Kelley v. State

• Decision Date: 14 April 2005
• Docket Number: No. 20A03-0407-CR-311.,20A03-0407-CR-311.
• Citation: 825 N.E.2d 420
• Parties: Mark Levoy KELLEY, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

825 N.E.2d 420

Mark Levoy KELLEY, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 20A03-0407-CR-311.

Court of Appeals of Indiana.

April 14, 2005.

Kenneth R. Martin, Goshen, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Maureen Ann Bartolo, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Mark Kelley appeals from his conviction for Possession of Methamphetamine as a Class C felony.¹ He presents one main issue for our review, whether a statement he made to police and evidence seized following that statement should have been admitted at trial. His argument also presents a second issue which we must resolve, whether testimony from a motion to suppress hearing may be considered in determining whether evidence is admissible during trial.

We affirm.

On January 8, 2003, Kelley was at the house of his cousin, Rob Smith. Two individuals came to the residence and wanted to speak to Smith. They got into an argument about money Smith owed to one of the individuals, Ernesto, and Smith was shot and killed. Kelley was a witness to the crime but was not harmed. He called 911 to report the shooting and then removed a safe from the house and placed it in the pickup he was driving. Kelley had been told by Smith to get rid of the safe should something happen to Smith. Upon returning to the house, Kelley saw Smith's handgun lying on the floor and picked it up.

Once police arrived, Kelley agreed to accompany them to the police station to give a statement. At some point before being interviewed, Kelley gave the handgun to Detective Terry Whitley of the Elkhart City Police Department but did not indicate where he got it. After discussing the shooting with Detective Whitley, Kelley agreed to remain at the police station should additional information be needed. While he waited, Kelley went into the parking lot and smoked a cigarette and talked with his family. After concluding that Kelley likely had more information which he did not reveal, Detective Carlton Conway, the lead investigator, went into the parking lot and asked Kelley if he would come into the station and answer some additional questions. Kelley agreed, and twenty to thirty minutes into the interview, he indicated that his first statement was not complete. Detective Conway continued to question Kelley until Kelley told him that he removed the safe and the handgun from the crime scene. Detective Conway then left the interview room and discussed the case with the other detectives. They concluded that they needed a search warrant to retrieve the safe. While other officers secured a warrant and retrieved the safe and its contents, Detective Conway continued to question Kelley. During this time, he implicated himself in drug dealing activities with Smith. He was arrested and charged.

Kelley presents his argument both as an appeal from the denial of a motion to suppress and from the admission of evidence at trial. In so doing, he draws upon the potential difference in reviewing adverse rulings made as to those individuals who seek an interlocutory appeal following the denial of a motion to suppress and those who wait to challenge the admission of evidence at trial.

In Washington v. State, 784 N.E.2d 584 (Ind.Ct.App.2003), this court reviewed the admission of a handgun into evidence which had been found in the possession of a driver of a vehicle following a traffic stop. In that case, the parties framed the issue as the review of a denial of a motion to suppress. Id. at 586. However, this court determined that because Washington did not seek an interlocutory appeal, the issue was more appropriately framed as whether the trial court abused its discretion by admitting evidence at trial. Id. at 586-87. This court noted that once the matter proceeds to trial, the denial of a motion to suppress is insufficient to preserve an issue for appeal. Id. at 586. Rather, the defendant must make a contemporaneous objection to the admission of evidence at trial. Id. This court then held, "If the defendant makes such an objection and the foundational evidence is not the same as at the suppression hearing stage, the trial court must determine whether evidence is admissible based upon the testimony and evidence presented at trial." Id.

Kelley asserts that this pronouncement from the Washington court has changed the way decisions upon the admission of evidence are reviewed and places a higher burden upon defendants who wait until after trial to appeal than those who seek an interlocutory appeal. He argues this is so because of the standard of review applied in each circumstance.

However, in Scott v. State, 803 N.E.2d 1231, 1234 (Ind.Ct.App.2004), this court reviewed an in-trial admission of evidence after a motion to suppress had been denied. In doing so, the court relied upon Marlowe v. State, 786 N.E.2d 751 (Ind.Ct. App.2003), which was an interlocutory appeal from denial of a motion to suppress. The Scott court nevertheless stated, "In reviewing a motion to suppress, we do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling." 803 N.E.2d at 1234. The court added a caveat again citing Marlowe, "[U]nlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, we must also consider the uncontested evidence favorable to the defendant." Id. Suffice it to say, regarding the admissibility of evidence, trial courts have broad discretion. Washington, 784 N.E.2d at 587. Accordingly, we will reverse a trial court's ruling on the admissibility of evidence only when the trial court abused its discretion. Id. An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

Kelley argues that based upon the Washington court's holding—that when the foundational evidence is not the same at trial as at the motion to suppress hearing, the court must determine whether evidence is admissible based upon the testimony and evidence at trial—review of a denial of a motion to suppress is no longer available upon appeal following trial, and courts may no longer consider the uncontested evidence favorable to the defendant. We agree. Once the matter proceeds to trial, the question of whether the trial court erred in denying a motion to suppress is no longer viable. See Beverly v. State, 801 N.E.2d 1254, 1260 n. 5 (Ind.Ct. App.2004),

trans. denied; Packer v. State, 800 N.E.2d 574, 578 (Ind.Ct.App.2003),

trans. denied; Washington, 784 N.E.2d at 586. The logic behind this rule is that "`a ruling upon a pretrial motion to suppress is not intended to serve as the final expression concerning admissibility.'" Joyner v. State, 678 N.E.2d 386, 393 (Ind.1997) (quoting Gajdos v. State, 462 N.E.2d 1017, 1022 (Ind.1984)). In other words, the preliminary ruling on the defendant's motion to suppress is subject to modification at trial. Id. Thus, Kelley's separate claim that the trial court erred in denying his motion to suppress is moot. His claim is now solely whether the trial court erred in admitting the evidence at trial.

Nonetheless, the question still remains whether testimony and evidence from the motion to suppress hearing may be considered during trial. Our Supreme Court, in Magley v. State, 263 Ind. 618, 335 N.E.2d 811 (1975), overruled on other grounds by Smith v. State, 689 N.E.2d 1238 (Ind.1997),²

weighed in on this dilemma in order to provide trial courts with some guidance when faced with a trial objection to a confession previously determined to be admissible. The Court stated:

"As a backdrop to proper consideration of this matter, it should be kept in mind that, in these situations, the State has already successfully met the issues raised in the challenge and shown beyond a reasonable doubt the voluntariness of the waiver and statement. When a simple objection for the purpose of preserving appellate rights is made, the trial judge should consider the pre-trial determination res judicata [³] and binding upon him and overrule the objection. If, however, the trial objection is based upon new factual or legal matter, a simple overruling of the objection would not be appropriate. In that instance, the trial judge may expect, and indeed require, that he be provided with an accurate summary description of such new matter. Thereafter, either of two levels of judicial response is appropriate. The trial judge may summarily overrule the objection if the new matter could in no event result in a determination of inadmissibility. This summary disposition may be made upon consideration of counsel's description, or, in the discretion of the judge, after having permitted the defense to call witnesses, to present its new matter. On the other hand, if the trial judge deems such new matter to be of sufficient substance, he may conduct a hearing on the motion to suppress [sic], having a scope appropriate under the circumstances, and reconsider the issue of admissibility. Gasaway v. State (1967), 249 Ind. 241, 231 N.E.2d 513. In Rouse v. U.S., 123 U.S.App. D.C. 348, 359 F.2d 1014, (1966), the D.C. Court of Appeals identified the nature of new matter which would call for a further hearing, as matter first appearing at trial which casts `reasonable doubt on the pre-trial ruling.'

Where, as in the case at bar, the judge who conducts the trial is not the judge who conducted and determined the pre-trial motion, obstacles to a full and fair reconsideration at trial exist. The trial judge is not acquainted with the evidence presented in the pre-trial hearing. Consequently, he is unable to weigh the old evidence with the new. This problem does not arise, of course, where the trial judge makes a summary denial of the objection based upon an inadequate showing of substantial new matter. Neither does the problem arise when the new matter would provide an independent and sufficient

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