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).