Gail Cutro found guilty of killing two infants
July 3, 2000
(Lexington) - Former daycare operator, Gail Cutro, has been found
guilty of killing two four-month-old infants, Parker Colson and
Ashlan Daniel, left in her care seven years ago.
She was sentenced to life in prison for the deaths.
Cutro was found innocent of assault in the case of a third infant,
Asher Maier, who was also four-months-old.
The jury reached their verdict shortly before 3:00pm Sunday
Lexington County Deputy Solicitor Johnny Gasser said it's been a
long, emotional ordeal, "This has been a road that's been filled
with a lot of valleys and not too many peaks. And, today, we're at
the top of a peak."
It was the third time the Irmo woman has faced a trial in
connection with these deaths. She was convicted in the death of
Ashlan Daniel at a trial in 1994. The State Supreme Court
overturned the decision two years ago.
A jury could not reach a decision at a second trial last year and
Circuit Court Judge James Williams, Jr. declared a mistrial. This
panel started deliberations on Saturday. Williams sent them back
to the conference room Sunday even after they told him they were
Mother Lindy Colson thanked the jury after the verdict was
announced, "They really, really thought this out and they worked
so hard. We can never say thank you enough to all of you guys and
maybe now our children can rest in peace."
This case has been one of the most expensive to prosecute in
Richland County history.
Cutro's attorneys already say they plan to appeal the decision.
Hung jury in trial of woman accused of two infant deaths and one
alleged infant attack
August 16, 1999
S.C. (Court TV) —
Unable to decide
beyond doubt whether she was responsible for killing two infants
and permanently injuring one in her care, a South Carolina jury
narrowly failed to reach verdict in the retrial of daycare
provider Gail Cutro.
Jurors could not reach a
unanimous vote on a murder conviction in Ashland Daniel's death,
voting 11-to-1 in favor of guilty. The jurors' findings on the
other charges were not known. Despite the outcome, prosecutors say
they will seek a new trial against Cutro.
Prosecutors sought a
conviction of Cutro on assault and battery with the intent to kill
and two counts of first-degree murder. If convicted, Cutro could
have faced life in prison without the possibility of parole for 20
During an eight-month period
in 1993, the deaths of Parker Colson and Daniel were attributed to
Sudden Infant Death Syndrome. A third infant, Asher Maier,
suffered permament brain damage, allegedly from shaken baby
In 1994, prosecutors used
the incidents involving Colson and Maier to convict Cutro of
murder in Daniel's case. However, in 1998, South Carolina's
Supreme Court ruled that prosecutors had failed to link Cutro
decisively to the tragedies involving Colson and Maier and
therefore should not have been able to use those incidents to
convict Cutro in Daniel's death. The conviction was overturned,
and a new trial was ordered.
In the morning of January
4th, 1993, Lindy Colson left her four-month-old son, Parker
Colson, with Gail Cutro and her husband, Josh. That afternoon, the
defendant found Parker in his crib, not breathing. Attempts to
resuscitate Parker were unsuccessful and he was pronounced dead.
Autopsy results were inconclusive but after further tests, the
coroner determined that Parker was the victim of SIDS.
Shortly after Parker's
death, his mother joined a SIDS support group and invited Cutro.
Lindy agreed to give Cutro articles of Parker's clothing, and
Cutro sought out help for care providers who lose children to
Cutro did not care for
another infant until four-month-old Asher Maier joined Gail's
daycare facility five months after Parker's death. On June 23,
1993, Asher's mother, Catherine, dropped him off with Cutro.
According to Catherine, Asher was not feeling well that morning,
but she didn't think he was seriously ill.
That afternoon, Cutro called
Gail, telling her that something was wrong with Asher. When Asher
arrived at the hospital, he was limp and lethargic; he was later
diagnosed with shaken baby syndrome. Investigators began a probe
that focused on Asher's mother and Gail and Josh Cutro. But after
Ashlan Daniel's death on Sept. 9, 1993, investigators looked more
closely at Gail Cutro. She was arrested for the alleged murders
and the suspected assault on Asher Maier July 13, 1994.
South Carolina prosecutors
believe Cutro suffers from Munchausen Syndrome By Proxy, a
psychiatric illness where, in most cases, mothers harm or
fabricate illnesses in children to get attention for themselves.
According to one parent, in May 1992, eight months before the
death of the first infant, Parker Colson, Cutro told her that a
child in her care had died from SIDS. Investigators later learned
that there had been no SIDS cases involving Cutro before Colson.
They also learned that Cutro allegedly lied to another local
daycare provider about losing a daughter to SIDS.
The prosecution believes
that Cutro initially lied about infant deaths to gain attention —
and when that failed, she began committing murders herself.
The defense says there is no
physical evidence suggesting Cutro harmed the children in her care
or linking her to their deaths. The prosecution, Cutro's defense
argues, cannot decisively prove that the two infant deaths and
injury to Asher Maier were intentional or the result of shaking or
suffocation. Cutro's defense insists child abuse and Munchausen
Syndrome By Proxy are merely convenient attempts to explain the
inexplicable and to use Cutro as a scapegoat.
— Bryan Robinson
THE STATE OF
In The Supreme Court
Branda Gail Cutro, Appellant.
James C. Williams, Jr., Circuit Court Judge
Opinion No. 26027
Heard May 3, 2005 - Filed August 15, 2005
Attorney Joseph L. Savitz and Assistant Appellate Defender Robert
M. Dudek, both of S.C. Office of Appellate Defense; and Beattie I.
Charleston, for appellant.
Henry Dargan McMaster, Chief Deputy Attorney General John W.
McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and
Senior Assistant Attorney General William Edgar Salter; and
Solicitor Warren B. Giese, all of Columbia, for respondent.
Appellant was convicted of two counts of homicide by child abuse
for the deaths of two infants in her home daycare. We affirm.
Appellant and her husband
Josh Cutro operated a home daycare in
South Carolina. Between January and
September of 1993, two infants, Parker Colson and Ashlan Daniel,
died at the Cutros’ home. A third infant, Asher Maier, became ill
while at their home and was subsequently diagnosed with serious
brain damage. The State produced evidence that all three infants
were victims of Shaken Baby Syndrome. Appellant was convicted of
two counts of homicide by child abuse and sentenced to concurrent
life sentences for killing Parker Colson and Ashlan Daniel; she
was acquitted of the assault and battery charge regarding Asher
The State’s theory of the case was that appellant’s actions were
motivated by Munchausen Syndrome by Proxy (MSBP), which the
State’s medical experts defined as a form of child abuse in which
the perpetrator harms a child in order to garner sympathy and
attention for herself.
Parker Colson was almost
five months old when he was found dead in his crib at the Cutros’
home on January 4, 1993. According to his parents, Parker was a
healthy baby and had no health problems that morning. His mother
dropped him off at the Cutros’ daycare at about 7:30 a.m. At 1:57
p.m., emergency personnel received a call to the Cutros’ home.
When they arrived at 2:11 p.m., Parker was not breathing. He was
rushed to the hospital where he was declared dead.
Parker’s mother testified
that appellant told her the following regarding Parker’s death:
A: She told me that
Parker was taking a nap. She went in and checked on him. He
was asleep. She went in the kitchen, reached up in the cabinet
to get his food down. Josh came in behind her and screamed,
Parker’s not breathing, call 9-1-1.
. . . .
Q: After she left
the room where Parker was and went into the kitchen, how long a
period of time did she indicate it was before Josh entered the
room and screamed?
A: The way she
explained it to me was she checked on Parker, walked in the
kitchen, and reached in the cabinet. Josh walked in behind her
and screamed, Parker’s not breathing, call 9-1-1 – however long
it takes to get from the living room into the kitchen and reach
into a cabinet, a few seconds. And her kitchen was right beside
the living room.
Q: So according to
Gail Cutro, who was the last person who had contact with your
son Parker before Josh Cutro found him not breathing?
After an autopsy, the
coroner’s office reported Parker’s cause of death as Sudden Infant
Death Syndrome, or “SIDS,” which is the diagnosis given when an
infant’s cause of death cannot be identified. Dr. Daniel, who
performed the autopsy, did note the presence of petechial
hemorrhages in the cortical section of Parker’s brain which she
testified was unusual in a SIDS case.
In July 1994, Parker’s
body was exhumed and re-autopsied. Dr. Ophoven, who reviewed the
autopsy report, concluded that the presence of the petechial
hemorrhages in Parker’s brain and a sub-dural hematoma, which had
not been discovered in the original autopsy, indicated Parker died
a traumatic death caused by shaking and asphyxia. Dr.
Gilbert-Barness testified that Parker died of Shaken Baby Syndrome
which damaged the medulla causing the heart and respiration to
Other medical testimony
indicated that Shaken Baby Syndrome can occur with no external
sign of trauma. Because a baby’s brain is not fully developed,
violent shaking damages the vital center of the brain that
controls breathing which can cause death by asphyxiation. The
presence of petechial hemorrhages indicates asphyxia. Expert
testimony further indicated that the symptoms of Shaken Baby
Syndrome manifest immediately after the shaking -- head injury
occurs within seconds and a baby might die immediately.
Asher Maier was four
months old when he began daycare with the Cutros on June 7, 1993.
A couple of days after beginning daycare, Asher became irritable
and stopped sleeping through the night. He was fussy on June 23
when his mother dropped him off at the Cutros’ at about 7:30 a.m.
Between 10:30 and 10:50 a.m., Mrs. Maier received a telephone call
at work from appellant stating that the baby was “inconsolable”
and suggesting she pick him up and take him to the doctor. When
Mrs. Maier arrived at the Cutros’ a short time later, the baby was
already in his car seat and they immediately handed him to her.
Asher remained in his car seat until he was in the doctor’s
office. When Mrs. Maier removed him, she discovered Asher was
limp and unable to control his neck. Another child’s parent had
seen Asher that morning in daycare and testified he was moving
normally at that time.
Dr. Alexander, who
reviewed Asher’s medical records, testified in his opinion Asher
had been the victim of two shaking episodes. An MRI and CT scan
revealed old and new blood in his brain indicating an earlier
episode, probably two weeks previous, that had healed to some
extent. Asher also exhibited retinal hemorrhages indicative of
Shaken Baby Syndrome.
Ashlan Daniel was about
two months old when she began daycare with the Cutros in June
1993. Ashlan was in daycare for about only two hours a day while
Mrs. Daniel worked part-time. On September 9, 1993, Mrs. Daniel
dropped Ashlan off at the Cutros’ at noon. A picture of Ashlan
taken earlier that day shows she was a healthy and normal baby, a
description her parents corroborated.
When Mrs. Daniel left work
at 2:30 p.m., she went to pick Ashlan up at the Cutros’ home. She
pulled up as
EMS personnel were arriving. Josh Cutro
came out of the house and told Mrs. Daniel that Ashlan was dead.
Ashlan’s mother testified
that appellant told her that she, appellant, found Ashlan not
breathing and Josh was out of the house at that time. Another
parent testified appellant told her Josh went to pick up their
children from school and that she, appellant, was the only adult
in the room when Ashlan stopped breathing.
Other parents of the
Cutros’ daycare children also testified. One parent testified
Josh told her he had just returned home when appellant came
outside to tell him about the baby. Another testified that
appellant told her that she, appellant, “was in the room with
Ashlan when she died. . . and that she couldn’t believe that she
didn’t notice that [Ashlan] had stopped breathing.”
Dr. Reynolds, who
autopsied Ashlan’s body, testified petechial hemorrhages were
present in her brain, which he had never seen in a SIDS death.
Because he could not determine the cause of death, he concluded it
Ashlan’s body was exhumed
and re-autopsied in July 1994. Dr. Ophoven testified that
Ashlan’s brain had a subdural hematoma which, in addition to the
petechial hemorrhages, indicated she had died of trauma and
asphyxia. Dr. Gilbert-Barness concurred and stated that these
injuries indicated Shaken Baby Syndrome.
Evidence of MSBP
As proof of motive, the
State introduced evidence of appellant’s attention-seeking
behavior regarding the purported SIDS deaths of the two infants
who died in her daycare. She kept their obituaries, photos, and
items of clothing, as well as frequently visiting their gravesites
and emotionally discussing their deaths repeatedly with others.
Appellant also fabricated that she had lost one of her own
children and that a baby had died in her care in 1992. The
State’s medical experts opined that the injuries to the three
infants and appellant’s behavior indicated a pattern of child
abuse identified as MSBP.
1. Was appellant
unfairly prejudiced by the trial court’s refusal to sever the
2. Was appellant
unfairly prejudiced by evidence used to prove MSBP?
3. Were autopsy
reports of other infants improperly admitted?
1. Joinder of charges
Appellant was first tried in 1994 and convicted of killing Ashlan
Daniel. We reversed that conviction because evidence of the death
and injury to the other two infants, Parker Colson and Asher
Maier, was not clear and convincing and therefore was improperly
admitted as Lyle
evidence. State v. Cutro, 332 S.C. 100, 504 S.E.2d 324
(1998) (Cutro I ).
Appellant contends the trial judge erred in denying her motion to
sever the charges in this case based on our holding in Cutro I.
For the reasons set forth below, we find our evidentiary ruling in
Cutro I is not controlling here.
Generally, when offenses charged in separate indictments are of
the same general nature involving connected transactions closely
related in kind, place, and character,
the trial judge has the discretion to order the indictments tried
together, but only so long as the defendant’s substantive rights
are not prejudiced. State v. Sullivan, 277 S.C. 35, 282
S.E.2d 838 (1981); State v. Williams, 263 S.C. 290, 210
S.E.2d 298 (1974); McCrary v. State, 249 S.C. 14, 152
S.E.2d 235 (1969). We have found prejudice where the defendant
was jointly tried on charges for which the evidence would not
otherwise have been admissible under Lyle. State v.
Smith, 322 S.C. 107, 470 S.E.2d 364 (1996). We now clarify
that in determining joinder, the trial judge need not find clear
and convincing evidence of the charges.
a. Distinction between
evidentiary and joinder context
In the context of evidentiary law, Lyle and its progeny
protect a defendant from the unrestricted admission of bad act
evidence. Lyle prohibits such evidence unless the evidence
has a particular relevance to the crime charged and falls within
at least one of five categories: motive, identity, common scheme
or plan, absence of mistake or accident, or intent.
Further, bad acts that are not the subject of conviction must be
proved by clear and convincing evidence. State v. Wilson,
345 S.C. 1, 545 S.E.2d 827 (2001). This preliminary fact-finding
by the judge ensures the evidence is subjected to some procedural
safeguard before the jury hears it.
In the context of the
joinder of charges for a jury trial, however, procedural
safeguards are already in place that eliminate the need for
preliminary fact-finding by the trial judge. Before a defendant
is tried on joint charges, the charges are investigated by law
enforcement and subject to judicial procedures such as indictment
and preliminary hearing. In this procedural context, it is
unnecessary to hold a “mini-trial” for the State to prove each
charge to the judge before proceeding with a joint trial to the
jury. Accord Solomon v. State, 646 A.2d 1064 (Md.
App. 1995) (Moylan, J.).
Further, in the
evidentiary context, bad act evidence that falls within a Lyle
exception and meets the clear and convincing standard may still be
excluded if the danger of unfair prejudice substantially outweighs
the probative value of the evidence. State v. Braxton, 343
S.C. 629, 541 S.E.2d 833 (2001). Similarly, in the joinder
context, the defendant may argue unfair prejudice if, after the
State’s case, the trial judge determines that a directed verdict
should be granted. The standard for submission of charges to the
jury is “any substantial evidence.” State v. Johnson, 334
S.C. 78, 84, 512 S.E.2d 795, 798 (1999). If the trial judge finds
there is no substantial evidence to submit any one of the joined
charges to the jury, the defendant may move for a mistrial on the
basis of unfair prejudice resulting from joinder.
b. Application of
Here, according to the
State’s case, all three offenses are similar in kind, place, and
character -- each involves Shaken Baby Syndrome inflicted on an
infant in the Cutros’ daycare. These offenses clearly fit within
the Lyle categories for common scheme or plan and motive.
We conclude the charges were properly tried jointly.
2. Evidence of MSBP
evidence concerning the memorabilia seized from her home regarding
the two dead infants was unfairly prejudicial and improperly
admitted at trial. The State introduced the babies’ memorabilia
as indicative of MSBP which is marked by attention-seeking
behavior. The trial judge charged the jury that it was to
consider the diagnosis and evidence of MSBP only for the limited
purpose of establishing motive or absence of illness, mistake, or
Appellant claims exclusion
of this evidence is mandated under State v. Nelson, 331
S.C. 1, 501 S.E.2d 716 (1998), which held that “propensity
evidence” is inadmissible. We find Nelson
distinguishable. In that case, children’s toys, videos,
photographs of young girls, and other evidence tending to depict
the defendant as a pedophile were admitted at his trial for
criminal sexual conduct and committing lewd acts on a minor. We
held this evidence should have been excluded because character
evidence is not admissible “for purposes of proving that the
accused possesses a criminal character or has a propensity to
commit the crime with which he is charged.” Nelson, 331
S.C. at 6, 501 S.E.2d at 719.
In this case, the evidence
is not general propensity evidence but indicates appellant’s
behavior regarding the deaths of these two infants. Since the
State’s theory of the case was that appellant killed the victims
to gain sympathy and attention for herself, this evidence is
relevant to show motive. See State v. Hocevar, 7
P.3d 329 (Mont.
2000) (evidence of MSBP admissible on issue of motive). Further,
in Nelson the evidence was admitted simply to depict the
defendant as a pedophile. There was no expert testimony relating
the contested evidence to the charges as in this case.
Finally, collecting memorabilia of a deceased child, while perhaps
uncommon, is not behavior that itself indicates a bad character.
In fact, appellant presented extensive evidence that her grief was
a normal response to the deaths of these children. This evidence
did not unfairly suggest that appellant had a propensity to commit
crimes against children. See State v. Alexander,
303 S.C. 377, 382, 401 S.E.2d 146, 149 (1991) (evidence is
unfairly prejudicial if it has an undue tendency to suggest
decision on an improper basis). We conclude appellant was not
unfairly prejudiced by the admission of this evidence.
3. Autopsy reports of
other SIDS deaths
The State’s medical
expert, Dr. Ophoven, testified she examined the autopsy reports of
all SIDS deaths that occurred under one year of age in
South Carolina since 1993. These 274
autopsy reports were marked as State’s exhibits for identification
during Dr. Ophoven’s testimony along with a chart summarizing
them. Dr. Ophoven testified that none of these autopsy reports
noted petechial hemorrhages of the brain which are considered
medical abnormalities that would ordinarily be documented in the
course of an autopsy. She testified that the autopsies of Parker
Colson and Ashlan Daniel were the only two in which such
abnormalities were found, confirming her earlier observation that
petechial hemorrhages do not occur in a SIDS death.
evidence concerning the autopsy reports of these other SIDS
deaths was irrelevant, was inadmissible hearsay, and violated her
Evidence is relevant if it
tends to make the existence of any fact at issue more or less
probable. State v. Frazier, 357 S.C. 161, 592 S.E.2d 621
(2004); Rule 404, SCRE. Here, medical testimony created an issue
regarding the significance of petechial hemorrhages in determining
the cause of death of the two infants. The fact that autopsies of
SIDS deaths did not note this type of brain abnormality was
relevant in distinguishing a SIDS case from a traumatic death.
Further, autopsy reports
are not hearsay under Rule 803, SCRE. Subsection (8) of this rule
excepts from hearsay public records and reports containing matters
there is a duty to report. Autopsies are required in cases of
SIDS if law enforcement deems it necessary. S.C. Code Ann. §
17-5-540 (2003) and § 20-7-5915 (Supp. 2004). Additionally,
subsection (9) of Rule 803 specifically exempts from hearsay
records of vital statistics, including “reports. . . of . . .
deaths. . . if the report thereof was made to a public office
pursuant to requirements of law.” Autopsy reports are required to
be kept by the medical examiner’s office. S.C. Code Ann. §
17-5-280 ( 2003). Accordingly, an autopsy report is not
In addition, Rule 703,
SCRE, specifically provides:
The facts or data in the
particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert
at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be
admissible in evidence.
We conclude evidence of
the autopsy reports was admissible under the Rules of Evidence.
Finally, in Crawford v. Washington, 541 U.S. 36, 54 (2004),
the United States Supreme Court noted the hearsay exception for
business records and observed that business records are not
“testimonial” and therefore do not implicate the Confrontation
Clause. A public record, very much like a business record, is not
testimonial and its admission similarly does not violate the
defendant’s confrontation rights. Moreover, appellant was able to
cross-examine Dr. Ophoven regarding the possible inaccuracies in
these autopsy reports and presented extensive expert testimony
reinterpreting the significance of their findings.
We find appellant’s confrontation rights were not infringed.
We hold the trial judge
did not err in allowing Dr. Ophoven’s testimony regarding the
autopsies of other deaths.
issues are without merit and are disposed of pursuant to Rule
220(b), SCACR, and the following authority: Issue 4: State v.
Taylor, 333 S.C. 159, 508 S.E.2d 870 (1998) (for this Court to
reverse based on erroneous exclusion of evidence, prejudice must
be shown; error is harmless when it could not reasonably have
affected result of the trial); State v. Beckham, 334 S.C.
302, 513 S.E.2d 606 (1999) (any error in exclusion of cumulative
evidence is harmless); Issue 5: State v. Johnson, 334 S.C.
78, 512 S.E.2d 795 (1999) (if there is any substantial evidence
tending to prove the guilt of the accused, or from which guilt may
be fairly and logically deduced, the case should be submitted to
the jury); State v. Brown, 360 S.C. 581, 602 S.E.2d 392
(2004) (on appeal from denial of directed verdict, this Court must
view the evidence in light most favorable to the State); Issue 6:
State v. Hyder, 242 S.C. 372, 131 S.E.2d 96 (1963);
State v. Caulder, 287 S.C. 507, 339 S.E.2d 876 (Ct. App. 1986)
(no error to refuse a charge on mere suspicion where the charge
adequately instructs the jury regarding reasonable doubt); Issue
7: State v. Mitchell, 362 S.C. 289, 608 S.E.2d 140 (Ct.
App. 2005) (involuntary manslaughter is not a lesser included
offense of homicide by child abuse under the elements test); Issue
8: State v. Pauling, 322 S.C. 95, 470 S.E.2d 106 (1996)
(if jury asks for further explanation of the law after indicating
deadlock, the requirements of § 14-7-1330 are met).
TOAL, C.J., WALLER and
BURNETT, JJ., concur. PLEICONES, J., dissents in a separate
JUSTICE PLEICONES: I respectfully
dissent. As I understand appellant’s joinder argument, she
contends that the charges were improperly consolidated for trial.
I agree, and would reverse on this ground.
The general rule is that the trial judge has discretion to order
separate charges to be tried together over the defendant’s
objection where the offenses charged “are of the same general
nature, involving connected transactions closely related in kind,
place and character . . . .”
State v. Sullivan, 277 S.C. 35, 43, 282 S.E.2d 838, 843
(1981); cf., State v. Evans, 112 S.C. 43, 99 S.E.
751 (1919)(no abuse of discretion in trial judge’s denial of
defendants’ motion to try two murder charges together). Once a
court determines that charges may properly be joined, it must then
consider whether it should decline to consolidate the claims in
order to protect the defendant’s right to a fair trial.
Id. (joinder is improper where the
defendant can demonstrate that his substantive rights would be
violated by such a procedure); see also State v. Smith,
322 S.C. 107, 470 S.E.2d 364 (1996); State v. Williams,
263 S.C. 290, 210 S.E.2d 298 (1974); McCray v. State, 249
S.C. 14, 152 S.E.2d 235 (1967). As we have long recognized,
“Circumstances might arise which would render a uniting of several
counts unjust to the defendant.” City of
Greenville v. Chapman, 210 S.C. 157,
162, 41 S.E.2d 865, 867 (1947). Even where joinder is
permissible, the trial court must be mindful of protecting the
defendant’s right to a fair trial because “[b]y the multiplication
of distinct charges, the prisoner may be confounded in his
defense, or prejudiced in his challenges, or the attention of the
jury may be distracted.”
Id. (internal citations omitted).
In this case, the first issue is whether the trial judge abused
his discretion in finding a relationship sufficient to permit the
State to try appellant on three charges at a single trial: the
homicide of Parker Colson on January 4, 1993; the injury to Asher
Maier discovered on June 23, 1993; and the homicide of Ashlan
Daniel on September 9, 1993. In my opinion, while these charges
are of the same general nature, they do not involve “connected
transactions closely related in kind, place and character” as
these terms are defined by our case law. Crimes which do not
arise out of a “single chain of circumstances” and which require
“different evidence for proof” “clearly fail to meet the
requirements for consolidation.” State v. Middleton, 288
S.C. 21, 23, 339 S.E.2d 692, 693 (1986) (reversing where charges
of rape and murder of one victim, rape and murder of a second
victim the next day, and attempted robbery and assaults on the day
after were consolidated for trial). I would hold the trial judge
committed reversible error in allowing these three charges to be
tried together over appellant’s objection, as they did not arise
out of a single chain of circumstances and required different
I would reverse
appellant’s convictions and remand the matter for further
MSBP was first identified by a pediatrician in 1997 and is a
medically recognized syndrome.
v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).
Appellant was retried in 1999; that trial ended in a mistrial when
the jury could not agree. This is appellant’s third trial.
the State produced evidence each offense involved the violent
shaking of an infant at the Cutro’s home daycare with the intent
of promoting sympathy for the caregiver from the resulting injury
to the child. These offenses are closely related in kind, place,
and character as required to support joinder.
also Rule 404(b), SCRE (codifying Lyle categories).
brief mentions the funeral bulletin for the Lightfoot child, a
baby who died of SIDS while in the care of another home daycare
provider known to appellant through her church. This evidence
also directly related to the case at hand. The State sought to
establish that appellant knew about the outpouring of sympathy for
the other daycare worker and this motivated her own behavior.
Dr. Sexton, who performed several of these autopsies, testified
that some showed microscopic brain vessel damage similar to that
seen in Parker Colson and Ashlan Daniel.
I disagree with the majority that the test for joinder is the same
as the standard for admitting prior bad act evidence under
State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923)/ Rule 404
Even if I were to find these charges were sufficiently connected
so as to be subject to consolidation, I would hold that joinder
should have been denied in order to protect appellant’s right to a
fair trial. City of Greenville v. Chapman, supra.
Supreme Cour of
State v. Cutro
The STATE, Respondent,
Brenda Gail CUTRO, Appellant.
August 31, 1998
Neal, III, H. Wesley Kirkland, Jr., and S.C. Office of Appellate
Defense, Columbia; and L. Lisa McPherson, Lexington, for
appellant.Attorney General Charles Molony Condon, Assistant Deputy
Attorney General Donald J. Zelenka, Senior Assistant Attorney
General William Edgar Salter, III, Solicitor Warren B. Giese, and
Deputy Solicitor Jonathan S. Gasser, Columbia, for respondent.
Appellant Brenda Gail
Cutro was convicted of one count of murder and sentenced to life
imprisonment. We reverse.
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
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
Appellant contends the
trial judge erred in admitting Lyle evidence.3
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.
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
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
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.
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
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
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.
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
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).
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.1
A perusal 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
I. 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.
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 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
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;
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
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
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
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
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
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 2
over Asher and Parker; the 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 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.3
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
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
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 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
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.
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).4
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.
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.
S.C. 406, 118 S.E. 803 (1923).
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 (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.
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.
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.
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.
solely upon the grounds which appellant raised, we affirm the
admission of the statistics.
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 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.
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 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.
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.
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).
FINNEY, C.J., and WALLER,
J., concur.TOAL and BURNETT, JJ., dissenting in separate
opinion.BURNETT, J., concurs.
Brenda Gail Cutro