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
______________________________________________________________________________
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).
_________________________________
Appeal from the Clay Circuit Court, No. 11C01-0507-FB-00200
The Honorable Joseph D. Trout, Judge
_________________________________
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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