Brown v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Kimberly A. Jackson Gregory F. Zoeller

Indianapolis, Indiana Attorney General of Indiana

Ian McLean

Deputy Attorney General

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

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In the FILED

Indiana Supreme Court Jun 29 2010, 1:37 pm

_________________________________

CLERK

of the supreme court,

court of appeals and

tax court

No. 11S04-0911-CR-537

KENNETH BROWN, Appellant (Defendant Below),

v.

STATE OF INDIANA, Appellee (Plaintiff Below).

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Appeal from the Clay Circuit Court, No. 11C01-0507-FB-00200

The Honorable Joseph D. Trout, Judge

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On Petition to Transfer from the Indiana Court of Appeals, No. 11A04-0904-CR-213

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June 29, 2010

Boehm, Justice.

We hold that a claimed error in admitting unlawfully seized evidence at trial is not

preserved for appeal unless an objection was lodged at the time the evidence was offered. We

also hold that such a claim, without more, does not assert fundamental error.

Facts and Procedural History

Linton police received an anonymous report that one Mark Green, the subject of a federal

firearms warrant, had acquired methamphetamine from defendant Kenneth Brown. After Green

was arrested, three Linton officers and a Clay County sheriff agreed to conduct a “knock and

talk” investigation of Brown. The four officers arrived at Brown’s home between 2:00 and 3:00

a.m. on the morning of July 8, 2005. When Brown answered the door, the officers asked

permission to search the home. Brown granted access to one of the four, who found drugs and

paraphernalia in the home. Brown was convicted of possession with intent to deliver

methamphetamine, a Class B felony; possession of a controlled substance, a Class C felony;

possession of paraphernalia, a Class A misdemeanor; and possession of marijuana, a Class A

misdemeanor. This appeal challenges the admission of the items from his home into evidence at

his jury trial.1 As explained below, we conclude that this issue was not preserved for appeal.

Brown filed a pretrial motion to suppress the evidence collected at his home, claiming

that the officers’ search violated the Fourth Amendment to the United States Constitution and

Article I, Section 11 of the Indiana Constitution. That motion was denied, and the case was tried

to a jury. Brown did not seek a continuing objection to the admission of the seized items, and

when each of the items of evidence was presented to the jury, his attorney stated, “No objection.”

After these exhibits were admitted, and the jury was released for lunch, Brown’s attorney

referred to his pretrial motion to suppress and stated:

[I]t’s my understanding the court was going to overrule objections that we would

make concerning the admissibility of evidence. . . . Just to make sure that the

record is clear and to preserve the record for Mr. Brown’s benefit, we would

restate those objections that we previously wrote in our motion to suppress that

we previously litigated for the court.

The judge responded, “I make no representation myself about how you’ve done this. But it will

be noted in the record.”

1

We note at the outset that Brown’s Notice of Appeal challenged the trial court’s denial of his motion to suppress

the evidence obtained from his home. Because Brown appeals from a completed trial, however, the issue is “more

appropriately framed” as whether the evidence was admissible at trial. Washington v. State, 784 N.E.2d 584, 587

(Ind. Ct. App. 2003).

2

The Court of Appeals held that Brown had not preserved his challenge to the admission

of the evidence, but concluded that the issue was reviewable as fundamental error. Ultimately

the Court of Appeals majority found the search of Brown’s residence did not violate the Fourth

Amendment or the Indiana Constitution. Brown v. State, 913 N.E.2d 1253 (Ind. Ct. App. 2009).

Judge Mathias dissented, finding a state constitutional violation. Id. at 1265 (Mathias, J.,

dissenting). We granted transfer.

Availability of the Issue on Appeal

The State argues that Brown waived any objection to the admission of the evidence found

in the search by failing to object to its admission at trial. Brown responds that his belated

statement outside the presence of the jury combined with his pretrial motion to suppress

preserved the issue, and also contends that the admission of the evidence was fundamental error

and therefore could be challenged on appeal despite his failure to object at trial.

We agree with the Court of Appeals that Brown failed to preserve his challenge to the

admissibility of the evidence. Brown, 913 N.E.2d at 1258. A contemporaneous objection at the

time the evidence is introduced at trial is required to preserve the issue for appeal, whether or not

the appellant has filed a pretrial motion to suppress. Jackson v. State, 735 N.E.2d 1146, 1152

(Ind. 2000) (“The failure to make a contemporaneous objection to the admission of evidence at

trial results in waiver of the error on appeal.”); Wagner v. State, 474 N.E.2d 476, 484 (Ind. 1985)

(“When a motion to suppress has been overruled and the evidence sought to be suppressed is

later offered at trial, no error will be preserved unless there is an objection at that time.”). The

purpose of this rule is to allow the trial judge to consider the issue in light of any fresh

developments and also to correct any errors. Jackson, 735 N.E.2d at 1152. Here, Brown did not

object when the evidence was introduced and affirmatively stated that he had no objection to its

admission. His attempt to lodge a continuing objection was made only after the jury was

presented with all of this evidence. The only practical means of granting relief at that point

would be to declare a mistrial given that the jury was already exposed to virtually conclusive

evidence of guilt on at least the possession counts. We therefore do not find persuasive Brown’s

contention that a party may resurrect an objection after the evidence has been admitted, at least

without the trial court’s recognizing a continuing objection which did not occur here.

3

A claim that has been waived by a defendant’s failure to raise a contemporaneous

objection can be reviewed on appeal if the reviewing court determines that a fundamental error

occurred. See, e.g., Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002); Hayworth v. State, 904

N.E.2d 684, 694 (Ind. Ct. App. 2009). The fundamental error exception is “extremely narrow,

and applies only when the error constitutes a blatant violation of basic principles, the harm or

potential for harm is substantial, and the resulting error denies the defendant fundamental due

process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The error claimed must either

“make a fair trial impossible” or constitute “clearly blatant violations of basic and elementary

principles of due process.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009). This exception is

available only in “egregious circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind.

2003).

This doctrine has been applied, for example, to review a conviction without proof of an

element of the crime despite the lack of objection. Smith v. State, 459 N.E.2d 355, 357 (Ind.

1984). But an error in ruling on a motion to exclude improperly seized evidence is not per se

fundamental error. Indeed, because improperly seized evidence is frequently highly relevant, its

admission ordinarily does not cause us to question guilt. That is the case here. The only basis

for questioning Brown’s conviction lies not in doubt as to whether Brown committed these

crimes, but rather in a challenge to the integrity of the judicial process. We do not consider that

admission of unlawfully seized evidence ipso facto requires reversal. Here, there is no claim of

fabrication of evidence or willful malfeasance on the part of the investigating officers and no

contention that the evidence is not what it appears to be. In short, the claimed error does not rise

to the level of fundamental error.

Two of the three judges in the Court of Appeals concluded that the search of Brown’s

home was lawful and there was no error, fundamental or otherwise, in admitting the evidence.

Brown, 913 N.E.2d at 1262–63. Judge Mathias found the search unreasonable based on the lack

of reliable information that Brown had committed any crime (an anonymous uncorroborated

report), show of force (four officers), the hour of the day (2:35 a.m.), and the manner of

announcing themselves (apparently very loud knocking). Id. at 1263–64. We do not need to

resolve that issue because it was not preserved and there was no fundamental error here.

4

The Court of Appeals cited Hayworth, 904 N.E.2d at 694, in determining that even

though Brown waived his challenge to the admissibility of the evidence the issue could be

reviewed for fundamental error. In Hayworth, the court found that the defendant had waived her

challenge to the admissibility of evidence because her attorney affirmatively stated “no

objection” when the challenged evidence was admitted. As in the instant case, Hayworth had

lost a pretrial motion to suppress. Id. at 691. However, unlike Brown, Hayworth also attempted

to lodge a continuing objection before the evidence was presented. Id. Moreover, the detective

in Hayworth included misleading statements in the application for a search warrant. It was on

that ground that the Hayworth court found a fair trial impossible. Id. at 699. Brown makes no

similar contention that he did not receive a fair trial, other than his assertion that the evidence

was the product of an unconstitutional search and seizure.

Conclusion

The convictions and sentence are affirmed.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

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