|Contact Toriano Pitre|
released on parole
|DOB: November 29, 1970|
|Toriano Pitre's case data|
|State and County||Texas, Dallas County|
|Date of Crime||November 23, 1993|
|Date of Arrest||April 12, 1995|
|Date of Conviction||July 18, 1995|
|Sentence||(40) years and a 10,000 US$ fine|
|Age at the Date of Crime||23|
|Contributing Factors||mistaken eyewitness identification, perjury, official misconduct, ineffectiveness of counsel|
|Did DNA evidence contribute to the conviction?||No|
|Is there DNA evidence to test?||No|
This criminal case is an example of potential mistaken eyewitness identification. It was the only evidence produced at trial.
Around 19:15 P.M. on November 23, 1993, two (black) men in ski masks, jumpsuit, and gloves entered the Helzberg Diamonds store in the Irving Mall, Irving, Texas, smashed a jewelry glass case with a sledgehammer, took the jewelry (several tennis bracelets) and ran out.
A bystander, Michael Selheim, chased the thieves to the getaway car in the darker mall parking lot. Selheim is the only eyewitness who picked Toriano Pitre’s photo from a photo line-up, but his statements made to police and later during trial are inconsistent. A girl, who saw both perpetrators without masks in the mall before the crime, as well as all other eyewitnesses could not identify Toriano Pitre.
Both defendants were tried separately. The second defendant, Charles Ray Thomas, whom Selheim had also identified, was acquitted. What jury is right?
Toriano Pitre was not at home with his wife and children in the State of Colorado when the robbery was committed. He was out on bond in Texas and in the area of Dallas County, where the robbery took place. An eyewitness identified Pitre as the passenger of the getaway car.
Toriano Pitre’s Alibi
“I became a suspect because an anonymous phone caller allegedly gave the Irving police my name as one of the persons who committed the crime. My photo was put in a photo line-up and eyewitness Michael Selheim selected it.
I had just bonded out of the Dallas County jail on November 17, 1993. I lived with my mother and her husband in Plano, Texas. Both testified at trial that my bondsman called me at their home every evening around 19:00 hrs. That is the time frame of the crime I was convicted of. I was required to be at my mother’s house to verify my whereabouts each day in order for the bond not to be forfeited. At the time of my trial (20 months after the robbery), the America Bonding Company did not exist anymore. My public defender (a taxation attorney, now deceased) did not seek out and subpoena the particular bondsman.
I do not know anything about my co-defendant and alleged driver of the getaway car, who was acquitted. I have never seen or met him.”
Toriano Pitre allegedly became a suspect because an anonymous phone caller told the Irving police that he could have been one of the persons who committed the robbery. Pitre says that at that time, he had never been charged or questioned about any type of robbery anywhwere before.
There is no physical evidence in this case. Gloves do not leave fingerprints. But there were not found any gun, sledgehammer or tennis bracelets anywhere near Toriano Pitre either.
Inconsistencies in the Line-up: Michael Selheim testified that the photo of Toriano Pitre was lighter than the other photos and the suspects in the array of photos did not have a resemblance of Pitre.
Michael Selheim testified on the stand that Pitre pulled a .44 Magnum handgun on him and threatened to shoot him. Pitre has since discovered the entire police report and in it the eyewitness stated that the suspect “reached for something black, possibly a 9 mm” and “He did not point a gun at me.”
Michael Selheim also identified some Charles Ray Thomas as the alleged driver of the getaway car, but Thomas was acquitted after Pitre’s conviction. The verdict of Thomas’ jury demonstrates that it did not agree with the State’s theory, and that it did not find Selheim to be a credible witness.
Selheim testified that he got a good look at both suspects as they were in the car because they took off their masks when they got in (despite being chased all the way to the car).
It is dark outside in November evenings. The car had no lighting inside, but the witness claims to have been able to identify both thieves and what kind of gun was used within about 20 seconds. However, he did not know the license plate number.
Officer Kenneth Richardson was the first policeman who arrived at the crime scene. He took a statement of a young girl (Melissa Aviles), who gave a description of the culprit (allegedly Pitre). She said that he had “a pock marked face.” Pitre says that he has never had any marks in his face. The girl told the police officer that she could positively identify the suspect if she saw him again. At trial, she said that although he had a pock marked face and she saw him, that she could not identify the thief. Melissa Aviles was not cross examined by the defense.
Toriano Pitre was convicted on the testimony of one witness who allegedly had picked out Pitre’s picture a week after the incident. Pitre says that at the time of the crime, he had never been charged with robbery. But Tom Rowan, the investiating officer in charge with the Irving Police Department, testified that he had called other agencies to see if they had dealt with Toriano Pitre or handled him before. He said that he had gotten Pitre’s picture from the Arlington Police Department. Toriano Pitre says, “I have never seen the inside of the Arlington Police Department or police car.”
Pitre’s indictment names Judy Kiehna, an employee of Helzberg Diamonds, as complainant. The indictment states that Pitre placed her in fear, that he used and exhibited a firearm. Michael Selheim was not named in Pitre’s indictment for anything. The prosecutor argued in her closing argument that Pitre placed Judy Kiehna in fear with the sledgehammer. But Kiehna testified that neither thief threatened, gestured, or said anything to her or anyone else in the store. Kiehna explicitly testified that she did not see a gun, nor was she threatened with one.
Therefore, the prosecutor amended the indictment, proving the assaultive conduct toward the bystander Michael Selheim, and the jury convicted Pitre of aggravated robbery of Judy Kiehna. This is known as a “fatal variance” between the evidence and the charging instrument, but Pitre’s trial counsel did not bring this out.
After Pitre’s trial, the prosecutor dismissed the charge against Pitre’s co-defendant Charles Ray Thomas, then re-indicted him, adding Michael Selheim as the victim of the assaultive conduct.
Pitre about Additional Convictions
After I was swiftly railroaded, I plead guilty to four theft charges out of Dallas County and Tarrant County. These I did not commit. In fact, I was in another state [in Denver, Colorado?], when those thefts took place on July 7, September 27, October 30, and November 3, 1993. However, after the experience in the trial, I plead guilty and received the maximum sentences of ten years for each count. [What was the motive to plead guilty then?]
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Dallas County leads the nation with cases overturned because of DNA evidence. Unfortunately, there is no physical evidence in my case. I am a victim of overzealous prosecutors, a corrupt photo line-up process, and an ineffective court appointed counsel, who did not seek out and find my bondsman to corroborate my alibi.
I requested to be in a physical line-up and a lie detector test prior to my trial, but my court appointed attorney said that it would not matter. While the physical line-up might actually have been helpful, those polygraph tests are only admissible in court when both parties stipulate.
I have discovered new evidence, but there is more to investigate. I need a private investigator and a lawyer to get back in court on the grounds of newly discovered evidence.
Police Reports (pdf, 8 pages)
dated November 23, December 10, 1993, and January 11, 1994.
Arrest Warrant (pdf, 1 page)
dated December 29, 1993
executed in Crowley County, Colorado, on April 12, 1995
Witness Michael Selheim’s Testimony (pdf, 22 pages)
The Assistant District Attorney Stephanie Hudgins argued in her closing argument:
“Mr. Selheim is a person who has been trained in Marines, he works for the National Guard, he knows weapons. He’s been trained in them.”
Why did he first state to police that the suspect reached for “something black,” that the suspect did not point a gun at him, then changed his statement claiming it might have been a “9 mm,” and then eventually pretends to be sure in trial (because of his “experience with weapons that [he has] had through the military”) that the defendant pointed a .44 magnum shotgun at him? Watch the pistol recoil comparison video on the left to see the difference between these different types of firearms!
Witness Melissa Aviles’ Testimony (pdf, 4 pages)
The defense did not cross examine this State witness
United States Court of Appeals, Fifth Circuit
Appeal from the United States District Court for the Northern District of Texas dismissed
October 25, 2001
Administration of Justice Bulletin (Number 2008/03 | July 08)
The Criminal Indictment: Fatal Defect, Fatal Variance, and Amendment
by Jessica Smith, School of Government – The University of North Carolina at Chapel Hill
Video: Pistol Recoil Comparison – .22 vs 9mm vs 10mm vs .44 mag