Cutter v. State

• Decision Date: 17 March 2000
• Docket Number: No. 49S00-9603-CR-204.,49S00-9603-CR-204.
• Citation: 725 N.E.2d 401
• Parties: Larry CUTTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

725 N.E.2d 401

Larry CUTTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-9603-CR-204.

Supreme Court of Indiana.

March 17, 2000.

Rehearing Denied May 31, 2000.

Annette K. Fancher, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, James A. Garrard, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. 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, 108 S.Ct. 2166, 100 L.Ed.2d 811 (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, 108 S.Ct. 2166; Lewis, 543 N.E.2d at 1118. The doctrine of the law of the case is applied only "to 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) ("Questions 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) ("[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 "relevan[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); Fentress v. State, 702 N.E.2d 721, 722 (Ind.1998); Bufkin v. State, 700 N.E.2d 1147, 1149 (Ind.1998). Although a photograph may arouse the passions of the jurors, it is admissible unless "its 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 "by 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 "like 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 "opinions 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...