Opinion
23A-CR-2387
11-20-2024
Jeremy R. Wells, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Alexander N. Moseley Matthew C. McConnell Dixon & Moseley, P.C. Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Franklin Circuit Court The Honorable J. Steven Cox, Judge Trial Court Cause Nos. 24C01-2201-F2-44 24C01-2212-F4-874
ATTORNEYS FOR APPELLANT
Alexander N. Moseley
Matthew C. McConnell
Dixon & Moseley, P.C.
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana
May and Vaidik Judges concur.
MEMORANDUM DECISION
Tavitas, Judge.
We held oral argument in this case on September 26, 2024, at Portage High School. We thank Portage High School for their hospitality, and we thank counsel for their advocacy.
[¶1] Jeremy Wells appeals his convictions for dealing in methamphetamine, a Level 2 felony; possession of methamphetamine, a Level 3 felony; and maintaining a common nuisance, a Level 6 felony. Wells argues that, pursuant to the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution, the evidence against him should have been excluded as the product of an illegal search of his residence. We find that Wells' challenge to the admission of the evidence is waived. Accordingly, we affirm.
Issue
[¶2] Wells raises two issues, and the State raises another. We find one dispositive issue: whether Wells' challenge to the admission of the evidence is waived or was preserved for appeal based on arguments made during a hearing held on the morning of trial.
Facts
[¶3] In the late evening of December 23, 2021, law enforcement officers with the Franklin County Sheriff's Department were attempting to serve an arrest warrant for Wells at his residence in Laurel. The residence had a garage, basement, main floor, and top floor. Interior lights and a television were on inside the residence, and vehicles were parked outside. The officers established a perimeter around the house, and Deputy Arin Bowers knocked on the door and announced his presence; however, no one answered the door.
[¶4] After several minutes, the officers were preparing to leave the residence without serving the arrest warrant when Deputy Tyler Ford informed the other officers that he had identified an open basement door on the west side of the residence. The door was several inches ajar and had "pry marks." Tr. Vol. II p. 70. Additionally, another officer observed a "smoldering" cigarette on the ground "right outside" the door. Id. at 19, 46. According to Deputy Ford, "[i]t looked like somebody had used a tool of some kind in [an] attempt to forcibly open the door." Id. at 70. Based on these circumstances, the officers suspected that a burglary had recently occurred or was occurring, and they entered the residence to "make sure nobody was injured; no property was being stolen." Id. at 20.
[¶5] The officers searched for persons within the residence on the basement and main levels, and within "less than a minute . . .," Deputy Bowers located a baggie of suspected illegal drugs in plain view on a shelf in a basement bedroom. Id. at 48. Testing later revealed that the baggie contained methamphetamine. After finding the baggie, the officers continued to search the residence for persons. The officers, however, did not search the top floor of the residence at this time.
[¶6] Approximately twenty-five to thirty minutes after entering the residence, Deputies Bowers and Ford left the residence to apply for a search warrant while the other officers remained. The search warrant application sought authorization to search the residence for evidence of illegal drugs and drug dealing based on the discovery of the baggie of suspected illegal drugs. The trial court issued the search warrant, and during a subsequent full search of the residence and garage, the officers discovered additional illegal drugs, paraphernalia, plastic baggies, scales, firearms, a laptop, and a digital video recorder ("DVR").
[¶7] On December 28, 2021, and January 2, 2022, Wells participated in custodial interviews with law enforcement. Wells admitted to purchasing methamphetamine for personal use and sharing it with others free of charge but denied that he dealt in methamphetamine. On January 20, 2022, the State charged Wells with three counts: Count I, dealing in methamphetamine, a Level 2 felony; Count II, possession of methamphetamine, a Level 3 felony; and Count III, maintaining a common nuisance, a Level 6 felony.
[¶8] On April 26, 2022, Wells filed a motion to suppress "all items seized and observations and statements made during, or as a result of, the execution of the search warrant" on the grounds that the evidence was obtained based on an "unconstitutional" search of his residence. Appellant's App. Vol. II p. 35.
[¶9] The trial court held a suppression hearing on October 12, 2022. Deputy Bowers testified that the officers entered the residence both because of the possibility of a burglary and in order to serve the arrest warrant. At the conclusion of the hearing, Wells argued that the evidence should be suppressed as the product of an illegal search because the officers: (1) lacked a reasonable belief that a burglary recently occurred or was occurring; and (2) for the purposes of the arrest warrant, lacked a reasonable belief that Wells was inside the residence. Wells further argued that the fact that the officers did not search the top floor of the residence demonstrated that the burglary justification was "pretextual." Tr. Vol. II p. 95. On August 8, 2022, the trial court entered an order denying the motion to suppress.
[¶10] On December 20, 2022, Wells filed a second motion to suppress based on the search of his residence, this time to suppress statements he made to law enforcement during the custodial interviews and evidence obtained from the DVR. The trial court held a pre-trial hearing on this motion on the morning of trial, January 9, 2023. The trial court denied the second motion to suppress on the same grounds as the first motion to suppress, finding the search of the residence was not illegal.
Wells amended the motion on December 30, 2022.
[¶11] During the jury trial, Deputy Bowers explained that the officers entered the home both because of the possible burglary and to serve the arrest warrant. Wells did not object to the admission of any evidence at trial on the grounds that the search of his residence was illegal, and the evidence Wells had moved to suppress was admitted.
[¶12] The jury found Wells guilty as charged. The trial court entered judgments of conviction and sentenced Wells to concurrent sentences of: twenty-five years in the Department of Correction on Count I, dealing in methamphetamine; fourteen years on Count II, possession of methamphetamine; and two years on Count III, maintaining a common nuisance. Wells now appeals.
Discussion and Decision
[¶13] Wells argues that the trial court erred by admitting the evidence against him because, pursuant to the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution, the evidence was the product of an illegal search of his residence. We conclude, however, that Wells' challenge to the admission of the evidence is waived.
[¶14] The State argues that Wells waived review of his challenge to the evidence because he failed to lodge a contemporaneous objection when the evidence was admitted at trial. Wells argues in response that the issue is not waived because he "made a standing objection" to the evidence during the January 9, 2023 pretrial hearing, "which occurred the same day as the jury trial." Appellant's Reply p. 5. We conclude that Wells' objection during this pre-trial hearing was not sufficient to preserve the issue for review.
[¶15] "It is well settled that '[a] pre-trial motion to suppress does not preserve an error for appellate review; rather, the defendant must make a contemporaneous objection providing the trial court with an opportunity to make a final ruling on the matter in the context in which the evidence is introduced'" at trial. Viverett v. State, 215 N.E.3d 352, 355 (Ind.Ct.App. 2023) (quoting D.A.L. v. State, 937 N.E.2d 419, 422 (Ind.Ct.App. 2010)), trans. denied. "The rule requiring a contemporaneous objection 'is no mere procedural technicality; instead, its purpose is to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors'" in its initial determination to allow admission of the evidence. Id. (quoting Shoda v. State, 132 N.E.3d 454, 461 (Ind.Ct.App. 2019)).
[¶16] Although one must generally object to each item of challenged evidence individually at trial, Indiana recognizes "continuing objections." Hostetler v. State, 184 N.E.3d 1240, 1245 (Ind.Ct.App. 2022) (citing Hayworth v. State, 904 N.E.2d 684, 691 (Ind.Ct.App. 2009)), trans. denied.
[C]ontinuing objections serve a useful purpose in trials because they avoid the futility of and waste of time inherent in requiring repetition of the same unsuccessful objection each time evidence of a given character is offered. In 2013, our supreme court amended Indiana Evidence Rule 103, recognizing the use of a continuing objection at trial. Specifically, Indiana Evidence Rule 103(b), which became effective January 1, 2014, provides that "[o]nce the court rules definitively on the record at trial a party need not renew an objection . . . to preserve a claim of error for appeal."Id. (internal citation omitted) (emphasis added).
[¶17] A continuing objection must be specifically requested and granted. See McCowan v. State, 10 N.E.3d 522, 531 (Ind.Ct.App. 2014) (holding that defendant waived challenge to the admission of certain evidence when defendant failed to object each time evidence was introduced at trial and, although defendant stated once at trial that he objected "based on previously filed motions," defendant "did not request, and the trial court did not recognize, a continuing objection" to the evidence), affirmed in relevant part and vacated on other grounds, 27 N.E.3d 760; Hutcherson v. State, 966 N.E.2d 766, 770 (Ind.Ct.App. 2012) (noting that, "[i]f 'the trial court does not specifically grant the right to a continuing objection, it is counsel's duty to object to the evidence as it is offered in order to preserve the issue for appeal'") (italics in original) (quoting Hayworth, 904 N.E.2d at 692), trans. denied.
[¶18] Here, Wells did not object to any of the evidence at trial on the grounds that the search was illegal, and he never specifically requested, nor did the trial court specifically grant, a continuing (or standing) objection to any of this evidence. Wells' challenge to the admission of the evidence, thus, is waived.
Wells argues in his reply brief that, even if his challenge is waived, we may still review the admissibility of the evidence for fundamental error. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (noting, in the context of a motion to suppress, that "[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"). Wells, however, did not argue fundamental error in his initial brief, so that argument, too, is waived. See Bowman v. State, 51 N.E.3d 1174, 1179-80 (Ind. 2016) ("'[P]arties may not raise an issue, such as fundamental error, for the first time in a reply brief.'") (quoting Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011)).
Conclusion
[¶19] Wells' challenge to the evidence is waived because he did not object based on the legality of the search during his jury trial. Accordingly, we affirm.
[¶20] Affirmed.
May, J., and Vaidik, J., concur.