduce Cutter=s rape conviction from a Class A felony to a

Class B felony and impose a twenty-year sentence on that count to run

consecutive to the sixty-year sentence for murder.

SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.

-----------------------

[1] Cutter also makes a general argument against the admission of DNA

evidence. It is well established that there is no inherent bar to the

admission of DNA evidence in criminal prosecutions. See, e.g., Hopkins v.

State, 579 N.E.2d 1297, 1301-04 (Ind. 1991).

[2] Because the trial court merged the felony murder and criminal

confinement convictions into the murder conviction, here we address only

the sufficiency of the evidence with regard to the murder and rape

convictions.

[3] We also note that it is questionable whether Cutter=s instruction

was an accurate statement of the law. Conrad involved the jurisdiction of

the State of Indiana to prosecute a crime that may have occurred in Ohio,

rather than a challenge to venue in a particular county. See 262 Ind. at

450, 317 N.E.2d at 791. The tendered instruction also omits the lesser

burden of proof required to establish venue.

[4] Because the trial court sentenced Cutter to maximum and

consecutive sentences on both counts, there is no reason to remand to the

trial court for a new sentencing hearing. Cf. Wise v. State, 719 N.E.2d

1192, 1201 (Ind. 1999). Instead, we direct the trial court to impose the

maximum sentence for rape as a Class B felony.