ATTORNEY FOR APPELLANT
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
JOHN DELL CARR, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 73S00-9709-CR-487
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Jack A. Tandy, Judge
Cause No. 73D01-9602-CF-15
ON DIRECT APPEAL
April 18, 2000
John Dell Carr was convicted of the murder of Shirley Sturgill and sentenced
to sixty years imprisonment. In this direct appeal he contends that (1)
his right to be free from unreasonable searches and seizures was violated when
he was anesthetized for the taking of dental impressions; (2) the trial court
abused its discretion in denying his Motion for Change of Venue; (3) there
is insufficient evidence to support his conviction and rebut his alibi defense; (4)
the trial court committed fundamental error in instructing the jury on circumstantial evidence;
(5) he is entitled to a new trial because of jury misconduct; and
(6) his trial counsel rendered ineffective assistance. We affirm the judgment of
the trial court.
Factual and Procedural Background
Firefighters were dispatched to the apartment of Shirley Sturgill in the late evening
hours of October 6, 1990. Finding the door locked, they forced entry
and extinguished a fire in Sturgills bedroom. Sturgills body was found naked
on the bed. Both of her nipples had been bitten off and
a toilet bowl brush protruded from her vagina. An autopsy was performed
on the morning of October 8. The cause of death was ruled
manual strangulation. The pathologist also observed bite marks on Sturgills right and
left thigh, and Dr. Donnell Marlin, a forensic odontologist, examined, photographed, and made
models of the bite marks.
The investigation soon focused on Orville Jack Dobkins, who lived in an adjacent
apartment and had visited Sturgill at approximately 9:00 p.m. on the evening of
the murder. On October 24, Dobkins was arrested and charged with Sturgills
murder. The State also filed a request for the death penalty.
Dobkins provided dental impressions which were compared to the bite marks on Sturgills
body. Dr. Marlin issued a report on December 18, 1990, concluding that
within the bounds of a reasonable medical certainty, the teeth of Jack Dobkins
match the various bite marks on the body of Shirley Sturgill. On
May 15, 1991, Dr. Mark Bernstein examined the work of Dr. Marlin.
Dr. Bernstein concluded that the comparisons offered good supporting evidence to implicate Mr.
Dobkins but could not alone prove, to a degree of reasonable medical certainty,
that Dobkins made the bites. The State dismissed the charges against Dobkins
on May 16, 1991.
At the time of Sturgills death, her daughter Angie Carr was married to
Carr. By 1994 Angie and Carr had divorced and on August 3,
1994, Angie told Detective Bill Dwenger that Carr left their familys trailer at
about noon on October 6, 1990, and did not return until late that
night. When he returned, Carr took off his clothes, put them in
the washing machine, and showered. Carr and Angie went to bed about
forty-five minutes later. After lying in bed for a few minutes, Carr
rose, walked to a gun cabinet, took out a rifle, and pointed it
at Angies head. Carr told Angie that he had hurt or took
care of her mother. He said he would kill her and their
daughters if she ever said anything. He then grabbed her by her
hair, walked her to their daughters bedroom, pointed the gun at the girls,
and reiterated that he meant what he had said.
In 1993 police had submitted cigarette butts found in Sturgills apartment to the
FBI for DNA analysis. A 1995 report comparing DNA from saliva on
one butt to Carr's concluded that the two matched at five loci.
The probability of two unrelated Caucasians with this correlation was 1 in 4,500.
On February 16, 1996, a Shelby County Grand Jury indicted Carr for the
murder of Sturgill and the arson of her apartment. The State later
dismissed the arson count. After a ten-day trial in April of 1997,
a jury convicted Carr of murder. Carr was sentenced to sixty years
I. Anesthetization for Dental Impressions
Carr argues that the State violated his Fourth Amendment right to be free
from unreasonable searches and seizures when it collected his dental impressions while he
In his brief, Carr characterizes the procedure as follows:
The procedure was so serious that Dr. Kenny recommended that it be carried
out in a fully equipped surgical room with resuscitation equipment and personnel available.
The Defendant was placed under full anesthetic rendering him fully unconscious, the
throat of the Defendant was packed with material which blocked the airway, a
nasal intubation procedure was used which allowed the Defendant to breath[e]. Without
the nasal intubation procedure the Defendant could not have breathed on his own.
The overriding function of the Fourth Amendment is to protect personal privacy and
dignity against unwarranted intrusion by the State.
Schmerber v. California, 384 U.S.
757, 767 (1966). Its proper function is to constrain, not against all
intrusions as such, but against intrusions which are not justified in the circumstances,
or which are made in an improper manner. Id. at 768.
Carr does not deny that a voluntary dental impression is easily performed without
resort to anesthesia or serious bodily intrusion. More drastic procedures, including anesthesia,
were required in his case because of his refusal to comply with a
valid search warrant for the dental impressions.
II. Change of Venue
Carr contends that we should evaluate the constitutionality of the drastic procedures under
the balancing test set forth by the United States Supreme Court to determine
whether a surgical intrusion violates the Fourth Amendment.
See Winston v. Lee,
470 U.S. 753, 761-62 (1985) (weighing the extent to which the procedure may
threaten the safety or health of an individual and the extent to which
it intrudes upon the person's dignitary interest in personal privacy and bodily integrity
against the communitys interest in fairly and accurately determining guilt or innocence).
We think these factors are plainly inapplicable where the allegedly drastic and invasive
procedure is necessitated by a defendants refusal to comply with a valid search
warrant. If this were not the case, the law would create an
incentive to refuse to comply with valid search warrants for the most basic
of procedures in order to force a drastic procedure that might violate the
As this Court has previously held, ordering a defendant to submit to the
taking of dental impressions does not violate the Fourth Amendment when supported by
See Wade v. State, 490 N.E.2d 1097, 1101-02 (Ind. 1986).
Because the warrant was supported by probable cause and the voluntary submission
of dental impressions does not violate Winston, there is no Fourth Amendment violation
in the more drastic procedures required to obtain Carrs compliance.
Carr next contends that the trial court abused its discretion by denying his
motion for change of venue from Shelby County. To prevail on this
claim Carr must show that (1) there was prejudicial pretrial publicity and (2)
the potential jurors were unable to set aside their preconceived notions of guilt
and render a verdict based upon the evidence. See Eads v. State,
677 N.E.2d 524, 525 (Ind. 1997); Brown v. State, 563 N.E.2d 103, 105
(Ind. 1990). We review a trial courts ruling on a motion for
change of venue for an abuse of discretion. See Williams v. State,
690 N.E.2d 162, 176 (Ind. 1997).
Carr makes only general allegations regarding juror views expressed during voir dire.
Without citation to the responses of any specific jurors, he contends that voir
dire does not reveal potential jurors were able to set aside pre-conceived notions
and render a verdict based solely on the evidence . . . .
Eight of the twelve selected jurors stated that they had no knowledge
of the case. Three of the remaining four jurors did not respond
when asked by the trial court if they had information from the media
or from talking to people, hearsay, whatever, that you feel that would weigh
so heavily on your mind that you would have difficulty in deciding this
case based upon the evidence that you hear in the case only?
The final juror engaged in a brief colloquy with the trial court before
concluding that she could make a decision based on the evidence. Carr
points to nothing more. The trial court did not abuse its discretion
in denying Carrs motion for change of venue.
III. Sufficiency of the Evidence
Carr contends that there is insufficient evidence to support the jurys verdict and
that the State did not disprove his alibi defense. Our standard of
review for sufficiency claims is well settled. We do not reweigh evidence
or assess the credibility of witnesses. Rather, we look to the evidence
and reasonable inferences drawn therefrom that support the verdict and will affirm the
conviction if there is probative evidence from which a reasonable jury could have
found the defendant guilty beyond a reasonable doubt. Taylor v. State, 681
N.E.2d 1105, 1110 (Ind. 1997).
There is more than ample evidence to support Carrs conviction. A former
co-worker of Carrs testified that in July or August 1990 Carr told him
he could not stand [Sturgill]. He told me that he wished she
was dead. He told me that I . . . wouldnt believe
how much he wanted her dead. Angie testified that shortly after Carrs
return home on the evening of Sturgills killing, he told her that he
had hurt and choked her mother. The DNA results were admitted.
Dr. John Kenney, the Chief Forensic Odontologist for the Cook County (Illinois) Medical
Examiners Office, compared the four bite marks found on Sturgills body with dental
impressions obtained from Carr. Dr. Kenney testified at trial that the bite
marks on Sturgills right leg and left nipple were consistent with Carrs teeth
and that the left groin and right nipple injury could have been caused
by Carrs teeth, but no firm conclusion was possible.
In sum, this
is sufficient probative evidence from which a jury could have concluded beyond a
reasonable doubt that Carr killed Sturgill.
This evidence is also sufficient to rebut Carrs alibi defense.
is not required to rebut directly a defendants alibi but may disprove the
alibi by proving its own case-in-chief beyond a reasonable doubt. Lott v.
State, 690 N.E.2d 204, 209 (Ind. 1997). A jury may choose to
disbelieve alibi witnesses if the States evidence renders such disbelief reasonable. Id.;
Lambert v. State, 516 N.E.2d 16, 19 (Ind. 1987) (We cannot substitute our
appellate impressions for such jury credibility determinations.).
Carr offered the testimony of David Taylor and Carrs sister, Dorcia Short in
support of his alibi. Short testified that Carr arrived at her trailer
sometime before 6:00 p.m. on October 6, 1990, and Taylor arrived a few
minutes later. According to Short, Taylor and Carr talked at her kitchen
table and later joined her in the living room where the three watched
movies. Carr left for a few minutes around 10:00 p.m. but returned
before leaving again at approximately 11:00 p.m. Taylor offered a similar account
of events, save that Carr was gone for thirty to forty-five minutes.
Carr contends that this time frame is significant because the murder must have
been committed between 10:45 p.m. and 11:20 p.m.,
and it takes seventeen to
nineteen minutes to drive from Sturgills apartment to Carrs home. These times
and Carrs alibi conflict with Angies testimony that Carr did not arrive home
until approximately 12:00 or 1:00 a.m. and that when she had looked in
the direction of Shorts trailer earlier that night she did not see Carr
or his truck. It was the jurys exclusive prerogative to weigh conflicting
evidence. See Robinson v. State, 699 N.E.2d 1146, 1148 (Ind. 1998).
There is sufficient evidence to support its rejection of Carrs alibi and its
conclusion that he killed Sturgill.
IV. Circumstantial Evidence Instruction
Carr next contends that the trial court erred in refusing his tendered instructions
dealing with circumstantial evidence. The two tendered instructions were similar and in
essence stated that in cases resting entirely on circumstantial evidence the evidence must
be so conclusive as to exclude every reasonable theory of innocence. See
2 Indiana Pattern Jury Instructions (Criminal) 12.01 (2d ed. 1991). Carr contends
the trial court was required to give this instruction because the States evidence
was entirely circumstantial. The short answer to this claim is that Angie
testified at trial that Carr had told her shortly after the time of
the murder that he had hurt and choked Sturgill. A defendants confession
of guilt to another person is direct evidence. See Stahl v. State,
616 N.E.2d 9, 11 (Ind. 1993). Because the States case did not
rely solely on circumstantial evidence, the trial court properly refused Carrs tendered instructions.
See id. at 12.
V. Juror Misconduct
Carr also contends that his Sixth Amendment right to an impartial jury was
violated by juror misconduct. During the course of the trial one juror
bought newspapers that included stories about the trial. However, the juror testified
unequivocally at a motion to correct error hearing after trial that she did
not read the papers until the trial had concluded. She testified that
she purchased the papers to compare the news stories with her notes after
In order for jury misconduct to warrant a new trial, the defendant must
show that the misconduct was gross and that it probably harmed the defendant.
Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988). It would
be preferable that jurors arrange for someone else to accumulate newspapers during a
trial to avoid any issue along these lines, but even if questionable, the
jurors conduct here was reviewed by the trial court. The trial courts
finding that Carr made no showing of harm appears correct and is certainly
not clearly erroneous. Accordingly, Carrs claim of juror misconduct fails.
VI. Ineffective Assistance of Counsel
As a final point, Carr contends that his trial counsel rendered ineffective assistance.
To establish a violation of the Sixth Amendment right to effective assistance
of counsel, Carr must show that (1) counsels performance fell below an objective
standard of reasonableness based on prevailing professional norms; and (2) there is a
reasonable probability that, but for counsels errors, the result of the proceeding would
have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not
necessarily amount to ineffective counsel unless, taken as a whole, the defense was
inadequate. Davis v. State, 675 N.E.2d 1097, 1100 (Ind. 1996) (quoting Terry
v. State, 465 N.E.2d 1085, 1089 (Ind. 1984)). As to the prejudice
prong, a reasonable probability is a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694. More recently, the Supreme Court
of the United States held that prejudice resulting from ineffective assistance is not
established unless the error rendered the result of the proceeding fundamentally unfair or
unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
Carr points to two instances of alleged ineffectiveness. First, he argues that
trial counsel should have called Roderick Dickman to testify at trial. Dickman
was one of the firefighters who responded to the call at Sturgills residence.
Dickman gave a statement to police on December 11, 1990, in which
he stated that on the morning after the fire Dobkins had asked him
if he had been at the fire and whether he knew anything about
it. Dickman responded that he could not discuss the fire with Dobkins
but asked Dobkins what he had heard. According to Dickman, Dobkins knew
quite a bit about the body and about the toilet brush being up
[Sturgills] vagina . . . . Trial counsel testified at the motion
to correct error hearing that he believed he had overlooked Dickmans statement and
agreed that it would have been important to the case against Carr because
it showed that Dobkins had knowledge of specific details of the crime shortly
after it occurred. However, during Carrs case-in-chief, another firefighter testified that several
firefighters had discussed finding a victim in Sturgills unusual condition. Dobkins may
very well have learned about the condition of the body from another person.
Moreover, defense counsel pursued the Dobkins-may-have-done-it defense by calling Dobkins as a
witness to point out that he had been charged with the murder (and
the death penalty) shortly after the fire in 1990 and by presenting expert
testimony suggesting Dobkins was the source of the bite marks found on Sturgills
body. Because there is not a reasonable probability that the jury would
have acquitted Carr if trial counsel had presented Dickmans testimony, Carrs first claim
of ineffective assistance must fail.
Carr also contends that trial counsel was ineffective for failing to impeach Angies
testimony. Specifically, he argues that trial counsel should have pointed out that
her statements to police and depositions contained inconsistencies.
Carr points out that
Angie had gone on record six times: a statement to police in
October of 1990, testimony at Dobkins bail hearing in December of 1990, her
1994 report accusing Carr, Grand Jury testimony in February of 1996, a deposition
in December of 1996, and another deposition in April of 1997. Angie
first implicated Carr in her statement to police in August of 1994.
Carr also points to alleged inconsistencies in Angies statements regarding the days Carr
worked, the day she last saw her mother, Carrs whereabouts earlier in the
day of the crime, the number of automobiles the couple owned, and the
times at which she spoke to her mother on the telephone. However,
none of these issues cuts directly to the evidence of Carrs guilt of
Sturgills murder. Angie testified on direct examination that she did not come
forward with information implicating Carr until 1994 because she was afraid for her
own life and her childrens. Moreover, trial counsel questioned Angie at some
length about her failure to tell the police of Carrs alleged involvement in
the months immediately following the crime, while Dobkins was incarcerated for the killing
and facing the death penalty.
There is a strong presumption that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment, and a defendant must
present strong and convincing evidence to overcome this presumption.
Broome v. State,
694 N.E.2d 280, 281 (Ind. 1998). The jury knew that Angie
did not come forward with allegations against Carr until 1994. Trial counsels
failure to impeach her testimony based on the tangential inconsistencies identified by Carr
on appeal was not deficient performance and there is not a reasonable probability
that doing so would have produced a different verdict. Trial counsel was
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Although Carr's argument focuses on the dental impressions, he also mentions blood,
saliva, and hair samples that were taken on the same day. He
contends that, because the same samples were originally taken in 1991, retaking these
body samples five years later constituted prosecutorial misconduct. In a March 1996
hearing on the State's request for samples, a detective testified that samples had
been taken from Carr in 1991 and sent to the Indiana State Police
Laboratory, but that an insufficient amount of hair had been taken and apparently
the blood and saliva had not been properly preserved. Carr argues that
the State's (in this case, a detective's) representation that it needed additional samples
was misconduct warranting reversal. The State does not specifically respond to this
allegation but rather asserts that, because the latter samples were not used at
trial, there was no prejudice to Carr's rights. Assuming that requiring a
defendant to submit to repeated sampling may constitute State misconduct in extreme cases,
the State's requesting one set of additional samples after five years based on
an apparent mistaken belief that they were needed is not such a case.
Carr also notes that he requested the opportunity to question prospective jurors
about pretrial publicity individually during voir dire, but that the request was denied.
He suggests that he was unable to establish whether the prospective jurors
who had read about the case would be able to render an impartial
verdict because "counsel was not allowed to examine said jurors individually and without
tainting the rest of the panel." However, there is no right to
individual voir dire and the matter falls within the trial court's "broad discretionary
power in regulating the form and substance of voir dire examination." Hadley
v. State, 496 N.E.2d 67, 72 (Ind. 1986). Although individual voir dire
"may be required where the circumstances are highly unusual or potentially damaging to
the defendant," id., Carr has made no such showing in this case.
Dr. Kenney also testified that he found "no concordance whatsoever" between Dobkins'
teeth and the injuries to Sturgill's nipples.
This time frame advanced in Carr's brief is a best case scenario
for him based on the selective reliance of certain testimony: Angie testified
that she talked to her mother, who was at home alone, on the
telephone at "around" 10:30 p.m. for "about ten or fifteen minutes"; the fire
department was called at 11:37 p.m.; and a neighbor smelled smoke approximately ten
minutes before the fire department was called.
Footnote: In his reply brief, Carr contends that
Stahl is distinguishable because it
involved "an actual confession to two credible witnesses," whereas "Angie Carr's story is
not even credible." It is the jury's prerogative--not this Court's--to assess the
credibility of witnesses, and we see no reason why Stahl does not apply
to this case.
For the same reason Carr's suggestion of ineffectiveness of counsel for failure
to object to the jurors action fails.
Carr also suggests that trial counsel was ineffective for failing to
use Angie's prior statements to challenge her credibility and her "prior statement against
Orville Jack Dobkins." The purported statement against Dobkins is nothing more than
Angie telling police that when she spoke to her mother earlier that evening
Dobkins was at her mother's apartment. She did not tell police that
she had any information directly linking Dobkins to the killing.