ATTORNEY FOR APPELLANT
Annette K. Fancher
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
James A. Garrard
Deputy Attorney General
SUPREME COURT OF INDIANA
LARRY CUTTER, )
Appellant (Defendant Below ), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9603-CR-204
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE MARION COUNTY SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9212-CF-172011
ON DIRECT APPEAL
March 17, 2000
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).
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
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
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 (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; Lewis,
543 N.E.2d at 1118. The doctrine of the law of the case
is applied only Ato 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) (AQuestions 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) (A[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 Arelevan[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); Bufkin v. State, 700 N.E.2d 1147, 1149 (Ind. 1998); Fentress v. State,
702 N.E.2d 721, 722 (Ind. 1998). Although a photograph may arouse the
passions of the jurors, it is admissible unless Aits 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
Here, the photograph shows the pathologist
=s hand holding open Berry=s vagina to display
bruises that were relevant to the Aby 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 Alike 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 Aopinions 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.
At trial, the State asked Dr. Willman,
the pathologist, to render an opinion regarding whether Berry=s vagina appeared to be
unusually dilated at death, to estimate the extent of that dilation, and to
explain what would cause it. Cutter objected, arguing that this called for
speculation as to whether the dilation was unusual for Berry, and if so,
what caused it.
Generally, expert testimony in the form of opinion or otherwise is admissible if
=s scientific, technical, or other specialized knowledge assists the trier of fact
in understanding the evidence or in determining a fact in issue. Ind.
Evidence Rule 702(a); accord Grinstead v. State, 684 N.E.2d 482, 486-87 (Ind. 1997).
Dr. Willman had performed between 1000 and 1200 autopsies, and at trial
Cutter did not challenge Dr. Willman=s qualifications to testify as an expert witness.
His testimony regarding the dilated state of Berry=s vagina and the effects
of death on the appearance of the body falls into the area of
specialized knowledge within his scope of expertise and beyond the knowledge generally held
by laypersons. The trial court did not abuse its discretion in admitting
this testimony under the circumstances.
IV. Motion for Judgment on the Evidence (Directed Verdict)
Cutter alleges that the trial court erroneously denied his motion for judgment on
the evidence as to all charges
at the close of the State=s case-in-chief.
When a defendant moves for judgment on the evidence, the court is
required to withdraw the issues from the jury if: (1) the record is
devoid of evidence on one or more elements of the offense; or (2)
the evidence presented is without conflict and subject to only one inference, which
is favorable to the defendant. See Ind. Trial Rule 50(A); Jones v.
State, 697 N.E.2d 57, 58-59 (Ind. 1998); Stewart v. State, 688 N.E.2d 1254,
1258 (Ind. 1997). On review, this Court considers only the evidence most
favorable to the State, and the reasonable inferences to be drawn therefrom.
See Jones, 697 N.E.2d at 58-59. Therefore, in order to avoid judgment
on the evidence, the State need only present some evidence supporting each element
of each offense. See id.
In this case, Cutter claims that the State failed to present sufficient evidence
to establish that he was Berry
=s killer. To prove murder, the State
must establish that A[a] person . . . knowingly or intentionally kill[ed] another
human being . . . .@ Ind. Code ' 35-42-1-1(1) (1998).
In its case-in-chief, the State presented the following evidence. Cutter and Berry
were patrons of McShane=s Lounge the night Berry disappeared. Cutter danced and
talked with Berry over the course of the evening. Cutter eventually left
McShane=s with Berry in tow. Police later found Berry=s body at the
edge of Jarrett=s cornfield. Jarrett saw a car similar to that owned
by Cutter near the location where Berry=s body was found. Police also
found strands of Berry=s hair and Berry=s broken fingernail in Cutter=s car.
Under the circumstances, it is reasonable to infer that Cutter took Berry from
McShane=s and knowingly or intentionally killed her. The State=s evidence, together with
all the reasonable inferences therefrom, was sufficient to withstand a motion for judgment
on the evidence.
Cutter also claims that the State failed to present sufficient evidence to establish
that he raped Berry. To prove rape as a Class B felony,
the State must show that
A[a] person . . . knowingly or intentionally
ha[d] sexual intercourse with a member of the opposite sex when: (1) the
other person [was] compelled by force or imminent threat of force; . .
. .@ Ind. Code ' 35-42-4-1 (1998). To prove rape as
a Class A felony, the State must also prove that the rape was
committed by using or threatening the use of deadly force. Id.
In this case, the police retrieved Berry=s partially clothed body from the edge
of a cornfield. She was found without undergarments; her blouse lay just
below her breasts and her jeans were pulled down to mid-thigh. The
State presented expert testimony and DNA evidence indicating that Cutter=s semen was found
in Berry=s vagina. The autopsy revealed that Berry=s vagina was unusually dilated
and bruised by penetration of, inter alia, an object the size of a
fist, and that she had died by strangulation. From this evidence, it
is reasonable to infer that Cutter had sexual intercourse with Berry by force
or threat of force. The trial court did not err by denying
Cutter=s motion for judgment on the evidence.
V. Jury Instructions
Cutter next argues that the trial court erroneously refused his tendered instruction regarding
the weight of the evidence required to sustain his convictions. In reviewing
a trial court=s decision to give or refuse tendered jury instructions, the Court
considers: (1) whether the instruction correctly states the law; (2) whether there is
evidence in the record to support the giving of the instruction; and (3)
whether the substance of the tendered instruction is covered by other instructions which
are given. Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999).
In this case, the refused instruction states:
Evidence which merely tends to establish a suspicion of guilt, or evidence which
tends to establish mere opportunity to commit the offense charged, is clearly insufficient
to sustain a conviction. [A] verdict based merely on suspicion, opportunity, probability, conjecture,
speculation, and unreasonable inference of guilt gleaned from vague circumstances or evidence is
The trial court gave the jury the following preliminary and final instructions:
Instruction No. 8
A reasonable doubt is a fair, actual and logical doubt that arises in
your mind after an impartial consideration of all the evidence and circumstances in
the case. It should be a doubt based upon reason and common
sense and not a doubt based upon imagination or speculation.
To prove the defendant
=s guilt of the elements of the crimes charged beyond
a reasonable doubt, the evidence must be such that it would convince you
of the truth of it, to such a degree of certainty that you
would feel safe to act upon such conviction, without hesitation, in a matter
of the highest concern and importance to you.
Instruction No. 16
The law presumes the Defendant to be innocent of the crimes charged, and
this presumption continues in his favor throughout the trial of this cause.
It is your duty, if it can be reasonably and conscientiously done to
reconcile the evidence upon the theory that the defendant is innocent, and you
cannot find the defendant guilty of the crimes charged in the information unless
the evidence satisfies you beyond a reasonable doubt of his guilt.
The content of Cutter
=s tendered instruction was sufficiently addressed in Instructions 8 and
16, and, therefore, the trial court did not abuse its discretion in refusing
his tendered instruction.
Cutter claims that he was denied his right to be tried in the
county in which the offense occurred. Cutter raised the issue by first
tendering a jury instruction regarding venue, and, when that was rejected, by moving
for a directed verdict on the ground that venue was not established.
The right to be tried in the county in which the offense was
committed is a constitutional and a statutory right.
See Ind. Const. art.
I, ' 13; Ind. Code ' 35-32-2-1(a) (1998); Weaver v. State, 583 N.E.2d
136, 140-41 (Ind. 1991). Venue is not an element of the offense.
See Sizemore v. State, 272 Ind. 26, 31, 395 N.E.2d 783, 787
(1979). Accordingly, although the State is required to prove venue, it may
be established by a preponderance of the evidence and need not be proven
beyond a reasonable doubt. See id; Neblett v. State, 396 N.E.2d 930,
932 (Ind. Ct. App. 1979).
Venue is commonly an issue for determination by the jury.
William Andrew Kerr, Indiana Practice ' 22.9f(2) (1998); see also Joyner v. State,
678 N.E.2d 386, 390 (Ind. 1997) (venue issue submitted to the jury).
This is because venue typically turns on an issue of fact, i.e., where
certain acts occurred. If so, it is appropriate for the court to
instruct the jury on venue. See Weaver, 583 N.E.2d at 142.
Even when venue turns on issues of fact, however, a trial judge may
refuse to instruct the jury on venue if it presents no genuine issue.
See United States v. Massa, 686 F.2d 526, 530 (7th Cir. 1982)
(A[W]here venue is not in issue, no court has ever held that a
venue instruction must be given.@). Cf. Dudley v. State, 480 N.E.2d 881,
903 (Ind. 1985) (holding that the trial court=s instruction to jurors that it
had already determined venue as a matter of law did not invade the
province of the jury), habeus relief den=d, 693 F. Supp. 727 (N.D. Ind.
1986), judgment rev=d on other grounds, 854 F.2d 967 (7th Cir. 1988).
Cutter first raised the venue issue by submitting the following proposed instruction, taken
Conrad v. State, 262 Ind. 446, 450, 317 N.E.2d 789, 791 (1974):
If you find from the evidence that the offense charged in the information
occurred outside of Marion County, Indiana, but that the offenses were not part
of a common plan, design, and intent to confine, rape, and kill Linda
Berry which originated in Marion County, Indiana, and was not part of one
continuous course of action by the defendant, but was a separate and independent
set of facts occurring outside of Marion County, then the State would have
no jurisdiction to prosecute the defendant for the offenses as charged. You
must find the defendant not guilty.
Among other things, a trial court need not give a tendered instruction when
there is not evidence in the record to support the giving of the
See Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999).
We conclude that it was proper for the trial court to refuse Cutter
instruction because there was not evidence in the record to support the giving
of the instruction.
Cutter did not testify and the victim is dead.
No one else was present in the vehicle where at least some
criminal acts occurred. The two entered the car in Marion County, perhaps
without any crime yet in progress, and the victim=s body was found two
counties away. Thus, although there is no doubt that a crime was
committed, it is wholly speculative where the crime was committed. Although the
right to be tried in the county in which the offense occurred is
grounded in the Indiana Constitution, the Constitution does not contemplate exonerating criminals simply
because the nature of the crime itself makes venue unknowable. Under these
circumstances, the legislature has specifically provided that trial is proper in any county
in which an act Ain furtherance of@ the offense occurred. Indiana Code
' 35-32-2-1 provides:
(a) Criminal actions shall be tried in the county where the offense was
committed, except as otherwise provided by law.
. . . .
(d) If an offense is committed in Indiana and it cannot readily be
determined in which county the offense was committed, trial may be in any
county in which an act was committed in furtherance of the offense.
Subsection (d) is consistent with the constitutional mandate that, where venue can be
established, the defendant has a right to be tried in that locale.
By its terms, subsection (d) applies only where
Ait cannot readily be determined
in which county the offense was committed.@ On this record, the location
of the charged offenses of murder and rape were left to pure speculation
even though there was overwhelming evidence that the crimes occurred somewhere in central
Indiana. Because the location of the crime could not be established, subsection
(d) applied, and the State was required to show by a preponderance of
the evidence only that an act in furtherance of the offense occurred in
Marion County. That was undisputably done.
VII. Double Jeopardy
Several witnesses testified to seeing Cutter and Berry talking and dancing at McShane=s
Lounge in Marion County on the evening of November 28, 1992. Sites
saw Cutter exit the lounge with Berry and help her into Cutter=s car.
As a matter of law, this step, which may itself have been
innocent, but nonetheless in furtherance of the crime, satisfied the State=s burden of
proving venue by a preponderance of the evidence. There is no conflicting
evidence. Accordingly, the trial court properly rejected Cutter=s instruction and denied his
motion for a directed verdict, without violating his right to be tried in
the county in which the offense occurred.
Finally, Cutter argues that his conviction for murder, along with rape as a
Class A felony, as opposed to a Class B felony, violates the State
Double Jeopardy Clause. Rape as a Class B felony is defined by
Aknowingly or intentionally ha[ving] sexual intercourse with a member of the
opposite sex when: (1) the other person is compelled by force or imminent
threat of force; . . . .@ Ind. Code ' 35-42-4-1 (1998).
The offense is elevated to a Class A felony Aif it is
committed by using or threatening the use of deadly force, if it is
committed while armed with a deadly weapon, or if it results in serious
bodily injury to a person other than a defendant.@ Id.
Cutter contends that the deadly force element of the rape charge should merge
with the deadly force element of the murder charge. Count I, the
murder charge, alleges death by manual strangulation. Count III, the rape charge,
alleges sexual intercourse by threat of deadly force or deadly force. The
language of these charges was read to the jury. In light of
=s holding in Richardson v. State, 717 N.E.2d 32 (Ind. 1999), and
under the evidence presented in this case, Cutter=s rape conviction cannot be elevated
to a Class A felony by the same evidence of deadly force that
formed the basis of the murder conviction. The jury was presented with
evidence at trial that Berry was brutally raped. In addition to finding
Cutter=s semen on Berry=s pants and in her vagina, the pathologist testified that
the bruises to Berry=s vagina were such that a human penis could not
have inflicted them. Nonetheless, based on the charging information and the jury
instructions, it is highly likely that the same evidence that constituted the essential
elements of murder--the strangulation as a Adeadly force@--was included among the evidence establishing
the Ausing or threatening the use of deadly force@ element of rape as
a Class A felony. Accordingly, pursuant to the Aactual evidence@ test set
forth in Richardson, 717 N.E.2d at 52-55, we remand this case to the
trial court to reduce Cutter=s rape conviction to a Class B felony.
We affirm in part, reverse in part, and remand to the trial court
with instructions to reduce Cutter=s rape conviction from a Class A felony to
a Class B felony and impose a twenty-year sentence on that count to
run consecutive to the sixty-year sentence for murder.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Cutter also makes a general argument against the admission of DNA evidence.
It is well established that there is no inherent bar to the
admission of DNA evidence in criminal prosecutions. See, e.g., Hopkins v. State,
579 N.E.2d 1297, 1301-04 (Ind. 1991).
Because the trial court merged the felony murder and criminal confinement convictions
into the murder conviction, here we address only the sufficiency of the evidence
with regard to the murder and rape convictions.
We also note that it is questionable whether Cutter=s instruction was an
accurate statement of the law. Conrad involved the jurisdiction of the State
of Indiana to prosecute a crime that may have occurred in Ohio, rather
than a challenge to venue in a particular county. See 262 Ind.
at 450, 317 N.E.2d at 791. The tendered instruction also omits the
lesser burden of proof required to establish venue.
Because the trial court sentenced Cutter to maximum and consecutive sentences on
both counts, there is no reason to remand to the trial court for
a new sentencing hearing. Cf. Wise v. State, 719 N.E.2d 1192, 1201
(Ind. 1999). Instead, we direct the trial court to impose the maximum
sentence for rape as a Class B felony.