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
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
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 Raymonds 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 courts
ruling is not entirely clear, but it appears that the trial court believed
the detectives 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 prosecutors duty
to preserve exculpatory evidence as being
limited to evidence that might be expected to play a significant role in
the suspects 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).
The Court has also
held that the failure to preserve potentially useful evidenceas opposed to material exculpatory
evidenceviolates 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 Noojins confession. Comparable evidenceFlores trial testimony recounting his various statements to
policewas 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) Michalaks 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.
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
courts ruling for an abuse of discretion. Id.
Wright testified that she spoke to Michalak within twenty-five minutes of Michalaks 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 shes 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 Wrights testimony under
the excited utterance exception to the hearsay rule.
III. Refusal of Tendered Instruction
In regard to Smalls 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
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 declarants 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,
Michalaks 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 Smalls testimony that Michalaks
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.
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 courts 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.
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
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 Noojins tendered instruction.
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).
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 courts 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.
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 courts
Absent a showing to the contrary, we will assume the trial
courts 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 courts 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
See Thacker, 709 N.E.2d at 10.
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).
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, Noojins 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 defendants criminal history). The aggregate sentence of 100 years
is not manifestly unreasonable.
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 both the trial court and on appeal, Noojin also mentioned
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.
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."
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
See Franklin v. State, 715 N.E.2d 1237, 1241 n.3 (Ind. 1999).