Harry L Torrence, II v. State of Indiana ( 2023 )

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