Jovanni Torres v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 20 2019, 9:01 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jovanni Torres, May 20, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1643
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G01-1610-MR-5
Altice, Judge.
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Case Summary
[1] Jovanni Torres appeals his conviction for murder, asserting that the trial court
erred when, after granting the State’s Motion to Exclude Alibi Witnesses, it did
not allow him to call two witnesses. He argues that the two witnesses were
rebuttal witnesses, not alibi witnesses, and that the trial court abused its
discretion when it did not permit them to testify. The State maintains that the
trial court properly determined that the witnesses were alibi witnesses and
excluded them because Torres failed to file a notice of alibi defense or show
good cause for not doing so.
[2] We affirm.
Facts & Procedural History
[3] Torres began dating Aimee Giro sometime in early 2016. Giro lived with her
father, Juan Giro Cruz, but she would sometimes spend overnights and
weekends with Torres at his residence, which was a home owned by his mother
located at 2701 New Hampshire Street, in Lake Station, Indiana.
[4] Torres had previously been in a ten-year relationship with Elizabeth Hooper.
Torres and Hooper had a child together in 2001, and although their relationship
ended in 2011, Torres and Hooper remained “close” friends. Transcript Vol. 3 at
4. Hooper took their daughter to Torres’s home most weekends for their
daughter to stay with him. During the late afternoon of Friday September 30,
Hooper dropped off her daughter there for the weekend.
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[5] On the evening of Friday September 30, 2016, Giro was going to a bachelorette
party for her best friend, Jaclyn Havens. Cruz dropped off Giro at Havens’s
house, and from there, a group went by limousine to a Chicago nightclub. The
group returned by limo to Havens’s home at around 3:00 a.m., and then
another friend, Tammy McHargue, drove Giro to Torres’s home, dropping off
Giro around 4:00 or 4:30 a.m. on October 1. McHargue asked Giro if she
“would be alright” getting dropped off there, which she asked because “[Torres]
was known to be abusive to her.” Transcript Vol. 2 at 85.
[6] Around 4:00 a.m., Giro sent a text message to a coworker, Eric Jorgenson. She
and Jorgenson had worked together at Baker’s Square restaurant for about one
and one-half years and had become friends. In her text, Giro told Jorgenson
that she could take his 5:00 p.m. shift that day, Saturday October 1. Jorgenson
did not see the text until he woke up around noon, and he responded to Giro,
but did not hear back from her. Giro did not show up for work she had
offered, so Jorgenson worked the shift.
[7] At around 2:00 p.m. on October 1, Havens tried to contact Giro because Giro
still had Havens’s ID and some of her money from the bachelorette party, but
Havens did not hear back from Giro. Havens tried to reach Giro repeatedly on
October 2 and 3, and Havens’s mother started calling hospitals in search of
Giro. At some point, Havens contacted Giro’s father, trying to find out if
anyone knew where Giro was. Giro was on the Baker’s Square work schedule
for October 2, but she did not show up, which her manager, Linda Vankley,
found unusual because, while Giro was often late, she did not miss work.
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Giro’s cousin, Jeannette Hard, who had a close relationship with Giro and saw
her regularly, expected Giro at a family member’s quinceanera party on the
afternoon of October 1. Giro never came.
[8] Hooper picked up her daughter from Torres’s home on Sunday, October 2.
Torres opened the back door and sort of “pushed” his daughter outside and
closed the door without speaking to Hooper, which Hooper thought was odd
since they usually would have a conversation. Transcript Vol. 3 at 18.
[9] On October 5, having not heard from his daughter in days, Cruz, accompanied
by his friend Enrique Ayala, went to Torres’s home. They saw foil covering the
windows, flies in the windows, and noticed “a terrible smell” coming from
around the closed door. Id. at 61. They then went to the home of Torres’s
mother. Torres was at the home and spoke to Cruz telling him that he had not
seen Giro in a couple of days. Cruz advised he was going back to Torres’s
house and contacting police, which he did, after stopping briefly at one more
possible location in search of his daughter.
[10] Cruz and Ayala returned to Torres’s home, and Ayala called 911 at about 12:50
p.m. Police responded quickly. They saw flies inside the foil-covered windows
and smelled what they recognized as decomposing body through the cracks
around the back-door frame. About the same time, Torres and his brother, in
separate vehicles, also arrived on the scene. Officers explained that they were
there on a welfare check, looking for Giro because her family and friends could
not find her. As captured on the body camera of one of the officers, Torres told
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police, “I don’t know where Aimee’s at. She’s MIA.” State’s Exhibit 12A.
Police explained that they wanted to go into the house to look for her, and
Torres said, “Aimee’s not here. She left. She does this all the time.” Id. When
asked when he was last at the house and when he last saw Giro, Torres said it
had been a couple of days. Torres, who appeared to be “nervous,” explained to
officers that Giro was “tired” of him “popping Adderall,” so she “took off” and
“hasn’t come back.” Transcript Vol. 5 at 175; State’s Exhibit 12A. An officer
stated that the family was concerned, and Torres said, “I am too. I was calling
her.” State’s Exhibit 12A. When officers asked Torres if he had a key, he said
“Yeah but it’s not my house.” Id. They again asked for the key, and he said
that he did not have a key “on him.” Id. Thereafter, police entered the home
and found a woman, later determined to be Giro, in a locked bedroom, dead on
the floor between the bed and the wall, wrapped in a comforter. There was
blood on the blanket and a bullet hole in the wall. Police found a spent shell
casing near the lower half of her body. A Hi-Point .45 caliber pistol, which
police later determined was owned by Torres, was found nearby wrapped in a
robe. An autopsy revealed that Giro had been shot multiple times, and she was
estimated to have died on October 1 or 2.
[11] On October 14, 2016, the State charged Torres with one count of murder. In
October 2017, the State filed an amended information adding an enhancement
for use of a firearm while committing the offense of murder.
[12] A jury trial commenced April 23, 2018, and during opening statements, defense
counsel made remarks indicating that Torres was not at his home when Giro
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was killed, stating “He was not in the residence. His family was baby-sitting
him trying to get him flushed – the drugs flushed out of his system.” Transcript
Vol. 2 at 30. He continued, “[Torres] was not home when Aimee was picked up
and taken to the bachelor party or dropped off for [sic] the bachelor party. He
did not come home at any time while [s]he was missing.” Id. Thereafter, and
out of the presence of the jury, the State raised the following issue:
The answer that was filed in discovery had nothing to do with an
alibi. 1 Now [defense counsel’s] clearly . . . arguing defendant
wasn’t there. He was with his family.
[I]f he’s going to argue that there’s an alibi defense, the [S]tate
should have had that information at this point; otherwise, he
should be precluded from arguing that. So he’s put it out there.
And now, it’s hey, [S]tate, it’s up to you to prove what? He
wasn’t there? I mean, we don't even know who the alibi is.
Id. at 33-34. The trial court stated:
I think case law clearly indicates that a defendant may raise alibi
at any point. And even though it’s -- you know, it’s a defense
that ought to be raised, it’s improper for a Court to preclude the
defendant from raising his own alibi should he testify to that
extent. The remedy would be if he presents late witnesses or witnesses
that may talk of alibi, now maybe we’re talking about something
1
The record reflects that Torres’s Answer to Discovery, filed in October 2017, states as follows with regard to
“Defenses”: “The Defendant intends to argue insufficient evidence at the trial of this case.” Appellant’s
Appendix Vol. 2 at 74.
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different at that point, whether an argument exists on whether
the [S]tate could preclude them from testifying.
Id. at 34 (emphasis added).
[13] Counsel for Torres then stated:
The two individuals that I named 2 may or may not be rebuttal
witnesses. It just depends what the [S]tate’s evidence is going to
be. If anybody knows them, I thought I had an obligation to
bring it out. They may or may not testify, and [Torres] may or
may not testify. . . . [T]he law’s clear that any defendant at any
time can indicate that he was somewhere other than when --
where and when the crime had been committed[.]
Id. at 36. The trial court directed the State to “file a motion” as to its position.
Id. at 37.
[14] The next day, April 24, 2018, the State filed a motion to exclude alibi witnesses.
In it, the State asserted:
During jury selection, defense counsel listed a witness whom the
State was unaware of and who had not been previously tendered
in discovery. The first time the State was learning of this witness
was during jury selection.
In opening statements, defense counsel discussed the defendant’s
alibi defense which was that the defendant was not present when
2
Torres appears to have named two individuals as possible defense witnesses in jury selection, but this
portion of jury selection is not included in the record before us.
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Aimee Giro was killed, and further that the defendant was with
his relatives at the time the crime was committed.
The defendant has never filed an alibi defense, has never listed
any alibi witnesses, and has never given the State any
information regarding the defense or witnesses.
The cure at this point is to exclude all witnesses that pertain to an
alibi defense. Waiting until opening statements to mention an
alibi defense does not give the State any time to investigate such
claims. Simply deposing said witnesses is not a cure. The only
remedy at this point should be for the Court to exclude said
witnesses.
Appellant’s Appendix Vol. 2 at 109-110.
[15] The jury trial continued through April 27, 2018, during which the State
presented investigative and forensic evidence showing that Giro was shot five
times. A shell casing was found near her body, and it came from the Hi-Point
.45 caliber pistol found in the home, which gun Torres had purchased in 2007.
The last outgoing text from Giro’s phone was her text to Jorgenson at 4:13 a.m.
on October 1. All incoming texts messages after that time remained unread.
There were frequent calls and messages from Torres’s cell phone to Giro up
until September 27, but not thereafter.
[16] The State also presented evidence from friends, family members, and
coworkers. Jorgenson testified that, a couple of weeks before she was killed, he
observed Giro at work with a black eye. He said that, on that day, Torres came
into the restaurant, sat in a booth, ate, and then stayed the entire shift. Giro’s
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manager at work, Vankley, also recalled that Giro had come into work with a
black eye a couple of weeks before her death. She testified that Giro was
generally a happy person but got “pissed off” when asked how she got the black
eye. Transcript Vol. 2 at 144. She further testified that Giro told her that she and
Torres had gotten into a fight because Giro had found child porn on Torres’s
computer and smashed it. McHargue, who was the last to see Giro alive,
testified that she knew that when she dropped off Giro on October 1 that Giro
was “in the process of trying to break up with him and leave him because of the
abuse.” Id. at 85.
[17] Giro’s cousin, Hard, testified that she and Giro were very close and talked or
saw each other most days, although that became less frequent during the time
that Giro was dating Torres. Hard testified that she was concerned about
Giro’s relationship with Torres, recalling that she saw a bruise on Giro’s face
about six months after they started dating and, another time, she saw marks on
Giro’s arm. Hard testified to an occasion about a month before Giro’s death,
when Giro had called Hard around 2:00 a.m. and asked Hard to pick her up
from Torres’s home. Hard found Giro walking on the side of the road, about
two blocks from Torres’s house. According to Hard, Giro was crying
hysterically and wearing only a t-shirt and underwear and carrying flip flops.
Giro told Hard that she “want[ed] to go home” to her father’s house, so Hard
took her there, but did not question Giro at that time, thinking Giro would talk
about it when she was ready to do so. Id. at 175. Hard described that Giro
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“changed” after about seven months of dating Torres, becoming more distant
and making excuses why she could not spend time with Hard. Id. at 177.
[18] Hooper testified that, while she and Torres remained “close” friends, she found
him to be jealous and controlling. Transcript Vol. 3 at 4. Hooper had met Giro
a couple of times. She testified that she observed a fight between them, about a
month before Giro’s death, when Hooper and her boyfriend at the time, and
Torres and Giro were all at a park together, and a man came up and spoke to
Giro. Torres did not like it and told Hooper that Giro “should have walked
away.” Id. at 6. On another occasion, Hooper said that Torres told her that he
“didn’t trust” Giro. Id. at 7. Hooper testified that, a couple of weeks before
Giro’s death, Torres told her that Giro had broken his laptop because she found
him looking at child porn. He told Hooper that he “didn’t want [Giro] around
no more,” that she “knew too much” and that he “doesn’t know what to do and
[] has to get rid of her.” Id. at 12-13.
[19] With regard to picking up her daughter from Torres’s house on October 2,
Hooper testified that it was 7:00 or 8:00 p.m. and that Torres’s car was in the
driveway. She did not remember seeing foil or flies in the windows. She
recalled asking her daughter, “[W]here’s Aimee?” – Hooper said she often
would ask that – and the daughter replied that she was sleeping. Id. at 34, 52.
Hooper was not made aware by her daughter of anything usual having
happened at the house that weekend. Hooper acknowledged telling police after
the murder that, according to Torres, Giro had found child porn on his
computer and that he told Hooper, “I’m going to end up killing this bitch.” Id.
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at 43. When asked why she continued to take her daughter to his house,
Hooper replied that “I don’t see him ever hurting her,” and “[h]e was a good
dad.” Id. at 46-47.
[20] Officer Michael Smith, a patrol sergeant with the Lake County Police
Department testified that on Sunday October 2, he was working traffic
enforcement on the 6:00 a.m. to 6:00 p.m. shift and was parked much of the
day at the intersection of 27th Avenue and New Hampshire, facing north,
watching for people to run the stop sign. Officer Smith recalled that on October
2, he saw Torres leave his residence at about 11:00 a.m. He was walking a
small dog and walked to the road and headed south. Sometime after Giro was
found dead in the home on October 5, Officer Smith told his senior officer,
Detective Brian Williams, that “I was just over here a couple days ago . . . and
saw Jovanni Torres walk out the front door on Sunday [October 2].” Transcript
Vol. 5 at 20. Officer Smith explained that he was sure of the date as being
October 2 because he also made an unrelated arrest there that day.
[21] After Officer Smith’s direct testimony, counsel for Torres sought and received a
side bar conference. He argued to the trial court that Officer Smith’s testimony
about seeing Torres walk out of his house on October 2 was a “surprise.” Id. at
16. The State responded that Officer Smith had been on the witness list since
October 2016 and that a report was never provided to the defense because no
report was generated. Thereafter, defense counsel proceeded to cross-examine
Officer Smith who explained that “You cannot write a report about every single
thing you see,” and that at the time that he saw Torres, “I had no idea that this
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was even relevant. I wasn’t looking for Jovanni Torres. I had no idea anything
had even happened in that residence.” Id. at 21.
[22] After Officer Smith was released as a witness, Torres’s counsel moved for a
mistrial, arguing that Torres “was never made aware that this witness, Officer
Smith, was going to testify to this,” noting there had been no reference
anywhere in discovery to it. Id. at 28. The State responded that “there is no
rule that requires us to tell the defense every single thing a witness is going to be
testifying to.” Id. at 29. The State noted that Hooper’s testimony about picking
up her daughter on October 2 corroborated Officer Smith’s testimony and
advised that it had another witness who would be testifying to seeing the same
thing that Officer Smith saw. The trial court denied Torres’s motion for
mistrial, noting “You being surprised at this testimony is simply not sufficient
to grant your request.” Id. at 31.
[23] Next, the State presented the testimony of Tina Anderson. Anderson’s
boyfriend’s mother lived near Torres, and Anderson sometimes lived there with
her boyfriend and his mother. She did not know Torres personally, but was
familiar with him generally, having seen him around the neighborhood.
Anderson testified that on Sunday October 2, she was riding as a passenger
with her boyfriend in a car and they stopped at the stop sign in front of Torres’s
home. Anderson said she saw Officer Smith, who she knows, sitting in his
police car near the stop sign. Anderson testified that she and her boyfriend saw
Torres come out of his house and walk toward a car. She did not recall whether
he had a dog with him at the time. When asked how she was sure that it was
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October 2, Anderson explained that she knew it was the Sunday right before
Giro’s body had been found, and she knew it was a Sunday because she and her
boyfriend were going down the street to buy beer illegally (due to no Sunday
alcohol sales). Anderson recalled that not long after October 5, she ran into
Officer Smith, who she knew, and mentioned to him that she had seen him at
the stop sign on October 2, noting to him that “it was a shame that there was
somebody laying in that house dead when we were both passing it[.]” Id. at 43.
[24] Counsel for Torres renewed his motion for a mistrial, arguing that, like Officer
Smith, he did not know Anderson was going to testify that she saw Torres on
October 2. The trial court denied the motion.
[25] On the fourth day of trial, when the State had two witnesses left, the trial court
addressed whether defense intended to call witnesses, determining that “we
need to take up the [State’s] motion to exclude at this point. The State sees
these [witnesses] as, [] based on your opening statement, as alibi witnesses” and
“they’re moving to exclude them.” Id. at 109. Counsel for Torres argued that
he wanted to call two witnesses, namely Torres’s brother, Joel, and mother,
Ivette, not to state where Torres was during a period of time, but in order to
rebut the testimony of Officer Smith and Anderson, who testified to having seen
Torres walk out of his house on October 2. Torres’s counsel suggested that he
suspected that “there was an attempt on somebody’s part . . . to hide these
witnesses.” Id. The State asserted that it was “offensive” to suggest that the
State was trying to hide witnesses, “when they have been tendered in discovery,
that he’s had all this time to depose them[.]” Id. at 110.
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[26] The trial court noted its concern that defense had not filed a notice of alibi nor
named the two potential witnesses until jury selection. Torres’s counsel
responded that Joel and Ivette would be rebuttal witnesses, although Ivette
“could also place [Torres] someplace other than at that residence during the
time periods mentioned” if allowed to so testify. Id. at 112. With regard to
Ivette, the State indicated, “[I]f she wants to testify . . . about anything other
than an alibi . . ., fine,” but if she would be testifying that “he was with me and
we were at a specific place,” then “that is not fair to do . . . to the State[.]” Id.
at 114.
[27] After hearing argument, the trial court determined that defense counsel’s
remarks during opening statements, indicating that Torres was not at the
residence, constituted an alibi and that Torres had not shown good cause for
failing to timely file an alibi defense. Therefore, it granted the State’s motion to
exclude the testimony of Joel and Ivette and did not allow Torres to call them
for any purpose, alibi or rebuttal.
[28] Torres’s counsel then made an offer of proof that Joel would testify that,
contrary to Hooper’s testimony, Hooper did not drop off her daughter with
Torres on September 30 and pick her up on October 2, and that, instead,
Hooper dropped off her daughter with Joel and his girlfriend for the weekend.
Joel would also testify that Hooper contacted Joel after she testified at trial and
told him that she had lied about this in court. With regard to Ivette, the offer of
proof was that she would testify that she had Torres’s dog at her house for the
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weekend in question, such that Officer Smith could not have seen Torres exit
his house walking a dog. The trial court thereafter observed:
You know, having all that information, that just tells me that you
should have listed them as potential witnesses from the onset of
the case, if not during the course of the almost year and a half
you’ve had this case. Your request is denied.
Id. at 118.
[29] The State presented additional witnesses and then rested. Torres rested without
presenting any evidence. The jury found Torres guilty of murder, and in a
second phase, the jury found him guilty of use of a firearm during the
commission of murder. The trial court sentenced Torres to sixty years
enhanced by ten years for use of a firearm. Torres now appeals.
Discussion & Decision
[30] Torres claims that the trial court abused its discretion when it refused to allow
him to call Joel and Ivette to testify. The trial court has broad discretion in
ruling on the admissibility of evidence. Edwards v. State, 930 N.E.2d 48, 49
(Ind. Ct. App. 2010), trans. denied. We will reverse such a ruling only when the
trial court abuses its discretion. Id. An abuse of discretion occurs when the trial
court’s action is clearly erroneous and against the logic and effect of the facts
and circumstances before it. Washington v. State, 840 N.E.2d 873, 879 (Ind. Ct.
App. 2006), trans. denied. To reverse, there must be (1) error by the court, (2)
that affects the defendant’s substantial rights, and (3) the defense must have
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made an offer of proof or the evidence must have been clear from the context.
Edwards, 930 N.E.2d at 50.
[31] On appeal, Torres argues that the trial court did not allow the witnesses to
testify “due to defense counsel’s failure to file a notice of alibi pursuant to
Indiana statute,” but that the trial court “was incorrect because the testimony of
the witnesses did not constitute an alibi within the legal definition[,]” and
instead, the two proposed witnesses “contradicted specific facts in the testimony
of the [S]tate’s witnesses who claimed to have seen Torres at the residence.”
Appellant’s Brief at 9-10. That is, he maintains that he sought to call them, not as
alibi witnesses to place him at a location other than the scene of the crime, but
as witnesses to rebut the testimony of the State’s witnesses who said that they
saw Torres at his residence on October 2 and that the trial court should have
allowed them to testify. The State, on the other hand, argues that the witnesses’
proposed testimony was intended to prove that Torres was not at the house,
i.e., he was somewhere else, such that “[t]he witnesses were clearly alibi
witnesses.” Appellee’s Brief at 19. The State continues that, because “the defense
did not disclose the witnesses through discovery prior to trial as required[] and
[] did not give notice of its alibi defense prior to trial,” the trial court was correct
to grant the State’s Motion to Exclude them as alibi witnesses. Id.
[32] Alibi has been defined as:
(1) a defense based on the physical impossibility of a defendant’s
guilt by placing the defendant in a location other than the scene
of the crime at the relevant time;
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(2) the fact or state of having been elsewhere when an offense
was committed.
Edwards, 930 N.E.2d at 50 (quoting Black’s Law Dictionary 84 (9th ed. 2009)).
Our Supreme Court has observed:
In criminal law ‘alibi’ means elsewhere or in another place. It is
a mode of defense to a criminal prosecution, where the party
accused, in order to prove he could not have committed the
crime with which he is charged offers evidence to show that he
was in another place at the time the alleged crime was
committed.
Edwards, 930 N.E.2d at 50 (quoting Freeman v. State, 231 N.E.2d 246, 250 (Ind.
1967)). Ind. Code § 35-36-4-1 requires that when a defendant, who is charged
with a felony, intends to offer in his defense evidence of an alibi, he must file
with the court and serve upon the prosecutor, no later than twenty days prior to
the omnibus date, a written statement of his intention to offer such a defense. A
defendant who does not timely file the notice of alibi defense may show good
cause for not doing so. If the defendant fails to show good cause, the trial court
“shall exclude evidence offered by the defendant to establish an alibi. Ind.
Code § 35-36-4-3(b); Washington, 840 N.E.2d at 879.
[33] Here, the first mention of the two witnesses appears to have been during jury
selection. This timing casts doubt on Torres’s claim that the two were rebuttal
witnesses because at that point nothing had been presented to rebut. Further,
defense counsel’s comments during opening statements – that Torres was not at
the residence when Giro was dropped off after the bachelorette party and “[h]e
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did not come home at any time when [Giro] was missing” – indicated that
defense would be pursuing the theory that Torres was somewhere else and
therefore could not have been the person who killed Giro. Transcript Vol. 2 at
30. Given this record, we understand the trial court’s decision to exclude alibi
testimony from those wtinesses. However, after the trial court granted the
State’s Motion to Exclude Alibi Witnesses, Torres’s counsel presented an offer
of proof as to each witness’s proposed testimony. According to that offer, Joel’s
testimony was going to be that Hooper did not drop off her daughter with
Torres but, instead, dropped her off with Joel and his girlfriend, the implication
being that Hooper did not see Torres on October 2 as she had testified. Ivette’s
testimony was going to be that Torres’s dog was with her all weekend, the
implication being that Officer Smith could not have seen Torres walking his dog
on October 2 as he had testified. Torres argues that this evidence, to refute the
State’s witnesses who said they saw him at the house, is not alibi evidence
under Indiana law. We agree with him in this regard.
[34] In Edwards, the defendant sought to call witnesses who were at the scene of the
crime and would testify that they did not see Edwards there. The State moved
to exclude the witnesses on the ground that Edwards had not provided proper
notice of an alibi defense. Defense counsel made an offer of proof as to the two
witnesses, stating that each would have testified that he or she was at the crime
scene and Edwards was not. The trial court granted the State’s request to
exclude the two witnesses because Edwards had not filed an alibi notice.
Ultimately, Edwards was found guilty of felony reckless homicide and
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appealed. On appeal, this court held that “evidence of a defendant’s absence
from a crime scene is not an ‘alibi’ defense. Rather, it is a rebuttal of the
prosecution’s contention that the defendant was present and thus capable of
committing the crime.” 930 N.E.2d at 52. Therefore, the Edwards court held
that the trial court should not have excluded the witnesses on the ground that
they were alibi witnesses. Torres maintains that, as in Edwards, Joel and Ivette
were going to testify to rebut the State’s contention that Torres was present at
his home on October 2 and thus capable of committing the crime, and,
therefore, the testimony of his two witnesses should not have been excluded as
alibi witnesses. We agree and find that the offer of proof shows that Ivette and
Joel would have provided rebuttal evidence, and we must decide whether the
trial court should have admitted it.
[35] As an initial matter, we do not disagree with the trial court’s observation that,
given the information that those witnesses had to offer, they should have been
disclosed to the State prior to trial as potential witnesses. That being said, we
observe that, when the trial court was receiving argument on the State’s Motion
to Exclude Alibi Witnesses, the prosecutor did not oppose Ivette being called as
a witness if her testimony was limited to rebuttal only, stating as follows: “[I]f
she wants to testify . . . about anything other than an alibi,” then that would be
“fine,” but if she would be testifying that Torres was with her at a specific place,
then “that is not fair to do . . . to the State[.]” Transcript Vol. 5 at 114. Based on
the State’s position that limited rebuttal evidence would be “fine,” as well as the
substance of the offer of proof, we find that Torres should have been permitted
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1643 | May 20, 2019 Page 19 of 22
to present the testimony of Ivette and Joel. However, we find that such error
was harmless. “An error in the exclusion of evidence is harmless if its probable
impact on the jury, in light of all the evidence in the case, is sufficiently minor
so as not to affect the defendant’s substantial rights.” Washington, 840 N.E.2d
at 884 (citing Williams v. State, 714 N.E.2d 644, 652 (Ind. 1999), cert. denied, 528
U.S. 1170 (2000)).
[36] Here, aside from the testimony of Officer Smith, Anderson, and Hooper who
each testified to seeing Torres at his house on October 2, the State presented
substantial evidence of Torres’s guilt. Giro’s coworker and manager saw her
come to work with a black eye about two weeks before her murder. About a
month before Giro’s death, Giro called and asked Hard to pick her up at 2:00
a.m.; Hard found Giro about two blocks from Torres’s home, walking along the
road, crying and hysterical, and wearing only a shirt and underwear. Hooper,
who considered Torres to be a close friend, testified that Torres was controlling
and jealous. Hooper had witnessed a fight between Giro and Torres about a
month before Giro’s death, in which Torres was mad that Giro was speaking to
another man at a park and told Hooper that he did not trust Giro. He also told
Hooper that Giro had discovered child porn on his computer and that she knew
too much and he had to get rid of her. Giro had told her manager that she
found child porn on Torres’s computer and that they fought, resulting in her
black eye. When McHargue dropped off Giro at Torres’s home in the early
morning hours of October 1, she asked Giro if she would be alright because
McHargue knew that Torres was known to be abusive.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1643 | May 20, 2019 Page 20 of 22
[37] When police went to Torres’s home in response to the 911 call, Torres and his
brother also arrived. Torres, who appeared nervous, stated that he had not been
to the house in couple of days, yet he insisted Giro was not there. He said that
he too was concerned about Giro’s whereabouts and that he had been trying to
call her, although phone records showed that Torres’s last call to Giro on her
phone was a call on September 27. Torres stated that he wanted to find her, but
when police asked him for a key to the house, he first said that it was not his
house and then he stated that he did not have a key on him.
[38] Giro was shot and killed by multiple gunshots from a .45 caliber Hi-Point
pistol, which Torres owned and which was in the house. During the
investigation that followed Giro’s death, police saw that one or more walls had
been patched to cover bullet holes. Given the wealth of evidence against
Torres, even if it was error to have excluded Joel and Ivette as witnesses, any
such error was harmless. 3
3
Torres also claims that the trial court’s decision violated his state and federal constitutional rights, arguing
that “[t]he decision by the trial court to exclude these witnesses violated Torres’[s] right to compulsory
process under the Sixth Amendment to the United States Constitution and violated his right to due process of
law under the Fourteenth Amendment to the United States Constitution and Article 1, Section 12 of the
Indiana Constitution.” Appellant’s Brief at 15. Torres concedes that he did not raise any constitutional issue
to the trial court. He has thus waived his claim. Washington v. State, 840 N.E.2d 873, 880 (Ind. Ct. App.
2006) (finding that defendant waived argument that trial court violated his Sixth Amendment rights when it
excluded witnesses’ alibi testimony because defendant failed to raise that argument to trial court), trans.
denied. Waiver notwithstanding, any error was harmless because, as discussed above, even if Ivette had
testified that Torres’s dog was with her for the weekend and if Joel had testified that Hooper dropped off her
daughter with him for the weekend, the probable impact on the jury would have been minimal in light of all
the other evidence presented.
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[39] Judgment affirmed.
Kirsch, J. and Vaidik, C.J., concur.
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