929 N.E.2d 204 (Ind. 2010), 11S04-0911-CR-537, Brown v. State

Docket Nº11S04-0911-CR-537.
Citation929 N.E.2d 204
Opinion JudgeBOEHM, Justice.
Party NameKenneth BROWN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
AttorneyKimberly A. Jackson, Indianapolis, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Monika Prekopa Talbot, Deputy Attorney Generals, Indianapolis, IN, Attorneys for Appellee.
Judge PanelSHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Case DateJune 29, 2010
CourtSupreme Court of Indiana

Page 204

929 N.E.2d 204 (Ind. 2010)

Kenneth BROWN, Appellant (Defendant Below),

v.

STATE of Indiana, Appellee (Plaintiff Below).

No. 11S04-0911-CR-537.

Supreme Court of Indiana.

June 29, 2010

Page 205

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Monika Prekopa Talbot, Deputy Attorney Generals, Indianapolis, IN, Attorneys for Appellee.

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

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.

Page 206

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."

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

Page 207

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...

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339 practice notes
  • 13 N.E.3d 951 (Ind.App. 2014), 82A05-1305-CR-240, Mueller v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • June 10, 2014
    ...impossible or constitute clearly blatant violations of basic and elementary principles of due process." Id. (quoting Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)). We first note that Mueller did more than merely fail to object to the admission of the photographs during the trial. On......
  • Dean v. State, 091515 INCA, 48A02-1409-CR-669
    • United States
    • Indiana Court of Appeals of Indiana
    • September 15, 2015
    ...and substantial potential for harm." Id. "This exception is available only in 'egregious circumstances.'" Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh'g denied. "Fundamental error is meant to permit appe......
  • 21 N.E.3d 873 (Ind.App. 2014), 90A04-1311-CR-549, Weedman v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • November 26, 2014
    ...a contemporaneous objection to the admission of evidence at trial generally results in waiver of the error on appeal. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). However, a claim that has been waived by a defendant's failure to raise a contemporaneous objection can be reviewed on a......
  • 31 N.E.3d 34 (Ind.App. 2015), 02A05-1308-CR-447, Tate v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • March 17, 2015
    ...to make a contemporaneous objection to the admission of evidence at trial results in waiver of the issue on appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh'g denied. Because Tate failed to object to the admission of this evidence when it was introduced at trial, he has waived a......
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348 cases
  • 40 N.E.3d 531 (Ind.App. 2015), 48A02-1409-CR-669, Dean v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • September 15, 2015
    ...and substantial potential for harm." Id. " This exception is available only in 'egregious circumstances.'" Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh'g denied. " Fundamental error is meant to permit ap......
  • Dean v. State, 091515 INCA, 48A02-1409-CR-669
    • United States
    • Indiana Court of Appeals of Indiana
    • September 15, 2015
    ...and substantial potential for harm." Id. "This exception is available only in 'egregious circumstances.'" Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh'g denied. "Fundamental error is meant to permit appe......
  • 21 N.E.3d 873 (Ind.App. 2014), 90A04-1311-CR-549, Weedman v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • November 26, 2014
    ...a contemporaneous objection to the admission of evidence at trial generally results in waiver of the error on appeal. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). However, a claim that has been waived by a defendant's failure to raise a contemporaneous objection can be reviewed on a......
  • 69 N.E.3d 950 (Ind.App. 2016), 15A04-1601-CR-148, Smith v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 20, 2016
    ...effective means of deterring improper intrusions into the privacy of all citizens. Id. [¶31] More recently, in Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh'g denied, the Indiana Supreme Court indicated that there may be some occasions when an illegal seizure......
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