S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Brenda Gail Cutro, Appellant.
Appeal From Richland County
M. Duane Shuler, Judge
Opinion No. 24834
Heard September 18, 1997 - Filed August 31, 1998
REVERSED
Thomas M. Neal, III, H. Wesley Kirkland, Jr., and
S.C. Office of Appellate Defense, all of Columbia;
and L. Lisa McPherson, of Lexington, for appellant.
Attorney General Charles Molony Condon,
Assistant Deputy Attorney General Donald J.
Zelenka, Senior Assistant Attorney General William
Edgar Salter, 111, Solicitor Warren B. Giese, and
Deputy Solicitor Jonathan S. Gasser, all of
Columbia, for respondent.
MOORE, A.J.: Appellant Brenda Gail Cutro was convicted of
one count of murder and sentenced to life imprisonment. We reverse.
p.56
STATE v. CUTRO
FACTS
In 1993, appellant and her husband operated a day care center
in their home. During that year, two infants died while in their care. A
third child was diagnosed with Shaken Baby Syndrome. Appellant was
convicted of murder for the September 1993 death of four-month-old
Ashlan Daniel. The death of Parker Colson in January 1993 and the June
1993 diagnosis of Asher Maier with Shaken Baby Syndrome were admitted
into evidence as prior bad acts at appellant's trial.1
ISSUE
Did the trial judge err in admitting evidence of Parker's
death and Asher's diagnosis of Shaken Baby Syndrome
which the state offered to prove common scheme or plan
pursuant to State v. Lyle?2
DISCUSSION
Appellant contends the trial judge erred in admitting Lyle
evidence.3 We agree. The State offered evidence of two alleged prior bad
1 After an autopsy, Parker's death initially was attributed to
pneumonia. This was subsequently changed to SIDS by the pathologist
who had performed the autopsy after she consulted an expert on SIDS.
Ashlan's cause of death was listed as "undetermined/presumed SIDS."
Ashlan's autopsy was performed by a different doctor and with the
knowledge of Parker's death and Asher's injury and the suspicions
surrounding appellant and her husband. SIDS is a diagnosis by exclusion
(i.e. no cause of death can be ascertained). The bodies of the babies were
exhumed in July 1994 and the State's experts determined the babies had
died from asphyxiation as a result of trauma. The doctors who had
performed the original autopsies did not change their opinions as to the
cause of the deaths. Further, several defense experts also testified the
children did not die as a result of trauma.
2 125 S.C. 406, 118 S.E. 803 (1923).
3Contrary to the dissent's assertions, appellant properly raised this
issue on appeal. In her brief, appellant states that "[i]n the absence of
any properly-admitted evidence that [appellant] shook each of these three
p.57
STATE v. CUTRO
acts: 1) Parker's death which occurred eight months before Ashlan's death
and while he was in appellant's care on January 4, 1993; and 2) the
diagnosis of Asher with Shaken Baby Syndrome three months prior to
Ashlan's death on June 23, 1993. Prior to trial, the trial judge held a
hearing on the admissibility of this evidence. He ruled that he would let
the State introduce the evidence and if the State was unable to tie the
evidence together he would grant a mistrial. After the State concluded its
case, the trial judge found the evidence admissible and held that the State
had presented clear and convincing evidence, albeit circumstantial, that
appellant had committed these other offenses.
In the case of the common scheme or plan exception under
Lyle, a close degree of similarity or connection between the prior bad act
and the crime for which the defendant is on trial is necessary. State v.
Parker, 315 S.C. 230, 433 S.E.2d 831 (1993). See also State v. Douglas,
302 S.C. 508, 397 S.E.2d 98 (1990). The connection between the prior bad
act and the crime must be more than just a general similarity. State v.
Stokes, 279 S.C. 191, 304 S.E.2d 814 (1983). A common scheme or plan
concerns more than the commission of two similar crimes; some connection
between the crimes is necessary. Id.
Evidence of other crimes must be put to a rather severe test
before admission. The acid test of admissibility is the logical relevancy of
the other crimes. The trial judge must clearly perceive the connection
between the other crimes and the crimes charged. Lyle, supra. Further,
other crimes which are not the subject of conviction must be proven by
clear and convincing evidence. State v. Pierce, 326 S.C. 176, 485 S.E.2d
913 (1997).
In Pierce, we held the trial court erred in admitting prior bad
act evidence of child abuse because the State had failed to offer clear and
convincing proof that the appellant had inflicted the prior injuries.
Similarly, in State v. Smith, 300 S.C. 216, 387 S.E.2d 245 (1989), we held
(3) children, the necessary Lyle connection fails and the Colson,/Maier
evidence should not have been admitted." Appellant argues that Parker
and Ashlan died from SIDS (i.e. not from trauma). Appellant's trial
strategy was to prove that Parker and Ashlan died from SIDS. In doing
so,, she implicitly argued she did not commit any bad act. There could be
no other way to view this argument. As for Asher, appellant does not
dispute that the child was shaken - she contends, however, that she did
not do it.
p.58
STATE v. CUTRO
proof appellant committed a prior murder was not clear and convincing.
Likewise, here, the evidence is insufficient to establish that appellant was
the actor in Parker's death or Asher's injuries.4
Appellant and her husband testified she routinely left all of the
children in her husband's care while she ran errands. In fact, on the day
Parker died, they testified appellant's husband provided almost all of their
care. On that day, appellant left the house for over two hours to go to the
bank, grocery store, a crafts store, and Wal-mart. Appellant's husband
was holding Parker when she returned and he put Parker down for his
nap. Appellant's husband found Parker not breathing an hour later.
The experts seem to agree that Asher's injuries occurred
sometime within the seventy-two-hour-period prior to when he was taken
to the hospital. Further, because he was not dehydrated, it was
ascertained that the injury probably occurred within the prior twenty-four
hours.5 Asher was taken to the hospital on the morning of Wednesday,
June 23rd. Appellant and another parent testified Asher appeared sick
when his mother, Catherine Maier, dropped him off at approximately 7:30
a.m. Appellant called Catherine that morning around 10:30 a.m. and
asked her to take him to the doctor. Appellant's husband immediately
carried Asher, who was already strapped into his car seat, out to the car
when Catherine arrived to take him to the doctor at approximately 11:30
4The dissent blatantly concludes the "SIDS diagnosis was in error"
even though the highly qualified medical experts who testified in this trial
could not agree this was the case. Unlike the dissent, we find it
unnecessary to summarize the testimony of the numerous medical experts.
We base our opinion upon the lack of evidence presented that appellant
was the perpetrator, if there was one.
We note, however, the dissent misleadingly states Dr. Daniel, who
had originally performed the autopsy on Parker, testified that her findings
were consistent with forced asphyxiation. Dr. Daniels testified her
findings were consistent with forced asphyxiation and SIDS. She testified
she made her final decision by determining that it was more likely than
not that this was a SIDS death.
5 Dr. Louis Becton testified Asher was not dehydrated and after he
had been shaken he would have immediately lost his motor skills and
been unable to eat. He also testified it takes an infant hours, rather than
days, to become dehydrated.
p.59
STATE v. CUTRO
a.m.
Several persons other than appellant, including Catherine and
appellant's husband, had access to Asher within this preceding twenty-four
hour period. We think the evidence is insufficient to establish that
appellant injured Asher.
The dissent states "[Appellant] had nearly exclusive control
over Asher and Parker; the only other person with clear access to Asher
and Parker was [appellant's] husband." (emphasis added). This view of
the evidence does not support the conclusion that appellant was the sole
person who could have inflicted the injuries. The dissent points to
appellant's testimony that Parker was her responsibility and it was her job
to give him back to his mother that day. This testimony does not
somehow exclude appellant's husband from being the perpetrator. The
dissent states appellant's credibility was in doubt at trial. Even if we
discount appellant's testimony because of her lack of credibility, there is
still appellant's husband's testimony that he helped care for the children.
More importantly, the State did not present any evidence to the contrary.
Thus, the only evidence on this issue is that appellant did not have
exclusive control of the children.
The facts of this case are very similar to the facts in State v.
Conyers, 268 S.C. 276, 233 S.E.2d 95 (1977). In Conyers, the appellant
was convicted of murdering her second husband by poisoning him with
arsenic. The State introduced evidence regarding the poisoning of
appellant's son-in-law, mother-in-law, first husband, and a potential
business partner. The Court summarily concluded the trial judge properly
admitted evidence of poisoning of the son-in-law, mother-in-law, and
potential business partner. However, the Court held the trial court had
erred in admitting evidence of the poisoning of appellant's ex-husband.
Appellant's first husband died six years before her second husband. The
first husband's body was exhumed and it was found to contain the highest
level of arsenic of any of the other victims. "There was very little
evidence, however, to establish that appellant poisoned her first husband
other than the fact that she was his wife and he had some life insurance.
This evidence alone was insufficient to establish the identity of appellant
as the actor in poisoning her first husband." 268 S.C. at 281, 233 S.E.2d
at 96.6 The Court held the admission of this evidence was clearly
6Contrary to the dissent's assertions, the Conyers opinion, which
summarily affirms the admission of some Lyle evidence without any
p.60
STATE v. CUTRO
prejudicial and reversed.
Likewise, here, the evidence is insufficient to establish that
appellant was the actor in Parker's death or Asher's injuries and we hold
the trial judge erred in admitting this evidence. Accordingly, we reverse.
Appellant's remaining issues are affirmed pursuant to Rule
220(b)(2) and the following authorities: Issue 2: State v. Dinkins, 319 S.C.
415, 462 S.E.2d 59 (1995).7 Issue 3: State v. Washington, 315 S.C. 108,
432 SE.2d 448 (1993)(appellant cannot on appeal complain about the
admission of evidence which she elicited). Issue 4: State v. Williams, 303
S.C. 274, 400 S.E.2d 131 (1991)(in ruling on a motion for a directed
verdict, the trial judge is concerned with the existence or nonexistence of
evidence, not its weight). Issue 5: State v. Bailey, 276 S.C. 32, 274 S.E.2d
913 (1981)(admission of evidence is within the trial court's discretion and
absent an abuse of this discretion will not be reversed by this Court);
State v. Schmidt, 288 S.C. 301, 342 S.E.2d 401 (1986)(evidence is relevant
if it tends to establish or make more or less probable some matter at issue
upon which it directly or indirectly bears); State v. Sullivan, 277 S.C. 35,
282 S.E.2d 838 (1981)(appellant cannot complain of prejudice from
admission of evidence if he opened the door to its admission).
REVERSED.
FINNEY, C.J., and WALLER, A.J., concur. TOAL and BURNETT, JJ.,
dissenting in separate opinion.
analysis or discussion, provides no support for the admission of the Lyle
evidence in this case. Furthermore, the Conyers decision is not the only
precedent upon which we base our decision in this case.
7Based solely upon the grounds which appellant raised, we affirm the
admission of the statistics.
p.61
STATE v. CUTRO
TOAL, A.J.: The majority affirms all issues, except the question of
Cutro's prior bad acts. It finds that the trial court erred in admitting, under
State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), evidence of the death of
Parker Colson and the injury of Asher Maier. Because this finding fails
procedurally and substantively, I must dissent from this portion of the
majority's opinion.
A. PROCEDURAL GROUNDS
The majority opinion holds that evidence of Brenda Cutro's prior bad
acts is inadmissible because the State failed to prove her commission of these
acts by clear and convincing evidence. This argument is procedurally barred
inasmuch as it was neither raised, nor argued, on appeal by Cutro. Before
this Court, Cutro contests the trial court's ruling concerning the Lyle
evidence on two distinct bases: (1) the State has not established a sufficient
connection for the prior bad acts to be admissible because of dissimilarities
between the prior bad acts and the current murder; and (2) even if the
evidence were admissible, the State has introduced too much evidence,
thereby prejudicing Cutro.
Cutro does not argue that the State failed to prove the prior bad acts
by clear and convincing evidence. This issue has been raised by the majority
sua sponte. Because this ground is procedurally barred, it is improper for
this Court to consider it. See State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838
(1981)(An issue not argued in the appellant's brief is deemed abandoned.).
The impropriety of reaching this issue is compounded by the fact that the
parties have not had the opportunity to adequately brief this issue. This is
particularly necessary in a case like this one, a complex two-week trial that
involved a parade of over eighty witnesses, a collection of over one hundred
sixty exhibits, and a record exceeding three thousand pages.
In footnote 3 of its opinion, the majority attempts to rebut our position
that its argument is procedurally barred. It posits, in a very generalized
fashion, the argument that somehow the issue is before this Court. In
claiming that Cutro has properly presented the issue that the State has
failed to prove by clear and convincing evidence that she committed the prior
bad acts, the majority has not -- and cannot -- cite to a single paragraph of
the argument contained in Cutro's brief to support its position.1d A perusal
1d The majority refers to the following statement: "In the absence of any
properly-admitted evidence that Mrs. Cutro shook each of these three (3)
children, the necessary Lyle connection fails and the Colson/Maier evidence
p.62
STATE v. CUTRO
of the eleven-page Lyle argument contained in Cutro's brief will demonstrate
beyond peradventure that this issue is procedurally barred. Even an
examination of Cutro's argument headings suffices to convince that the
argument is not appellant's, but rather a sua sponte product of the majority's
analysis. As an aid to the reader, we quote these argument headings:
1. The trial judge improperly allowed the State to introduce
evidence concerning the death of Parker Colson and the injury to
Asher Maier.
A. There was doubt as to the connection between the death
of Ashlan Daniel (the charge for which Appellant was tried)
and the death of Parker Colson and the injury to Asher
Maier.
B. If any such evidence was admissible, the State
introduced too much evidence and effectively tried the
Appellant on all three (3) charges.
See Appellant's Brief, pp. 16-26.
The arguments that were presented by Cutro's brief are as follows:
Where an alleged bad act is strikingly similar to the one for which a
should not have been admitted." This reference further reinforces our
argument that Cutro has not specifically raised the issue of the State failing
to prove the prior bad acts by clear and convincing evidence. First, the
statement is very general in nature and does not identify the precise issue
which the majority chooses to address. Second, it does not even appear in
Cutro's statement of issues on appeal, nor in the argument portion of Cutro's
brief. Instead, the above-quoted sentence is a passing reference in an
introductory note in Cutro's brief.
It is well established that ordinarily no point will be considered which
is not set forth in the statement of issues on appeal. Rule 207(b)(1)(B),
SCACR; Gamble v. International Paper Realty Corp., 323 S.C. 367, 474
S.E.2d 438 (1996). Further, a one-sentence argument is too conclusory to
present any issue on appeal. Englert, Inc. v. Netherlands Ins. Co., 315 S.C.
300, 433 S.E.2d 871 (Ct. App. 1993). The majority cannot overcome these
procedural hurdles. We may search in vain Cutro's brief for the issue of the
State failing to prove the prior bad acts by clear and convincing evidence.
Ultimately, neither Cutro's statement of issues, nor a single full paragraph
of her argument will yield the issue.
p.63
STATE v. CUTRO
defendant is being tried, the danger of prejudice is enhanced; this is
particularly true in a case resting upon circumstantial evidence. The case
against Cutro was purely circumstantial in nature. See Appellant's Brief, pp.
16-17. Further, the State did not prove the bad acts were similar. See
Appellant's Brief, pp. 20-22. Finally, if the evidence were admissible, the
State introduced too much of it. See Appellant's Brief, pp. 22-26.
It is most revealing that the argument created for Cutro by the
majority even contradicts, at the most basic level, one of the very arguments
she did make: The majority champions the cause that the State did not
present enough evidence. Contrarily, Cutro's brief contends that the State
presented too much evidence. This discrepancy alone should alert us to the
procedural mischief afoot.
Thus, because Cutro has never presented the argument lying at the
center of the majority's conclusion, the matter should be considered
procedurally barred.
B. SUBSTANTIVE GROUNDS
Even if we assume the issue has been properly presented on appeal, it
fails on the merits. The majority opinion concludes that there was not clear
.and convincing evidence that Cutro caused Parker's death and Asher's
injuries. The record is otherwise.
Cutro operated a day care center in her home in Irmo, South Carolina.
During an eight month period in 1993, three children in Cutro's care either
died or were severely injured. In January 1993, Parker Colson died while in
Cutro's care; in June 1993, Asher Maier suffered severe brain damage while
in Cutro's care; in September 1993, Ashlan Daniel died while in Cutro's care.
Cutro was eventually indicted for the murder of Ashlan. The State sought
to introduce, under Lyle, evidence of Parker's death and Asher's injuries in
order to show motive, a common scheme or plan, and identity. There were
a number of similarities between the three cases:
1. all three children were in the custody, care, and control of Cutro;
2. all three children were between four and five months old;
3. all the events occurred at Cutro's house;
4. all the events occurred during daytime;
5. all three children died as a result of physical abuse (suffocation or
shaking);
6. all three children suffered injuries to the brain area;
p.64
STATE v. CUTRO
7. the deaths and injury were all inconsistent with Sudden Infant
Death Syndrome [SIDS];
8. all three children had insignificant medical histories;
9. all the children were born after normal, full-term pregnancies; and
10. there was absence of evidence that the injuries were caused by
accident
The trial court admitted the evidence of the prior bad acts, finding this to be
a "textbook" Lyle situation. The court further found that the probative value
of the evidence outweighed its prejudicial effect. Moreover, it concluded that,
in this circumstantial evidence case, the State had proved the prior bad acts
with clear and convincing evidence.
The admission of evidence in a criminal prosecution is within the
discretion of the trial court, and its ruling will not be disturbed on appeal
unless an abuse of discretion is shown. State v. Wright, 322 S.C. 253, 471
S.E.2d 700 (1996). A review of the record reveals there is ample evidence to
uphold the trial court's ruling that the prior bad acts were proven by clear
and convincing evidence.
1. PARKER COLSON
Parker was a healthy baby in the days preceding January 4, 1993. He
was perfectly fine when he was dropped off at Cutro's day care center on
January 4th. In the middle of the day, his mother received a call from the
day care center and was told that Parker was not breathing. Emergency
medical personnel were called to Cutro's home where they found that the
infant's heart was not beating. They were told upon their arrival that Parker
had been found on the bed not breathing and that he had been checked 10
or 15 minutes earlier and was okay. They attempted to resuscitate Parker,
but were unsuccessful. Parker was transported to the hospital where for 20
minutes the emergency room physician attempted to resuscitate him. The
physician also failed. Parker was declared dead at 2:55 p.m.
On January 5th, Dr. Beverly Williams-Daniel, a pathologist at the
Lexington Medical Center, performed an autopsy on Parker. She did not
discover any external signs of trauma to Parker's body. Based on collections
of cells found in Parker's lungs, she originally listed his cause of death as
acute bronchopneumonia bilateral. After getting more information from
Parker's parents, Dr. Daniel felt that she may have misdiagnosed the cause
of death. She consulted another pathologist who advised that Parker did not
die from pneumonia. Because she did not have another cause of death, Dr.
p.65
STATE v. CUTRO
Daniel amended the report to list SIDS as the cause.
Dr. Enid Gilbert-Barness, a professor of pediatrics and pathology and
a hospital director of pediatric pathology, examined the evidence related to
Parker's death. At the time, Dr. Barness had over 40 years of experience in
pediatric pathology, having performed in excess of 4,000 autopsies. After
reviewing the autopsy reports and the pathological specimens, she was
alarmed to find the presence of petechial hemorrhages in Parker's brain. In
her 40 years of practicing pediatric pathology, she had never observed gross
(i.e. visible to the naked eye) petechial hemorrhaging in the brain of an
infant diagnosed with SIDS. She testified that Parker died of trauma, which
was very likely caused by shaking, resulting in a subdural hemorrhage and
petechial hemorrhages in the brain.
Dr. John Emery, a forensic pediatric pathologist, also testified for the
State. In Dr. Emery's 45 years of experience, he had performed autopsies on
over 6,000 infants. After reviewing the evidence, Dr. Emery concluded that
the cells in Parker's lungs were not connected with his death. Misdiagnosis
based on this symptom occurs when pathologists do not have experience
performing autopsies on infants. Dr. Emery found petechiae in Parker's
brain in a distribution that was "quite different" than in control studies. The
petechiae were increased to a level of clinical significance. He was convinced
that there was blood in the dura before the child had died. It was his
opinion that Parker had died as a result of trauma.
Dr. Janice Ophoven similarly testified. As a pediatric forensic
pathologist, she had had over 23 years of experience; the last 18 of those
years had been primarily focussed on infant autopsies. She reviewed the
microscopic slides of Parker's major organs, photographs of body parts after
exhumation, as well as his complete medical history and other medical
information. After reviewing the information, she concluded that Parker did
not die naturally. She observed petechial hemorrhages in the brain that
were visible to the naked eye. This is a sign of asphyxia. In all her years
of experience, Dr. Ophoven had never observed gross petechial hemorrhages
in infants who had died of SIDS. Nor had she ever seen a scientific journal
describing a case of SIDS involving grossly visible petechial hemorrhages.
Based on this finding, and also the presence of subdural blood, she concluded
that Parker had died of non-accidental trauma or child abuse.
Dr. Ophoven also had the opportunity to review the autopsies of every
South Carolina infant who had died in the period January 1, 1993 to June
14, 1994 and whose cause of death had been listed as SIDS. After reviewing
p.66
STATE v. CUTRO
102 autopsies from 31 counties, she found that of all the infants in these
cases, only two had suffered hemorrhaging in the brain, detectable grossly
and microscopically. These two infants were Parker Colson and Ashlan
Daniel, the child Cutro was found guilty of murdering in the instant case.
2. ASHER MAIER
Asher was dropped off at Cutro's home on June 23, 1993 at 7:30 a.m.
At 10:30 a.m., Cutro called Asher's mother, asking her to take him to the
doctor because he would not eat or sleep and kept crying. Asher's mother
arrived soon thereafter and took Asher to the doctor.
Dr. Lewis Becton, who examined Asher, testified that when Asher was
brought into the hospital, he was pale and irritable, had very poor neck
control, could not focus, and was obviously not neurologically normal. His
neck was completely limp, and he had retinal hemorrhaging. Asher was
diagnosed as suffering from shaken baby syndrome. Dr. Becton testified that
Asher's condition was such that he could not suck or take food. Such
symptoms occur immediately after a baby has been shaken. Because Asher
was not dehydrated, he must have had food within the previous 24 hours.
Thus, the shaking of Asher must have occurred in this 24 hour period.
The last time Asher had been seen to be normal was when he was
dropped off at Cutro's day care. A parent who went by the day care center
that morning testified that he saw Asher holding his head up and turning
around. Cutro herself had given a statement about the events of June 23rd.
In her statement, she said that Asher was dropped off at the day care center
by her mother. Cutro indicated that Asher was not fully alert that morning.
She made no mention that Asher exhibited any highly unusual symptoms,
such as a limp neck.
Dr. Randall Alexander, a nationally recognized expert in the field of
pediatrics and child abuse, testified that his examination of the evidence
revealed that Asher had suffered from at least two episodes of violent
shaking. This conclusion was based on both medical and historical evidence.
C.T. scans and M.R.I. scans showed that Asher had sustained considerable
head trauma. Moreover, he had had retinal hemorrhaging, which appears in
up to 90 percent of shaken baby syndrome cases. The symptoms of shaking
appear shortly after the abuse. Accordingly, Dr. Alexander concluded to a
reasonable degree of medical certainty that the second shaking episode must
have occurred between 7:30 a.m. and 11:30 a.m. on June 23rd -- between the
time Asher was dropped off at Cutro's and the time he was presented at Dr.
p.67
STATE v. CUTRO
Weston's office.
Dr. Wilbur Smith, Jr. also testified. As an expert in pediatric radiology
and child abuse, he was, at the time of the trial, one of only 30 or fewer
physicians in the country who were exam-certified in the field. He stated
that because of the evidence of the retinal hemorrhages, the subdural
hematomas, and subarachnoid hemorrhages, "there is no question [that] there
is no other medical diagnosis" than shaken baby syndrome. Sufficient tests,
he declared, were done to rule out any other cause. Based on the eyewitness
evidence of how Asher was acting when he was dropped off, Dr. Smith
concluded that Asher must have been shaken on June 23rd, sometime
between 7:30 a.m. and when he was taken to the doctor's office.
The above evidence, which is uncontested, clearly and convincingly
shows that Asher was normal when he was dropped off. When he emerged
after a few hours in Cutro's care, he exhibited the signs of shaken baby
syndrome.
3. PROPER ADMISSION OF EVIDENCE BY TRIAL JUDGE
Cutro argues, and the majority agrees, that there was conflicting
evidence concerning the proof of the prior bad acts. Although I would concur
that the evidence was not uncontradicted (as it rarely is in a criminal case),
I find that the weight of evidence establishing Cutro's abuse of Parker and
Asher is simply overwhelming. The State presented significant, but not
excessive, evidence to establish a close degree of similarity or connection
between all of Cutro's bad acts.
The majority implicitly suggests that SIDS, not trauma, was the real
cause of Parker's death. This argument fails on numerous grounds. First,
the opinion does not specify exactly what this evidence is. My reading of the
record leads me to conclude that evidence of SIDS was minimal, in
comparison to the mountain of evidence presented that abuse was the cause
of death. The convincing testimony of highly-qualified experts has been
described in detail above.
Second, even if Cutro's defense witnesses presented some evidence of
SIDS, the persuasiveness of this evidence was essentially nullified by the
same witnesses' candid and compelling arguments in favor of the State's
position. Cutro's own expert, Dr. Sandra Conradi, remarkably testified that
she "was very suspicious of homicide." She further said on the stand that she
did not recall, in her years of experience, ever seeing grossly or
p.68
STATE v. CUTRO
microscopically petechial hemorrhages in a SIDS case. Dr. James Reynolds,
who also testified on behalf of Cutro, stated that in his 23 years of
experience, he had never seen petechial hemorrhages in the brain of a SIDS
infant. Finally, Dr. John Pless, another of Cutro's expert witnesses, declared
that in his opinion, Asher Maier was shaken.
Third, Cutro has failed to rebut the evidence presented by the State as
to why Parker's death may have initially been misdiagnosed as SIDS. Dr.
Daniel, who had labeled Parker's death as SIDS (after changing it from
pneumonia), testified that there were three major factors which did not make
this a SIDS case: (1) it was uncommon for SIDS deaths to occur in the
middle of the day; they are much more common during the night; (2) she did
not find any petechial hemorrhages in the intrathoracic area, which is
commonly found in SIDS cases; and (3) she found petechiae in the brain,
which she had never seen occur in a SIDS case. She indicated that her
findings were consistent with forced asphyxiation.
Furthermore, Dr. Barness testified that the initial pathologist failed to
take certain steps during the autopsy. If these steps -- including the removal
and examination of the eyes and the removal of the dura -- had been taken,
they would have assisted in making an accurate diagnosis. This was further
confirmed by Dr. Ophoven who stated that in order to observe any type of
hemorrhage or trauma to the eyes, the pathologist has to remove the eyes.
At the initial autopsy, the eyes were not removed. Nor was the dura
stripped. For these reasons, the SIDS diagnosis was in error. The initial
misdiagnosis is understandable given that the autopsy was conducted by a
general pathologist and not by one with specific training or expertise in
performing infant autopsies. In contrast, the experts presented by the State
had decades of experience in the fields of pediatric pathology, pediatric
forensic pathology, and pediatric radiology, and had performed autopsies on
thousands of infants.
The majority asserts there was insufficient evidence Cutro injured
Asher or Parker. While the State obviously did not have direct evidence of
these bad acts, it presented an overwhelming amount of circumstantial
evidence. Cutro had nearly exclusive control2d over Asher and Parker; the
2d The majority criticizes the statement that Cutro had "nearly exclusive
control" over Asher and Parker. Instead, it posits that Cutro did not have
"exclusive control" over the children and that this view of the evidence does
not support the conclusion that she was "the sole person who could have
inflicted the injuries" on them. The majority does not cite any authority for
p.69
STATE v. CUTRO
only other person with clear access to Asher and Parker was Cutro's
husband. She herself testified that Parker "was my responsibility. It was
my job to give him back to his mother that day." These children were
dropped off in the morning at Cutro's. When they were picked up, they were
already injured. Two expert witnesses testified that Asher's injuries occurred
between 7:30 a.m. and when Asher was picked up (at approximately 11:30
a.m.). To further confirm that Cutro was the person taking care of Asher,
we can look to the very affidavit Cutro gave about the incidences of that day,
an affidavit given prior to her being charged in this case. She describes how
Asher was feeling the day he was injured, details how she cared for him that
day, and states how she called Asher's mother to inform her that Asher was
not well. Nowhere in the affidavit is there any mention of anyone else
having contact with Asher.
The majority now asserts that Cutro routinely left the children with her
husband to run errands and that she was even gone for hours on the day of
Parker's death. The majority bases these assertions on Cutro's testimony.
The reliability of this information turns, therefore, on Cutro's credibility, a
matter which was clearly before the judge. There was much evidence
the proposition that in order to meet a clear and convincing standard of
proof, the State must establish that the defendant had "exclusive control"
over the victims. It appears that the majority is elevating the proof
requirement to unprecedented, and unrealistic, levels. if "exclusive control"
had to be established every time a Lyle issue arose, it would be difficult to
imagine a circumstance where any evidence of prior bad acts would be
admissible.
For example, suppose that a serial killer had murdered 50 blue-eyed,
blond-haired twenty-year-old girls alongside South Carolina highways. A
distinctive word, written out by the killer, was found on the forearms of all
these victims. Under the majority's formulation of the Lyle rule, if a
defendant were tried for one of the murders, evidence of the 49 other
murders would not be admissible because, regardless of the amount of
evidence tying the defendant to these signature crimes, the State could not
demonstrate that the defendant had "exclusive control" over his victims.
Because thousands of people, namely those who travel on the same highways,
would have had the opportunity to commit the crimes, the defendant would
not have had "exclusive control" over the victims; thus, the evidence of the
previous crimes would be inadmissible. The absurdity of such a conclusion
demonstrates that the majority opinion has formulated a standard that raises
the level of proof to such unintended heights that it effectually abolishes the
use of Lyle evidence in South Carolina trials.
p.70
STATE v. CUTRO
presented to call Cutro's credibility into doubt. At trial it became evident
that on a sworn affidavit related to the present incidences, Cutro had made
a material misrepresentation. On cross-examination, she testified that she
had no explanation why she had lied on the affidavit. Additionally, at trial,
she testified that she had no contact with Parker on the day he died. This,
however, contradicted the deposition testimony she had previously given,
where she stated that she had played and fed Parker and had changed his
diaper on that day. Because there was conflicting evidence at trial whether
Cutro was present and what kind of contact she had with the children, the
matter of her credibility assumes great significance. The trial judge, not this
Court, is in the best position to be the arbiter of her credibility3d
In ruling on the admission of evidence of a prior bad act, the trial court
must find that the bad act has been established by clear and convincing
evidence. On appeal, we are to ascertain whether the trial court abused its
discretion in admitting the evidence. See State v. Tucker, 319 S.C. 425, 462
S.E.2d 263 (1995)(The admission of evidence is within the trial court's
discretion and absent an abuse of this discretion, will not be reversed by this
Court.), cert. denied, 116 S. Ct. 789 (1996). Our task is not to engage in a
de novo review of the evidence. Nor are we to usurp the authority of the
trial court by attempting to judge the credibility of witnesses. The
determination of credibility must be left to the trial judge who saw and heard
the witnesses and is therefore in a better position to evaluate their veracity.
Cf. State v. Martin, 278 S.C. 427, 298 S.E.2d 87 (1982); State v. Rosier, 312
S.C. 145, 439 S.E.2d 307 (Ct. App. 1993).
Although there may have been some conflicts in the evidence presented
in this case, the trial court had the opportunity, over the span of the two-
week proceeding, to evaluate the evidence, to hear lay witnesses, to weigh the
credibility of expert witnesses, to assess their varying professional credentials,
to appraise the extent of their experience, and to attempt to resolve
3d The majority states that even if Cutro's testimony is discounted
because of her lack of credibility, there still remains the testimony of Cutro's
husband. This argument would be persuasive were it not for the fact that
the credibility of Mr. Cutro was as bad, if not worse, than that of his wife.
For example, at the trial, it was revealed that Mr. Cutro had falsified
significant information on his federal tax returns. He had affirmatively
misrepresented the number of children he had. On his tax from, he had
fabricated and listed the names of two "children" in order to be able to claim
them as additional dependents. Again, the issue of his credibility was before
the trial court.
p.71
STATE v. CUTRO
discrepancies in their testimony in ascertaining whether the prior bad acts
were proven by clear and convincing evidence. The trial court carried out
this task. In fact, the judge's application of this standard is explicitly
enunciated in the record. He states that although at a certain point in the
trial he was not sure whether the clear and convincing standard had been
satisfied, after he heard the testimony of the State's several experts,
including Dr. Barness, he concluded that the evidence was clear and
convincing. He says, in reference to Dr. Barness, that she was "very clear
and very convincing." He further remarks: "I don't know that I've ever
heard a witness state her opinion in a stronger fashion that she did."
Because I believe the trial court is clearly in a superior position to
assess the evidence first-hand and to judge the credibility of the witnesses,
on appeal, we must defer to its determination whether the clear and
convincing standard has been met. As with any evidentiary ruling, this
finding should be reversed only if the trial judge abused its discretion. The
majority opinion suggests a different standard. It implicitly proposes that
this Court review the evidence de novo. Not only would this improperly
encroach upon the authority of the trial court, but it would also force this
Court to engage in determinations of evidentiary questions without the
benefit of seeing, hearing, or assessing the witnesses. I would adhere to our
traditional path, rather than to traverse this new and dangerously tortuous
route.
If the above reasons were not sufficient, then certainly the very case
cited by the majority should alert us to the proper course. The majority
opinion cites State v. Conyers, 268 S..C. 276, 233 S.E.2d 95 (1977) in support
of its argument that there is insufficient evidence to establish the defendant
was the actor in the prior bad acts. I wholeheartedly agree with the
majority that Conyers controls. However, Conyers does not suggest reversal
of the present case, but rather compels its affirmance.
In Conyers, the defendant was tried for the poisoning of her husband.
At trial, the State introduced, under Lyle, evidence of the alleged poisoning
of Conyers's first husband, son-in-law, mother-in-law, and a business
acquaintance. Conyers was convicted. She appealed her conviction,
contesting the admission of the evidence of the other poisonings. She argued,
in part, that these other bad acts had not been proven by clear and
convincing evidence. This Court accepted her argument that evidence of the
poisoning of her first husband was inadmissible; however, we held that
evidence of the other three prior bad acts had properly been admitted.
Because Conyers is a case in which some Lyle evidence was deemed sufficient
p.72
STATE v. CUTRO
and properly admitted, while other Lyle evidence was deemed insufficient and
inadmissible, it provides an ideal vehicle for testing the sufficiency of the
evidence in the instant case. To determine whether evidence of Cutro's prior
bad acts should have been admitted, we must compare it with not only the
evidence rejected in Conyers, but also the evidence found sufficient in
Conyers.
In Conyers, we held that the evidence of the poisoning of Conyers's first
husband was inadmissible because there was very little to connect Conyers
to the poisoning. The only evidence the State offered in connection with this
poisoning was that Conyers's husband had died six years earlier, that she
had a life insurance policy on him, and that after the husband's body was
exhumed and tested, it was found to contain high levels of arsenic. We
concluded that this evidence was simply insufficient to establish the identity
of Conyers as the person who poisoned her husband.
By contrast, we held that the trial court had properly admitted evidence
of the poisonings of Conyers's son-in-law, mother-in-law, and a business
acquaintance. Although the facts are not set out in the Conyers opinion
itself, a review of the record reveals the following evidence in relation to
these prior bad acts:
(a) son-in-law: Conyers's son-in-law and his wife lived with Conyers.
The son-in-law became ill one day after supper. It was discovered months
later that he had been poisoned with arsenic. The son-in-law ate meals with
his wife and Conyers, and although Conyers generally did the cooking, the
wife did cook on occasion. The son-in-law and the wife had had marital
difficulties, having both admitted to one another their infidelity. The son-in-
law testified that he did not know who had poisoned him. Both the wife and
Conyers denied having given the son-in-law arsenic. The wife, in many ways,
had just as much opportunity as Conyers to poison the son-in-law. We found
evidence of this prior bad act to be admissible.
(b) mother-in-law: Conyers visited her mother-in-law three or four
times per week. On each visit, Conyers would fix coffee for her mother-in-
law. The mother-in-law's health had been good up to the time of these visits,
but it deteriorated, and she died thereafter. A doctor testified that the
mother-in-law had died of natural causes, but she had ingested arsenic at
some point at least one to three months prior to her death. Examination of
the mother-in-law's brain, kidney, and liver did not reveal unusual levels of
arsenic; however, her nails and hair contained higher than normal levels. We
found evidence of this prior bad act to be admissible.
p.73
STATE v. CUTRO
(c) business acquaintance: Conyers visited an acquaintance a number
of times and would usually prepare coffee for her. The acquaintance became
ill shortly after the visits commenced. Tests conducted on the acquaintance
revealed higher than normal arsenic levels. The acquaintance did not know
she had been poisoned, did not attribute her symptoms to any coffee she had
drunk, and knew no motive for Conyers to poison her. We found evidence of
this prior bad act to be admissible.
In Conyers, we declared that we were "convinced" the trial judge had
properly admitted evidence of the poisonings of the son-in-law, the mother-in-
law, and the acquaintance. Conyers, 268 S.C. at 281, 233 S.E.2d at 96
(1977). As the above factual descriptions suggest, in Conyers, we assumed
a rather deferential approach to the findings of the trial court in relation to
L.yle evidence.
It is clear that the facts of the present case are well within the limits
set out in Conyers. In fact, the evidence in the present case is orders of
magnitude weightier than that which was upheld in Conyers. There is
simply no comparison between the evidence presented of Cutro's abuse of
Parker and Asher and the prior bad acts deemed admissible in Conyers,
namely, the poisonings of the son-in-law, the mother-in-law, and the
acquaintance. Conyers teaches that on appeal, this Court will reverse only
when the trial judge has clearly abused its discretion (as was the case with
the evidence about Conyers's first husband).4d There is more than ample
support to uphold the trial court's admission of evidence of Cutro's prior bad
acts. The majority cannot show that the trial court abused its discretion.
Accordingly, I must dissent. I would affirm the conviction.
4d The majority's opinion criticizes our discussion of Conyers, suggesting
that Conyers summarily affirmed the admission of some Lyle evidence,
without "any" analysis or discussion. Although the discussion in Conyers is
terse, it is nevertheless present, an analysis which invites us to review the
record: "[A]fter a careful review of the testimony, we are convinced that the
trial judge properly admitted evidence of the poisoning of Bazen [son-in-law],
Louise Conyers [mother-in-law], and Iris Stevens [business acquaintance) . .
. ." Conyers, 268 S.C. at 281, 233 S.E.2d at 96 (emphasis added).
p.74