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A trial court’s decision to allow a jury to view four previously viewed exhibits in a felony robbery trial did not constitute fundamental error, the Court of Appeals of Indiana affirmed Wednesday.
According to court records, at around 7:45 p.m. on Nov. 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.
Later, police showed Limberry a photo array from which he identified either person number one or person number three as the man who had held the gun to his head. Harry Torrence II was person number three.
Recordings and still shots from video cameras in the store showed a man wearing a letterman jacket with white sleeves. That person was the person who held the gun to Limberry’s head.
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. Information about the location, direction and relative speed at which the tracker was traveling was dispatched to Indianapolis Metropolitan Police Department 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.
When 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].”
Faulkner testified that the person in the letterman jacket 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 as the driver of the vehicle.
Faulkner ran up to the car after the driver and passenger fled and remained there. He looked inside the car and saw a gun, some cash and cigarettes.
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.
Officer Craig Wagoner reviewed the store’s security camera video and saw where the person in the still shots had touched the door. He recovered a latent palm print “from that particular spot,” which matched Torrence’s palm print.
The state charged Torrence with one count of Level 3 felony robbery with a deadly weapon.
At trial in Marion Superior Court, Limberry was unable to identify Torrence as the man who held the gun to his head. However, Detective Jordan Agresta compared Torrence’s BMV photograph with the store video and concluded it was the same person.
After the presentation of evidence but prior to closing arguments, jurors were permitted to come to the courtroom to view the exhibits one more time by agreement of the parties.
The jury began deliberating, then sent a note asking to see state’s exhibits 5, 6, 35 and 36. Torrence did not object.
The jurors were brought back into open court, where they were seated and allowed to review the four requested state exhibits in the presence of the court and the parties.
The jury then resumed deliberations and ultimately found Torrence guilty as charged.
Torrence appealed, arguing 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.
The Court of Appeals affirmed, finding that no error, let alone fundamental error, occurred.
Senior Judge Margret Robb wrote the opinion for the appellate court.
Once the jury begins deliberations, Indiana Code § 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,” Robb wrote. “The jury simply asked to view four specific exhibits one more time. Consequently, the statutory procedure does not apply.”
Robb noted that 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,” Robb wrote. “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.
“… Here, we conclude that the court did not abuse its discretion by allowing the jury during deliberations to review the requested, previously viewed, and admitted exhibits, in open court while being monitored by the trial court and the parties,” Robb continued.
Then, pointing to Thacker v. State, 709 N.E.2d 3 (Ind. 1999), the court concluded, “… (T)he 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.”
Chief Judge Robert Altice and Judge L. Mark Bailey concurred.
The case is Harry L. Torrence, II v. State of Indiana, 22A-CR-2287.
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