ATTORNEY FOR APPELLANT
Jeff Schlesinger
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Teresa Dashiell Giller
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
VALENTIN ORTIZ, JR., )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 45S00-9910-CR-514
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard W. Maroc, Judge
Cause No. 45G01-9808-CF-168
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
February 1, 2001
BOEHM, Justice.
Valentin Ortiz, Jr. was convicted of murder and sentenced to sixty
years imprisonment. In this direct appeal, he contends that: (1) the
trial court abused its discretion by denying his motion for a mistrial; (2)
the trial court abused its discretion by admitting non-relevant,
prejudicial testimony about Ortiz’s drug use after the murder; (3) the
trial court erred in admitting inadmissible hearsay; and (4) the trial
court erred in admitting evidence of Ortiz’s prior assault on his
girlfriend. We agree that there were a number of errors in the admission
of evidence, but affirm the judgment of the trial court because we conclude
that the errors were harmless in light of the properly admitted evidence.
Factual and Procedural Background
On November 5, 1997, Ortiz found his girlfriend, Ricarda Figueroa,
smoking crack in a room with the infant he believed to be his son. A fight
ensued, and Ortiz stabbed Figueroa and took the baby. Ortiz then went to
the home of seventy-five-year-old Cruz Dominguez and asked Dominguez to
drive him and the baby to Ortiz’s sister’s house. When they arrived in the
alley behind the sister’s home, Dominguez drew a gun and demanded that
Ortiz leave the baby with him. As Ortiz started to exit the truck,
Dominguez first grabbed a baby blanket that was around the child and then
hit Ortiz in the head with “The Club,” an anti-theft device for
automobiles. Ortiz pulled out a pocket knife, stabbed Dominguez
repeatedly, and drove away in the truck leaving Dominguez’s body in the
alley.
Ortiz then picked up his friend, Benjamin Maldonado, dropped off the
baby with friends, attempted to sell some parts of the truck, and fled the
state. Police searching for Ortiz in connection with his assault on
Figueroa discovered Dominguez’s body that evening in the alley. Police
found a loaded handgun in Dominguez’s pocket and also found portions of
“The Club” and a broken broom at the scene. Blood samples taken from “The
Club” and the broom matched both Ortiz and Dominguez. Dominguez had stab
wounds on his chest, neck, hands, and forearms.
Ortiz returned to Indiana several weeks later and was arrested on
December 15. At his jury trial, Ortiz testified to the events surrounding
the stabbing and submitted instructions on voluntary manslaughter, reckless
homicide, and self-defense, all of which were given to the jury. The jury
found him guilty of murder and felony murder, and he was sentenced on the
murder count to sixty years imprisonment.
I. Mistrial
Ortiz first contends that the trial court abused its discretion in
refusing his motion for a mistrial. Before the trial began, the trial
court granted Ortiz’s motion in limine to exclude any evidence relating to
his attack on Figueroa on the night of the murder. During the State’s
questioning of a police officer at trial, the officer stated that,
“[Figueroa] told me she was attacked by Valentin Ortiz.” Ortiz promptly
moved for a mistrial, which the court denied. The court admonished the
jury that: “There was an objection to the last question and answer. I’ve
granted that; the question and answer [are] ordered to be stricken from the
record pursuant to the preliminary instructions that we gave to the jury.”
Preliminary Instruction No. 11 read:
During the progress of the trial, certain questions may be asked
and certain exhibits may be offered which the Court may rule are not
admissible into evidence. You must not concern yourselves with the
reasons for the rulings since the production of evidence is strictly
controlled by the rules of law.
You must not consider an exhibit or testimony which the Court
orders stricken from the record. In fact, such matter is to be
treated as though you had never heard it.
Nothing I say during the trial is intended as any suggestion of
what facts or what verdict you should find. Each of you, as jurors,
must determine the facts and the verdict.
Ortiz now contends that this was insufficient to cure the prejudice, which,
he argues, affected the entire course of the trial.
Citing Bradley v. State, 649 N.E.2d 100, 107-08 (Ind. 1995), the State
contends that this admonishment, which required the jury to refer to the
preliminary instruction on disregarding excluded evidence, cured any
prejudice Ortiz may have faced. The decision to grant or deny a motion for
a mistrial lies within the discretion of the trial court. Heavrin v.
State, 675 N.E.2d 1075, 1083 (Ind. 1996). A mistrial is an extreme remedy
granted only when no other method can rectify the situation. Id. On
appeal, in order to succeed on a claim based on the denial of a mistrial,
the defendant must demonstrate that the conduct complained of was so
prejudicial that it had a probable persuasive effect on the jury’s
decision. James v. State, 613 N.E.2d 15, 22 (Ind. 1993); Kelley v. State,
555 N.E.2d 140, 141 (Ind. 1990).
Whether or not this admonition cured the problem, the entire incident
was discussed later in the trial when a witness testified that there was “a
commotion” involving Figueroa and Ortiz, Ortiz emerged after the argument
with a knife, and Figueroa was cut and bleeding. This testimony as to the
attack on Figueroa was in response to defense counsel’s questions
concerning whether there was a struggle when Ortiz took the baby from the
house.[1] It did not occur because of the officer’s earlier allusion to
the incident.[2] As a result, Ortiz was not prejudiced by the officer’s
earlier reference to the attack on Figueroa.
II. Testimony Concerning Ortiz’s Drug Use
Ortiz next claims that the trial court abused its discretion when it
admitted testimony from Maldonado about the events on the evening of the
murder.[3] This testimony could be understood to assert that Ortiz had
used heroin after the murders. Maldonado’s testimony was that “we” had
used drugs, in a context where it is not at all clear that the term
included Ortiz. Maldonado later referred to Ortiz as “under the
influence,” but it is not clear whether this was alcohol or something else.
Ortiz claims that this evidence was not relevant and that even if it were
relevant, it failed the Indiana Evidence Rule 403 balancing test. The
State responds that Maldonado testified to heroin use by both himself and
Ortiz, and therefore the testimony was relevant to attack Maldonado’s
credibility and to show Maldonado’s bias in favor of Ortiz. The trial
court appeared to agree that evidence of Ortiz’s drug use was improper.
However, Ortiz made no request for any corrective order with respect to the
initial testimony that “we” had used drugs. Also, Ortiz did not object on
relevance grounds to the second statement concerning his apparent
intoxication. Therefore, this argument is waived. Cutter v. State, 725
N.E.2d 401, 406 (Ind. 2000) (“Failure to object to the admission of
evidence at trial normally results in waiver . . . .”).
However, even if this issue were preserved, “[e]rrors in the admission
or exclusion of evidence are to be disregarded as harmless error unless
they affect the substantial rights of a party.” Barber v. State, 715
N.E.2d 848, 852 (Ind. 1999) (quoting Fleener v. State, 656 N.E.2d 1140,
1141 (Ind. 1995)); accord Ind.Trial Rule 61. In this case, there is
powerful evidence that Ortiz killed Dominguez with the required mens rea
and not in self-defense. This includes both Ortiz’s testimony that he
stabbed Dominguez and also evidence of the nature of Dominguez’s injuries.
There was a four-inch-deep wound in Dominguez’s chest, Dominguez’s throat
had been slit, and there were numerous defensive wounds on Dominguez.
Also, DNA evidence placed Ortiz at the murder scene and there was testimony
that Ortiz had Dominguez’s truck, had attempted to sell its parts, and that
he then fled the state. Cf. Alford v. State, 699 N.E.2d 247, 251-52 (Ind.
1998) (error in admission of statement was harmless where physical evidence
of thirteen gunshot wounds was sufficient to prove mental status and
disprove self-defense). In light of this evidence, we cannot conclude that
the admission of Ortiz’s drug use after the murder affected his substantial
rights. It is not grounds for reversal.
III. Hearsay
Ortiz next contends that the trial court admitted inadmissible
hearsay. At trial, a police officer repeated Figueroa’s account of her
encounter with Ortiz. Specifically,
Q [State]: And did Ricarda Figueroa tell you there had been an
argument with the defendant Valentin Ortiz?
A [Police Officer]: Yes.
Q: And did she tell you whether or not when he left whether or not he
had anything with him?
A: Yes.
Q: And did she tell you that he had a baby with him?
A: Yes, he had taken her child.
Q: And did she also tell you that he had a knife in his possession?
A: Yes.
Q: And did she tell you about what time that argument had occurred in
relation to your responding to 425 Pierce at 6:30 p.m.?
There was no objection to these leading questions, but at this point,
defense counsel objected to the testimony as hearsay. The trial court
allowed the testimony to show why the police acted in the manner in which
they did.
Hearsay is an out of court statement offered to prove the truth of
the matter asserted. Ind.Evidence Rule 801(c). It is inadmissible unless
it falls under an exception to the hearsay rule. Ind.Evidence Rule 802.
A statement is not hearsay if offered for another purpose. Anderson v.
State, 718 N.E.2d 1101, 1102-03 (Ind. 1999); 13 Robert Lowell Miller, Jr.,
Indiana Practice § 801.302 (2d ed. 1995).
In this case, the State claims that the testimony was admissible to
explain “why the police began searching for Defendant, description of
Defendant, and why caution was used.” If offered for this purpose, it is
not offered for the truth of the statements made by Figueroa, but rather to
prove that Figueroa said these things, as to which the officer was an
eyeball witness. This cures the hearsay problem, but the issue of the
relevance of this testimony remains. Smith v. State, 721 N.E.2d 213, 218
(Ind. 1999) (“In addition to the requirement that hearsay fall within an
exception to be admissible, the Rules of Evidence also mandate that only
relevant evidence is admissible.”). The State does not explain how the
steps of the police investigation make “the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Ind.Evidence Rule 401;
cf. Bonner v. State, 650 N.E.2d 1139, 1141 (Ind. 1995) (“Neither the
content of the informants’ statements nor the propriety of the police
initiating an investigation was seriously questioned at trial. Because the
out-of-court statements lacked relevance to any contested issue other than
the matters asserted therein, they must be viewed either as irrelevant or
as hearsay and their admission was improper.”). Moreover, even if the
evidence were relevant, it would not pass the Rule 403 balancing test
because its minimal probative value is outweighed by the prejudice to Ortiz
from having the jury hear about his other crimes. Because the evidence is
not relevant insofar as it is not hearsay, the trial court erred in
admitting it. However, it is harmless for the same reasons described in
Part II, above.
IV. Prior Bad Acts
Ortiz finally contends that the trial court erred in admitting
evidence of his past attacks on Figueroa. At trial, in response to a
question on direct examination concerning the people whom he had told the
crime was in self-defense, Ortiz testified that, “I wanted [a friend] to
know because people were going around portraying me as some—like I am a
murderer. I am a killer, you know, what I am saying, and I am not the
person that they are talking about.” The State was then allowed to cross-
examine Ortiz concerning a prior attack on Figueroa that resulted in a
guilty plea to criminal recklessness. The State claimed, and the trial
court agreed, that this was admissible because Ortiz had “opened the door”
to character evidence under Indiana Evidence Rule 404.
Evidence Rule 404 provides:
(a) Character Evidence Generally. Evidence of a person’s character
or a trait of character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion, except: (1)
Character of accused. Evidence of a pertinent trait of character
offered by an accused, or by the prosecution to rebut the same;
. . . .
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order
to show action in conformity therewith. It may, however, be
admissible for other purposes, such as . . . intent . . . .
The State first claims that evidence of Ortiz’s criminal recklessness
conviction is relevant because Ortiz opened the door by stating that he was
not a killer. However, his statement is not evidence of a pertinent
character trait that a prior conviction for criminal recklessness would
rebut. One can be convicted of criminal recklessness and still not be a
killer. This is not a case where the defendant says, “I would never beat
my wife,” and has been convicted of several prior domestic batteries.
Evidence of a prior criminal recklessness charge against someone other than
the victim does not rebut a statement that the defendant is not a killer.
Further, “the evidence relied upon to ‘open the door’ must leave the trier
of fact with a false or misleading impression of the facts related.”
Gilliam v. State, 270 Ind. 71, 77, 383 N.E.2d 297, 301 (1978). Ortiz’s one
statement about not being a murderer does not create a false impression
that he was an upstanding citizen. The trial court thus erred in admitting
the evidence under this rationale.
The State also argues that the evidence of Ortiz’s criminal
recklessness against Figueroa was admissible to show his intent to kill
Dominguez.
In assessing admissibility of 404(b) evidence the court must (1)
determine that the evidence of other crimes, wrongs, or acts is
relevant to a matter at issue other than the defendant’s propensity to
commit the charged act and (2) balance the probative value of the
evidence against its prejudicial effect pursuant to Rule 403.
Ortiz v. State, 716 N.E.2d 345, 350 (Ind. 1999). These incidents involved
two different victims. Ortiz’s attack of Figueroa did not make it more or
less likely that Ortiz knowingly or intentionally killed Dominguez. Thus,
the evidence, if relevant at all, shows a propensity for violence, which is
precisely what is prohibited by the Rules of Evidence. Accordingly, the
evidence of Ortiz’s prior criminal recklessness conviction is not
admissible under this rationale either. Once again, admitting this
evidence was harmless error for the same reasons discussed in Part II,
above.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., concurs except as to Part IV with which he concurs in
result.
-----------------------
[1] Apparently not realizing the irony of her question or the potential
response, defense counsel asked, “There was no struggle over the baby when
he took the baby; is that correct?” The witness responded, “No. There was
no struggle because she was bleeding so that we got a towel for her arm.”
This answer led to the discussion of Ortiz’s attack on Figueroa.
[2] The attack was also discussed in greater detail during Ortiz’s own
testimony.
Q: And, in fact, you stabbed Ricarda, didn’t you?
A: I cut her. I never stabbed her.
Q: You distinguish cutting from stabbing?
A: To me stabbing is this way penetrating something. No, I just cut her.
That’s all I did.
However, because we conclude that this testimony was erroneously admitted,
see Part IV, we do not base our analysis on it. The other witness’
testimony is sufficient for this purpose.
[3] Ortiz makes no argument of error concerning his own testimony of his
drug use on the night of the murder.