State v. Cutro
SUPREME COURT OF SOUTH CAROLINA
332 S.C. 100, 504 S.E.2d 324 (August 31,
1998)
MOORE,
A.J.: Appellant Brenda Gail Cutro was convicted of one count of murder and
sentenced to life imprisonment. We reverse.
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. n1
n1 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.
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? n2
n2 125
S.C. 406, 118 S.E. 803 (1923).
DISCUSSION
Appellant
contends the trial judge erred in admitting Lyle evidence. n3 We agree. The
State offered evidence of two alleged
prior bad 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.
n3 Contrary
to the dissent's assertions, appellant properly raised this issue on appeal.
In her brief, appellant states that "in the absence of any properly-admitted
evidence that [appellant] shook each of these three (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.
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 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. n4
n4 The
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.
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. n5 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 a.m.
n5 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.
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. n6 The Court held the admission of this evidence
was clearly prejudicial and reversed.
n6 Contrary
to the dissent's assertions, the Conyers opinion, which summarily affirms
the admission of some Lyle evidence without any 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.
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).
n7 Issue 3: State v. Washington, 315 S.C. 108, 432 S.E.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).
n7 Based
solely upon the grounds which appellant raised, we affirm the admission of
the statistics.
REVERSED.
FINNEY,
C.J., and WALLER, A.J., concur. TOAL and BURNETT, JJ., dissenting in separate
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. ...
...
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;
7. the deaths and injury were all inconsistent
with Sudden Infant Death Syndrome [SIDS];
8. all three children had insignificant
medical histories; not 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. 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 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. 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 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
control n2 over Asher and Parker; the for 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.
n2 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 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.
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 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 credibility.
n3
n3 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.
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, 516 U.S. 1080,
116 S. Ct. 789, 133 L. Ed. 2d 739 (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 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 whole-heartedly 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
[*119] 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 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.
(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 Lyle 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). n4 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.
n4 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: "After 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).
BURNETT, A.J.,
concurs.