Carr v. State
| Decision Date | 18 April 2000 |
| Docket Number | No. 73S00-9709-CR-487.,73S00-9709-CR-487. |
| Citation | 728 N.E.2d 125 |
| Parties | John Dell CARR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Kris Meltzer, Shelbyville, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. 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.
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, 86 S.Ct. 1826, 16 L.Ed.2d 908 (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, 86 S.Ct. 1826. 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, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (). 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.
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
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 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...
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