ATTORNEY FOR APPELLANT
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Teresa Dashiell Giller
Deputy Attorney General
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
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 Ortizs drug use
after the murder; (3) the trial court erred in admitting inadmissible hearsay; and
(4) the trial court erred in admitting evidence of Ortizs 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
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 Ortizs sisters house. When they arrived in
the alley behind the sisters 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 Dominguezs 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
Dominguezs body that evening in the alley. Police found a loaded handgun
in Dominguezs 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
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
Ortizs motion in limine to exclude any evidence relating to his attack on
Figueroa on the night of the murder. During the States 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. Ive 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.
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 jurys decision. James v. State,
613 N.E.2d 15, 22 (Ind. 1993); Kelley v. State, 555 N.E.2d 140, 141
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 counsels questions concerning whether there was a
struggle when Ortiz took the baby from the house.
See footnote It did not
occur because of the officers earlier allusion to the incident.See footnote As a
result, Ortiz was not prejudiced by the officers earlier reference to the attack
II. Testimony Concerning Ortizs 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.
This testimony could be understood to assert that Ortiz had used heroin after
the murders. Maldonados 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 Maldonados credibility and to show Maldonados bias in
favor of Ortiz. The trial court appeared to agree that evidence of
Ortizs 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.
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 Ortizs testimony that he stabbed Dominguez and also evidence of the
nature of Dominguezs injuries. There was a four-inch-deep wound in Dominguezs chest,
Dominguezs 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 Dominguezs 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 Ortizs drug use after the murder affected his substantial rights. It
is not grounds for reversal.
Ortiz next contends that the trial court admitted inadmissible hearsay. At trial,
a police officer repeated Figueroas 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?
Q: And did she tell you that he had a baby with
A: Yes, he had taken her child.
Q: And did she also tell you that he had a knife
in his possession?
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
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 somelike 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 persons 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 Ortizs 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). Ortizs 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 Ortizs 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 defendants propensity to commit the charged act and (2)
balance the probative value of the evidence against its prejudicial effect pursuant to
Ortiz v. State, 716 N.E.2d 345, 350 (Ind. 1999). These incidents involved
two different victims. Ortizs 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
Ortizs 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.
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
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 Ortizs attack on
The attack was also discussed in greater detail during Ortizs own testimony.
Q: And, in fact, you stabbed Ricarda, didnt 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. Thats 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.
Ortiz makes no argument of error concerning his own testimony of his
drug use on the night of the murder.