Plea Agreement Reached in Kutter Murder Case
Published on March 15th, 2013
Defendant Expected to Enter Plea to Voluntary Manslaughter in the Preble County Court of Common Pleas
A plea agreement has been reached in the case of State of Ohio vs. Joseph Merle Kutter, Preble County Court of Common Pleas, Case No. 12-CR-10981.
At approximately 7:00 A.M. on May 26, 2012, Bobby Joe Grubbs, age 31, was dropped off at the end of Fleenor Rd., New Paris, Ohio. Mr. Grubbs hiked from Fleenor Rd. to property owned by Joseph Kutter on U.S. 40: Mr. Grubbs intended to collect the herb ginseng which he knew to be growing on the Kutter property (ginseng is a valuable herb which can sell for hundreds of dollars per pound when properly dried). When Mr. Grubbs did not contact his mother for a ride as they had agreed, his family reported him missing. Members of the Preble County Sheriff’s Office and volunteers from numerous search and rescue organizations searched the defendant’s property for signs of Mr. Grubbs over the following week.
On Saturday, June 2, 2012, a cadaver dog alerted to the odor of human remains. The right forearm and hand of a human were discovered on the defendant’s dump pile in the woods. When confronted with this discovery, the defendant admitted he had shot Mr. Grubbs the previous Saturday during a confrontation on his property. He told police that he discovered Mr. Grubbs stealing ginseng and that when he confronted the victim, Mr. Grubbs “charged at him”. He shot Grubbs twice in the torso with his AK-47 rifle. He then moved the body several times over the ensuing week, finally burying it in a mulch pile located near the southern end of the property.
Joseph Kutter was indicted on July 3, 2012 in the shooting death of Bobby Joe Grubbs. The indictment charged the defendant with “Murder” (Count 1), an unclassified felony, (R.C. 2903.02(A)); this count contained a “Gun Specification” charging that a firearm had been used in the offense, R.C. (2945.145). The indictment also charged “Tampering With Evidence” (Count 2), a felony of the third degree, (R.C. 2921.12(A)(1)), and “Gross Abuse of a Corpse” (Count 3), a felony of the fifth degree, (R.C. 2927.01(B)). The case was tried to a Preble County jury beginning on January 28, 2013, with Prosecuting Attorney Martin P. Votel representing the State of Ohio and attorneys James W. Thomas, Sr. and Adam Forrest representing the defendant.
The defendant claimed self-defense at trial, arguing that the shooting was justified – that he had to shoot the victim in order to protect himself from death or gross bodily harm at the hands of Mr. Grubbs. At the conclusion of the trial, the jury found the defendant guilty on Count 2 (Tampering) and Count 3 (Gross Abuse). But after nearly eight (8) hours of deliberation, the jury remained dead-locked on Count 1(Murder). Because the jury was unable to reach a unanimous verdict on the murder charge, the court declared a mistrial on that count. The other two counts upon which the defendant was convicted were scheduled for sentencing.
Ohio law provides that the State of Ohio has the option of retrying a case which has resulted in a mistrial. If the state opts to retry the case, the state has a “reasonable time” within which to do so. Many considerations factor into whether and/or under what circumstances a retrial is in the interests of justice and the community. Among these considerations are the prospects for success at retrial, the investment of local resources, and the wishes of the victim’s family. This case presents challenges for the state: the defendant is 79 years old, has no criminal record, was on his own land, and claimed to have been defending himself and his property at the time of the shooting. There were no witnesses to the incident. The facts of the case raise polarizing issues, such as the right to bear arms and the right to protect one’s self and one’s property. A group of capable Preble County citizens served as jurors during the first trial. There is little reason to believe a more capable or competent jury could be seated at retrial, or that such jury would be immune from the polarizing issues which resulted in a mistrial in the first instance. After much consideration, and with the knowledge and consent of the victim’s family, the following plea arrangement has been reached in the case of State of Ohio vs. Joseph Merle Kutter:
The State of Ohio will reduce the remaining charge of “Murder”(R.C. 2903.02(A)), an unclassified felony carrying a mandatory sentence of fifteen years-to-life, to one count of “Voluntary Manslaughter” (R.C. 2903.03(A)), a felony of the first degree punishable by up to eleven (11) years in prison. The state will dismiss the “Gun Specification” attached to count one of the indictment. The parties will be free to recommend sentence to the Court, and the Court will sentence the defendant upon all three charges after a standard pre-sentence investigation is prepared. The plea hearing is scheduled before the Preble County Court of Common Pleas on Tuesday, March 19, 2013 at 1:00 P.M. The sentencing hearing will be scheduled at that hearing.
Prosecuting Attorney Martin P. Votel: The state believes in this case. It would not have tried the case in the first instance if it did not. But after dissecting the first trial, considering the comments of the jurors, citizens, and law enforcement, and having many in-depth discussions with the victim’s family, it became clear that this case should be resolved short of a retrial if possible. This plea agreement ensures that the defendant will take legal responsibility for the death of Bobby Joe Grubbs. It insulates the state from the prospect of an acquittal or another hung jury at retrial. And perhaps most importantly, it brings finality and closure to the loved ones of Bobby Joe Grubbs, while ensuring accountability on the part of the defendant.