Cuto v. State
| Decision Date | 21 April 1999 |
| Docket Number | No. 49A02-9807-CR-609,49A02-9807-CR-609 |
| Parties | Fred CUTO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
In this interlocutory appeal, Fred Cuto raises five issues for review. As restated, the issues are:
1. Did the trial court properly interpret the Court of Appeals's decision which remanded for a new trial?
2. Does Ind.Code Ann. § 35-41-4-3 (West 1998), or do double jeopardy principles, bar reprosecution of the murder and felony murder charges?
3. If retrial is granted on only a portion of the original charges, will Cuto's right to a fair trial be prejudiced, including concerns regarding the possibility of receiving a lengthier sentence than if all charges had been tried together, collateral estoppel principles, and his right to testify in his own defense?
4. Does bifurcation of the proceedings risk inconsistent verdicts and "create needless oddity" in the record?
5. Does Criminal Rule 4(B) require the court to release Cuto pending his retrial?
We affirm.
This case has been on appeal to this court previously. In a memorandum decision, this court found the following facts:
During the early morning hours of September 9, 1993, Cuto, Michael Watkins, Robert Lasley and Jeffrey Barrons were talking, drinking and gambling on the porch of an abandoned house on Udell Avenue in Indianapolis. Sometime later that morning, Charles Bradshaw arrived, parked his car on the street across from the house and went to use a pay phone at a nearby liquor store.
After Bradshaw left his vehicle, Cuto walked across the street and sat on a tree stump next to Bradshaw's car. When Bradshaw returned to his car later that morning, Cuto approached him with a dark-colored automatic pistol in his hand and asked him if he wanted to buy the handgun. When Bradshaw began opening the car door, Cuto fired three shots, hitting Bradshaw in the leg and knocking him to the ground. Bradshaw, pleading for mercy, held out his hands and offered Cuto his money and car keys. In response, Cuto walked over to Bradshaw and removed a folded wad of money from his pockets. Cuto then began searching the car. When he finished, Cuto approached Bradshaw and stated that "I told you I was going to blow your mother fucking brains out." Record at 439. He then fatally shot Bradshaw in the head.
On September 16, 1993, Cuto was charged with Murder [Ind.Code Ann. § 35-42-1-1(1) (West 1993) ], a felony, Murder during the Commission of a felony [IC § 35-42-1-1(2) ], robbery [IC § 35-42-5-1], a class A felony, and Carrying a Handgun Without a License [Ind.Code Ann. § 35-47-2-1 (West 1993), IC § 35-47-2-23], a class A misdemeanor. From February 27, 1995, to March 2, 1995, a jury trial was conducted. During the trial, both Watkins and Lasley testified that they saw Cuto shoot Bradshaw in the head. After hearing all the evidence, the jury convicted Cuto as charged.
On May 12, 1995, Cuto filed a motion to set aside the verdicts on the basis of fraud and perjury, claiming that the State failed to disclose that it had made an agreement with Watkins to re-evaluate his plea agreement on an unrelated drug charge in exchange for his testimony at Cuto's trial. Following a hearing on the motion, the trial court, acting as a thirteenth juror, set aside Cuto's murder and felony murder convictions and entered a judgment of conviction on the lesser-included offense of aggravated battery. Thereafter, Cuto was sentenced to thirty years imprisonment for robbery, twenty years for aggravated battery and one year for carrying a handgun without a license. The sentences were ordered to be served concurrently for a total sentence of thirty years imprisonment.
Record at 363-64 (footnotes omitted). The trial court did not alter the convictions for robbery or carrying a handgun without a license.
Cuto filed his praecipe, thereby commencing an appeal in December 1995. In January 1996, the State moved to dismiss count II, the felony murder charge. 1 Cuto appealed and the State cross-appealed. This court's memorandum decision determined that the trial court, acting as a thirteenth juror, erred by entering a judgment on a lesser-included offense. The cause was remanded for further proceedings.
On remand, the trial court found that this court's memorandum decision affirmed the robbery conviction, and reversed and remanded for retrial on the murder and felony-murder convictions. As noted above, Cuto initiated this interlocutory appeal contending, inter alia, that the trial court erroneously interpreted this court's order which will cause him substantial prejudice. This court accepted jurisdiction.
Cuto contends that the trial court misinterpreted this court's decision in the first appeal. The trial court determined that retrial was ordered for the murder and felony-murder counts only, leaving intact the convictions for robbery and carrying a handgun without a license. Cuto contends that because of various factors which will cause him prejudice and hamper his ability to receive a fair trial, the previous decision of this court should be construed to require retrial on the robbery charge as well.
In his first appeal, Cuto raised three issues. In his first issue, he complained that the trial court erred by convicting him of a lesser-included offense rather than ordering a new trial based upon the tainted testimony of a key witness. In his second issue, Cuto urged that the class A felony robbery conviction could not stand once the murder charges were vacated. He alleged that the conviction for a class B felony aggravated battery would not support elevating robbery to a class A felony because the charging information elevated robbery to a class A felony based upon the death of Bradshaw. In his third issue, Cuto compared and contrasted the definitions of robbery, as a class A felony; serious bodily injury; and aggravated battery, as a class B felony, in an attempt to demonstrate that the robbery conviction and the aggravated battery conviction were incompatible.
As noted by this court in the decision on the first appeal, Cuto's last two issues became moot if the trial court's decision to vacate the murder convictions and sentence Cuto on aggravated battery, a class B felony, was reversed. After reviewing Ind. Trial Rule 59, case law, and the trial court's stated intention to act as a thirteenth juror, this court determined that under the circumstances the trial court erred by not granting Cuto's request for a new trial. Once this court reversed the aggravated battery conviction and Cuto was granted his request for a new trial, the other issues premised on the lack of a conviction on the murder charges and the alleged incompatibility between aggravated battery and the robbery charge were moot. Specifically, this court noted:
Cuto also challenges his aggravated battery and robbery convictions on the basis of a material variance between the charging indictments and the evidence adduced at trial and on the grounds of double jeopardy. Having concluded that the trial court erred in entering a conviction of aggravated battery, however, we need not address his arguments because they relate to the conflicts arising from his convictions for both aggravated battery and robbery.
We reemphasize in this decision: Cuto did not raise an independent challenge to the robbery conviction in his first appeal. 2 The robbery conviction was questioned only in the context of the aggravated battery conviction entered by the trial court.
Accordingly, the trial court properly interpreted this court's decision in the first appeal. That decision reversed the aggravated battery conviction and granted Cuto's request for retrial on the murder charges. Cuto's alternative arguments urging error which are presented in this appeal will be discussed within the framework established in the first appeal.
This court's earlier decision in this case remanded the cause for retrial. Cuto did not request transfer, and the decision was certified. Cuto contends that principles of double jeopardy and IC § 35-41-4-3 () prohibit retrial. In other words, Cuto questions the efficacy of the decision of this court remanding for retrial.
Pursuant to the law of the case doctrine, an appellate court's decision on a legal issue is binding upon the trial court and the appellate tribunal in any subsequent appeal in the same case and involving substantially similar facts. State v. Huffman, 643 N.E.2d 899 (Ind.1994). The doctrine minimizes the necessity to relitigate legal issues once they have been determined by an appellate court. Id. The doctrine is a discretionary rule of practice. Certain Northeast Annexation Area Landowners v. City of Fort Wayne, 622 N.E.2d 548 (Ind.Ct.App.1993), trans. denied. Courts have the power to revisit a question previously decided, although as a rule they should be loathe to do so. Id. Failure to seek transfer from an adverse ruling will preclude later presentation of error on the same ground. Boykin v. State, 622 N.E.2d 568 (Ind.Ct.App.1993), trans. denied. The ruling becomes the law of the case. Id.
Additionally, we look to Cuto's request for relief made to the trial court and to this court during the first appeal. As noted above, after his convictions and before his sentencing, Cuto filed with the trial court a motion entitled "Motion to Set Aside Jury's Verdict On the Basis of Fraud and Perjury". Record at 264. Cuto's motion specifically requested a new trial. Although the concluding paragraph requested "all other just and proper relief", the paragraph requesting relief stated: "The only remedy for Mr. Cuto is to...
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