Harry L Torrence, II v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 27, 2023
• Docket: 22A-CR-02287
• Status: Published

Opinion

FILED Sep 27 2023, 8:43 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Theodore E. Rokita Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Daylon L. Welliver Susan D. Rayl Deputy Attorney General Harshman Ponist Smith & Rayl Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Harry L. Torrence, II, September 27, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-2287 v. Appeal from the State of Indiana, Marion Superior Court Appellee-Plaintiff. The Honorable Matthew E. Symons, Magistrate

Trial Court Cause No. 49D29-2011-F3-35395

Opinion by Senior Judge Robb Chief Judge Altice and Judge Bailey concur.

Robb, Senior Judge.

Court of Appeals of Indiana | Opinion 22A-CR-2287 | September 27, 2023 Page 1 of 10 Case Summary and Issue [1] After a jury trial, Harry L. Torrence, II was found guilty of one count of Level 3 1 felony robbery with a deadly weapon. Torrence appeals, arguing that the trial

court committed fundamental error by allowing the jury, during deliberations,

to view in open court four specifically requested exhibits instead of viewing all

of the exhibits. Concluding no error, let alone fundamental error, occurred, we

affirm.

Facts and Procedural History [2] At around 7:45 p.m. on November 6, 2020, Kareem Limberry and his manager

were working at a Family Dollar Store in Indianapolis, when two male

customers entered the store. One of the men came behind the counter, pointed

a gun at Limberry’s head, and demanded that he open the cash register. That

man was wearing a navy “letterman” jacket with white sleeves, a hood and

stocking cap, and a “COVID mask.” Tr. Vol. II, pp. 128, 141-42. When the

mask became partially dislodged, Limberry observed that the man had dark

skin and gold teeth. Police subsequently showed Limberry a photographic

array from which he identified either person number one or person number

three as the man who had held the gun to his head. Torrence was person

number three in the array.

1 Ind. Code § 35-42-5-1(a) (2017).

Court of Appeals of Indiana | Opinion 22A-CR-2287 | September 27, 2023 Page 2 of 10 [3] Recordings from video cameras in the store and still shots from the video

recordings showed a man wearing a letterman jacket place his hand on the glass

portion of a door near a label or sign. Another still shot showed the man in the

letterman jacket standing in the foreground of the picture. That person was the

person who held the gun to Limberry’s head.

[4] After Limberry opened the register, the man with the gun took the cash from

the register, while the other man came behind the counter and took cigars and

packs of Newport cigarettes. The money had a tracking device in it, which

alerted police once the tracking device left the store.

[5] Information about the location, direction, and relative speed at which the

tracker was travelling was dispatched to IMPD officers. Officer Richard

Faulkner responded and located a dark colored car in the middle of the street

with the passenger door open and a male standing outside on that side of the

car. The male appeared to be stomping on something.

[6] When Officer Faulkner activated his patrol car’s red and blue lights the

passenger immediately jumped in the car, both doors shut, and the car drove

away. The car moved only “a matter of yards” before it came to a stop and the

driver and the passenger “bail[ed].” Id. at 199, 209. The driver was a black

male with a jacket that appeared to be black with light-colored sleeves “like a

letterman jacket.” Id. at 199. The driver ran away and climbed over a six-foot

privacy fence.

Court of Appeals of Indiana | Opinion 22A-CR-2287 | September 27, 2023 Page 3 of 10 [7] Officer Faulkner testified that the person who was shown in one of the still

shots wearing a jacket with white sleeves had the same kind of jacket the driver

was wearing. However, Faulkner could not see the faces of the driver and his

passenger as they fled, and he was unable to positively identify the person in the

still photographs from the store video as the driver of the vehicle.

[8] Officer Faulkner ran up to the car after the driver and passenger fled and

remained there. The engine of the car was running and the doors were open.

He looked inside the car and saw a gun, some cash, and cigarettes. The money

and gun were located on the driver’s side floorboard, and sealed packs of

Newport cigarettes were in the center console and passenger front seat area.

The gun was a small black handgun, which later was determined to have five

bullets in the magazine and one bullet in the chamber. A black “COVID mask”

with a white logo on it was found near the doorframe and seat on the driver’s

side of the car. Tr. Vol. III, p. 8.

[9] Officer Faulkner checked the license plate and VIN number of the car with the

Bureau of Motor Vehicles and learned that Torrence was the owner of the car.

Torrence subsequently admitted at trial that the car was his.

[10] IMPD Officer Brian Willis, an evidence technician, processed the vehicle and

secured evidence. He found a debit card and a license issued by the Indiana

Department of Environmental Management in the center console bearing the

name Harry Torrence. Torrence subsequently admitted the cards belonged to

Court of Appeals of Indiana | Opinion 22A-CR-2287 | September 27, 2023 Page 4 of 10 him. The tracking device from the money taken from the store was also

recovered from the car.

[11] Officer Willis also found identification cards for “Albert White” in the glove

box of the vehicle. He collected fingerprints that were found on the Newport

cigarette packages and the outside door handle of the front passenger door.

Amber Timmerman, who was a latent print examiner for IMPD, testified that

the fingerprints on the packages and the door handle matched those of Albert

White. Torrence testified that he knew Albert White because they had grown

up in the same community, but he knew him as “Pooh.” Id. at 95.

[12] Family Dollar Store Manager Jennifer Samson testified that it was store policy

to clean the doors every night at 6:00 p.m. because robberies are more likely to

occur from 6:00 p.m. until closing. Samson said that she cleaned the doors,

door handles, and windows that evening pursuant to that policy. Timmerman

testified that fingerprints are fragile and can be “easily wiped away, cleaned

off.” Id. at 46.

[13] Officer Craig Wagoner, a patrol officer and evidence technician, reviewed the

store’s security camera video, saw where the person in the still shots touched

the door, and recovered a latent palm print “from that particular spot.” Id. at

36; Ex. Vol. I, St. Exs. 5, 10. The palm print matched Torrence’s palm print.

[14] The State charged Torrence with one count of Level 3 felony robbery with a

deadly weapon. At trial, Limberry was unable to identify Torrence as the man

who held the gun to his head. However, Detective Jordan Agresta compared

Court of Appeals of Indiana | Opinion 22A-CR-2287 | September 27, 2023 Page 5 of 10 Torrence’s BMV photograph with the store video and concluded that it was the

same person. Agresta also testified that the mask shown in the video was the

same mask that was recovered from the driver’s side of the car.

[15] The State introduced the store video, and two still shot images captured from

the video were introduced as State’s Exhibits 5 and 6. Those exhibits depicted

the man in the letterman jacket who had held the gun to Limberry’s head. The

exhibits were admitted and published to the jury. State’s Exhibit 35, a card that

contained the latent palm print Wagoner had collected from the store’s glass

door, also contained a “crude” diagram Wagoner had drawn, describing the

location from which he obtained the print. Tr. Vol. III, p. 38. Wagoner also

testified, demonstrating where he had taken the print through reference to

State’s Exhibit 5, which included a physical indication on the displayed image.

However, Wagoner testified that he could not “definitively” say that the prints

were placed on the door the day of the crime. Id. at 40.

[16] State’s Exhibit 36 was a palm print Timmerman took from Torrence. That

palm print matched the latent palm print recovered by Wagoner from the door

of the store. The exhibit was admitted and published to the jury. Timmerman

testified that she could not say how long Torrence’s print had been on the door.

[17] After the presentation of evidence, but prior to closing arguments, jurors were

permitted to come to the court room to view the exhibits one more time by

agreement of the parties. The jury began deliberating and then sent a note to

the trial court asking, “can we see State[’s] Exhibit[s] 5, 6, 35, 36.” Appellant’s

Court of Appeals of Indiana | Opinion 22A-CR-2287 | September 27, 2023 Page 6 of 10 App. Vol. II, p. 178. The trial court suggested that they “bring them—the jury

in and then pass it to them and let them look at it for as long as each juror

would like to and then send them back to continue their deliberations.” Tr.

Vol. III, pp. 126-27. The trial court asked Torrence if he had “[a]ny objection”

to which he replied “[t]hat’s fine.” Id. at 127.

[18] The jurors were brought back into open court where they were seated and

allowed to review State’s Exhibits 5, 6, 35, and 36 in the presence of the court

and the parties. The jury then resumed deliberations and ultimately found

Torrence guilty as charged.

Discussion and Decision [19] The sole issue Torrence raises for our review is whether the court committed

fundamental error by allowing the jury, during deliberations, to view in open

court four specifically requested exhibits instead of viewing all of the exhibits.

[20] Once the jury begins deliberations, Indiana Code section 34-36-1-6 (1998)

outlines the procedure for handling disagreement among jurors as to any part of

the testimony or if the jury requests to be informed on any point of law arising

in the case. Here, there was no expression of disagreement. The jury simply

asked to view four specific exhibits one more time. Consequently, the statutory

procedure does not apply.

[21] Next, we turn to case law, which provides that the decision to allow the jury to

view the exhibits one more time is left to the discretion of the trial court. See

Stokes v. State, 801 N.E.2d 1263, 1269 (Ind. Ct. App. 2004) (decision to allow Court of Appeals of Indiana | Opinion 22A-CR-2287 | September 27, 2023 Page 7 of 10 jury to view evidence again within trial court discretion), trans. denied. The case

law sets forth three factors a court should consider in deciding whether to

permit the jury to take a copy of the exhibits into the jury room. Thacker v. State,

709 N.E.2d 3, 7 (Ind. 1999) (emphasis added). Those factors are: “(1) whether

the material will aid the jury in a proper consideration of the case; (2) whether

any party will be unduly prejudiced by submission of the material; and (3)

whether the material may be subjected to improper use by the jury.” Id.

[22] Here, however, we have the situation where both parties were present in open

court while the trial court directed the distribution of the requested exhibits to

the jurors and monitored their review. In Sturma v. State, 683 N.E.2d 606, 610

(Ind. Ct. App. 1997), we found no error where the trial court monitored the

jury’s use of a requested video tape that was played in front of the parties in

open court. Unlike the present case, where the requested exhibits had been

admitted, the exhibit in Sturma had not been admitted but had previously been

viewed by the jurors. We held that there was no showing “how the re-viewing

of the tape by the jury during deliberations affected [the defendant’s] substantial

rights or denied him fundamental due process” because the jury “had already

seen the brief tape once before, without objection,” and the parties had treated

the exhibit as admitted throughout trial. Id. And there was no discussion about

fundamental error in allowing review of only the requested exhibit instead of all

of them. Here, we conclude that the court did not abuse its discretion by

allowing the jury during deliberations to review the requested, previously

Court of Appeals of Indiana | Opinion 22A-CR-2287 | September 27, 2023 Page 8 of 10 viewed, and admitted exhibits, in open court while being monitored by the trial

court and the parties.

[23] And the cases cited by the parties, those using the three factors to evaluate the

trial court’s decision to allow the jury to view exhibits in the jury room, support

our decision that the court here did not abuse its discretion by monitoring the

jury’s review of the exhibits in open court. As to the first factor, “if the jury

requests particular pieces of information, presumptively that information will

aid the jury in proper consideration of the case.” Hall v. State, 897 N.E.2d 979,

983 (Ind. Ct. App. 2008). Where an abuse of discretion has been found, it was

because the trial court allowed the jury to review the requested materials

without supervising them, a factor not present here. See Powell v. State, 644

N.E.2d 855, 858 (Ind. 1994) (case where statute applied but error to allow jury

to review materials unsupervised); Mays v. State, 907 N.E.2d 128, 133 (Ind. Ct.

App. 2009) (error to send video and player to jury room without monitoring

use), trans. denied; Hall, 897 N.E.2d at 984 (error to send sound recording and

equipment to jury room without supervision); Stokes, 801 N.E.2d at 1270 (error

to allow jury to review videotape without monitoring its use); Goodrich v. Ind.

Michigan Power Co., 783 N.E.2d 793, 798 (Ind. Ct. App. 2003) (abuse of

discretion to send exhibit to jury room), trans. denied.

[24] Because we conclude there was no error, we need not address whether

fundamental error occurred.

Court of Appeals of Indiana | Opinion 22A-CR-2287 | September 27, 2023 Page 9 of 10 Conclusion [25] In light of the foregoing, we affirm the trial court’s judgment.

Altice, C.J., and Bailey, J., concur.

Court of Appeals of Indiana | Opinion 22A-CR-2287 | September 27, 2023 Page 10 of 10