MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 28 2018, 9:07 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marquelle Smith, September 28, 2018
Appellant-Defendant, Court of Appeals Case No.
82A01-1711-CR-2730
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82C01-1702-F4-1040
Mathias, Judge.
[1] Following a jury trial in Vanderburgh Superior Court, Marquelle Smith
(“Smith”) was convicted of Level 5 felony possession of a narcotic drug, Class
Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018 Page 1 of 9
B misdemeanor possession of marijuana, and Class B misdemeanor criminal
mischief. The trial court sentenced Smith to an aggregate term of six years of
incarceration. Smith appeals and presents one issue for our review, which we
restate as whether the trial court committed fundamental error by permitting a
witness for the State to refer to Smith’s post-arrest, pre-Miranda silence.
[2] We affirm.
Facts and Procedural History
[3] On the night of February 20, 2017, officers from the Evansville Police
Department (“EPD”) were dispatched to the area of Jefferson Avenue and
South Bedford avenue in Evansville, Indiana, to a report of shots fired and
people arguing over a handgun. EPD Officers Trendon Amuzie (“Officer
Amuzie”) and Blake Hollins (“Officer Hollins”) responded to the call and
arrived to see Smith and two other men fighting over an object, which they
suspected might be a weapon. EPD Officer Hebert Adams (“Officer Adams”)
soon joined his fellow officers.
[4] The officers exited their patrol cars and approached the men with their weapons
drawn. The officers identified themselves as police officers and ordered the men
to cease their struggling and place their hands in the air. The other two men
complied with the officers’ commands, but Smith walked away and got into his
vehicle. The police ordered Smith to stop, but he ignored them and started his
vehicle. Smith then looked directly at Officer Adams and drove his car at
Adams, who later testified that Smith “was aiming straight at me.” Tr. Vol. 2,
Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018 Page 2 of 9
p. 174. Officer Adams jumped out of the path of Smith’s vehicle to avoid being
hit. Officers Adams and Hollins fired several shots at the direction of Smith’s
vehicle.
[5] Smith was unharmed and attempted to turn into an alleyway. Smith, however,
missed the turn and struck a nearby shed. The three officers, now joined by two
other EPD officers, approached the car and ordered him to show his hands and
exit the vehicle. When Smith again refused to comply, the officers attempted to
forcibly remove Smith, but he continued to resist by clinging to the steering
wheel. The police finally used an electronic stun device on Smith and were able
to remove him from the car. Undeterred, Smith was verbally combative with
the officers and threatened them. The police had to use both handcuffs and leg
restraints to prevent Smith from kicking them.
[6] When the officer’s searched Smith’s person incident to arrest, they discovered
two packages containing what appeared to be illicit drugs. One package
contained a leafy green substance that appeared to be, and later tested positive
as, marijuana. The other package contained an off-white substance that field
tested positive as cocaine. However, subsequent laboratory spectrographic
analysis determined that the substance was actually heroin. Laboratory
measurements revealed that the first package contained 20.57 grams of
marijuana, and the other package contained 7.45 grams of heroin.
[7] On February 22, 2017, the State charged Smith with one count of Level 4
felony possession of cocaine (later amended to Level 5 felony possession of a
Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018 Page 3 of 9
narcotic drug), two counts of Level 5 felony attempted battery by means of a
deadly weapon, one count of Class B misdemeanor possession of marijuana,
and one count of Class B misdemeanor criminal mischief.
[8] A two-day jury trial commenced on September 27, 2017, and, on the first day of
trial, Smith requested to represent himself. After questioning Smith, the trial
court permitted Smith to proceed pro se but appointed standby counsel to assist
Smith. One of the State’s witnesses was EPD Detective Brent Melton
(“Detective Melton”), who was involved in the investigation of the incident
with Smith. The prosecuting attorney asked Detective Melton if he had any
interaction with Smith on the night of February 20, 2017. Detective Melton
testified as follows:
It wasn’t very pleasant. I tried to interview him at Headquarters
in a recording room, he wouldn’t tell me his name, didn’t even
get the chance to read him his rights, we didn’t even get to that
point, the interview ended very quickly. It wasn’t a pleasant
encounter.
Tr. Vol. 2, p. 242. Smith did not object to this testimony.
[9] At the conclusion of the trial, the jury found Smith guilty of Level 5 felony
possession of a narcotic drug, Class B misdemeanor possession of marijuana,
and Class B misdemeanor criminal mischief. The jury acquitted Smith on the
remaining counts.
[10] On October 27, 2017, the trial court sentenced Smith to concurrent terms of six
years of incarceration on the Level 5 felony conviction, and 180 days on both
Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018 Page 4 of 9
misdemeanor convictions. That same day, Smith filed what he styled as a
motion to correct error, 1 which the trial court immediately denied. Smith now
appeals.
Standard of Review
[11] Smith’s sole claim on appeal is that the trial court committed fundamental error
by permitting Detective Melton to refer to Smith’s post-arrest, pre-Miranda
silence. Questions regarding the admission of evidence are entrusted to the
sound discretion of the trial court. Fuqua v. State, 984 N.E.2d 709, 713 (Ind. Ct.
App. 2013), trans. denied. Accordingly, on appeal, we typically review the trial
court’s decision only for an abuse of that discretion. Id. The trial court abuses its
discretion only if its decision regarding the admission of evidence is clearly
against the logic and effect of the facts and circumstances before it, or if the
court has misinterpreted the law. Id.
[12] At trial, however, Smith did not object to the evidence he now claims was
improperly admitted. Smith therefore argues, as he must, that the admission of
this evidence was so egregious as to amount to fundamental error. See Sampson
v. State, 38 N.E.3d 985, 992 (Ind. 2015) (noting that the failure to object at trial
forfeits the issue for review unless fundamental error occurred). The
1
This pro se motion was filed before the trial court had entered a judgment of conviction, but the trial court
did not hear argument or consider the motion until after it had entered judgment. Smith’s motion argued that
Smith possessed both cocaine and heroin, neither in an amount sufficient to constitute a Level 5 felony, and
that the State had improperly combined the two substances in order to reach the weight necessary for a Level
5 felony. The trial court rejected Smith’s unsupported allegations and denied the motion.
Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018 Page 5 of 9
fundamental error doctrine is an exception to the general rule that the failure to
object at trial constitutes procedural default or “waiver” precluding
consideration of the issue on appeal. Id. The fundamental error exception is
“extremely narrow” and reaches only those errors that are so blatant that the
trial judge should have taken action sua sponte. Knapp v. State, 9 N.E.3d 1274,
1281 (Ind. 2014) (citing Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014)). The
fundamental error exception 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. Sampson, 38
N.E.3d at 992. Thus, “fundamental error is a daunting standard that applies
‘only in egregious circumstances.” Knapp, (quoting Brown v. State, 799 N.E.2d
1064, 1068 (Ind. 2003)).
Discussion and Decision
[13] The use of a defendant’s post-arrest, post-Miranda warning silence is strictly
prohibited, whether it is used as substantive evidence or for impeachment
purposes. Willsey v. State, 698 N.E.2d 784, 791 (Ind. 1998) (citing Doyle v. Ohio,
426 U.S. 610 (1976); Wainwright v. Greenfield, 474 U.S. 284 (1986)). The use of
pre-arrest, post-Miranda warning silence is similarly protected. See Kubsch v.
State, 784 N.E.2d 905, 914 (Ind. 2003) (citing Kappos v. Hanks, 54 F.3d 365, 368
Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018 Page 6 of 9
(7th Cir. 1995) (“[T]he fact that an arrest ha[s] not yet occurred does not render
Doyle inapplicable.”)).2
[14] Although the United States Supreme Court has yet to directly address the
question, Indiana courts have held that post-arrest, pre-Miranda silence cannot
be used as substantive evidence in the State’s case-in-chief.3 Peters v. State, 959
N.E.2d 347, 353 (Ind. Ct. App. 2011) (citing Akard v. State, 924 N.E.2d 202, 209
(Ind. Ct. App. 2010), trans. granted, summarily aff'd in relevant part, 937 N.E.2d
811 (Ind. 2010); Rowe v. State, 717 N.E.2d 1262, 1267 (Ind. Ct. App. 1999)). A
defendant’s post-arrest, pre-Miranda silence may, however, be used for
impeachment purposes. Peters, 959 N.E.2d at 353 (citing Fletcher v. Weir, 455
U.S. 603, 607 (1982)).
[15] In the present case, we cannot say that Detective Melton’s testimony amounted
to fundamental error. Detective Melton did not directly mention Smith’s silence
or intimate that such silence was proof of his guilt. In describing his interaction
with Smith, Detective Melton stated that when he tried to interview Smith, he
was so combative that he would not even give his name. Melton also testified
2
The use of pre-arrest, pre-Miranda silence is not prohibited by the Fifth Amendment if the defendant does
not invoke the privilege against self-incrimination. Cameron v. State, 22 N.E.3d 588, 592 n.1 (Ind. Ct. App.
2014) (citing Salinas v. Texas, 570 U.S. 178, 181–83 (2013) (plurality holding that a defendant’s pre-arrest, pre-
Miranda silence was not protected by the Fifth Amendment where the defendant simply remained silent and
did not invoke his right against self-incrimination); see also Barton v. State, 936 N.E.2d 842, 851 (Ind. Ct. App.
2010) (noting that a prosecutor’s comment on a defendant’s pre-arrest, pre-Miranda silence is not prohibited)
(citing Teague v. State, 891 N.E.2d 1121, 1124 (Ind. Ct. App. 2008)), trans. denied; Hilliard v. State, 609 N.E.2d
1167, 1170 (Ind. Ct. App. 1993)).
3
The State requests that we reconsider our precedent on this matter. We decline.
Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018 Page 7 of 9
that he did not get a chance to read Smith his Miranda rights. The only question
Detective Melton apparently asked was Smith’s name. A defendant does not
have a Fifth Amendment right to withhold such non-incriminating information.
See Loving v. State, 647 N.E.2d 1123, 1126 (Ind. 1995) (noting that
administrative questions such as a defendant’s name are “removed from the
requirements of Miranda”) (citing Pennsylvania v. Muniz, 496 U.S. 582, 601–02
(1990)). Moreover, the prosecuting attorney did not further mention Smith’s
silence, nor did the State argue that his refusal to answer questions was
indicative of guilt.
[16] Furthermore, the evidence against Smith was rather strong. The State
introduced police body-camera footage of the confrontation with Smith,
including footage of the illicit drugs recovered from Smith. And, although he
later tried to deny it, Smith conceded during his opening statement that he
possessed marijuana. See Tr. Vol. 2, p. 114 (“I know I’m guilty of marijuana, but
as far as tryin[g] to harm the Officers, I would never do that.”) (emphasis
added).
[17] Smith attempts to undermine the State’s evidence by noting that the other
substance found on his person initially field tested positive for cocaine. But the
State’s expert witness from the Indiana State Police Laboratory testified with
scientific certainty that the substance found on Smith was heroin. He explained
the field test as follows:
A field test is a test where a certain chemical or a certain agent is
applied to a drug and a color results from it. And that can be
Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018 Page 8 of 9
indicative of the presence of something. The problem with these tests
are that they’re not specific. So many things could yield a positive color
test. That’s why we submit things to the laboratory and do a lot
more specific testing than that. Cocaine is one that’s known to be -
that field test giving a positive for a variety of things. And so as such,
all you could say from it is it might be cocaine, but it certainly is
not that it is cocaine.
Tr. Vol. 3, pp. 30–31 (emphasis supplied). This witness further testified that
“[t]here was no indication whatsoever there was any cocaine in this item,” and
that he was certain the substance was heroin because “I have no other
conclusion to reach when mass spectrum gives a perfect heroin spectrum and
everything else is consistent with that. There’s no other conclusion I could
possibly reach.” Id. at 31.
[18] Given the overwhelming nature of the evidence against Smith and the fact that
the brief allusion to Smith’s silence was not further mentioned or relied upon by
the State as substantive evidence, we cannot say that Detective Melton’s
testimony was so egregious as to amount to fundamental error. We therefore
affirm the judgment of the trial court.
[19] Affirmed.
Bailey, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018 Page 9 of 9