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.