Guardiola v. State, No. 277S151

Docket NºNo. 277S151
Citation268 Ind. 404, 375 N.E.2d 1105
Case DateMay 17, 1978
CourtSupreme Court of Indiana

Page 1105

375 N.E.2d 1105
268 Ind. 404
Domingo GUARDIOLA, Appellant,
v.
STATE of Indiana, Appellee.
No. 277S151.
Supreme Court of Indiana.
May 17, 1978.

Page 1106

Stanley D. Lytal, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Guardiola was convicted of two violations of the Indiana Controlled Substances Act at the conclusion of a bench trial in the DeKalb Circuit Court on September 8, 1976. He alleges six errors in this appeal which [268 Ind. 405] we deal with as follows: (1) five alleged errors, all of which are waived and which we thus treat together; (2) an alleged error in the admission of evidence from an allegedly unreasonable search and seizure of appellant's automobile.

I.

The proper procedures for presenting an issue for appellate review in Indiana are established in well-known Trial and Appellate Rules. They have also been discussed in numerous cases construing these rules. See generally A. Bobbitt, Indiana Appellate Practice and Procedure (1972). Two areas that require particular attention, and that are highlighted by the present case, are the drafting of motions to correct errors and the drafting of appellate briefs.

Page 1107

Pursuant to Ind.R.Tr.P. 59(G), asserted errors to be argued on appeal must be separately stated in the motion to correct errors. If this is not done, such errors will be deemed waived on appeal; they cannot be argued for the first time in appellate briefs. Spivey v. State, (1971) 257 Ind. 257, 274 N.E.2d 227. There is an exception to this rule for sufficiency of evidence claims. Collins v. State, (1977) Ind., 364 N.E.2d 750. For other issues, however, the requirement is also to the effect that errors be stated with specificity in the motion to correct errors. The errors "should not be hidden in a generality to be later specifically raised on appeal," Finch v. State, (1975) 264 Ind. 48, 50-51, 338 N.E.2d 629, 630, and they must be "accompanied by a statement of the facts and grounds upon which the errors are based," Ind.R.Tr.P. 59(B). This rule's purpose is to allow the trial court the first opportunity to determine or remedy contended issues. Finch, supra.

The drafting of appellate briefs is dealt with in Ind.R.Ap.P. 8.3(A)(7). Those errors raised in the motion to correct errors, this rule provides, and which the appellant intends to raise on appeal, shall be dealt with in the argument section of the brief devoted thereto as follows:

[268 Ind. 406] "The argument shall contain the contentions of the appellant with respect to the issues presented, the reasons in support of the contentions along with citations to the authorities, statutes, and parts of the record relied upon, and a clear showing of how the issues and contentions in support thereof relate to the particular facts of the case under review."

As with non-compliance with the rules relating to the drafting of motions to correct errors, non-compliance with the rules relating to the drafting of briefs can result in the waiver of errors on review. Errors alleged by defendant but not presented and argued in the argument section of defendant's brief are waived. See, e. g., Jenkins v. State, (1975) 263 Ind. 589, 335 N.E.2d 215; Loza v. State, (1975) 263 Ind. 124, 325 N.E.2d 173. Further, failure to cite legal authority in support of contentions made on appeal may constitute a waiver of error, see, e. g., Hendrix v. State, (1974) 262 Ind. 309, 315 N.E.2d 701, and Williams v. State, (1973) 260 Ind. 543, 297 N.E.2d 805, at least where such authorities in fact exist and the argument is not otherwise clearly presented, Hubbard v. State, (1974) 272 Ind. 176, 313 N.E.2d 346. The argument itself must be discernable and cogent, and must demonstrate how the alleged error harmed the appellant. See, e. g., Bradberry v. State, (1977) Ind., 364 N.E.2d 1183; Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d 798; Yeary v. State, (1971) 257 Ind. 159, 273 N.E.2d 96. Whether or not failure to comply with the substance of the appellate rules, in any of these respects, constitutes a waiver of error on review, depends on whether "we find his non-compliance with the rule sufficiently substantial to impede our consideration of the issue raised." Davis v. State, (1976) Ind., 355 N.E.2d 836 at 838.

Appellant in the present appeal presents a total of six alleged errors in the argument section of his brief. His Motion to Correct Errors at trial, upon which the preservation of any of these errors at this stage depends, stated as follows:

"1. That on September 8, 1976 Defendant was convicted of possession of illegal drugs after having filed a Motion to [268 Ind. 407] Suppress the introduction of those drugs in that said Motion was improperly overruled;

2. That on September 27, 1976 the Defendant received a harsh and excessive sentence;

3. That the judgment was not supported by sufficient evidence in that it was improper to overrule Defendant's Motion to Suppress;

4. That it was improper to allow the introduction of heroin into evidence in that a proper foundation had not been laid;

5. That the decision was contrary to law in that the drugs were improperly introduced into evidence because of the denial of Defendant's Motion to Suppress."

Page 1108

We deal with specification 5 of the Motion to Correct Errors, the denial of the motion to suppress which alleged an illegal search and seizure under the Fourth Amendment, in issue II of this opinion, infra. Specifications 1 and 3 are simply redundant of that same claim. Specification 2 is not raised on this appeal. Thus, the preservation of the other five errors argued in this appeal depends on whether they are encompassed within specification 4.

The first of the alleged errors in question here is that, "The trial court erred in overruling defendant's objection regarding testimony of the capsules by Officer Keys." This, as all the other errors we deal with in this series, refers to testimony of police officers about what they observed when they searched appellant's automobile. However, it has nothing to do with "foundation for the introduction of heroin into evidence," and is thus waived as not being preserved in the Motion to Correct Errors pursuant to the rules previously discussed. Heroin was in fact seized in the search conducted in this case, but this testimony of Officer Keys about the capsules did not deal with the heroin. Also, neither Officer Keys' testimony about the capsules, nor the objected-to testimony in any of this series of errors relates to "foundation" for that particular heroin seizure. Furthermore, no authority is cited for the argument here, and the argument is not otherwise discernable and cogent. Appellant's [268 Ind. 408] brief simply asserts that the testimony of the officer "was not significant at this point," and that the officer "attached no significance whatsoever to the capsules." We thus are not told either why the testimony was erroneously admitted under an applicable legal principle, or how this error harmed appellant. Any error here is thus waived for these additional reasons.

The second of the alleged errors in this series is that, "The trial court erred in overruling defendant's objection to Officer Meyer's testimony that he had never seen anything like the color combination of the pink and green capsules in question." Again, this has nothing to do with foundation for the admission of heroin, and is thus waived for failure to be preserved in the Motion to Correct Errors. Further, no authority is cited for the argument here, which is simply that this police officer lacked...

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82 practice notes
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...of cruel and unusual punishment nor of double jeopardy; therefore, they have waived any error in this regard. Guardiola v. State (1978) 268 Ind. 404, 375 N.E.2d 1105. Defendants base their claim on the contention that the increasing of their sentences for aggravating factors and the imposit......
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...of this testimony in this case. See Newman v. Newman, (1943) 221 Ind. 432, 439, 48 N.E.2d 455, 458. See also Guardiola v. State, (1978) 268 Ind. 404, 408, 375 N.E.2d 1105, 1108; M. Seidman, The Law of Evidence in Indiana, pp. 18-20 (1977). We note that Jones was permitted without objection ......
  • State v. Prober, No. 77-609-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • September 30, 1980
    ...v. State, 227 A.2d 486, 488-90 (Del.1967); People v. Smith, 47 Ill.2d 161, 163-64, 265 N.E.2d 139 (1970); Guardiola v. State, Ind., 375 N.E.2d 1105, 1110-11 (1978); Davis v. State, 236 Md. 389, 204 A.2d 76, 80-82 (1964); State v. Hardin, 90 Nev. 10, 518 P.2d 151 (1974); People v. Mitchell, ......
  • Thompson v. State, No. 882S303
    • United States
    • Indiana Supreme Court of Indiana
    • April 25, 1986
    ...and therefore has waived the issue. Ashford v. State (1984), Ind., 464 N.E.2d 1298; Guardiola v. State (1978), 268 Ind. Page 272 404, 375 N.E.2d 1105; Ind.R.App.P. 8.3(A)(7). However, we note that Appellant's position presents no error in any event. Failure to enter judgment prior to senten......
  • Request a trial to view additional results
82 cases
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...of cruel and unusual punishment nor of double jeopardy; therefore, they have waived any error in this regard. Guardiola v. State (1978) 268 Ind. 404, 375 N.E.2d 1105. Defendants base their claim on the contention that the increasing of their sentences for aggravating factors and the imposit......
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...of this testimony in this case. See Newman v. Newman, (1943) 221 Ind. 432, 439, 48 N.E.2d 455, 458. See also Guardiola v. State, (1978) 268 Ind. 404, 408, 375 N.E.2d 1105, 1108; M. Seidman, The Law of Evidence in Indiana, pp. 18-20 (1977). We note that Jones was permitted without objection ......
  • State v. Prober, No. 77-609-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • September 30, 1980
    ...v. State, 227 A.2d 486, 488-90 (Del.1967); People v. Smith, 47 Ill.2d 161, 163-64, 265 N.E.2d 139 (1970); Guardiola v. State, Ind., 375 N.E.2d 1105, 1110-11 (1978); Davis v. State, 236 Md. 389, 204 A.2d 76, 80-82 (1964); State v. Hardin, 90 Nev. 10, 518 P.2d 151 (1974); People v. Mitchell, ......
  • Thompson v. State, No. 882S303
    • United States
    • Indiana Supreme Court of Indiana
    • April 25, 1986
    ...and therefore has waived the issue. Ashford v. State (1984), Ind., 464 N.E.2d 1298; Guardiola v. State (1978), 268 Ind. Page 272 404, 375 N.E.2d 1105; Ind.R.App.P. 8.3(A)(7). However, we note that Appellant's position presents no error in any event. Failure to enter judgment prior to senten......
  • Request a trial to view additional results

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