State v. Cutro

Citation618 S.E.2d 890
Decision Date15 September 2005
Docket NumberNo. 26027.,26027.
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE, Respondent, v. Brenda Gail CUTRO, Appellant.

Acting Chief Attorney Joseph L. Savitz and Assistant Appellate Defender Robert M. Dudek, both of S.C. Office of Appellate Defense; and Beattie I. Butler, of Charleston, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Senior Assistant Attorney General William Edgar Salter; and Solicitor Warren B. Giese, all of Columbia, for respondent.

Justice MOORE:

Appellant was convicted of two counts of homicide by child abuse for the deaths of two infants in her home daycare. We affirm.

FACTS

Appellant and her husband Josh Cutro operated a home daycare in Irmo, South Carolina. Between January and September of 1993, two infants, Parker Colson and Ashlan Daniel, died at the Cutros' home. A third infant, Asher Maier, became ill while at their home and was subsequently diagnosed with serious brain damage. The State produced evidence that all three infants were victims of Shaken Baby Syndrome. Appellant was convicted of two counts of homicide by child abuse and sentenced to concurrent life sentences for killing Parker Colson and Ashlan Daniel; she was acquitted of the assault and battery charge regarding Asher Maier.

The State's theory of the case was that appellant's actions were motivated by Munchausen Syndrome by Proxy (MSBP), which the State's medical experts defined as a form of child abuse in which the perpetrator harms a child in order to garner sympathy and attention for herself.1

Parker Colson

Parker Colson was almost five months old when he was found dead in his crib at the Cutros' home on January 4, 1993. According to his parents, Parker was a healthy baby and had no health problems that morning. His mother dropped him off at the Cutros' daycare at about 7:30 a.m. At 1:57 p.m., emergency personnel received a call to the Cutros' home. When they arrived at 2:11 p.m., Parker was not breathing. He was rushed to the hospital where he was declared dead.

Parker's mother testified that appellant told her the following regarding Parker's death:

A: She told me that Parker was taking a nap. She went in and checked on him. He was asleep. She went in the kitchen, reached up in the cabinet to get his food down. Josh came in behind her and screamed, Parker's not breathing, call 9-1-1.

....

Q: After she left the room where Parker was and went into the kitchen, how long a period of time did she indicate it was before Josh entered the room and screamed?

A: The way she explained it to me was she checked on Parker, walked in the kitchen, and reached in the cabinet. Josh walked in behind her and screamed, Parker's not breathing, call 9-1-1 — however long it takes to get from the living room into the kitchen and reach into a cabinet, a few seconds. And her kitchen was right beside the living room.

Q: So according to Gail Cutro, who was the last person who had contact with your son Parker before Josh Cutro found him not breathing?

A: Gail.

After an autopsy, the coroner's office reported Parker's cause of death as Sudden Infant Death Syndrome, or "SIDS," which is the diagnosis given when an infant's cause of death cannot be identified. Dr. Daniel, who performed the autopsy, did note the presence of petechial hemorrhages in the cortical section of Parker's brain which she testified was unusual in a SIDS case.

In July 1994, Parker's body was exhumed and re-autopsied. Dr. Ophoven, who reviewed the autopsy report, concluded that the presence of the petechial hemorrhages in Parker's brain and a sub-dural hematoma, which had not been discovered in the original autopsy, indicated Parker died a traumatic death caused by shaking and asphyxia. Dr. Gilbert-Barness testified that Parker died of Shaken Baby Syndrome which damaged the medulla causing the heart and respiration to stop.

Other medical testimony indicated that Shaken Baby Syndrome can occur with no external sign of trauma. Because a baby's brain is not fully developed, violent shaking damages the vital center of the brain that controls breathing which can cause death by asphyxiation. The presence of petechial hemorrhages indicates asphyxia. Expert testimony further indicated that the symptoms of Shaken Baby Syndrome manifest immediately after the shaking — head injury occurs within seconds and a baby might die immediately.

Asher Maier

Asher Maier was four months old when he began daycare with the Cutros on June 7, 1993. A couple of days after beginning daycare, Asher became irritable and stopped sleeping through the night. He was fussy on June 23 when his mother dropped him off at the Cutros' at about 7:30 a.m. Between 10:30 and 10:50 a.m., Mrs. Maier received a telephone call at work from appellant stating that the baby was "inconsolable" and suggesting she pick him up and take him to the doctor. When Mrs. Maier arrived at the Cutros' a short time later, the baby was already in his car seat and they immediately handed him to her. Asher remained in his car seat until he was in the doctor's office. When Mrs. Maier removed him, she discovered Asher was limp and unable to control his neck. Another child's parent had seen Asher that morning in daycare and testified he was moving normally at that time.

Dr. Alexander, who reviewed Asher's medical records, testified in his opinion Asher had been the victim of two shaking episodes. An MRI and CT scan revealed old and new blood in his brain indicating an earlier episode, probably two weeks previous, that had healed to some extent. Asher also exhibited retinal hemorrhages indicative of Shaken Baby Syndrome.

Ashlan Daniel

Ashlan Daniel was about two months old when she began daycare with the Cutros in June 1993. Ashlan was in daycare for about only two hours a day while Mrs. Daniel worked part-time. On September 9, 1993, Mrs. Daniel dropped Ashlan off at the Cutros' at noon. A picture of Ashlan taken earlier that day shows she was a healthy and normal baby, a description her parents corroborated.

When Mrs. Daniel left work at 2:30 p.m., she went to pick Ashlan up at the Cutros' home. She pulled up as EMS personnel were arriving. Josh Cutro came out of the house and told Mrs. Daniel that Ashlan was dead.

Ashlan's mother testified that appellant told her that she, appellant, found Ashlan not breathing and Josh was out of the house at that time. Another parent testified appellant told her Josh went to pick up their children from school and that she, appellant, was the only adult in the room when Ashlan stopped breathing.

Other parents of the Cutros' daycare children also testified. One parent testified Josh told her he had just returned home when appellant came outside to tell him about the baby. Another testified that appellant told her that she, appellant, "was in the room with Ashlan when she died ... and that she couldn't believe that she didn't notice that [Ashlan] had stopped breathing."

Dr. Reynolds, who autopsied Ashlan's body, testified petechial hemorrhages were present in her brain, which he had never seen in a SIDS death. Because he could not determine the cause of death, he concluded it was SIDS.

Ashlan's body was exhumed and re-autopsied in July 1994. Dr. Ophoven testified that Ashlan's brain had a subdural hematoma which, in addition to the petechial hemorrhages, indicated she had died of trauma and asphyxia. Dr. Gilbert-Barness concurred and stated that these injuries indicated Shaken Baby Syndrome.

Evidence of MSBP

As proof of motive, the State introduced evidence of appellant's attention-seeking behavior regarding the purported SIDS deaths of the two infants who died in her daycare. She kept their obituaries, photos, and items of clothing, as well as frequently visiting their gravesites and emotionally discussing their deaths repeatedly with others. Appellant also fabricated that she had lost one of her own children and that a baby had died in her care in 1992. The State's medical experts opined that the injuries to the three infants and appellant's behavior indicated a pattern of child abuse identified as MSBP.

ISSUES

1. Was appellant unfairly prejudiced by the trial court's refusal to sever the charges?

2. Was appellant unfairly prejudiced by evidence used to prove MSBP?

3. Were autopsy reports of other infants improperly admitted?

DISCUSSION
1. Joinder of charges

Appellant was first tried in 1994 and convicted of killing Ashlan Daniel. We reversed that conviction because evidence of the death and injury to the other two infants, Parker Colson and Asher Maier, was not clear and convincing and therefore was improperly admitted as Lyle2 evidence. State v. Cutro, 332 S.C. 100, 504 S.E.2d 324 (1998) (Cutro I).3 Appellant contends the trial judge erred in denying her motion to sever the charges in this case based on our holding in Cutro I. For the reasons set forth below, we find our evidentiary ruling in Cutro I is not controlling here.

Generally, when offenses charged in separate indictments are of the same general nature involving connected transactions closely related in kind, place, and character,4 the trial judge has the discretion to order the indictments tried together, but only so long as the defendant's substantive rights are not prejudiced. State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981); State v. Williams, 263 S.C. 290, 210 S.E.2d 298 (1974); McCrary v. State, 249 S.C. 14, 152 S.E.2d 235 (1967). We have found prejudice where the defendant was jointly tried on charges for which the evidence would not otherwise have been admissible under Lyle. State v. Smith, 322 S.C. 107, 470 S.E.2d 364 (1996). We now clarify that in determining joinder, the trial judge need not find clear and convincing evidence of the charges.

a. Distinction between evidentiary and joinder context

In the...

To continue reading

Request your trial
42 cases
  • State v. Perry
    • United States
    • South Carolina Supreme Court
    • 6 Mayo 2020
    ...to be considered a meaningful similarity." I disagree, and this Court's precedent agrees with me. See, e.g. , State v. Cutro , 365 S.C. 366, 376, 618 S.E.2d 890, 895 (2005) (finding three instances of Shaken Baby Syndrome occurring in the defendant's home daycare were "similar in kind, plac......
  • State ex rel. Cincinnati Enquirer v. Pike Cnty. Coroner's Office
    • United States
    • Ohio Supreme Court
    • 14 Diciembre 2017
    ...reports may be admitted in a criminal proceeding without violating the confrontation rights of the defendant, State v. Cutro , 365 S.C. 366, 377–378, 618 S.E.2d 890 (2005).3 The document properties for the online PDF version of the 2017 edition of the attorney general's sunshine-laws manual......
  • State v. Craig
    • United States
    • Ohio Supreme Court
    • 20 Septiembre 2006
    ...and its admission without the testimony of the medical examiner who performed the autopsy did not violate Crawford); State v. Cutro (2005), 365 S.C. 366, 378, 618 S.E.2d 890 (autopsy report was {¶ 84} Some jurisdictions have resolved the Crawford issue by distinguishing between objective fa......
  • Rimer v. State
    • United States
    • Nevada Supreme Court
    • 11 Junio 2015
    ...jury indictments or criminal informations” and therefore are “of equal stature.” Solomon, 646 A.2d at 1070 ; accord State v. Cutro, 365 S.C. 366, 618 S.E.2d 890, 894 (2005). Similarly, weighing the probative value of the evidence against the danger of unfair prejudice does not provide a mea......
  • Request a trial to view additional results
1 books & journal articles
  • The Confrontation Clause and Forensic Autopsy Reports - A 'Testimonial
    • United States
    • Louisiana Law Review No. 74-1, October 2013
    • 1 Octubre 2013
    ...2006). 442. Id. at 637. 443. Id. 444. Crawford v. Washington, 541 U.S. 36 (2004). 445. Craig , 853 N.E.2d at 638–39. 446. State v. Cutro, 618 S.E.2d 890, 896 (S.C. 2005). 447. Id. 448. People v. Hall, 923 N.Y.S.2d 428, 432 (N.Y. App. Div. 2011). 164 LOUISIANA LAW REVIEW [Vol. 74 internal ex......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT