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24834 - State v. Brenda Gail Cutro

Davis Adv. Sh. No. XX
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court





The State, Respondent,

v.

Brenda Gail Cutro, Appellant.



Appeal From Richland County

M. Duane Shuler, Judge





Opinion No. 24834

Heard September 18, 1997 - Filed August 31, 1998





REVERSED





Thomas M. Neal, III, H. Wesley Kirkland, Jr., and

S.C. Office of Appellate Defense, all of Columbia;

and L. Lisa McPherson, of Lexington, for appellant.





Attorney General Charles Molony Condon,

Assistant Deputy Attorney General Donald J.

Zelenka, Senior Assistant Attorney General William

Edgar Salter, 111, Solicitor Warren B. Giese, and

Deputy Solicitor Jonathan S. Gasser, all of

Columbia, for respondent.





MOORE, A.J.: Appellant Brenda Gail Cutro was convicted of

one count of murder and sentenced to life imprisonment. We reverse.



p.56


STATE v. CUTRO





FACTS

In 1993, appellant and her husband operated a day care center

in their home. During that year, two infants died while in their care. A

third child was diagnosed with Shaken Baby Syndrome. Appellant was

convicted of murder for the September 1993 death of four-month-old

Ashlan Daniel. The death of Parker Colson in January 1993 and the June

1993 diagnosis of Asher Maier with Shaken Baby Syndrome were admitted

into evidence as prior bad acts at appellant's trial.1





ISSUE



Did the trial judge err in admitting evidence of Parker's

death and Asher's diagnosis of Shaken Baby Syndrome

which the state offered to prove common scheme or plan

pursuant to State v. Lyle?2





DISCUSSION

Appellant contends the trial judge erred in admitting Lyle

evidence.3 We agree. The State offered evidence of two alleged prior bad


1 After an autopsy, Parker's death initially was attributed to

pneumonia. This was subsequently changed to SIDS by the pathologist

who had performed the autopsy after she consulted an expert on SIDS.

Ashlan's cause of death was listed as "undetermined/presumed SIDS."

Ashlan's autopsy was performed by a different doctor and with the

knowledge of Parker's death and Asher's injury and the suspicions

surrounding appellant and her husband. SIDS is a diagnosis by exclusion

(i.e. no cause of death can be ascertained). The bodies of the babies were

exhumed in July 1994 and the State's experts determined the babies had

died from asphyxiation as a result of trauma. The doctors who had

performed the original autopsies did not change their opinions as to the

cause of the deaths. Further, several defense experts also testified the

children did not die as a result of trauma.





2 125 S.C. 406, 118 S.E. 803 (1923).

3Contrary to the dissent's assertions, appellant properly raised this

issue on appeal. In her brief, appellant states that "[i]n the absence of

any properly-admitted evidence that [appellant] shook each of these three



p.57


STATE v. CUTRO





acts: 1) Parker's death which occurred eight months before Ashlan's death

and while he was in appellant's care on January 4, 1993; and 2) the

diagnosis of Asher with Shaken Baby Syndrome three months prior to

Ashlan's death on June 23, 1993. Prior to trial, the trial judge held a

hearing on the admissibility of this evidence. He ruled that he would let

the State introduce the evidence and if the State was unable to tie the

evidence together he would grant a mistrial. After the State concluded its

case, the trial judge found the evidence admissible and held that the State

had presented clear and convincing evidence, albeit circumstantial, that

appellant had committed these other offenses.





In the case of the common scheme or plan exception under

Lyle, a close degree of similarity or connection between the prior bad act

and the crime for which the defendant is on trial is necessary. State v.

Parker, 315 S.C. 230, 433 S.E.2d 831 (1993). See also State v. Douglas,

302 S.C. 508, 397 S.E.2d 98 (1990). The connection between the prior bad

act and the crime must be more than just a general similarity. State v.

Stokes, 279 S.C. 191, 304 S.E.2d 814 (1983). A common scheme or plan

concerns more than the commission of two similar crimes; some connection

between the crimes is necessary. Id.





Evidence of other crimes must be put to a rather severe test

before admission. The acid test of admissibility is the logical relevancy of

the other crimes. The trial judge must clearly perceive the connection

between the other crimes and the crimes charged. Lyle, supra. Further,

other crimes which are not the subject of conviction must be proven by

clear and convincing evidence. State v. Pierce, 326 S.C. 176, 485 S.E.2d

913 (1997).





In Pierce, we held the trial court erred in admitting prior bad

act evidence of child abuse because the State had failed to offer clear and

convincing proof that the appellant had inflicted the prior injuries.

Similarly, in State v. Smith, 300 S.C. 216, 387 S.E.2d 245 (1989), we held


(3) children, the necessary Lyle connection fails and the Colson,/Maier

evidence should not have been admitted." Appellant argues that Parker

and Ashlan died from SIDS (i.e. not from trauma). Appellant's trial

strategy was to prove that Parker and Ashlan died from SIDS. In doing

so,, she implicitly argued she did not commit any bad act. There could be

no other way to view this argument. As for Asher, appellant does not

dispute that the child was shaken - she contends, however, that she did

not do it.

p.58


STATE v. CUTRO





proof appellant committed a prior murder was not clear and convincing.

Likewise, here, the evidence is insufficient to establish that appellant was

the actor in Parker's death or Asher's injuries.4





Appellant and her husband testified she routinely left all of the

children in her husband's care while she ran errands. In fact, on the day

Parker died, they testified appellant's husband provided almost all of their

care. On that day, appellant left the house for over two hours to go to the

bank, grocery store, a crafts store, and Wal-mart. Appellant's husband

was holding Parker when she returned and he put Parker down for his

nap. Appellant's husband found Parker not breathing an hour later.





The experts seem to agree that Asher's injuries occurred

sometime within the seventy-two-hour-period prior to when he was taken

to the hospital. Further, because he was not dehydrated, it was

ascertained that the injury probably occurred within the prior twenty-four

hours.5 Asher was taken to the hospital on the morning of Wednesday,

June 23rd. Appellant and another parent testified Asher appeared sick

when his mother, Catherine Maier, dropped him off at approximately 7:30

a.m. Appellant called Catherine that morning around 10:30 a.m. and

asked her to take him to the doctor. Appellant's husband immediately

carried Asher, who was already strapped into his car seat, out to the car

when Catherine arrived to take him to the doctor at approximately 11:30


4The dissent blatantly concludes the "SIDS diagnosis was in error"

even though the highly qualified medical experts who testified in this trial

could not agree this was the case. Unlike the dissent, we find it

unnecessary to summarize the testimony of the numerous medical experts.

We base our opinion upon the lack of evidence presented that appellant

was the perpetrator, if there was one.



We note, however, the dissent misleadingly states Dr. Daniel, who

had originally performed the autopsy on Parker, testified that her findings

were consistent with forced asphyxiation. Dr. Daniels testified her

findings were consistent with forced asphyxiation and SIDS. She testified

she made her final decision by determining that it was more likely than

not that this was a SIDS death.





5 Dr. Louis Becton testified Asher was not dehydrated and after he

had been shaken he would have immediately lost his motor skills and

been unable to eat. He also testified it takes an infant hours, rather than

days, to become dehydrated.



p.59


STATE v. CUTRO

a.m.





Several persons other than appellant, including Catherine and

appellant's husband, had access to Asher within this preceding twenty-four

hour period. We think the evidence is insufficient to establish that

appellant injured Asher.





The dissent states "[Appellant] had nearly exclusive control

over Asher and Parker; the only other person with clear access to Asher

and Parker was [appellant's] husband." (emphasis added). This view of

the evidence does not support the conclusion that appellant was the sole

person who could have inflicted the injuries. The dissent points to

appellant's testimony that Parker was her responsibility and it was her job

to give him back to his mother that day. This testimony does not

somehow exclude appellant's husband from being the perpetrator. The

dissent states appellant's credibility was in doubt at trial. Even if we

discount appellant's testimony because of her lack of credibility, there is

still appellant's husband's testimony that he helped care for the children.

More importantly, the State did not present any evidence to the contrary.

Thus, the only evidence on this issue is that appellant did not have

exclusive control of the children.







The facts of this case are very similar to the facts in State v.

Conyers, 268 S.C. 276, 233 S.E.2d 95 (1977). In Conyers, the appellant

was convicted of murdering her second husband by poisoning him with

arsenic. The State introduced evidence regarding the poisoning of

appellant's son-in-law, mother-in-law, first husband, and a potential

business partner. The Court summarily concluded the trial judge properly

admitted evidence of poisoning of the son-in-law, mother-in-law, and

potential business partner. However, the Court held the trial court had

erred in admitting evidence of the poisoning of appellant's ex-husband.

Appellant's first husband died six years before her second husband. The

first husband's body was exhumed and it was found to contain the highest

level of arsenic of any of the other victims. "There was very little

evidence, however, to establish that appellant poisoned her first husband

other than the fact that she was his wife and he had some life insurance.

This evidence alone was insufficient to establish the identity of appellant

as the actor in poisoning her first husband." 268 S.C. at 281, 233 S.E.2d

at 96.6 The Court held the admission of this evidence was clearly


6Contrary to the dissent's assertions, the Conyers opinion, which

summarily affirms the admission of some Lyle evidence without any



p.60


STATE v. CUTRO

prejudicial and reversed.





Likewise, here, the evidence is insufficient to establish that

appellant was the actor in Parker's death or Asher's injuries and we hold

the trial judge erred in admitting this evidence. Accordingly, we reverse.





Appellant's remaining issues are affirmed pursuant to Rule

220(b)(2) and the following authorities: Issue 2: State v. Dinkins, 319 S.C.

415, 462 S.E.2d 59 (1995).7 Issue 3: State v. Washington, 315 S.C. 108,

432 SE.2d 448 (1993)(appellant cannot on appeal complain about the

admission of evidence which she elicited). Issue 4: State v. Williams, 303

S.C. 274, 400 S.E.2d 131 (1991)(in ruling on a motion for a directed

verdict, the trial judge is concerned with the existence or nonexistence of

evidence, not its weight). Issue 5: State v. Bailey, 276 S.C. 32, 274 S.E.2d

913 (1981)(admission of evidence is within the trial court's discretion and

absent an abuse of this discretion will not be reversed by this Court);

State v. Schmidt, 288 S.C. 301, 342 S.E.2d 401 (1986)(evidence is relevant

if it tends to establish or make more or less probable some matter at issue

upon which it directly or indirectly bears); State v. Sullivan, 277 S.C. 35,

282 S.E.2d 838 (1981)(appellant cannot complain of prejudice from

admission of evidence if he opened the door to its admission).





REVERSED.





FINNEY, C.J., and WALLER, A.J., concur. TOAL and BURNETT, JJ.,

dissenting in separate opinion.






analysis or discussion, provides no support for the admission of the Lyle

evidence in this case. Furthermore, the Conyers decision is not the only

precedent upon which we base our decision in this case.





7Based solely upon the grounds which appellant raised, we affirm the

admission of the statistics.





p.61




STATE v. CUTRO





TOAL, A.J.: The majority affirms all issues, except the question of

Cutro's prior bad acts. It finds that the trial court erred in admitting, under

State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), evidence of the death of

Parker Colson and the injury of Asher Maier. Because this finding fails

procedurally and substantively, I must dissent from this portion of the

majority's opinion.





A. PROCEDURAL GROUNDS

The majority opinion holds that evidence of Brenda Cutro's prior bad

acts is inadmissible because the State failed to prove her commission of these

acts by clear and convincing evidence. This argument is procedurally barred

inasmuch as it was neither raised, nor argued, on appeal by Cutro. Before

this Court, Cutro contests the trial court's ruling concerning the Lyle

evidence on two distinct bases: (1) the State has not established a sufficient

connection for the prior bad acts to be admissible because of dissimilarities

between the prior bad acts and the current murder; and (2) even if the

evidence were admissible, the State has introduced too much evidence,

thereby prejudicing Cutro.







Cutro does not argue that the State failed to prove the prior bad acts

by clear and convincing evidence. This issue has been raised by the majority

sua sponte. Because this ground is procedurally barred, it is improper for

this Court to consider it. See State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838

(1981)(An issue not argued in the appellant's brief is deemed abandoned.).

The impropriety of reaching this issue is compounded by the fact that the

parties have not had the opportunity to adequately brief this issue. This is

particularly necessary in a case like this one, a complex two-week trial that

involved a parade of over eighty witnesses, a collection of over one hundred

sixty exhibits, and a record exceeding three thousand pages.





In footnote 3 of its opinion, the majority attempts to rebut our position

that its argument is procedurally barred. It posits, in a very generalized

fashion, the argument that somehow the issue is before this Court. In

claiming that Cutro has properly presented the issue that the State has

failed to prove by clear and convincing evidence that she committed the prior

bad acts, the majority has not -- and cannot -- cite to a single paragraph of

the argument contained in Cutro's brief to support its position.1d A perusal




1d The majority refers to the following statement: "In the absence of any

properly-admitted evidence that Mrs. Cutro shook each of these three (3)

children, the necessary Lyle connection fails and the Colson/Maier evidence



p.62


STATE v. CUTRO





of the eleven-page Lyle argument contained in Cutro's brief will demonstrate

beyond peradventure that this issue is procedurally barred. Even an

examination of Cutro's argument headings suffices to convince that the

argument is not appellant's, but rather a sua sponte product of the majority's

analysis. As an aid to the reader, we quote these argument headings:





1. The trial judge improperly allowed the State to introduce

evidence concerning the death of Parker Colson and the injury to

Asher Maier.



A. There was doubt as to the connection between the death

of Ashlan Daniel (the charge for which Appellant was tried)

and the death of Parker Colson and the injury to Asher

Maier.



B. If any such evidence was admissible, the State

introduced too much evidence and effectively tried the

Appellant on all three (3) charges.





See Appellant's Brief, pp. 16-26.





The arguments that were presented by Cutro's brief are as follows:

Where an alleged bad act is strikingly similar to the one for which a




should not have been admitted." This reference further reinforces our

argument that Cutro has not specifically raised the issue of the State failing

to prove the prior bad acts by clear and convincing evidence. First, the

statement is very general in nature and does not identify the precise issue

which the majority chooses to address. Second, it does not even appear in

Cutro's statement of issues on appeal, nor in the argument portion of Cutro's

brief. Instead, the above-quoted sentence is a passing reference in an

introductory note in Cutro's brief.

It is well established that ordinarily no point will be considered which

is not set forth in the statement of issues on appeal. Rule 207(b)(1)(B),

SCACR; Gamble v. International Paper Realty Corp., 323 S.C. 367, 474

S.E.2d 438 (1996). Further, a one-sentence argument is too conclusory to

present any issue on appeal. Englert, Inc. v. Netherlands Ins. Co., 315 S.C.

300, 433 S.E.2d 871 (Ct. App. 1993). The majority cannot overcome these

procedural hurdles. We may search in vain Cutro's brief for the issue of the

State failing to prove the prior bad acts by clear and convincing evidence.

Ultimately, neither Cutro's statement of issues, nor a single full paragraph

of her argument will yield the issue.



p.63


STATE v. CUTRO





defendant is being tried, the danger of prejudice is enhanced; this is

particularly true in a case resting upon circumstantial evidence. The case

against Cutro was purely circumstantial in nature. See Appellant's Brief, pp.

16-17. Further, the State did not prove the bad acts were similar. See

Appellant's Brief, pp. 20-22. Finally, if the evidence were admissible, the

State introduced too much of it. See Appellant's Brief, pp. 22-26.





It is most revealing that the argument created for Cutro by the

majority even contradicts, at the most basic level, one of the very arguments

she did make: The majority champions the cause that the State did not

present enough evidence. Contrarily, Cutro's brief contends that the State

presented too much evidence. This discrepancy alone should alert us to the

procedural mischief afoot.





Thus, because Cutro has never presented the argument lying at the

center of the majority's conclusion, the matter should be considered

procedurally barred.





B. SUBSTANTIVE GROUNDS

Even if we assume the issue has been properly presented on appeal, it

fails on the merits. The majority opinion concludes that there was not clear

.and convincing evidence that Cutro caused Parker's death and Asher's

injuries. The record is otherwise.





Cutro operated a day care center in her home in Irmo, South Carolina.

During an eight month period in 1993, three children in Cutro's care either

died or were severely injured. In January 1993, Parker Colson died while in

Cutro's care; in June 1993, Asher Maier suffered severe brain damage while

in Cutro's care; in September 1993, Ashlan Daniel died while in Cutro's care.

Cutro was eventually indicted for the murder of Ashlan. The State sought

to introduce, under Lyle, evidence of Parker's death and Asher's injuries in

order to show motive, a common scheme or plan, and identity. There were

a number of similarities between the three cases:





1. all three children were in the custody, care, and control of Cutro;

2. all three children were between four and five months old;

3. all the events occurred at Cutro's house;

4. all the events occurred during daytime;

5. all three children died as a result of physical abuse (suffocation or

shaking);

6. all three children suffered injuries to the brain area;





p.64


STATE v. CUTRO





7. the deaths and injury were all inconsistent with Sudden Infant

Death Syndrome [SIDS];

8. all three children had insignificant medical histories;

9. all the children were born after normal, full-term pregnancies; and

10. there was absence of evidence that the injuries were caused by

accident

The trial court admitted the evidence of the prior bad acts, finding this to be

a "textbook" Lyle situation. The court further found that the probative value

of the evidence outweighed its prejudicial effect. Moreover, it concluded that,

in this circumstantial evidence case, the State had proved the prior bad acts

with clear and convincing evidence.





The admission of evidence in a criminal prosecution is within the

discretion of the trial court, and its ruling will not be disturbed on appeal

unless an abuse of discretion is shown. State v. Wright, 322 S.C. 253, 471

S.E.2d 700 (1996). A review of the record reveals there is ample evidence to

uphold the trial court's ruling that the prior bad acts were proven by clear

and convincing evidence.





1. PARKER COLSON

Parker was a healthy baby in the days preceding January 4, 1993. He

was perfectly fine when he was dropped off at Cutro's day care center on

January 4th. In the middle of the day, his mother received a call from the

day care center and was told that Parker was not breathing. Emergency

medical personnel were called to Cutro's home where they found that the

infant's heart was not beating. They were told upon their arrival that Parker

had been found on the bed not breathing and that he had been checked 10

or 15 minutes earlier and was okay. They attempted to resuscitate Parker,

but were unsuccessful. Parker was transported to the hospital where for 20

minutes the emergency room physician attempted to resuscitate him. The

physician also failed. Parker was declared dead at 2:55 p.m.





On January 5th, Dr. Beverly Williams-Daniel, a pathologist at the

Lexington Medical Center, performed an autopsy on Parker. She did not

discover any external signs of trauma to Parker's body. Based on collections

of cells found in Parker's lungs, she originally listed his cause of death as

acute bronchopneumonia bilateral. After getting more information from

Parker's parents, Dr. Daniel felt that she may have misdiagnosed the cause

of death. She consulted another pathologist who advised that Parker did not

die from pneumonia. Because she did not have another cause of death, Dr.



p.65


STATE v. CUTRO





Daniel amended the report to list SIDS as the cause.





Dr. Enid Gilbert-Barness, a professor of pediatrics and pathology and

a hospital director of pediatric pathology, examined the evidence related to

Parker's death. At the time, Dr. Barness had over 40 years of experience in

pediatric pathology, having performed in excess of 4,000 autopsies. After

reviewing the autopsy reports and the pathological specimens, she was

alarmed to find the presence of petechial hemorrhages in Parker's brain. In

her 40 years of practicing pediatric pathology, she had never observed gross

(i.e. visible to the naked eye) petechial hemorrhaging in the brain of an

infant diagnosed with SIDS. She testified that Parker died of trauma, which

was very likely caused by shaking, resulting in a subdural hemorrhage and

petechial hemorrhages in the brain.





Dr. John Emery, a forensic pediatric pathologist, also testified for the

State. In Dr. Emery's 45 years of experience, he had performed autopsies on

over 6,000 infants. After reviewing the evidence, Dr. Emery concluded that

the cells in Parker's lungs were not connected with his death. Misdiagnosis

based on this symptom occurs when pathologists do not have experience

performing autopsies on infants. Dr. Emery found petechiae in Parker's

brain in a distribution that was "quite different" than in control studies. The

petechiae were increased to a level of clinical significance. He was convinced

that there was blood in the dura before the child had died. It was his

opinion that Parker had died as a result of trauma.





Dr. Janice Ophoven similarly testified. As a pediatric forensic

pathologist, she had had over 23 years of experience; the last 18 of those

years had been primarily focussed on infant autopsies. She reviewed the

microscopic slides of Parker's major organs, photographs of body parts after

exhumation, as well as his complete medical history and other medical

information. After reviewing the information, she concluded that Parker did

not die naturally. She observed petechial hemorrhages in the brain that

were visible to the naked eye. This is a sign of asphyxia. In all her years

of experience, Dr. Ophoven had never observed gross petechial hemorrhages

in infants who had died of SIDS. Nor had she ever seen a scientific journal

describing a case of SIDS involving grossly visible petechial hemorrhages.

Based on this finding, and also the presence of subdural blood, she concluded

that Parker had died of non-accidental trauma or child abuse.





Dr. Ophoven also had the opportunity to review the autopsies of every

South Carolina infant who had died in the period January 1, 1993 to June

14, 1994 and whose cause of death had been listed as SIDS. After reviewing



p.66


STATE v. CUTRO





102 autopsies from 31 counties, she found that of all the infants in these

cases, only two had suffered hemorrhaging in the brain, detectable grossly

and microscopically. These two infants were Parker Colson and Ashlan

Daniel, the child Cutro was found guilty of murdering in the instant case.





2. ASHER MAIER

Asher was dropped off at Cutro's home on June 23, 1993 at 7:30 a.m.

At 10:30 a.m., Cutro called Asher's mother, asking her to take him to the

doctor because he would not eat or sleep and kept crying. Asher's mother

arrived soon thereafter and took Asher to the doctor.





Dr. Lewis Becton, who examined Asher, testified that when Asher was

brought into the hospital, he was pale and irritable, had very poor neck

control, could not focus, and was obviously not neurologically normal. His

neck was completely limp, and he had retinal hemorrhaging. Asher was

diagnosed as suffering from shaken baby syndrome. Dr. Becton testified that

Asher's condition was such that he could not suck or take food. Such

symptoms occur immediately after a baby has been shaken. Because Asher

was not dehydrated, he must have had food within the previous 24 hours.

Thus, the shaking of Asher must have occurred in this 24 hour period.







The last time Asher had been seen to be normal was when he was

dropped off at Cutro's day care. A parent who went by the day care center

that morning testified that he saw Asher holding his head up and turning

around. Cutro herself had given a statement about the events of June 23rd.

In her statement, she said that Asher was dropped off at the day care center

by her mother. Cutro indicated that Asher was not fully alert that morning.

She made no mention that Asher exhibited any highly unusual symptoms,

such as a limp neck.





Dr. Randall Alexander, a nationally recognized expert in the field of

pediatrics and child abuse, testified that his examination of the evidence

revealed that Asher had suffered from at least two episodes of violent

shaking. This conclusion was based on both medical and historical evidence.

C.T. scans and M.R.I. scans showed that Asher had sustained considerable

head trauma. Moreover, he had had retinal hemorrhaging, which appears in

up to 90 percent of shaken baby syndrome cases. The symptoms of shaking

appear shortly after the abuse. Accordingly, Dr. Alexander concluded to a

reasonable degree of medical certainty that the second shaking episode must

have occurred between 7:30 a.m. and 11:30 a.m. on June 23rd -- between the

time Asher was dropped off at Cutro's and the time he was presented at Dr.





p.67


STATE v. CUTRO

Weston's office.





Dr. Wilbur Smith, Jr. also testified. As an expert in pediatric radiology

and child abuse, he was, at the time of the trial, one of only 30 or fewer

physicians in the country who were exam-certified in the field. He stated

that because of the evidence of the retinal hemorrhages, the subdural

hematomas, and subarachnoid hemorrhages, "there is no question [that] there

is no other medical diagnosis" than shaken baby syndrome. Sufficient tests,

he declared, were done to rule out any other cause. Based on the eyewitness

evidence of how Asher was acting when he was dropped off, Dr. Smith

concluded that Asher must have been shaken on June 23rd, sometime

between 7:30 a.m. and when he was taken to the doctor's office.





The above evidence, which is uncontested, clearly and convincingly

shows that Asher was normal when he was dropped off. When he emerged

after a few hours in Cutro's care, he exhibited the signs of shaken baby

syndrome.





3. PROPER ADMISSION OF EVIDENCE BY TRIAL JUDGE





Cutro argues, and the majority agrees, that there was conflicting

evidence concerning the proof of the prior bad acts. Although I would concur

that the evidence was not uncontradicted (as it rarely is in a criminal case),

I find that the weight of evidence establishing Cutro's abuse of Parker and

Asher is simply overwhelming. The State presented significant, but not

excessive, evidence to establish a close degree of similarity or connection

between all of Cutro's bad acts.





The majority implicitly suggests that SIDS, not trauma, was the real

cause of Parker's death. This argument fails on numerous grounds. First,

the opinion does not specify exactly what this evidence is. My reading of the

record leads me to conclude that evidence of SIDS was minimal, in

comparison to the mountain of evidence presented that abuse was the cause

of death. The convincing testimony of highly-qualified experts has been

described in detail above.





Second, even if Cutro's defense witnesses presented some evidence of

SIDS, the persuasiveness of this evidence was essentially nullified by the

same witnesses' candid and compelling arguments in favor of the State's

position. Cutro's own expert, Dr. Sandra Conradi, remarkably testified that

she "was very suspicious of homicide." She further said on the stand that she

did not recall, in her years of experience, ever seeing grossly or





p.68


STATE v. CUTRO





microscopically petechial hemorrhages in a SIDS case. Dr. James Reynolds,

who also testified on behalf of Cutro, stated that in his 23 years of

experience, he had never seen petechial hemorrhages in the brain of a SIDS

infant. Finally, Dr. John Pless, another of Cutro's expert witnesses, declared

that in his opinion, Asher Maier was shaken.





Third, Cutro has failed to rebut the evidence presented by the State as

to why Parker's death may have initially been misdiagnosed as SIDS. Dr.

Daniel, who had labeled Parker's death as SIDS (after changing it from

pneumonia), testified that there were three major factors which did not make

this a SIDS case: (1) it was uncommon for SIDS deaths to occur in the

middle of the day; they are much more common during the night; (2) she did

not find any petechial hemorrhages in the intrathoracic area, which is

commonly found in SIDS cases; and (3) she found petechiae in the brain,

which she had never seen occur in a SIDS case. She indicated that her

findings were consistent with forced asphyxiation.





Furthermore, Dr. Barness testified that the initial pathologist failed to

take certain steps during the autopsy. If these steps -- including the removal

and examination of the eyes and the removal of the dura -- had been taken,

they would have assisted in making an accurate diagnosis. This was further

confirmed by Dr. Ophoven who stated that in order to observe any type of

hemorrhage or trauma to the eyes, the pathologist has to remove the eyes.

At the initial autopsy, the eyes were not removed. Nor was the dura

stripped. For these reasons, the SIDS diagnosis was in error. The initial

misdiagnosis is understandable given that the autopsy was conducted by a

general pathologist and not by one with specific training or expertise in

performing infant autopsies. In contrast, the experts presented by the State

had decades of experience in the fields of pediatric pathology, pediatric

forensic pathology, and pediatric radiology, and had performed autopsies on

thousands of infants.





The majority asserts there was insufficient evidence Cutro injured

Asher or Parker. While the State obviously did not have direct evidence of

these bad acts, it presented an overwhelming amount of circumstantial

evidence. Cutro had nearly exclusive control2d over Asher and Parker; the


2d The majority criticizes the statement that Cutro had "nearly exclusive

control" over Asher and Parker. Instead, it posits that Cutro did not have

"exclusive control" over the children and that this view of the evidence does

not support the conclusion that she was "the sole person who could have

inflicted the injuries" on them. The majority does not cite any authority for

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STATE v. CUTRO





only other person with clear access to Asher and Parker was Cutro's

husband. She herself testified that Parker "was my responsibility. It was

my job to give him back to his mother that day." These children were

dropped off in the morning at Cutro's. When they were picked up, they were

already injured. Two expert witnesses testified that Asher's injuries occurred

between 7:30 a.m. and when Asher was picked up (at approximately 11:30

a.m.). To further confirm that Cutro was the person taking care of Asher,

we can look to the very affidavit Cutro gave about the incidences of that day,

an affidavit given prior to her being charged in this case. She describes how

Asher was feeling the day he was injured, details how she cared for him that

day, and states how she called Asher's mother to inform her that Asher was

not well. Nowhere in the affidavit is there any mention of anyone else

having contact with Asher.





The majority now asserts that Cutro routinely left the children with her

husband to run errands and that she was even gone for hours on the day of

Parker's death. The majority bases these assertions on Cutro's testimony.

The reliability of this information turns, therefore, on Cutro's credibility, a

matter which was clearly before the judge. There was much evidence




the proposition that in order to meet a clear and convincing standard of

proof, the State must establish that the defendant had "exclusive control"

over the victims. It appears that the majority is elevating the proof

requirement to unprecedented, and unrealistic, levels. if "exclusive control"

had to be established every time a Lyle issue arose, it would be difficult to

imagine a circumstance where any evidence of prior bad acts would be

admissible.

For example, suppose that a serial killer had murdered 50 blue-eyed,

blond-haired twenty-year-old girls alongside South Carolina highways. A

distinctive word, written out by the killer, was found on the forearms of all

these victims. Under the majority's formulation of the Lyle rule, if a

defendant were tried for one of the murders, evidence of the 49 other

murders would not be admissible because, regardless of the amount of

evidence tying the defendant to these signature crimes, the State could not

demonstrate that the defendant had "exclusive control" over his victims.

Because thousands of people, namely those who travel on the same highways,

would have had the opportunity to commit the crimes, the defendant would

not have had "exclusive control" over the victims; thus, the evidence of the

previous crimes would be inadmissible. The absurdity of such a conclusion

demonstrates that the majority opinion has formulated a standard that raises

the level of proof to such unintended heights that it effectually abolishes the

use of Lyle evidence in South Carolina trials.



p.70


STATE v. CUTRO





presented to call Cutro's credibility into doubt. At trial it became evident

that on a sworn affidavit related to the present incidences, Cutro had made

a material misrepresentation. On cross-examination, she testified that she

had no explanation why she had lied on the affidavit. Additionally, at trial,

she testified that she had no contact with Parker on the day he died. This,

however, contradicted the deposition testimony she had previously given,

where she stated that she had played and fed Parker and had changed his

diaper on that day. Because there was conflicting evidence at trial whether

Cutro was present and what kind of contact she had with the children, the

matter of her credibility assumes great significance. The trial judge, not this

Court, is in the best position to be the arbiter of her credibility3d





In ruling on the admission of evidence of a prior bad act, the trial court

must find that the bad act has been established by clear and convincing

evidence. On appeal, we are to ascertain whether the trial court abused its

discretion in admitting the evidence. See State v. Tucker, 319 S.C. 425, 462

S.E.2d 263 (1995)(The admission of evidence is within the trial court's

discretion and absent an abuse of this discretion, will not be reversed by this

Court.), cert. denied, 116 S. Ct. 789 (1996). Our task is not to engage in a

de novo review of the evidence. Nor are we to usurp the authority of the

trial court by attempting to judge the credibility of witnesses. The

determination of credibility must be left to the trial judge who saw and heard

the witnesses and is therefore in a better position to evaluate their veracity.

Cf. State v. Martin, 278 S.C. 427, 298 S.E.2d 87 (1982); State v. Rosier, 312

S.C. 145, 439 S.E.2d 307 (Ct. App. 1993).





Although there may have been some conflicts in the evidence presented

in this case, the trial court had the opportunity, over the span of the two-

week proceeding, to evaluate the evidence, to hear lay witnesses, to weigh the

credibility of expert witnesses, to assess their varying professional credentials,

to appraise the extent of their experience, and to attempt to resolve


3d The majority states that even if Cutro's testimony is discounted

because of her lack of credibility, there still remains the testimony of Cutro's

husband. This argument would be persuasive were it not for the fact that

the credibility of Mr. Cutro was as bad, if not worse, than that of his wife.

For example, at the trial, it was revealed that Mr. Cutro had falsified

significant information on his federal tax returns. He had affirmatively

misrepresented the number of children he had. On his tax from, he had

fabricated and listed the names of two "children" in order to be able to claim

them as additional dependents. Again, the issue of his credibility was before

the trial court.



p.71


STATE v. CUTRO





discrepancies in their testimony in ascertaining whether the prior bad acts

were proven by clear and convincing evidence. The trial court carried out

this task. In fact, the judge's application of this standard is explicitly

enunciated in the record. He states that although at a certain point in the

trial he was not sure whether the clear and convincing standard had been

satisfied, after he heard the testimony of the State's several experts,

including Dr. Barness, he concluded that the evidence was clear and

convincing. He says, in reference to Dr. Barness, that she was "very clear

and very convincing." He further remarks: "I don't know that I've ever

heard a witness state her opinion in a stronger fashion that she did."





Because I believe the trial court is clearly in a superior position to

assess the evidence first-hand and to judge the credibility of the witnesses,

on appeal, we must defer to its determination whether the clear and

convincing standard has been met. As with any evidentiary ruling, this

finding should be reversed only if the trial judge abused its discretion. The

majority opinion suggests a different standard. It implicitly proposes that

this Court review the evidence de novo. Not only would this improperly

encroach upon the authority of the trial court, but it would also force this

Court to engage in determinations of evidentiary questions without the

benefit of seeing, hearing, or assessing the witnesses. I would adhere to our

traditional path, rather than to traverse this new and dangerously tortuous

route.







If the above reasons were not sufficient, then certainly the very case

cited by the majority should alert us to the proper course. The majority

opinion cites State v. Conyers, 268 S..C. 276, 233 S.E.2d 95 (1977) in support

of its argument that there is insufficient evidence to establish the defendant

was the actor in the prior bad acts. I wholeheartedly agree with the

majority that Conyers controls. However, Conyers does not suggest reversal

of the present case, but rather compels its affirmance.





In Conyers, the defendant was tried for the poisoning of her husband.

At trial, the State introduced, under Lyle, evidence of the alleged poisoning

of Conyers's first husband, son-in-law, mother-in-law, and a business

acquaintance. Conyers was convicted. She appealed her conviction,

contesting the admission of the evidence of the other poisonings. She argued,

in part, that these other bad acts had not been proven by clear and

convincing evidence. This Court accepted her argument that evidence of the

poisoning of her first husband was inadmissible; however, we held that

evidence of the other three prior bad acts had properly been admitted.

Because Conyers is a case in which some Lyle evidence was deemed sufficient



p.72


STATE v. CUTRO





and properly admitted, while other Lyle evidence was deemed insufficient and

inadmissible, it provides an ideal vehicle for testing the sufficiency of the

evidence in the instant case. To determine whether evidence of Cutro's prior

bad acts should have been admitted, we must compare it with not only the

evidence rejected in Conyers, but also the evidence found sufficient in

Conyers.





In Conyers, we held that the evidence of the poisoning of Conyers's first

husband was inadmissible because there was very little to connect Conyers

to the poisoning. The only evidence the State offered in connection with this

poisoning was that Conyers's husband had died six years earlier, that she

had a life insurance policy on him, and that after the husband's body was

exhumed and tested, it was found to contain high levels of arsenic. We

concluded that this evidence was simply insufficient to establish the identity

of Conyers as the person who poisoned her husband.





By contrast, we held that the trial court had properly admitted evidence

of the poisonings of Conyers's son-in-law, mother-in-law, and a business

acquaintance. Although the facts are not set out in the Conyers opinion

itself, a review of the record reveals the following evidence in relation to

these prior bad acts:







(a) son-in-law: Conyers's son-in-law and his wife lived with Conyers.

The son-in-law became ill one day after supper. It was discovered months

later that he had been poisoned with arsenic. The son-in-law ate meals with

his wife and Conyers, and although Conyers generally did the cooking, the

wife did cook on occasion. The son-in-law and the wife had had marital

difficulties, having both admitted to one another their infidelity. The son-in-

law testified that he did not know who had poisoned him. Both the wife and

Conyers denied having given the son-in-law arsenic. The wife, in many ways,

had just as much opportunity as Conyers to poison the son-in-law. We found

evidence of this prior bad act to be admissible.





(b) mother-in-law: Conyers visited her mother-in-law three or four

times per week. On each visit, Conyers would fix coffee for her mother-in-

law. The mother-in-law's health had been good up to the time of these visits,

but it deteriorated, and she died thereafter. A doctor testified that the

mother-in-law had died of natural causes, but she had ingested arsenic at

some point at least one to three months prior to her death. Examination of

the mother-in-law's brain, kidney, and liver did not reveal unusual levels of

arsenic; however, her nails and hair contained higher than normal levels. We

found evidence of this prior bad act to be admissible.



p.73


STATE v. CUTRO





(c) business acquaintance: Conyers visited an acquaintance a number

of times and would usually prepare coffee for her. The acquaintance became

ill shortly after the visits commenced. Tests conducted on the acquaintance

revealed higher than normal arsenic levels. The acquaintance did not know

she had been poisoned, did not attribute her symptoms to any coffee she had

drunk, and knew no motive for Conyers to poison her. We found evidence of

this prior bad act to be admissible.





In Conyers, we declared that we were "convinced" the trial judge had

properly admitted evidence of the poisonings of the son-in-law, the mother-in-

law, and the acquaintance. Conyers, 268 S.C. at 281, 233 S.E.2d at 96

(1977). As the above factual descriptions suggest, in Conyers, we assumed

a rather deferential approach to the findings of the trial court in relation to

L.yle evidence.





It is clear that the facts of the present case are well within the limits

set out in Conyers. In fact, the evidence in the present case is orders of

magnitude weightier than that which was upheld in Conyers. There is

simply no comparison between the evidence presented of Cutro's abuse of

Parker and Asher and the prior bad acts deemed admissible in Conyers,

namely, the poisonings of the son-in-law, the mother-in-law, and the

acquaintance. Conyers teaches that on appeal, this Court will reverse only

when the trial judge has clearly abused its discretion (as was the case with

the evidence about Conyers's first husband).4d There is more than ample

support to uphold the trial court's admission of evidence of Cutro's prior bad

acts. The majority cannot show that the trial court abused its discretion.

Accordingly, I must dissent. I would affirm the conviction.




4d The majority's opinion criticizes our discussion of Conyers, suggesting

that Conyers summarily affirmed the admission of some Lyle evidence,

without "any" analysis or discussion. Although the discussion in Conyers is

terse, it is nevertheless present, an analysis which invites us to review the

record: "[A]fter a careful review of the testimony, we are convinced that the

trial judge properly admitted evidence of the poisoning of Bazen [son-in-law],

Louise Conyers [mother-in-law], and Iris Stevens [business acquaintance) . .

. ." Conyers, 268 S.C. at 281, 233 S.E.2d at 96 (emphasis added).





p.74