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Carr v. State

Court: Indiana Supreme Court
Date filed: 2000-04-18
Citations: 728 N.E.2d 125
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ATTORNEY FOR APPELLANT

Kris Meltzer
Shelbyville, Indiana




ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

JOHN DELL CARR,              )
                                  )
      Appellant (Defendant Below), )
                                  )
            v.                    )     Indiana Supreme Court
                                  )     Cause No. 73S00-9709-CR-487
STATE OF INDIANA,                 )
                                  )
      Appellee (Plaintiff Below).       )
__________________________________________________________________

                    APPEAL FROM THE SHELBY SUPERIOR COURT
                     The Honorable Jack A. Tandy, Judge
                         Cause No. 73D01-9602-CF-15
__________________________________________________________________


                              ON DIRECT APPEAL

__________________________________________________________________

                               April 18, 2000

BOEHM, Justice.

      John Dell Carr was convicted of the murder  of  Shirley  Sturgill  and
sentenced to sixty years imprisonment.  In this direct  appeal  he  contends
that (1) his right to be free from unreasonable searches  and  seizures  was
violated when he was anesthetized for the taking of dental impressions;  (2)
the trial court abused its discretion in denying his Motion  for  Change  of
Venue; (3) there is insufficient evidence  to  support  his  conviction  and
rebut his alibi defense; (4) the trial court committed fundamental error  in
instructing the jury on circumstantial evidence; (5) he  is  entitled  to  a
new trial because of jury misconduct; and (6)  his  trial  counsel  rendered
ineffective assistance.  We affirm the judgment of the trial court.
                      Factual and Procedural Background
      Firefighters were dispatched to the apartment of Shirley  Sturgill  in
the late evening hours of October 6, 1990.  Finding the  door  locked,  they
forced entry and extinguished a  fire  in  Sturgill’s  bedroom.   Sturgill’s
body was found naked on the bed.  Both of her nipples had  been  bitten  off
and a  toilet  bowl  brush  protruded  from  her  vagina.   An  autopsy  was
performed on the morning of October 8.  The cause of death was ruled  manual
strangulation.  The pathologist  also  observed  bite  marks  on  Sturgill’s
right and left thigh, and  Dr.  Donnell  Marlin,  a  forensic  odontologist,
examined, photographed, and made models of the bite marks.
      The investigation soon focused on Orville Jack Dobkins, who  lived  in
an adjacent apartment and had visited Sturgill at  approximately  9:00  p.m.
on the evening of the murder.  On  October  24,  Dobkins  was  arrested  and
charged with Sturgill’s murder.  The State also  filed  a  request  for  the
death penalty.  Dobkins provided dental impressions which were  compared  to
the bite marks on Sturgill’s body.  Dr. Marlin issued a report  on  December
18, 1990, concluding  that  “within  the  bounds  of  a  reasonable  medical
certainty, the teeth of Jack Dobkins match the various  bite  marks  on  the
body of Shirley Sturgill.”  On May 15, 1991,  Dr.  Mark  Bernstein  examined
the work of Dr.  Marlin.   Dr.  Bernstein  concluded  that  the  comparisons
offered “good supporting evidence to implicate Mr.  Dobkins  but  could  not
alone prove, to a degree of reasonable medical certainty, that Dobkins  made
the bites.”  The State dismissed the charges  against  Dobkins  on  May  16,
1991.
      At the time of Sturgill’s death, her daughter Angie Carr  was  married
to Carr.  By 1994 Angie and Carr had divorced and on August 3,  1994,  Angie
told Detective Bill Dwenger that Carr left their family’s trailer  at  about
noon on October 6, 1990, and did not return until late that night.  When  he
returned, Carr took off his clothes, put them in the  washing  machine,  and
showered.  Carr and Angie  went  to  bed  about  forty-five  minutes  later.
After lying in bed for a few minutes, Carr rose, walked to  a  gun  cabinet,
took out a rifle, and pointed it at Angie’s head.  Carr told Angie  that  he
had “hurt” or “took care of” her mother.  He said  he  would  kill  her  and
their daughters if she ever said anything.   He  then  grabbed  her  by  her
hair, walked her to their daughters’ bedroom, pointed the gun at the  girls,
and reiterated that he meant what he had said.
      In 1993 police had  submitted  cigarette  butts  found  in  Sturgill’s
apartment to the FBI for DNA analysis.  A 1995  report  comparing  DNA  from
saliva on one butt to Carr's concluded that the two matched  at  five  loci.
The probability of two unrelated Caucasians with this correlation was  1  in
4,500.
      On February 16, 1996, a Shelby County Grand  Jury  indicted  Carr  for
the murder of Sturgill and the arson of  her  apartment.   The  State  later
dismissed the arson count.  After a ten-day trial in April of 1997,  a  jury
convicted Carr of murder.  Carr was sentenced to sixty  years  imprisonment.

                  I. Anesthetization for Dental Impressions
      Carr argues that the State violated his Fourth Amendment right  to  be
free from unreasonable searches and seizures when it  collected  his  dental
impressions while he was anesthetized.[1]  In his brief, Carr  characterizes
the procedure as follows:
      The procedure was so serious that Dr. Kenny  recommended  that  it  be
      carried out in a  fully  equipped  surgical  room  with  resuscitation
      equipment and personnel available.  The  Defendant  was  placed  under
      full anesthetic rendering him fully unconscious,  the  throat  of  the
      Defendant was packed with material which blocked the airway,  a  nasal
      intubation  procedure  was  used  which  allowed  the   Defendant   to
      breath[e].  Without the nasal intubation procedure the Defendant could
      not have breathed on his own.


      “The overriding  function  of  the  Fourth  Amendment  is  to  protect
personal privacy and dignity against unwarranted intrusion  by  the  State.”
Schmerber v. California, 384 U.S. 757, 767 (1966).  Its “proper function  is
to constrain, not against all intrusions as  such,  but  against  intrusions
which are not justified in the  circumstances,  or  which  are  made  in  an
improper manner.”  Id. at 768.  Carr does not deny that a  voluntary  dental
impression is easily performed  without  resort  to  anesthesia  or  serious
bodily intrusion.   More  drastic  procedures,  including  anesthesia,  were
required in his case because of his refusal to comply with  a  valid  search
warrant for the dental impressions.
      Carr contends that we should evaluate  the  constitutionality  of  the
drastic procedures under the balancing test set forth by the  United  States
Supreme Court to determine whether a surgical intrusion violates the  Fourth
Amendment.  See Winston v. Lee, 470 U.S. 753, 761-62  (1985)  (weighing  the
extent to which the procedure may  threaten  the  safety  or  health  of  an
individual and the extent to which it intrudes upon the  person's  dignitary
interest in personal privacy and bodily integrity  against  the  community’s
interest in fairly and  accurately  determining  guilt  or  innocence).   We
think these factors are plainly inapplicable  where  the  allegedly  drastic
and invasive procedure is necessitated by a defendant’s  refusal  to  comply
with a valid search warrant.  If this were  not  the  case,  the  law  would
create an incentive to refuse to comply with valid search warrants  for  the
most basic of procedures in order to force a drastic  procedure  that  might
violate the Fourth Amendment.
      As this Court has previously held, ordering a defendant to  submit  to
the taking of dental impressions does not violate the Fourth Amendment  when
supported by probable cause.  See Wade v. State, 490  N.E.2d  1097,  1101-02
(Ind. 1986).  Because the warrant was supported by probable  cause  and  the
voluntary submission of dental impressions does not violate  Winston,  there
is no Fourth Amendment violation in the more drastic procedures required  to
obtain Carr’s compliance.
                            II.  Change of Venue
      Carr next contends that the  trial  court  abused  its  discretion  by
denying his motion for change of venue from Shelby County.   To  prevail  on
this claim Carr must show that (1) there was prejudicial pretrial  publicity
and (2) the potential jurors were unable to  set  aside  their  preconceived
notions of guilt and render a verdict based upon the evidence.  See Eads  v.
State, 677 N.E.2d 524, 525 (Ind. 1997); Brown v. State, 563 N.E.2d 103,  105
(Ind. 1990).  We review a trial court’s ruling on a  motion  for  change  of
venue for an abuse of discretion.  See Williams v. State,  690  N.E.2d  162,
176 (Ind. 1997).
      Carr makes only general allegations regarding  juror  views  expressed
during voir dire.   Without  citation  to  the  responses  of  any  specific
jurors, he contends that “voir dire does not reveal  potential  jurors  were
able to set aside pre-conceived notions and render a  verdict  based  solely
on the evidence . . . .”  Eight of the twelve selected  jurors  stated  that
they had no knowledge of the case.  Three of the remaining four  jurors  did
not respond when asked by the trial court if they had “information from  the
media or from talking to people,  hearsay,  whatever,  that  you  feel  that
would weigh so heavily on your  mind  that  you  would  have  difficulty  in
deciding this case based upon the evidence that you hear in the case  only?”
 The final juror engaged in a brief colloquy with  the  trial  court  before
concluding that she could “make a decision based  on  the  evidence.”   Carr
points to nothing more.  The trial court did not  abuse  its  discretion  in
denying Carr’s motion for change of venue.[2]
                      III. Sufficiency of the Evidence
      Carr contends that there  is  insufficient  evidence  to  support  the
jury’s verdict and that the State did not disprove his alibi  defense.   Our
standard of review for sufficiency  claims  is  well  settled.   We  do  not
reweigh evidence or assess the credibility of witnesses.   Rather,  we  look
to the evidence and reasonable inferences drawn therefrom that  support  the
verdict and will affirm the conviction if there is probative  evidence  from
which a reasonable jury could have  found  the  defendant  guilty  beyond  a
reasonable doubt.  Taylor v. State, 681 N.E.2d 1105, 1110 (Ind. 1997).
      There is more than ample evidence to  support  Carr’s  conviction.   A
former co-worker of Carr’s testified that in July or August 1990  Carr  told
him he “could not stand [Sturgill].  He told  me  that  he  wished  she  was
dead.  He told me that I . . . wouldn’t  believe  how  much  he  wanted  her
dead.”  Angie testified  that  shortly  after  Carr’s  return  home  on  the
evening of Sturgill’s killing, he told her that he had hurt and  choked  her
mother.  The  DNA  results  were  admitted.   Dr.  John  Kenney,  the  Chief
Forensic Odontologist for the  Cook  County  (Illinois)  Medical  Examiner’s
Office, compared the four bite marks found on Sturgill’s  body  with  dental
impressions obtained from Carr.  Dr. Kenney  testified  at  trial  that  the
bite marks on Sturgill’s right leg and  left  nipple  were  consistent  with
Carr’s teeth and that the left groin and right  nipple  injury  “could  have
been caused” by Carr’s teeth, but no firm conclusion  was  possible.[3]   In
sum, this is sufficient probative evidence from  which  a  jury  could  have
concluded beyond a reasonable doubt that Carr killed Sturgill.
      This evidence is also sufficient to rebut Carr’s alibi  defense.   The
State is not  required  to  rebut  directly  a  defendant’s  alibi  but  may
disprove the alibi by proving its  own  case-in-chief  beyond  a  reasonable
doubt.  Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997).  A jury  may  choose
to  disbelieve  alibi  witnesses  if  the  State’s  evidence  renders   such
disbelief reasonable.  Id.; Lambert v. State, 516 N.E.2d 16, 19 (Ind.  1987)
(“We cannot substitute our appellate impressions for such  jury  credibility
determinations.”).
      Carr offered the testimony of David Taylor and Carr’s  sister,  Dorcia
Short in support of his alibi.  Short testified that  Carr  arrived  at  her
trailer sometime before 6:00 p.m. on October 6, 1990, and Taylor  arrived  a
few minutes later.  According to  Short,  Taylor  and  Carr  talked  at  her
kitchen table and later joined her  in  the  living  room  where  the  three
watched movies.  Carr left for a few minutes around 10:00 p.m. but  returned
before leaving again at approximately 11:00 p.m.  Taylor offered  a  similar
account of events,  save  that  Carr  was  gone  for  thirty  to  forty-five
minutes.  Carr contends that this time  frame  is  significant  because  the
murder must have been committed between 10:45 p.m. and  11:20  p.m.,[4]  and
it takes seventeen to nineteen minutes to drive  from  Sturgill’s  apartment
to Carr’s  home.   These  times  and  Carr’s  alibi  conflict  with  Angie’s
testimony that Carr did not arrive home until approximately  12:00  or  1:00
a.m. and that when she had  looked  in  the  direction  of  Short’s  trailer
earlier that night she did not see Carr or his truck.   It  was  the  jury’s
exclusive prerogative  to  weigh  conflicting  evidence.   See  Robinson  v.
State, 699 N.E.2d 1146, 1148 (Ind. 1998).  There is sufficient  evidence  to
support its rejection of Carr’s alibi and  its  conclusion  that  he  killed
Sturgill.
                   IV. Circumstantial Evidence Instruction
      Carr next contends that the trial court erred in refusing his tendered
instructions  dealing  with  circumstantial  evidence.   The  two   tendered
instructions were similar and  in  essence  stated  that  in  cases  resting
entirely on circumstantial evidence the evidence must be  so  conclusive  as
to exclude every reasonable theory of  innocence.   See  2  Indiana  Pattern
Jury Instructions (Criminal) 12.01 (2d ed. 1991).  Carr contends  the  trial
court was required to give this instruction  because  the  State’s  evidence
was entirely circumstantial.  The short answer to this claim is  that  Angie
testified at trial that Carr had told her shortly  after  the  time  of  the
murder that he had “hurt and choked” Sturgill.  A defendant’s confession  of
guilt to another person is direct evidence.  See Stahl v. State, 616  N.E.2d
9, 11 (Ind. 1993).   Because  the  State’s  case  did  not  rely  solely  on
circumstantial evidence, the trial court properly  refused  Carr’s  tendered
instructions.  See id. at 12.[5]
                             V. Juror Misconduct
      Carr also contends that his Sixth  Amendment  right  to  an  impartial
jury was violated by juror misconduct.  During the course of the  trial  one
juror bought newspapers that included stories  about  the  trial.   However,
the juror testified unequivocally at  a  motion  to  correct  error  hearing
after trial that she did not read the papers until the trial had  concluded.
 She testified that she purchased the papers to  compare  the  news  stories
with her notes after the trial.
      In order for jury misconduct to warrant a  new  trial,  the  defendant
must show that the misconduct was gross and  that  it  probably  harmed  the
defendant.  Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988).  It would  be
preferable that jurors arrange for someone  else  to  accumulate  newspapers
during  a  trial  to  avoid  any  issue  along  these  lines,  but  even  if
questionable, the juror’s conduct here was  reviewed  by  the  trial  court.
The trial court’s finding that Carr made no showing of harm appears  correct
and is certainly not clearly erroneous.  Accordingly, Carr’s claim of  juror
misconduct fails.[6]
                    VI. Ineffective Assistance of Counsel
      As a final point,  Carr  contends  that  his  trial  counsel  rendered
ineffective assistance.  To establish a violation  of  the  Sixth  Amendment
right to effective assistance of counsel, Carr must show that (1)  counsel’s
performance fell below an objective  standard  of  reasonableness  based  on
prevailing professional norms; and (2) there  is  a  reasonable  probability
that, but for counsel’s errors, the result  of  the  proceeding  would  have
been different.   Strickland  v.  Washington,  466  U.S.  668,  687-88,  694
(1984).  “Isolated poor strategy, bad tactics, a  mistake,  carelessness  or
inexperience do not necessarily amount to ineffective counsel unless,  taken
as a whole, the defense was inadequate.”  Davis v. State, 675  N.E.2d  1097,
1100 (Ind. 1996) (quoting Terry  v.  State,  465  N.E.2d  1085,  1089  (Ind.
1984)).   As  to  the  prejudice  prong,  “a  reasonable  probability  is  a
probability  sufficient   to   undermine   confidence   in   the   outcome.”
Strickland, 466 U.S. at 694.   More  recently,  the  Supreme  Court  of  the
United States held that prejudice resulting from ineffective  assistance  is
not established unless the error  rendered  the  result  of  the  proceeding
fundamentally unfair or unreliable.  See  Lockhart  v.  Fretwell,  506  U.S.
364, 369 (1993).
      Carr points to two instances of alleged  ineffectiveness.   First,  he
argues that trial counsel should have called Roderick Dickman to testify  at
trial.  Dickman was one of the firefighters who responded  to  the  call  at
Sturgill’s residence.  Dickman gave a statement to police  on  December  11,
1990, in which he stated that on the morning  after  the  fire  Dobkins  had
asked him if he had been at the fire and whether he knew anything about  it.
 Dickman responded that he could not  discuss  the  fire  with  Dobkins  but
asked Dobkins what he had heard.  According to Dickman, Dobkins “knew  quite
a bit about the body and  about  the  toilet  brush  being  up  [Sturgill’s]
vagina . . . .”  Trial counsel testified at  the  motion  to  correct  error
hearing that he believed he had overlooked Dickman’s  statement  and  agreed
that it would have been important  to  the  case  against  Carr  because  it
showed that Dobkins had knowledge of specific details of the  crime  shortly
after  it  occurred.   However,   during   Carr’s   case-in-chief,   another
firefighter testified that several  firefighters  had  discussed  finding  a
victim in Sturgill’s unusual condition.  Dobkins may very well have  learned
about the condition of the body  from  another  person.   Moreover,  defense
counsel pursued the Dobkins-may-have-done-it defense by calling  Dobkins  as
a witness to point out that he had been charged with  the  murder  (and  the
death penalty) shortly after the fire  in  1990  and  by  presenting  expert
testimony suggesting Dobkins was the source  of  the  bite  marks  found  on
Sturgill’s body.  Because there is not a  reasonable  probability  that  the
jury would have acquitted Carr if  trial  counsel  had  presented  Dickman’s
testimony, Carr’s first claim of ineffective assistance must fail.
      Carr also contends that trial counsel was ineffective for  failing  to
impeach Angie’s testimony.   Specifically,  he  argues  that  trial  counsel
should have pointed out  that  her  statements  to  police  and  depositions
contained inconsistencies.[7]  Carr  points  out  that  Angie  had  gone  on
record six times:  a statement to police in October of  1990,  testimony  at
Dobkins’ bail hearing in December of 1990, her 1994  report  accusing  Carr,
Grand Jury testimony in February of 1996, a deposition in December of  1996,
and another deposition in April of 1997.  Angie  first  implicated  Carr  in
her statement to police in August of 1994.   Carr  also  points  to  alleged
inconsistencies in Angie’s statements regarding the days  Carr  worked,  the
day she last saw her mother, Carr’s whereabouts earlier in the  day  of  the
crime, the number of automobiles the couple owned, and the  times  at  which
she spoke to her mother on the telephone.  However,  none  of  these  issues
cuts directly to the evidence of Carr’s guilt of Sturgill’s  murder.   Angie
testified  on  direct  examination  that  she  did  not  come  forward  with
information implicating Carr until 1994 because she was afraid for  her  own
life and her children’s.  Moreover, trial counsel questioned Angie  at  some
length about her failure to tell the police of  Carr’s  alleged  involvement
in  the  months  immediately  following  the  crime,   while   Dobkins   was
incarcerated for the killing and facing the death penalty.
      There  is  a  strong  presumption  that  counsel   rendered   adequate
assistance and made all significant decisions in the exercise of  reasonable
professional judgment, and a defendant must present “strong  and  convincing
evidence” to overcome this presumption.  Broome v. State,  694  N.E.2d  280,
281  (Ind. 1998).  The jury knew  that  Angie  did  not  come  forward  with
allegations against Carr until 1994.  Trial  counsel’s  failure  to  impeach
her testimony based on the tangential inconsistencies identified by Carr  on
appeal  was  not  deficient  performance  and  there  is  not  a  reasonable
probability that doing so would have produced a  different  verdict.   Trial
counsel was not ineffective.
                                 Conclusion
      The judgment of the trial court is affirmed.

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





-----------------------
[1] Although Carr's argument focuses on the dental impressions, he also
mentions blood, saliva, and hair samples that were taken on the same day.
He contends that, because the same samples were originally taken in 1991,
retaking these body samples five years later constituted prosecutorial
misconduct.  In a March 1996 hearing on the State's request for samples, a
detective testified that samples had been taken from Carr in 1991 and sent
to the Indiana State Police Laboratory, but that an insufficient amount of
hair had been taken and apparently the blood and saliva had not been
properly preserved.  Carr argues that the State's (in this case, a
detective's) representation that it needed additional samples was
misconduct warranting reversal.  The State does not specifically respond to
this allegation but rather asserts that, because the latter samples were
not used at trial, there was no prejudice to Carr's rights.  Assuming that
requiring a defendant to submit to repeated sampling may constitute State
misconduct in extreme cases, the State's requesting one set of additional
samples after five years based on an apparent mistaken belief that they
were needed is not such a case.
[2] Carr also notes that he requested the opportunity to question
prospective jurors about pretrial publicity individually during voir dire,
but that the request was denied.  He suggests that he was unable to
establish whether the prospective jurors who had read about the case would
be able to render an impartial verdict because "counsel was not allowed to
examine said jurors individually and without tainting the rest of the
panel."  However, there is no right to individual voir dire and the matter
falls within the trial court's "broad discretionary power in regulating the
form and substance of voir dire examination."  Hadley v. State, 496 N.E.2d
67, 72 (Ind. 1986).  Although individual voir dire "may be required where
the circumstances are highly unusual or potentially damaging to the
defendant," id., Carr has made no such showing in this case.
[3] Dr. Kenney also testified that he found "no concordance whatsoever"
between Dobkins' teeth and the injuries to Sturgill's nipples.
[4] This time frame advanced in Carr's brief is a best case scenario for
him based on the selective reliance of certain testimony:  Angie testified
that she talked to her mother, who was at home alone, on the telephone at
"around" 10:30 p.m. for "about ten or fifteen minutes"; the fire department
was called at 11:37 p.m.; and a neighbor smelled smoke approximately ten
minutes before the fire department was called.
[5] In his reply brief, Carr contends that Stahl is distinguishable because
it involved "an actual confession to two credible witnesses," whereas
"Angie Carr's story is not even credible."  It is the jury's prerogative--
not this Court's--to assess the credibility of witnesses, and we see no
reason why Stahl does not apply to this case.
[6] For the same reason Carr's suggestion of ineffectiveness of counsel for
failure to object to the juror’s action fails.
[7]  Carr also suggests that trial counsel was ineffective for failing to
use Angie's prior statements to challenge her credibility and her "prior
statement against Orville Jack Dobkins."  The purported statement against
Dobkins is nothing more than Angie telling police that when she spoke to
her mother earlier that evening Dobkins was at her mother's apartment.  She
did not tell police that she had any information directly linking Dobkins
to the killing.