Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
Sep 05 2013, 5:32 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICK STERN GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
EZEKIER BREAZIEL, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1209-CR-731
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven R. Eichholtz, Judge
Cause No. 49G20-1010-FA-77592
September 5, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Ezekier Breaziel (“Breaziel”) was charged with Dealing in Cocaine or a Narcotic
Drug, as a Class A felony;1 Possession of Cocaine or a Narcotic Drug, as a Class C felony;2
and Unlawful Possession of a Firearm by a Serious Violent Felon, as a Class B felony.3
Breaziel pursued a motion to suppress evidence obtained after a warrantless search of his car.
The trial court granted suppression of certain evidence and testimony as discovery sanctions,
but denied Breaziel’s motion to dismiss the charges against him. The trial court denied the
motion, but granted Breaziel’s motion for certification of an interlocutory appeal. Breaziel
did not timely pursue the appeal, and later moved for certification of a belated interlocutory
appeal, which the trial court granted. This Court subsequently accepted jurisdiction over the
appeal.
Concluding sua sponte that we lack authority under the Appellate Rules to accept
jurisdiction of Breaziel’s appeal, we dismiss.
Facts and Procedural History
On October 7, 2010, narcotics detectives from the Indianapolis Metropolitan Police
Department (“IMPD”) were conducting surveillance of Breaziel. That evening, Detective
Aaron Tevebaugh (“Detective Tevebaugh”) was following a black Chevrolet Impala, which
was driven by Breaziel. Detective Tevebaugh contacted a uniformed patrol officer, Nicholas
Andrews (“Officer Andrews”), and requested that he assist in the surveillance of Breaziel’s
1
Ind. Code §§ 35-48-4-1(a) & (b).
2
I.C. §§ 35-48-4-6(a) & (b).
3
I.C. § 35-47-4-5(c).
2
car.
Officer Andrews observed Breaziel commit three moving violations while driving; he
then initiated a traffic stop. With Officer Andrews that night was a canine officer, Ronald
Santa (“Officer Santa”), along with Officer Santa’s canine partner. Officer Santa brought his
canine partner to Breaziel’s car. After this, Officer Andrews searched Breaziel’s car and
found over 49 grams of a substance later determined to be heroin. Breaziel was then
arrested.
Based upon the recovery of heroin from Breaziel’s vehicle, as well as other
information obtained during the investigation, police obtained search warrants to search two
residences and a business to which Breaziel was connected. Execution of the search warrants
resulted in discovery of a .44-caliber pistol.
On October 11, 2010, Breaziel was charged with Dealing in Cocaine or Narcotic
Drug, Possession of Cocaine or Narcotic Drug, and Unlawful Possession of a Firearm by a
Serious Violent Felon.4
On March 31, 2011, Breaziel filed a motion seeking to bar testimony from certain
witnesses; among these witnesses was Officer Santa, who had refused to offer deposition
testimony. The same day, Breaziel and the State agreed that Officer Santa’s testimony would
be excluded from evidence at trial.
On June 22, 2011, Breaziel filed a motion to suppress evidence obtained as a result of
the search of his vehicle by Officer Andrews, contending that the vehicle search violated
4
The State alleged that Breaziel had, in 1998, been convicted of Criminal Confinement, as a Class B
felony.
3
Breaziel’s rights under the Indiana Constitution. On August 23, 2011, the trial court
conducted an evidentiary hearing on the motion. At the hearing’s conclusion, the trial court
ruled from the bench that the evidence obtained from the search of the vehicle was
inadmissible as a discovery sanction related to the exclusion of trial testimony from Officer
Santa. The court refrained from concluding that the search was either constitutionally
permissible or impermissible.
On September 16, 2011, Breaziel filed a motion to dismiss the charges against him.
Breaziel argued that the trial court’s ruling from the bench was in essence a conclusion that
his rights under the Fourth Amendment to the United States Constitution had been violated
by the search. Consequently, Breaziel argued, all other evidence in the case was subject to
suppression under the “fruit of the poisonous tree” doctrine. See, e.g., Mapp v. Ohio, 367
U.S. 643 (1961).
A hearing on Breaziel’s motion to dismiss was conducted on September 27, 2011. At
the hearing, the trial court reiterated its conclusion that the exclusion of Officer Santa’s
testimony, and the concomitant exclusion from evidence of the drugs obtained from Officer
Andrews’s search of the car, were discovery sanctions and not the result of a decision on
constitutional grounds. The court therefore declined to extend the scope of the excluded
evidence to the items obtained from service of the search warrants, and accordingly declined
to grant the motion to dismiss.
On September 28, 2011, Breaziel filed a motion for clarification of the trial court’s
decision, setting forth Breaziel’s position that the trial court’s exclusion of Officer Santa’s
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testimony and evidence from Officer Andrews’s search of Breaziel’s vehicle required
suppression of evidence from the searches of the residential and business premises connected
to Breaziel. On October 21, 2011, the trial court issued an order finding that Breaziel was
not entitled to suppression of the evidence.
On November 14, 2011, Breaziel filed a supplemental motion to suppress evidence,
this time pointing to ambiguities in Officer Andrews’s testimony concerning his participation
in a search of Breaziel’s business premises.
On November 28, 2011, a hearing was conducted on the supplemental motion to
suppress, at which Detective Tevebaugh testified. During the hearing, the trial court denied
the motion to suppress, finding that ambiguity in Officer Andrews’s testimony could readily
be reconciled with Detective Tevebaugh’s testimony. At the conclusion of the hearing,
Breaziel requested that the trial court grant interlocutory appeal of the court’s rulings on the
various issues related to the denials of the motions to suppress evidence, and the State
indicated it would pursue a cross-appeal on the trial court’s sanctions related to Officer
Andrews’s search of Breaziel’s car. The trial court agreed to certify the matter for
interlocutory appeal.
Subsequent to this, on December 20, 2011, a trial court magistrate denied a written
motion to certify interlocutory appeal. On January 19, 2012, Breaziel requested that the trial
court overrule the magistrate’s order denying interlocutory appeal in light of the trial court’s
prior ruling on November 28, 2011; consequently, the trial court vacated the magistrate’s
ruling and granted certification of an interlocutory appeal.
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On June 5, 2012, Breaziel filed a motion under Criminal Rule 4(C) seeking dismissal
of the charging information. A hearing was conducted on that motion on July 16, 2012,
during which the trial court denied the motion to dismiss. During that hearing, Breaziel
indicated to the trial court that he had not received a copy of the trial court’s January 19,
2012, order vacating the magistrate’s order and certifying the interlocutory appeal. Breaziel
orally requested, and the trial court granted from the bench, permission to pursue an
interlocutory appeal.
On August 14, 2012, Breaziel filed, in writing, a belated petition to certify an
interlocutory appeal, again seeking certification of an appeal from the trial court’s denial of
his several motions to suppress evidence and dismiss charges. On August 15, 2012, the trial
court entered a written order certifying Breaziel’s belated interlocutory appeal.
This Court accepted jurisdiction on October 19, 2012, and this appeal ensued.
Discussion and Decision
Breaziel appeals the trial court’s denial of his motion to dismiss the charges against
him, and the State responds to these arguments in its brief. However, this Court has an
independent duty to determine whether it may properly decide cases that come before it.
Pipkin v. State, 982 N.E.2d 1085, 1086 (Ind. Ct. App. 2013). Concluding that we cannot
properly accept jurisdiction over Breaziel’s appeal, we must dismiss.
Appellate Rule 14 provides:
An appeal may be taken from other interlocutory orders if the trial court
certifies its order and the Court of Appeals accepts jurisdiction over the appeal.
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(1) Certification by the Trial Court. The trial court, in its discretion, upon
motion by a party, may certify an interlocutory order to allow an immediate
appeal.
(a) Time for Filing Motion. A motion requesting certification of an
interlocutory order must be filed in the trial court within thirty (30) days
after the date the interlocutory order is noted in the Chronological Case
Summary unless the trial court, for good cause, permits a belated
motion. If the trial court grants a belated motion and certifies the
appeal, the court shall make a finding that the certification is based on a
showing of good cause, and shall set forth the basis for that finding.
Ind. Appellate Rule 14(B) (emphasis added). Failure to timely perfect an appeal deprives this
court of authority to decide a case. Johnson v. Estate of Brazill, 917 N.E.2d 1235, 1239 (Ind.
Ct. App. 2009). This Court has also dismissed appeals for failure to comply with the
requirements of Appellate Rule 14(B) that a trial court’s order certifying a belated
interlocutory appeal both find good cause for the belated appeal and set forth the basis for the
finding. Pipkin, 982 N.E.2d at 1086.
Breaziel’s appeal fails to comply with the requirements of Appellate Rule 14(B) and
falls squarely within this Court’s holdings in Johnson and Pipkin. The trial court permitted
Breaziel to pursue an interlocutory appeal of its order on the motion to suppress as early as
November 28, 2011. A magistrate later denied certification of a written motion for
certification of an interlocutory appeal, but the trial court vacated that order and reinstated
certification of the interlocutory appeal on January 19, 2012.
Breaziel did not pursue an appeal at that time, later representing to the trial court that
this was the result of failure to receive a copy of the order vacating the magistrate’s order
denying certification of the appeal. The trial court granted belated certification of the
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interlocutory appeal on August 15, 2012, but its order does not find any good cause for
granting that belated appeal, nor does it articulate any basis for such a finding. While it may
be the case that a belated interlocutory appeal was certified because of Breaziel’s
representation to the trial court in July 2012 that he did not receive notice of the January 19,
2012 order reinstating certification to pursue interlocutory appeal, we cannot determine as
much from the trial court’s August 15, 2012 order.
Failure to comply with the requirements for a belated interlocutory appeal under
Appellate Rule 12(B) deprives this Court of authority to accept jurisdiction over Breaziel’s
appeal.
Dismissed.
MAY, J., and BRADFORD, J., concur.
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