Noojin v. State

ATTORNEY FOR APPELLANT

Mark A. Bates

Appellate Public Defender

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Arthur Thaddeus Perry

Deputy Attorney General

Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

BRANTON ALLEN NOOJIN, )

)

Appellant (Defendant Below), )

)

v. ) Indiana Supreme Court

) Cause No. 45S00-9812-CR-827

STATE OF INDIANA, )

)

Appellee (Plaintiff Below). )

__________________________________________________________________

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable James E. Letsinger, Judge

Cause No. 45G02-9712-CF-282

__________________________________________________________________

ON DIRECT APPEAL

__________________________________________________________________

June 27, 2000

BOEHM, Justice.

Branton Noojin was convicted of murder and voluntary manslaughter.

He was sentenced to consecutive sixty and forty-year terms. In this direct

appeal he contends that (1) the trial court should have dismissed the

charges against him because a detective did not preserve a rough draft of a

statement from a witness; (2) the trial court abused its discretion in

admitting hearsay testimony under the excited utterance exception; (3) the

trial court erred in refusing his tendered instruction regarding the weight

to be given to the testimony of a witness who had been granted immunity;

and (4) the trial court erred in imposing consecutive sentences. We affirm

the judgment of the trial court.

Factual and Procedural Background

In the early afternoon hours of December 19, 1997, Hammond police

were dispatched to the home of Raymond and Maria Flowers. They found

Raymond’s body in the doorway and that of his wife Maria a few feet away.

Autopsies revealed that Raymond died as a result of a gunshot wound to the

chest, and Maria died from a gunshot wound to the head.

Noojin appeared at David Flores’ apartment at an unspecified time on

December 19. According to Flores, Noojin was “nervous, jumping” and told

Flores that he had “just popped” an African-American. He explained, “the

guy hit him, and . . . there was a gun on the coffee table and he picked it

up and shot him.” According to Flores, Noojin also said that a “girl

walked in the room, and he turned around and shot her.” Noojin gave Flores

a gun, which Flores hid in the attic. At about 7:00 p.m. that evening,

police arrived at Flores’ apartment and asked if Noojin was there. Noojin

went outside to speak with police. When a detective sought Flores’ consent

to search the apartment, Flores retrieved the gun from the attic and gave

it to the detective. A firearms examiner determined that two bullets

recovered at the autopsies and two spent casings recovered from the

Flowers’ apartment had been fired from the handgun police found at Flores’

apartment.

Lavertis Lynk had been inside the Flowers’ apartment on the morning

of December 19 where he saw Noojin along with Raymond and Maria. He also

observed a gray and black handgun lying on a table in the apartment.

Noojin was charged with two counts of murder. The jury found him

guilty of the murder of Maria and of voluntary manslaughter of Raymond. He

was sentenced to sixty years for murder to be served consecutively with

forty years for voluntary manslaughter.

I. Failure to Preserve Witness Statement

Noojin contends that the trial court erred in denying his pretrial

motion to dismiss that was based on a claim of destruction of evidence.

Flores testified at trial that he had given three or four oral statements

to police but denied any knowledge of the killings until the final

statement. According to Flores, a detective was typing on a computer

during each statement and the detective deleted several paragraphs of the

earlier statements. After Flores recounted that Noojin had told him that

he had killed two people, the detective presented him with a hard copy of a

statement.

The detective testified that Flores gave an oral statement and only

one version was reduced to writing. The detective printed that version and

gave Flores an opportunity to review it. Flores made a correction to one

word; the detective made the change on the computer and printed a revised

copy, which Flores then read and signed. The detective then tore up the

previous statement. The trial court denied the motion to dismiss at a

pretrial conference that is not included in the record. The motion was

renewed at trial and again denied. The basis of the trial court’s ruling

is not entirely clear, but it appears that the trial court believed the

detective’s version and not Flores’ because the ruling recited that

changing one word from the earlier statement was not exculpatory and there

was no destruction of material evidence.

The United States Supreme Court has explained the scope of the

prosecutor’s duty to preserve exculpatory evidence as being

limited to evidence that might be expected to play a significant role

in the suspect’s defense. To meet this standard of constitutional

materiality, evidence must both possess an exculpatory value that was

apparent before the evidence was destroyed, and be of such a nature

that the defendant would be unable to obtain comparable evidence by

other reasonably available means.

California v. Trombetta, 467 U.S. 479, 488-89 (1984) (footnote and citation

omitted); Holder v. State, 571 N.E.2d 1250, 1255 (Ind. 1991).[1] The Court

has also held that the failure to preserve “potentially useful evidence”—as

opposed to material exculpatory evidence—violates the Fourteenth Amendment

only when the defendant can show bad faith on the part of police. See

Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Here, oral accounts were

not reduced to writing and a typewritten account was discarded after one

word was changed at the request of Flores. This unpreserved evidence does

not meet the requirement of possessing “an exculpatory value that was

apparent before the evidence was destroyed.” It is not exculpatory at all.

It is at most potential evidence impeaching Flores’ account of Noojin’s

confession. Comparable evidence—Flores’ trial testimony recounting his

various statements to police—was fully available and explored in some depth

through cross-examination at trial. The trial court properly denied the

motion to dismiss.

II. Excited Utterance

Noojin next contends that the trial court abused its discretion in

admitting the testimony of two witnesses under the excited utterance

exception to the hearsay rule. Diana Wright testified that she spoke to

Rayanna Michalak on the afternoon of the killings. Wright testified at

trial that Michalak told her that she had been to the Flowers’ apartment

where Raymond, Maria, and Noojin were present. She went across the street

to retrieve a message for Raymond, and when she returned twenty to twenty-

five minutes later no one answered the door and she saw Raymond lying on

the floor through a window. Officer Daniel Small testified that he also

spoke to Michalak on the afternoon of the killings. According to Small,

Michalak told him that she “had seen Branton Noojin in the apartment with

the two decedents, Raymond and Maria and she said that he killed them.”

These two pieces of testimony presented hearsay that established (1)

Noojin was at the Flowers’ apartment shortly before their deaths and (2)

Michalak’s statement that Noojin was the killer. Hearsay is admissible

under the excited utterance exception when the statement relates “to a

startling event or condition made while the declarant was under the stress

of excitement caused by the event or condition.” Ind. Evidence Rule

803(2). The amount of time that has passed between the event and the

statement is relevant but not dispositive. Yamobi v. State, 672 N.E.2d

1344, 1346 (Ind. 1996). The issue is “whether the declarant was still

under the stress of excitement caused by the startling event when the

statement was made.” Id. We review the trial court’s ruling for an abuse

of discretion. Id.

Wright testified that she spoke to Michalak within twenty-five minutes

of Michalak’s discovery of the dead bodies. According to Wright, Michalak

was nervous, crying, and visibly shaken during the conversation. Under

these circumstances, the trial court did not abuse its discretion in

finding that Michalak was under the stress of excitement. Noojin

nevertheless argues that it was error to allow Wright to recount that

Michalak had told her that she had been in the apartment twenty minutes

before discovering the bodies and observed Noojin with Raymond and Maria.

He suggests that seeing the three alive together was not a startling event.

But, as the trial court explained,

the startling events are the two dead bodies. Placed her mind into a

situation where she is sufficiently startled that she’s not

preconceiving something and having the plan to lie about her next

statement. Twenty minutes before I saw them alive and they were with

“X.”

The trial court did not abuse its discretion in admitting Wright’s

testimony under the excited utterance exception to the hearsay rule.

In regard to Small’s testimony, Noojin contends that Michalak (1) had

time to reflect on her statements before speaking to Small and (2) could

not testify that Noojin was the killer because she was not in the apartment

at the time of the killings and could not have known the identity of the

killer. Small testified that he spoke to Michalak approximately thirty-

five minutes after police were dispatched to the scene. He testified that

she was in tears, trembling, panicked, and very emotional. At some point

the passage of time becomes sufficient to overcome a claim of excited

utterance due to an initial shock. The passage of time is particularly

significant where there is no continuing effect comparable to the ongoing

loss of blood and other physical effects from being shot as was the case in

Yamobi. See id. at 1347. Even if the trial court was within its

discretion in finding that Michalak was still under the stress of

excitement, it is assumed, although not specifically stated in the rule,

that an excited utterance must be based on the declarant’s personal

knowledge. Indeed, in the typical excited utterance case the declarant

reports an event that he or she observed. If a statement is instead based

on conjecture, it is not admissible as an excited utterance to prove the

truth of the matter reported. Here, Michalak’s statement that Noojin had

killed Raymond and Maria was not based on her personal knowledge.

Accordingly, it was error to admit the statement as an excited utterance.

However, it was clear from Small’s testimony that Michalak’s statement to

Small that Noojin was the killer was her assumption, not anything she had

observed. The error is harmless in view of its lack of persuasive force.

III. Refusal of Tendered Instruction

Noojin argues that the trial court erred in refusing his tendered

instruction on the weight to be given to the testimony of a witness who had

received immunity. The tendered instruction reads as follows:

You have heard testimony from a witness who received immunity;

that is, a promise from the State that any testimony or other

information he provided would not be used against him in a criminal

case.

You may give his testimony such weight as you feel it deserves,

keeping in mind that it must be considered with caution and great

care.

In reviewing a trial court’s decision to give or refuse tendered

instructions, this Court considers: (1) whether the instruction correctly

states the law; (2) whether there was evidence in the record to support the

giving of the instruction; and (3) whether the substance of the tendered

instruction was covered by other instructions that were given. Wright v.

State, 690 N.E.2d 1098, 1109 (Ind. 1997). Without explanation, Noojin

contends that the instruction satisfies these three requirements. We

disagree.

The tendered instruction was adequately covered by other instructions

on witness credibility. Instruction 9 advised the jury:

You are the exclusive judges of the evidence, the credibility of the

witnesses and of the weight to be given to the testimony of each of

them. In considering the testimony of any witness, you may take into

account his or her ability and opportunity to observe, the memory,

manner and conduct of the witness while testifying; any interest, bias

or prejudice the witness may have; the relationship with other

witnesses or interested parties; and the reasonableness of the

testimony of the witness considering all of the evidence in the case.

In addition, the tendered instruction is not a correct statement of the law

in Indiana. We have repeatedly rejected claims of error for refusal to

instruct jurors that they are required to consider the testimony of certain

witnesses with great care or caution. See, e.g., Sherwood v. State, 702

N.E.2d 694, 698 & n.2 (Ind. 1998) (tendered instruction stated that the

testimony of an accomplice, “who provides evidence against a Defendant for

immunity or for personal advantage or vindication, must always be examined

and weighed by the jury with greater care and caution than the testimony of

ordinary witnesses”); Brown v. State, 671 N.E.2d 401, 409-10 (Ind. 1996)

(tendered instruction stated that the testimony of an alleged accomplice

and a person who provides evidence for pay, immunity, or personal advantage

or vindication “must always be examined and weighed by the jury with

greater care and caution than the testimony of ordinary witnesses”). In

Brown, a case in which an accomplice had entered into a plea agreement and

agreed to testify against the defendant, we reiterated the longstanding

rule that it is necessary that a plea agreement be disclosed to the jury,

not that a cautionary instruction be given. Brown, 671 N.E.2d at 409

(citing Morgan v. State, 275 Ind. 666, 673, 419 N.E.2d 964, 968 (1981)).

Here, the jury was informed of the grant of immunity and could consider it

in judging the credibility of Flores under the instructions that were

given. The trial court did not err in refusing Noojin’s tendered

instruction.

IV. Sentencing

The trial court sentenced Noojin to sixty years for murder to be

served consecutively with forty years for voluntary manslaughter. Noojin

contends that the trial court erred in sentencing him to consecutive terms

but does not challenge the enhancement of each count. Noojin appears to

attack both the sentencing order as relying on improper aggravators and the

aggregate sentence as manifestly unreasonable without distinguishing the

two. These are two separate inquiries reviewed under different standards.

See Hackett v. State, 716 N.E.2d 1273, 1276 n.1 (Ind. 1999).

A. Sentencing Order

The trial court found as aggravating circumstances that Noojin had an

extensive criminal history spanning three pages of the Presentence Report,

that he had recently violated conditions of probation, and that he was in

need of correctional and rehabilitative treatment that can best be provided

by his commitment to a penal facility because his “prior lenient treatment

has had no deterrent effect.” The trial court also stated that the

sentences were to be served consecutively because “the killing of Maria

Flowers as specified in Count I was for no other reason than eliminating

the eye witness by a man with wide experience in the criminal law.” Noojin

takes issue with the aggravating circumstances of his prior criminal

history and that he killed Maria to eliminate an eyewitness. We review a

trial court’s finding of aggravating circumstances for an abuse of

discretion. See Widener v. State, 659 N.E.2d 529, 533 (Ind. 1995). It is

well settled that a single aggravating circumstance may be sufficient to

support imposition of an enhanced sentence. See Thacker v. State, 709

N.E.2d 3, 10 (Ind. 1999). The same circumstance may be used to both

enhance a sentence and impose consecutive sentences. Taylor v. State, 710

N.E.2d 921, 925 (Ind. 1999).

Noojin contends that “the trial court did not list his prior criminal

history in the sentencing order and there is nothing in the record to

support this finding.” The Presentence Report was not included in the

record of proceedings, but the trial court observed in its sentencing order

that the defendant had a juvenile and adult history as explained on pages

three, four, and the top half of page five of the report.

In Downer v. State, 501 N.E.2d 1052 (Ind. 1986), the trial court

imposed an enhanced sentence after finding as an aggravating circumstance

that the defendant had an extensive criminal history. It did not elaborate

or cite its source for this proposition. Under those circumstances we

remanded to the trial court for a more specific set of findings. See id.

at 1053. Unlike Downer, in this case the trial court referred to several

pages of a presentence report and the comments of counsel also support the

trial court’s finding.[2] Absent a showing to the contrary, we will assume

the trial court’s finding is correct.

Nor did the trial court abuse its discretion in finding as an

aggravating circumstance that Noojin killed Maria to eliminate an

eyewitness. Flores testified that Noojin told him that he picked up a gun

from the coffee table and shot Raymond, and that Maria then walked into the

room and he “turned around and shot her.” The trial court’s finding is a

reasonable inference drawn from the evidence at trial, and it is well

settled that the nature and circumstances of a crime may be considered as

an aggravating circumstance. See Thacker, 709 N.E.2d at 10.

B. Manifestly Unreasonable

Although this Court has the constitutional authority to review and

revise sentences, Ind. Const. art. VII, § 4, it will not do so unless the

sentence imposed is “manifestly unreasonable in light of the nature of the

offense and the character of the offender.” Ind. Appellate Rule 17(B).

The Court has explained this standard as “not whether in our judgment the

sentence is unreasonable, but whether it is clearly, plainly, and obviously

so.” Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997).[3]

Both the nature of the offense and character of the offender support

the enhanced, consecutive sentences in this case. As a general rule,

multiple killings warrant the imposition of consecutive sentences. See

Walton v. State, 650 N.E.2d 1134, 1137 (Ind. 1995) (observing that “the

circumstances of this crime required a clear and distinct punishment for

each killing”). In addition, Noojin’s extensive criminal history also

calls for the imposition of a sentence above the presumptive. See Gant v.

State, 694 N.E.2d 1125, 1129 (Ind. 1998) (rejecting a challenge to an

aggregate sentence of 110 years for murder and attempted murder in light of

the defendant’s criminal history). The aggregate sentence of 100 years is

not manifestly unreasonable.

Conclusion

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-B, as to which he concurs

in result.

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[1] In both the trial court and on appeal, Noojin also mentioned Brady v.

Maryland, 373 U.S. 83 (1963). Brady applies to the suppression of evidence

favorable to an accused that is material to guilt or punishment. Evidence

is material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would

have been different. See Williams v. State, 714 N.E.2d 644, 649 (Ind.

1999) (quotations and citation omitted). Brady has no application here,

where the alleged exculpatory evidence no longer exists but its content was

nonetheless revealed through testimony at trial. See id. (Brady does not

apply when evidence is disclosed at or before trial). Accordingly, we

examine the issue under Trombetta.

[2] At the sentencing hearing the prosecutor noted that the Presentence

Report showed "[n]umerous convictions in Hammond, Calumet City, and Texas."

Defense counsel also mentioned Noojin's "long history of criminal

activity" but pointed out that the history consisted of "alcohol,

marijuana, the dumb things."

[3] Both Noojin and the State contend that "a sentence is not manifestly

unreasonable unless no reasonable person could find the sentence

appropriate to the offense and the offender." As we have previously

observed, this standard, which once appeared as Appellate Rule 17(B)(2),

was deleted effective March 1, 1997, and is no longer the proper standard

for the appellate review of sentences under Rule 17(B). See Franklin v.

State, 715 N.E.2d 1237, 1241 n.3 (Ind. 1999).