Cullum v. State
| Docket Number | Court of Appeals Case No. 22A-CR-210 |
| Decision Date | 18 October 2022 |
| Citation | 197 N.E.3d 846 (Table) |
| Parties | Eric S. CULLUM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
[1] On appeal from convictions for two counts of level 2 felony dealing in methamphetamine, Eric Cullum challenges the admission of certain evidence, the denial of his motion for continuance, and the denial of his motion for mistrial. Additionally, he contends that the trial court abused its discretion in sentencing him and asserts that his sentence is neither appropriate nor proportional. Finding no reversible error, we affirm.
[2] In 2021, a Bloomington police officer, who a few years previously heard Cullum's name referenced regarding possible narcotics sales,1 learned from a confidential informant (CI) that the CI could purchase methamphetamine from Cullum. A controlled buy was planned to occur at Cullum's residence in Lyons. On April 12, 2021, the CI went to Cullum's home, where he ultimately paid Cullum $400 for fourteen grams of methamphetamine. During the transaction, which was videotaped, Cullum used drug slang, discussed needing more supply, spoke about getting a pound of methamphetamine for $5000, and made it clear that he had checked the criminal history of potential buyers and associates.
[3] On May 13, 2021, Greene County Drug Task Force members surveilling Cullum's home saw a pickup truck pull onto Cullum's shared driveway and, shortly thereafter, depart. The truck engaged in a traffic infraction, which led officers to stop it. The driver was arrested for possession of methamphetamine. Based upon the April controlled buy and the May traffic stop, officers sought and were issued a search warrant for Cullum's residence.
[4] Officers executed the search of Cullum's residence on May 14, 2021, around 4:00 a.m., and found 57.08 grams of methamphetamine, various baggies of assorted sizes, a smoking device, and almost $3000 cash. Most items were found in the primary bedroom near Cullum's side of the bed. Officers located Cullum and two men in the garage of the residence. Cullum had a digital scale and residue in his pocket; the two men were in possession of methamphetamine.
[5] Although the State originally charged Cullum with five counts, it dismissed three and prosecuted him for two level 2 felony methamphetamine dealing counts. Count 1 concerned conduct occurring during the April 12, 2021 controlled buy, and count 2 stemmed from the May 14, 2021 search. A two-day jury trial commenced on November 30, 2021. Cullum attended the first day, during which defense counsel objected to the evidence recovered from the search. The court heard argument, took judicial notice of the search warrant, overruled the objection, and admitted various photographs, testimony, and exhibits.
[6] Cullum did not show up on December 1, 2021, for the second day of his trial. Defense counsel moved for a continuance, relaying that Cullum had claimed via email and phone call that he was ill. The State objected, noting that the bulk of evidence had been admitted on the first day and stressing that Cullum's prior remarks and actions had caused concern that Cullum would not appear. The trial court denied the motion to continue. After a morning break in the trial, the court asked for an update regarding Cullum's absence. Defense counsel explained that Cullum's wife had emailed stating he was vomiting, yet defense counsel had spoken via phone with Cullum, who stated an ambulance was on the way. The trial proceeded.
[7] At the conclusion of the State's case, defense counsel explained that she had again tried calling and emailing Cullum but received no answer from him or his wife. Cullum's wife was reported to have left the residence. The defense moved for a mistrial, asserting that Cullum was denied the right to testify and that defense counsel would not call additional witnesses without the defendant's testimony. The State objected to the mistrial motion, and after some deliberation the trial court denied the motion. Defense counsel rested, and the jury found Cullum guilty on both counts. The court issued a warrant for Cullum's arrest.
[8] Six days later, Cullum was found in Sullivan County and arrested on the warrant. In early January 2022, the court sentenced Cullum to an aggregate twenty-eight-year sentence, with twenty-four years executed and four suspended to probation. Additional facts shall be supplied where relevant.
Section 1 – Cullum has waived review of the admission of evidence obtained from the search of his home.
[9] Cullum contends that the trial court abused its discretion by admitting into evidence the methamphetamine, digital scales, baggies, and cash that police seized when they searched his residence pursuant to a warrant. He argues that insufficient evidence supported the probable cause finding, thus making the warrant invalid. Citing the Fourth Amendment to the United States Constitution, Cullum advocates application of the exclusionary rule rather than the good faith exception. Moreover, he asserts that the admission of the evidence could not be deemed harmless.
[10] To preserve an issue for appeal, counsel must lodge a contemporaneous objection at trial. Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010). If counsel requests a continuing objection, subsequent affirmative statements that counsel has no objection to the evidence waives an appellate challenge to the admissibility of evidence. Hostetler v. State , 184 N.E.3d 1240, 1247 (Ind. Ct. App. 2022), trans. denied. An " ‘appellant cannot on the one hand state at trial that he has no objection to the admission of evidence and thereafter in this Court claim such admission to be erroneous.’ " Halliburton v. State , 1 N.E.3d 670, 679 (Ind. 2013) (quoting Harrison v. State , 258 Ind. 359, 363, 281 N.E.2d 98, 100 (1972) ).
[11] Here at trial, when the State began to elicit testimony from the officer involved in the May 14, 2021 search, defense counsel objected to and moved to suppress the admission of evidence found during the search. Defense counsel asserted that the warrant was improperly based on stale information from the April 12, 2021 controlled buy and further contended that the May 13, 2021 traffic stop was pretextual and did not give rise to additional probable cause. Tr. Vol. 2 at 136-37. The State claimed that the search warrant affidavit included additional information that supported the probable cause finding and faulted the defense for not previously filing a motion to suppress. The court took judicial notice of the search warrant and the supporting affidavit then overruled the defense objection. Defense counsel did not request a continuing objection.
[12] The trial proceeded, and photographs of the evidence seized during the May 14, 2021 search were admitted into evidence as follows:
Id. at 142. The State moved to admit exhibits 9, 10A, 10B, 11, and 13, which were photographs showing Cullum's dresser, his top dresser drawer, an organizer within the drawer, a Ziplock bag of blue pills, a Ziplock bag containing off-white tainted powder found inside the dresser, and Cullum's wallet with his driver's license. Ex. Vol. 4 at 16, 17, 18, 19, 21. Defense counsel volunteered, "No objection." Tr. Vol. 2 at 146. Likewise, defense counsel stated, "No objection," when the State introduced exhibit 14, evidence of the digital scales. Tr. Vol. 3 at 7.2 When the State introduced the 13.47 grams and the 43.61 grams of methamphetamine and the corresponding certificates of analysis as exhibits, the defense made no objection. Id. at 33, 38, 48, 53; Ex. Vol. 2 at 15, 20, 32-35.
[13] We need not determine whether the trial court abused its discretion by admitting the evidence found during the search authorized by the warrant because Cullum has waived appellate review of this question. During the examination of the State's initial witness, defense counsel argued for suppression of the evidence resulting from the search authorized by the warrant. Yet, when overruled, defense counsel lodged no continuing objection, and to the contrary, affirmatively voiced no objection when various evidence was introduced. While a showing of fundamental error can overcome waiver, Cullum makes no claim that the admission of the evidence seized during the search of his residence constituted fundamental error. Like that of the defendant in Hostetler , Cullum's admissibility challenge is waived. See 184 N.E.3d at 1247 n.7.
Section 2 – The court did not abuse its discretion by denying Cullum's motion for continuance.
[14] Acknowledging that the continuance sought by his counsel was not required by statute, Cullum asserts that the trial court should have granted his motion. For support, Cullum maintains that his trial occurred during the COVID-19 pandemic, that he communicated his illness to his attorney on the second day of his trial, that neither he nor his defense witnesses testified, and that the State "had little interest comparatively" in the continuance. Appellant's Br. at 28.
[15] When a defendant's motion for continuance is made due to the absence of material evidence, absence of a material witness, or defendant's illness, and specially enumerated statutory criteria are satisfied, then the...
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