Moss v. State, 2--1273A266
| Citation | 165 Ind.App. 502,335 N.E.2d 633 |
| Decision Date | 15 October 1975 |
| Docket Number | No. 2--1273A266,2--1273A266 |
| Parties | Gregory MOSS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Russell D. Millbranth, Deputy Atty. Gen., Indianapolis, for appellee.
OPINION ON PETITION FOR REHEARING
Gregory Moss petitions this Court for rehearing of his appeal from a conviction of possession of heroin. In our original opinion (August 26, 1975), Ind.App., 333 N.E.2d 141, we held that any possible error in the admission of the heroin itself was not grounds for reversal in light of Moss' failure to object to testimony about the heroin which, standing alone, was sufficient to sustain the conviction.
Moss asserts that we erred in finding that the testimony was admitted without objection. He argues that specific objections to the testimony concerning the heroin were not necessary to preserve error because his counsel's in-trial motion 'to suppress the evidence obtained as a result of the search' sufficed to meet the objection requirement for both the heroin and the testimony. Moss relies on Eisenshank v. State (1926), 197 Ind. 463, 467, 150 N.E. 365, 366, wherein it is stated that '(w)hen there has been a sufficient and specific objection to the testimony, it is not necessary to repeat the objection whenever testimony of the same class is offered.' See also State v. Monninger (1962), 243 Ind. 174, 182 N.E.2d 426 (); Faust v. State (1974), Ind.App., 319 N.E.2d 146 (); G. W. Opell Co. v. Phillips (1929), 90 Ind.App. 552, 169 N.E. 354.
The numerous recent cases cited in our original opinion as support for the general rule that a specific objection must be made contemporaneously with the questioned evidence, 333 N.E.2d at 143, tend to diminish the strength of the Eisenshank precedent. To the extent that the rule stated therein retains validity in this state, it must be read in the context of the facts in Eisenshank, supra, and G. W. Opell Co., supra, the only cases which our research has disclosed in which the rule has been applied.
The facts of those cases do not equate with the facts here. In Eisenshank, a properly specific objection to the second in a series of four consecutive, nearly identical questions to the same witness was allowed to suffice for the last two questions. In G. W. Opell Co., the proper objection to a particular question to one witness obviated the necessity of objecting to a nearly identical question to the same witness later in that witness' examination. Moss asserts that his oral motion 'to suppress the evidence obtained as a result of the search' made early in the trial is sufficient to eliminate the need for objecting contemporaneously with the varying testimony of four different witnesses produced later.
To so apply the Eisenshank rule would place a burden on the trial court inconsistent with the theme of the recent cases cited in our original opinion. Cf. Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98; Winston v. State (1975), Ind.App., 332 N.E.2d 229. Rather than require the trial court to constantly consider whether a challenged piece of evidence is governed by an earlier, perhaps remote objection made to evidence arguably of a different nature, we think it better practice and more consistent with recent cases 'for objecting counsel to ask the judge to have the record to show that it is understood that the objection goes to all other like evidence, and when later evidence is offered, to have it noted that the earlier objection applies.' McCormick, Evidence 118 (2d Ed. 1972). In this connection, it should be noted that Moss' earlier objection in the form of his Motion to Suppress was to physical rather than testimonial evidence.
Moss argues that we erred in considering the testimony concerning the heroin in our application of the...
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