Ortiz v. State

Decision Date10 September 1999
Docket NumberNo. 45S00-9806-CR-370.,45S00-9806-CR-370.
Citation716 N.E.2d 345
PartiesJeffrey Richard ORTIZ, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Charles E. Stewart, Jr., Crown Point, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. BOEHM, Justice.

Jeffrey Richard Ortiz was convicted of the murder, felony murder and robbery of Rebecca Ortiz, his adoptive mother. The State requested and the jury recommended that Ortiz be sentenced to life imprisonment without parole for intentionally killing her while committing or attempting to commit robbery. The trial court followed the jury's recommendation. In this direct appeal Ortiz contends that the trial court erred by (1) denying his motion to suppress his statement to police on the ground that he had been arrested without probable cause; (2) denying his motion for mistrial based on the State's soliciting testimony from a police officer about his post-arrest silence; and (3) admitting evidence in violation of Evidence Rule 404(b). He also contends the evidence was insufficient to support the jury's guilty verdicts for robbery and felony murder and its finding of eligibility for life imprisonment without parole based on an intentional killing while committing or attempting to commit robbery. We affirm the trial court.

Factual and Procedural Background

In the early evening hours of Wednesday, July 30, 1997, Rebecca Ortiz's lifeless body was found in her bed. She had been strangled and struck in the head several times with a sledgehammer. Her automobile was missing from the garage and Ortiz, her adopted son, was not at home. Ortiz had spent the entire day driving several of his friends in his mother's automobile on a shopping spree, using his mother's credit cards to purchase clothing, CDs, an automobile CD player, flowers, and lunch and movie tickets for the group. Police soon learned that Ortiz was not permitted to drive his mother's automobile, that the two had had an argument the previous evening, and that Ortiz was supposed to be out of the house by Friday of that week.

Ortiz was arrested later the same evening. After being advised of his rights, Ortiz was questioned by police the following day. He told police that he had argued with his mother over money, his running up her phone bill with thousands of dollars in 1-900 sex phone calls, and his pushing back his enlistment date in the military. Other witnesses told police, and later testified at trial, that Ortiz had previously stolen money from his mother, had stolen her checks and forged her signature, and had driven her automobile without her permission.

Rebecca's blood was found on the shirt, pants, and shoes that Ortiz was wearing on the night before her body was found. A blood spatter expert concluded that the spatter of blood was consistent with the clothes being worn at the same time that Rebecca was struck with a sledgehammer. A sledgehammer with Rebecca's blood on its head was found in her garage.

I. Suppression of Statement to Police

Ortiz first argues that the trial court erred when it denied his motion to suppress his statement to police on the ground that his arrest was illegal because it was not supported by probable cause. It is well settled that a police officer may arrest a suspect without a warrant if the officer has probable cause to believe that the suspect has committed a felony. Peterson v. State, 674 N.E.2d 528, 536 (Ind. 1996); Sears v. State, 668 N.E.2d 662, 666-67 (Ind.1996). Probable cause exists when, at the time of the arrest, the arresting officer has knowledge of facts and circumstances that would warrant a person of reasonable caution to believe that the suspect had committed a criminal act. Id. at 667. The amount of evidence necessary to meet the probable cause requirement is determined on a case-by-case basis, see Peterson, 674 N.E.2d at 536,

and the facts and circumstances need not relate to the same crime with which the suspect is ultimately charged. Sears, 668 N.E.2d at 667 n. 10.

A police officer testified that, at the time of Ortiz's arrest, the police knew that Rebecca had been found dead and her vehicle was missing; Ortiz, though not permitted to drive the car, had been seen driving the vehicle earlier in the day; Ortiz had been seen purchasing items with a credit card; Rebecca and Ortiz had had an argument or fight on the previous evening; and Rebecca had told Ortiz to be out of the house by Friday of that week. Based on this information, the trial court found that there was enough information to support probable cause under Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). We agree that the police had probable cause to believe that Ortiz had committed auto theft, if not murder. Accordingly, his arrest was not unlawful, and the trial court did not err in denying the motion to suppress.1

II. Motion for Mistrial

Ortiz next contends that the trial court erred in denying his motion for mistrial. The motion was made after the following questions were asked of a detective by the prosecutor:

Q. Do you recall how the interview [with the defendant] ended?
A. Yes.
Q. How was that?
A. I made the comment to the defendant that he could not say that he did not kill his mother?

Defense counsel then asked to approach the bench, and the prosecutor stated in the bench conference that the detective had repeated his charge that Ortiz was not denying the crime several times before Ortiz finally answered. Ortiz asked that the detective's answer be stricken and that the jury be admonished. He also moved for a mistrial. The trial court ordered the answer stricken and admonished the jury to disregard it, but denied the motion for mistrial.

Ortiz contends that the State "deliberately elicited testimony from [the detective] that the defendant exercised his right to remain silent during post-arrest police interrogation" in violation of the principles set forth in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We disagree. In Doyle, the defendants refused to speak to police after their arrest and offered an exculpatory version of events when they testified at trial. To impeach this testimony the prosecutor repeatedly asked them on cross-examination why they did not offer that version to police after their arrest but instead chose to remain silent. The U.S. Supreme Court reversed their convictions, holding that it was fundamentally unfair and a deprivation of due process to advise defendants of their right to remain silent and then punish them for choosing to exercise that right. Id. at 618, 96 S.Ct. 2240.

More recently, in Greer v. Miller, 483 U.S. 756, 764, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), the U.S. Supreme Court observed that "in each of the cases in which this Court has applied Doyle, the trial court has permitted specific inquiry or argument respecting the defendant's post-Miranda silence." The Court characterized the holding of Doyle as barring "`the use for impeachment purposes' of a defendant's postarrest silence." Id. at 763, 107 S.Ct. 3102 (quoting Doyle, 426 U.S. at 619, 96 S.Ct. 2240) (emphasis added by Greer). "`[I]t does not comport with due process to permit the prosecution during the trial to call attention to [the defendant's] silence....'" Doyle, 426 U.S. at 619, 96 S.Ct. 2240 (quoting United States v. Hale, 422 U.S. 171, 182-83, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (White, J., concurring in judgment)) (emphasis added by Greer, 483 U.S. at 763-64, 107 S.Ct. 3102).

In Greer, the prosecutor asked the defendant during cross-examination, "Why didn't you tell this story to anybody when you got arrested?" 483 U.S. at 759, 107 S.Ct. 3102 Defense counsel objected and moved for a mistrial. The trial court denied the motion, but instructed the jury to "ignore [the] question, for the time being." Id. The prosecutor did not pursue the issue further nor did he mention it during closing argument. Because the prosecutor "was not `allowed to undertake impeachment on,' or `permit[ted] ... to call attention to,'" the defendant's silence, the Court held that his silence was "not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred in this case." Id. at 764-65, 107 S.Ct. 3102 (quoting Doyle 426 U.S. at 619 & n. 10, 96 S.Ct. 2240).

The sequence of events here is similar to Greer. The detective offered a single response that, at most, obliquely suggested that Ortiz had exercised his constitutional right to remain silent. Indeed, the detective's testimony was consistent with Ortiz's having spoken on the subject but not having categorically denied guilt. Although the prosecutor then began to ask a question that would have pursued that testimony further, defense counsel promptly objected. The objection was sustained, the jury was admonished to disregard what had been said, and the prosecutor asked no further questions on the subject and made no mention of it during her closing argument. Under these circumstances, there was no Doyle violation and a mistrial was not required, even if the testimony is taken as suggesting silence on Ortiz's part. Greer, 483 U.S. at 764-65,107 S.Ct. 3102; see also Cook v. State, 544 N.E.2d 1359, 1363 (Ind.1989)

(finding no Doyle error or grounds for mistrial based on "an isolated statement" by a law enforcement officer).

III. Prior Bad Acts

Ortiz argues that the trial court erred in admitting evidence of prejudicial acts he allegedly committed before the murder of his mother. In particular, Ortiz objected at trial to evidence that his mother had planned to kick him out of her house because he had stolen money from her, that he had stolen checks from her and forged her signature, that he had run up her phone bill, and that he had used her automobile without her...

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