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Cutro v. Boulware

United States District Court, D. South Carolina

November 1, 2016

Brenda Gail Cutro, # 212971, Petitioner,
v.
Marion Boulware, Camille Graham Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges Columbia United States Magistrate Judge

         Petitioner Brenda Gail Cutro, while an inmate at the Camille Graham Correctional Institution of the South Carolina Department of Corrections, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 through counsel. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment and return. [ECF Nos. 8, 9]. On August 1, 2016, Petitioner filed a response in opposition to the motion for summary judgment. [ECF No. 13]. And on August 2, 2016, Respondent filed a reply. [ECF No. 14]. The matter having been fully briefed, it is ripe for disposition.

         Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted.

         I. Factual and Procedural Background

         The South Carolina Supreme Court summarized the facts of this case as follows:

Appellant and her husband Josh Cutro operated a home daycare in Irmo, 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 Maier.
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
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 into 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?
A: Gail.
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 had 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 stop.
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 shaking-head injury occurs within seconds and a baby might die immediately.
Asher Maier
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
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 was SIDS.
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.

State v. Cutro, 618 S.E.2d 890, 891-93 (S.C. 2005); [ECF No. 8-23 at 262-64].

         Petitioner was indicted by the Richland County Grand Jury during the July 1994 term of court for one count of murder and one count of homicide by child abuse, in connection with the death of Ashlan Daniel (94-GS-40-21178). [ECF No. 8-28 at 79-81]. Petitioner received a jury trial on those charges and was convicted of murder, but the South Carolina Supreme Court reversed her conviction on appeal. See State v. Cutro, 504 S.E.2d 324 (S.C. 1998).

         Petitioner was later indicted by the Richland County Grand Jury during the December 1998 term of court for one count of murder and one count of homicide by child abuse in connection with the death of Parker Colson (94-GS-40-21180), as well as one count of assault and battery with intent to kill, one count of assault and battery of a high and aggravated nature, and one count of unlawful neglect of a child in connection with the injuries sustained by Asher Maier (94-GS-40-21179). [ECF No. 8-28 at 75-85]. Public Defenders Douglas S. Strickler (“Strickler”), Beattie Butler (“Butler”), and April Sampson (“Sampson”) represented Petitioner at a jury trial June 12, 2000, through July 2, 2000, before the Honorable James C. Williams, Jr., Circuit Court Judge. [ECF No. 8-2 at 140 et seq.].[1] The jury found Petitioner guilty of two counts of homicide by child abuse. [ECF No. 8-22 at 90-95]. Judge Williams sentenced Petitioner to two life sentences, one for each conviction of homicide by child abuse. [Id. at 108-09].

         Petitioner appealed her conviction and sentence to the Court of Appeals. [ECF Nos. 8-23 at 270-76; 8-24 at 1-71]. On appeal, Petitioner was represented by Joseph L. Savitz, III, Deputy Chief Attorney, and Robert M. Dudek, Assistant Appellate Defender, both with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. [ECF No. 8-23 at 270]. Attorney Butler, who had been part of Petitioner's trial team, also continued to represent Petitioner on appeal. [ECF No. 8-23 at 270]. Petitioner's appellate attorneys filed a merits brief raising the following issues:

1. Whether the judge erred by permitting joinder of the [redacted] and [redacted] cases since the Supreme Court had already held that evidence regarding those two cases was not clear and convincing for purposes of State v. Lyle, and the state's request for joinder was a back-door effort to accomplish what the court had already held was impermissible, and the theory of Munchausen Syndrome by Proxy was simply a red herring to justify joinder?
2. Whether the judge erred by admitting evidence regarding the [redacted] funeral and other children's memorabilia appellant kept in her home since this evidence was not relevant to the issue of whether appellant was responsible for what happened to the children, and this evidence was inadmissible under the holding of State v. Larry Don Nelson?
3. Whether the judge erred by allowing the state to present evidence regarding 276 SIDS deaths in South Carolina, since the autopsy reports were hearsay, they were not relevant, and appellant was unable to confront and cross-examine the pathologists who performed the autopsies, and also because appellant was unable to challenge the misleading nature of this evidence, including the statewide SIDS diagram?
4. Whether the judge erred by refusing to allow the testimony of daycare worker Anita Niess, whose proffered testimony showed that she grieved in essentially the same manner as appellant after a child died in her daycare, since the state opened the door to this testimony by offering an abundance of evidence intending to show that appellant's grieving behavior was inappropriate, and attention seeking, and Niess' testimony was in fair response to the state's evidence?
5. Whether the judge erred by refusing to direct a verdict of acquittal where there was not any direct evidence or no substantial circumstantial evidence appellant was responsible for harming the children, and the state's case was based on mere suspicion?
6. Whether the judge erred by refusing to instruct the jury that mere suspicion of guilt was insufficient, since that was a correct statement of law which appellant was entitled to have charged under the facts of this case?
7. Whether the judge erred by refusing to instruct the jury on involuntary manslaughter since there was evidence the children died because of appellant's negligence or recklessness, and not malice aforethought or extreme indifference to human life?
8. Whether the judge erred by forcing the jury to continue deliberating after it clearly informed the court it could not reach a verdict, and later informed him that three jurors would not change their votes, and that no new evidence or charges on the law would change that fact, since the judge's actions violated S.C. Code § 14-7-1330 and the forced deliberations resulted in a coerced verdict?

[Id. at 5]. In a published opinion issued on August 15, 2005, the South Carolina Supreme Court affirmed Petitioner's convictions.[2] State v. Cutro, 618 S.E.2d 890, 891-93 (S.C.2005); [ECF No. 8-23 at 262-64]. Thereafter, Petitioner filed a petition for rehearing, which was denied on September 21, 2005. [ECF Nos. 8-31, 8-32]. The remittitur was issued on September 21, 2005. [ECF No. 8-33].

         On September 21, 2006, Petitioner filed an application for post-conviction relief (“PCR”) raising claims for ineffective assistance of trial and appellate counsel. [ECF No. 8-22 at 175-81]. On May 7, 2009, PCR counsel Edward E. Saleeby, Esquire, and Terence A. Quinn, Esquire, filed an amended PCR application and a supporting memorandum on Petitioner's behalf. [ECF No. 8-22 at 186-212]. On May 14, 2009, a PCR evidentiary hearing was held before the Honorable Alison Renee Lee, Circuit Court Judge, at which Petitioner and her PCR counsel appeared. [ECF Nos. 8-22 at 229-48; 8-23 at 6-174]. On October 21, 2013, Judge Lee filed an order of dismissal. [ECF No. 8-23 at 243-61].

         Petitioner timely filed a notice of appeal. She was represented by David Alexander, Appellate Defender, with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who filed a petition for writ of certiorari in the South Carolina Supreme Court on February 14, 2013. [ECF No. 8-37]. The petition raised the following issues:

1. Whether appellate counsel was ineffective in derogation of petitioner's Sixth Amendment rights by failing to appeal the issue of the admissibility under Rules 702 and 703 of unreliable and unscientific testimony regarding Munchausen Syndrome by Proxy as the basis for the trial court's improper joinder of the charges against petitioner?
2. Whether trial counsel was ineffective in derogation of petitioner's Sixth Amendment right to counsel because they failed to object to the trial judge's omission of an answer to the jury's question of how negligence applied to homicide by child abuse?
3. Whether trial counsel was ineffective in derogation of petitioner's Sixth Amendment right to counsel because they failed to call Dr. Selman Watson as a witness at trial?
4. Whether this case should be remanded for reinstatement of the State's offer of an Alford plea and a recommendation ...

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