Jones v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Steve Carter

Public Defender of Indiana Attorney General of Indiana

David P. Freund Robin Hodapp-Gillman

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

In The

INDIANA SUPREME COURT

BRIAN E. JONES )

Defendant-Appellant, )

)

v. ) No. 42S00-0103-CR-00154

)

STATE OF INDIANA )

Plaintiff-Appellee. )

________________________________________________

APPEAL FROM THE KNOX SUPERIOR COURT

The Honorable W. Timothy Crowley, Judge

Cause No. 42D01-9907-CF-034

________________________________________________

On Direct Appeal

December 20, 2002

DICKSON, Justice.

The defendant, Brian Jones, was convicted of the September 1997 rape

and murder of Brook Baker, a nineteen-year-old student at Vincennes

University. The trial court, following the jury's recommendation,

sentenced the defendant to life imprisonment without parole. In this

appeal, the defendant seeks relief on claims of insufficient evidence,

erroneous exclusion of the victim's statement of fear of her landlord,

erroneous admission of a detective's testimony regarding a movie scene, and

errors in sentencing. We affirm the trial court.

Sufficiency of Evidence

The defendant contends that the evidence is insufficient to sustain

his convictions. In reviewing a claim of insufficient evidence, we will

affirm the conviction unless, considering only the evidence and reasonable

inferences favorable to the judgment, and neither reweighing the evidence

nor judging the credibility of the witnesses, we conclude that no

reasonable fact-finder could find the elements of the crime proved beyond a

reasonable doubt. Winn v. State, 748 N.E.2d 352, 357 (Ind. 2001).

The evidence and reasonable inferences favorable to the judgment are

as follows. The victim, Brook Baker, was continuously with other persons

from approximately 3:30 P.M. on Saturday, September 6, 1997, until shortly

after 1:30 A.M. Sunday morning, September 7. Her lifeless nude body with

multiple stab wounds was found on the mattress in the bedroom of her rented

home by her younger brother at 8:15 P.M. Sunday evening. A pathologist

found that she was likely strangled, but ultimately died from loss of blood

after suffering a stab wound to her left breast and eleven stab wounds to

her back. Bruising on her wrists, hand, legs, pelvis, and the back sides

of her elbows were consistent with a person being physically restrained

against her resistance. Police found a knife in soapy water in her kitchen

sink, and an analysis of the human tissue attached to the knife revealed

that she was a possible contributor to the DNA in the tissue. The

defendant had visited Brook Baker's house with friends about three months

before her death. He had also had contact with her on at least one other

subsequent occasion. On the night of the murder, the defendant was at a

party with fraternity brothers at a house two blocks away from the victim's

house until about 2:00 A.M., and his friends could not specifically recall

whether the defendant returned to their house with them or not. The

defendant was seen the day after the murder with a scratch on his face.

When initially interviewed by police, the defendant denied ever having sex

with Brook Baker, but DNA from semen recovered from vaginal swabs, from the

sheet on her mattress, and from under her fingernails was consistent with

the defendant's DNA. The defendant had recently rented the movie

"Curdled," that depicted a homicide in which a man stabbed a victim

numerous times in the back and then cleaned the knife in the victim's

kitchen sink.

Acknowledging that the evidence proves that he had intercourse with

Brook Baker, the defendant contends that it fails to establish that the

intercourse occurred at the time of the murder, that it was compelled by

force, or that he was the murderer. He argues that the evidence

establishes only suspicion and possibilities, not proof beyond a reasonable

doubt. The State responds that the convictions for murder and rape are

supported by the circumstantial evidence and resulting reasonable

inferences, emphasizing the defendant's DNA on Brook's fingernails and in

her vagina, the scratch on the defendant's face the next day, and the

similarity of the facts to a scene in a movie the defendant had rented

shortly before the murder.

Circumstantial evidence alone may be sufficient to support a

conviction. Hubbard v. State, 749 N.E.2d 1156, 1158 (Ind. 2001). Beyond

the evidence the State highlights, we further note evidence that the

victim's lifeless body was found nude with multiple stab wounds on her back

and chest, that the defendant was acquainted with the victim, that he had

visited her home, that he was near her home at the probable time of her

death, and that the defendant initially lied to investigating police. We

conclude that, from the evidence presented at trial, a reasonable jury

could find beyond a reasonable doubt that the defendant committed the

charged rape and murder.

Exclusion of Victim Statement

The defendant contends that the trial court erroneously excluded a

statement made by the victim shortly before she was killed. The night

before the victim's body was found in her apartment, a friend had walked

her home. As they were walking, the victim's landlord drove by. Upon

seeing her landlord, the victim remarked to her friend that he was her

landlord and that she was afraid of him. The trial court granted the

State's motion in limine regarding this evidence. Shortly before the

friend testified, the defendant again raised the issue, and the trial court

affirmed its earlier ruling. At trial and on appeal, the defendant asserts

that this evidence is admissible because it meets the present sense

impression exception to the hearsay rule, Indiana Evidence Rule 803(1).

The trial court has inherent discretionary power on the admission of

evidence, and its decisions are reviewed only for an abuse of that

discretion. Rubalcada v. State, 731 N.E.2d 1015, 1023 (Ind. 2000); Brewer

v. State, 562 N.E.2d 22, 25 (Ind. 1990). Rule 803(1) describes a present

sense impression as, "A statement describing or explaining a material

event, condition, or transaction, made while the declarant was perceiving

the event, condition or transaction, or immediately thereafter." (Emphasis

added). This rule requires the statement to describe or explain the event

or condition during or immediately after its occurrence, and it must be

based on the declarant's perception.

There are two hearsay assertions at issue. The victim's first

assertion, which identified the person driving by as her landlord,

satisfies the exception. The victim, based on her perception, was

contemporaneously describing the person driving by. It was error to

exclude this statement. However, errors in the admission of evidence are

harmless unless the error affects the substantial rights of the parties.

Ind. Trial Rule 61. The victim's landlord himself testified that he was

her landlord. This evidence was merely cumulative. The exclusion of this

assertion was harmless error.

The victim's second assertion, in which she expressed her fear of her

landlord, does not satisfy the exception. This assertion does not

describe an event contemporaneously perceived. The fact that the victim

feared her landlord does not describe or explain an event, condition, or

transaction that the declarant was perceiving as she spoke. The trial

court did not err in excluding the second statement.[1]

Admission of Detective's Movie Scene Description

The defendant contends that the trial court erred in allowing a

detective to testify about a scene in the movie "Curdled," a video that the

defendant rented one week before the murder. He argues that the trial

court violated Indiana Evidence Rule 1002 in allowing the detective to

testify regarding the movie scene rather than showing it to the jury.

The challenged testimony occurred when the trial court permitted the

State to present rebuttal evidence which included the testimony of both

Detective Greg Winkler and the owner of a local video rental business.

Prior to its ruling, the court heard argument of counsel. The State there

contended that during voir dire, opening statement, cross examination, and

its case in chief, the defense had raised the issue of identity. The State

argued to the trial court that "the defense is saying my guy is too young,

too unsophisticated to be able to do this and so ergo somebody else must

have done it." Record at 2019. Further asserting that the question of

identity is "the centerpiece" of their defense, the State sought to

introduce evidence that one week before the murder, the defendant rented a

video of the movie "Curdled" that depicts a woman being repeatedly stabbed

in the back in her kitchen with a knife which the killer then cleans in the

kitchen sink "just eerily similar to the case that we have here today."

Record at 2023, 2025. The defense objected, asserting Indiana Evidence

Rules 403 and 404(b). Finding that the proposed video rental evidence was

relevant and not unfairly prejudicial, the trial court granted the State's

request in part, indicating that it would "at least admit some evidence

relating to this video tape." Record at 2034.

Now to be honest with you, Mr. [deputy prosecutor], I'm not interested

in going blow by blow . . . through the plot scene by scene. I'm not

sure it's particularly relevant who the stars were, whether they were

good looking, but I think evidence of the rental can be introduced and

some indication as to a particular scene in the movie and what it

depicted is relevant so if you could figure out a way to do this

without making this a three or four hour ordeal I would certainly

appreciate it.

Id. The court thereafter added: "As to the showing of the movie I would

find that to be unfairly prejudicial. I would not be agreeable to that. I

think that could be very prejudicial to the defendant. I have no

inclination to allow you to do that." Id.

The State then presented the testimony of the owner of a video

rental business who stated that, according to her business records, a video

entitled "Curdled" was rented on August 29, 1997, under the account name of

Brian Jones, and returned September 29, 1997. Detective Winkler next

testified, stating that during his investigation of the crime he had seen a

large poster for the movie "Curdled" in the living room of the victim's

home. Upon learning that the defendant had rented the movie shortly before

the murder, the detective then rented the movie and watched it. His

testimony regarding the homicide scene consisted of the following: "The

homicide involved a female as the victim. She was stabbed numerous times

in the back in the kitchen and the suspect in this mystery then went to the

sink in the kitchen and cleaned the knife off and washed his hands."

Record at 2061-62. In response to further questioning, the detective

stated that the perpetrator obtained the knife from the kitchen. When

asked on cross examination whether the victim had sex with the perpetrator,

the detective answered, "Not that I remember." Record at 2062.

In the present case, Brook Baker was stabbed multiple times in the

back, and her kitchen sink was found to contain a knife with human tissue

on the tip soaking in soapy water.

The defendant argues that allowing the detective to describe the scene

in the movie rather than showing the movie violated Indiana Evidence Rule

1002. Known as the "best evidence rule," Rule 1002 states: "To prove the

content of a writing, recording, or photograph, the original writing,

recording, or photograph is required, except as otherwise provided in these

rules or by statute." [2] Id. The defendant did not, however, challenge

the accuracy of the detective's description of the movie scene at trial nor

does he challenge it on appeal. To be entitled to reversal for the

improper use of secondary evidence, "[a]n effective objection must identify

an actual dispute over the accuracy of the secondary evidence." Lopez v.

State, 527 N.E.2d 1119, 1125 (Ind. 1988). Because there is no dispute as

to the accuracy of the description, any error in admitting the description

in lieu of the actual movie was harmless.

Sentencing

The defendant contends that the trial court's sentencing is deficient

in several particulars: (1) the sentencing statement fails to state that

one or both of the aggravating circumstances were proved beyond a

reasonable doubt, (2) the trial court considered impermissible aggravating

circumstances, and (3) the court used an improper aggravating circumstance

to impose an enhanced sentence for the defendant's rape conviction.

The State acknowledges that in considering whether to follow the

jury's recommendation, the trial court here erroneously considered the

general aggravating factors set forth in Indiana Code § 35-38-1-7.1(b)

rather than just those permitted in Indiana Code § 35-50-2-9(b). We agree

that the judgment of the trial court is defective as to the sentence of

life without parole.

Upon finding a substantial irregularity in a trial court's decision to

impose the death penalty or life without parole, we have various options.

Among these are: 1) remand to the trial court for a clarification or new

sentencing determination, 2) affirm the sentence based upon a finding of

harmless error, or 3) independently reweigh the proper aggravating and

mitigating circumstances at the appellate level. Long v. State, 743 N.E.2d

253, 261 (Ind. 2001); Lambert v. State, 675 N.E.2d 1060, 1065 (Ind. 1996);

Bivins v. State, 642 N.E.2d 928, 957 (Ind. 1994). This Court has the

constitutional authority to review and revise criminal sentences. Ind.

Const. art. VII, § 4. We choose here to employ the third option and

independently reweigh the proper aggravating circumstances. We recognize,

however, that our authority to independently reweigh and resentence is

limited by the requirement that where the penalty for a murder conviction

is increased beyond the statutory maximum term of years to a sentence of

death or life without parole, the facts qualifying a defendant for the

enhanced penalty must be submitted to a jury and proved beyond a reasonable

doubt. Ring v. Arizona, --- U.S. ---, 122 S.Ct. 2428, 2443, 153 L.Ed2d.

556 (2002). In the present case, the State sought a sentence of life

without parole. The jury was instructed that the State alleged the

existence of at least one of two statutory aggravating circumstances: that

the defendant intentionally killed Brook Baker while committing the crime

of rape,[3] and that the defendant has been convicted of another murder.[4]

Appellant's App. p.761. The penalty phase jury found that the State had

proved beyond a reasonable doubt the existence of at least one aggravating

circumstance, and it recommended imposition of a sentence of life without

parole. The jury determinations required by Ring were thus made in this

case.

We find that the charged aggravating circumstances have been proved

beyond a reasonable doubt. The defendant's semen was found in the victim's

vagina and on her bed sheet, the victim's injuries demonstrate she was

restrained, and the defendant's DNA was found in clippings from the

victim's fingernails. She was still naked in bed when her lifeless body

was discovered. The evidence establishes beyond a reasonable doubt that

the murder was committed while committing the crime of rape. As to the

second aggravating circumstance, on August 8, 2000 the defendant pleaded

guilty to murdering Erika Norman. The fact that the defendant had

previously been convicted of another murder is likewise established beyond

a reasonable doubt.

During the penalty phase, the defense presented mitigating evidence

seeking to establish that the defendant was twenty-four years old, had

never displayed any violent tendencies, had graduated from high school, and

had attended college for two years. The defense did not dispute the

defendant's prior murder conviction but urged that, other than this, the

defendant had "virtually no criminal history." Record at 2180. At the

trial sentencing proceedings, the defense urged that mitigating

consideration be given to the facts that he was only twenty-four years old,

had completed two years of college, and had a good employment history. The

trial court found no mitigating factors.

We find that the defendant's age, education, and employment history

are collectively entitled only to slight weight. In contrast to the very

significant weight we accord the two aggravating circumstances found in

this case, we conclude the aggravating circumstances clearly outweigh the

mitigating circumstances. We are also cognizant of the jury's unanimous

recommendation favoring a sentence of life without parole. We find that a

sentence of life without parole is the appropriate penalty for this

defendant for his murder of Brook Baker.

As to the defendant's sentence for class B felony rape, he correctly

notes that the trial court erroneously considered the "depreciate the

seriousness of the crime" aggravator. Ind. Code § 35-38-1-7.1(b)(4) (Supp.

1997). This circumstance is only to be considered when the court

contemplates imposing a sentence that is less than the presumptive

sentence, which was not the case here. The court also found the

defendant's criminal history (specifically the other murder conviction) and

the brutal nature of the crime to be aggravating circumstances. The trial

court found no mitigating circumstances. For the rape conviction, the

trial court imposed an aggravated sentence of twenty years concurrent to

the life sentence and consecutive to the sentence imposed in the

defendant's other murder case. When a trial court improperly applies one

aggravator, but other valid aggravators exist, the court's sentence

enhancement may still be upheld. Price v. State, 725 N.E.2d 82, 85 (Ind.

2000). In light of the nature and severity of the remaining aggravating

circumstances, we decline to reverse the trial court's enhanced sentence

for rape.

Conclusion

The judgment of the trial court is affirmed.

SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.

-----------------------

[1] While this statement may arguably have qualified under the then-

existing mental, emotional, or physical condition exception of Indiana

Evidence Rule 803(3), its admissibility also required that it be material,

which the trial court found it was not. We decline to find any abuse of

discretion in this ruling. And even if the court erred in excluding it,

the marginal relevance of the evidence coupled with the relatively strong

evidence of the defendant's guilt would have rendered any such error

harmless.

[2] Although this Rule was not specifically cited by the defense at

trial, it was sufficiently raised by the defense's trial objection that "If

they want to get evidence of the movie in then they should play the entire

movie." Record at 2041.

[3] Ind. Code § 35-50-2-9(b)(1)(F) (Supp. 1997).

[4] Ind. Code § 35-50-2-9(b)(7) (Supp. 1997).