Noojin v. State
| Decision Date | 27 June 2000 |
| Docket Number | No. 45S00-9812-CR-827.,45S00-9812-CR-827. |
| Citation | 730 N.E.2d 672 |
| Parties | Branton Allen NOOJIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Mark A. Bates, Appellate Public Defender, Crown Point, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys or Appellee. 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.
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.
California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 81 L.Ed.2d 413 (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, 109 S.Ct. 333, 102 L.Ed.2d 281 (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.
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.
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...
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