Edwards v. State
| Decision Date | 04 June 1997 |
| Docket Number | No. 45A03-9609-CR-316,45A03-9609-CR-316 |
| Citation | 682 N.E.2d 800 |
| Parties | Johnny EDWARDS, III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Johnny Edwards, III ("Edwards") appeals his convictions for dealing in cocaine, a Class A felony, theft, a Class D felony, possession of marijuana, a Class D felony, and possession of marijuana, a Class A misdemeanor. He alleges that the trial court erred when it overruled his motion to suppress evidence seized from his residence because the affidavit offered in support of the search warrant failed to establish probable cause. 1 We affirm.
In January 1995, police began receiving anonymous calls from individuals who indicated that they observed what they believed to be narcotic transactions at Edwards' residence. In relating the same scenario, the callers stated that numerous individuals came to Edwards' residence, shook the chain link fence, waited, and subsequently, a black male exited the home, walked to the fence, and gave a "bag" to the individual at the fence in exchange for money. In early April, police arrested an individual in the immediate area of Edwards' home who was in possession of controlled substances. After telling police that he had information that the narcotics unit would be interested in, he indicated that a 6'5" black male referred to as "Jab" was dealing marijuana from Edwards' residence. Police officers knew Edwards had the street name "Jab." The individual (hereinafter "CI") indicated that he had observed Edwards trafficking narcotics from his home.
Subsequently, police began conducting surveillance on Edwards' residence and observed countless individuals stopping at Edwards' residence, staying for only a minute and then leaving. Officers with years of narcotics experience observed what they believed to be hand to hand narcotic transactions. Additionally, police surveillance disclosed that two large dogs were now on Edwards' property and that large mirrors had been installed outside of the home.
Officer Bales, an 18 year member of the police department who served as an undercover investigator on the drug task force for more than four (4) years, was assigned to investigate controlled substance sales at Edwards' residence. On August 7, 1995, Bales submitted an affidavit for a search warrant based on and including the above information. He indicated in the affidavit that all of the information contained therein was the result of personal investigative observations or observations and conversations with other law enforcement officers, or by reports of investigations prepared by specific law enforcement officers. He stated that "[f]or the past several weeks we officers have conducted surveillance on this residence because of numerous telephone calls from the neighbors, and due to the above information." Without more specifics, Bales indicated that officers verified a majority of the CI's statement. He also concluded that the dogs were for protecting Edwards' property and that the mirrors were for observation of individuals approaching his home and to observe alley traffic. The Honorable Judge Gonzalez of the Hammond City Court authorized the search of Edwards' residence based on Bales' affidavit. Subsequently, on the same day, police executed the search warrant. As a result of the search, Edwards was charged with dealing in cocaine, theft and two counts of possession of marijuana.
On March 12, 1996, Edwards filed a motion to suppress and a memorandum in support thereof. The trial court denied his motion to suppress and the matter proceeded to trial in April 1996. The jury found Edwards guilty of dealing in cocaine, a class A felony, two counts of possession of marijuana, one as a class D felony and one as a class A misdemeanor, and theft. The trial court sentenced Edwards on May 3, 1996, and Edwards filed this timely appeal. Additional facts will be supplied as needed.
We initially address the State's contention that Edwards waived any error stemming from the issuance of the search warrant because he failed to properly object at trial. "Allegations of error in overruling a motion to suppress are not preserved for appellate review unless the record reveals a proper objection when the evidence is offered at trial." Kail v. State, 528 N.E.2d 799, 804 (Ind.Ct.App.1988), trans. denied. The defendant must specify the grounds upon which the objection is premised. Id.
The State maintains that although Edwards objected at trial, his initial objection and continuing objections were insufficient to preserve the issue for appellate review. In Abner v. State, 479 N.E.2d 1254 (Ind.1985), our supreme court held as insufficient defendant's objection "for reasons that we previously argued in chambers." Id. at 1259. However, in Smith v. State, 565 N.E.2d 1059 (Ind.1991), the court found that the defendant's objection " 'based on the search and seizure grounds previously raised,' " was sufficient to preserve the issue for review. Id. at 1061 (quoting Record at 2807). In Smith, the trial court denied the defendant's motion to suppress after recessing the trial to conduct a hearing on the motion. In rejecting the State's claim of waiver, the court noted that the defendant referred to a prior objection expressly made on the record in open court and indicated:
The record must demonstrate that the continuing objection or reference to a prior objection fully and clearly advises the trial court of the specific grounds for the objection. Ind.Trial Rule 46. In the present case, we find that the actions of defense counsel were sufficient to fully apprise the trial court of the specific basis for his petition, thus permitting effective appellate review of the trial court's rulings.
In addressing the merits of the trial court's denial of the defendant's suppression motion in Kail, 528 N.E.2d 799, we distinguished the defendant's objection from that in Abner, supra. "In contrast, Kail's hearing on the motion to suppress was conducted on the day of trial and was included in the record on appeal...." Id. at 804. The defendant initially objected to the issuance of the warrant and subsequent search, and his continued objections to the admission of seized items were overruled. We concluded that "Kail's objections were sufficient to preserve the error" for review. Id. at 805.
The State cites Serano v. State, 555 N.E.2d 487 (Ind.Ct.App.1990), trans. denied, noting that the continuing objection " 'for reasons that we have previously stated in our motion' [was] sufficient to preserve error when 'the hearings on Serano's various motions are included in the record.' " Appellee Brief, p. 7 (quoting Serano, 555 N.E.2d at 495, n. 5). Of additional importance in Serano, we indicated that "our review of the record indicates that the trial court understood the grounds upon which [the defendant] was objecting." Serano, 555 N.E.2d at 495, n. 5.
Our supreme court enunciated the importance of the trial court's understanding in Harvey v. State, 546 N.E.2d 844 (Ind.1989). In Harvey, the court found that the defendant waived consideration of error by failing to present a record demonstrating the specific objection. The court noted that Id. at 846. The court quoted 3 W. HARVEY, INDIANA PRACTICE, Rule 46, at 270-71 (2d ed.1988) in support of the principal reasons for stating the proper basis for an objection.
It may well protect the trial court from committing error and will furnish a proper basis to correct the trial court on review when it has committed error. It should prevent the entrapment of the trial court by a general objection when there is a specific and valid ground therefor, which, though not considered, the objecting party subsequently may wish to urge on appeal. [citations omitted].
Although Edwards failed to provide a transcript of the suppression hearing, we find this case more analogous to Serano, supra. When the State moved to admit evidence resulting from the search, a picture of seized marijuana, the following exchange took place between the trial court and Edwards' counsel.
BY MR. ENGELLAND:
I'm going to object to the admission of the evidence at this point, pursuant to previous matter that have been brought up concerning--
Do you want to have a continuing objection based on that pre-trial hearing?
BY MS. TAVITAS:
Yes, your Honor.
Record at 155-56. When additional evidence resulting from the search was offered, Edwards objected based on his continuing objection. Record at 198, 208, 237, 253, 284, 356, 369. Responding to one such objection, the trial court stated, Record at 198.
According to the trial court's minutes, the only pre-trial hearing based on a motion by Edwards, aside from the hearing on his motion to suppress, was on a motion for bail reduction which the trial court granted. 2 It appears from the transcript that the trial court anticipated and curtailed Edwards' objection regarding the denial of his suppression motion. The trial court offered to make Edwards' objection a continuing objection based on "that pre-trial motion." It is clear from the record that Edwards objected in a timely fashion. Although we acknowledge that Edwards was under a duty to present an adequate basis for his objection, our review of the record, similar to Serano, supra, indicates that the trial court understood that the grounds...
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