Peters v. State , 43A05–1103–CR–144.
| Decision Date | 30 December 2011 |
| Docket Number | No. 43A05–1103–CR–144.,43A05–1103–CR–144. |
| Parties | Jeremy L. PETERS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Donald R. Shuler, Barkes, Kolbus & Rife, LLP, Goshen, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Jeremy Peters appeals his conviction of Class B felony unlawful possession of a firearm by a serious violent felon (“SVF”).1 He raises three issues for our review:
1. Whether admission of testimony about Peters' post-arrest silence was fundamental error;
2. Whether the State presented sufficient evidence to convict Peters; and
3. Whether Peters' sentence is inappropriate based on the nature of the offense and his character.
We affirm.
At approximately 11:30 p.m. on December 1, 2010, Indiana State Trooper Luke Waikel observed Peters driving on slick pavement at seventy-five miles per hour in a sixty miles-per-hour zone. Trooper Waikel attempted to pull Peters over, but Peters did not immediately comply. Rather, Trooper Waikel had to use his loudspeaker five times to advise Peters to pull to the side of the road, before Peters pulled to the side of the road. Trooper Waikel exited his patrol car, approached the passenger side of Peters' car, and noticed an open alcoholic beverage in the passenger seat. When Trooper Waikel knocked on Peters' passenger window, Peters sped off. Trooper Waikel returned to his car and pursued Peters at speeds exceeding ninety miles-per-hour.
Peters crashed his vehicle, and the pursuit continued on foot. Both Peters and Trooper Waikel scaled a short chain-link fence, from which Peters sustained a cut to one of his hands. While running, Peters kept his hands in his jacket pockets. Trooper Waikel lost sight of Peters when Peters went around a corner of Fellowship Baptist Church, an L-shaped building. Trooper Waikel noticed Peters' footprints in the snow around the corner of the church and saw him run between two houses on a nearby street.
Trooper Waikel followed Peters' footprints until he reached a dumpster behind a store, where the footprints stopped. By this time, Trooper Ryan McNamara and his police dog, Zane, were on the scene. Zane directed the troopers to Peters, who was crouched behind the dumpster. Peters was handcuffed and taken into custody. Warsaw Police Officer R.J. Nethaway searched Peters after his arrest and found four .9 mm bullets in his pocket. Officer Nethaway noticed the cut on Peters' hand and transported him to the hospital.
While Peters was being treated at the hospital, Trooper McNamara and Zane returned to the church and observed two sets of footprints—one set from tennis shoes, and the other from police boots. The tennis shoe tracks ran close to the building, and the marks in the snow indicated Peters fell near the corner of the building. Another officer noticed a “black dot” on the church roof, which turned out to be a Glock .9 mm Model 26 semi-automatic handgun. (Tr. at 420.)
The State charged Peters with Class D felony resisting law enforcement, 2 Class A misdemeanor carrying a handgun without a license,3 and Class C felony carrying a handgun by an individual with a prior felony. 4 The State amended the handgun charge to Class B felony unlawful possession of a firearm by a SVF. Peters requested and was granted a trifurcated trial. During the first part of Peters' trial, the jury found him guilty of Class D felony resisting law enforcement and Class A misdemeanor possession of a handgun without a license. In the second part of his trial, against advice of counsel, Peters pled guilty to Class C felony possession of a handgun without a license by a person previously convicted of a felony. In the final part of his trial, the jury found Peters guilty of Class B felony unlawful possession of a firearm by a SVF.
At sentencing, the trial court merged the Class A misdemeanor and Class C felony handgun findings into the SVF finding, but did not enter convictions for the Class C felony and Class A misdemeanor. It sentenced Peters to three years for Class D felony resisting law enforcement and ten years for Class B unlawful possession of a handgun by a SVF, to be served consecutively.
Two of the officers involved in Peters' arrest testified regarding Peters' silence when he was asked questions after his arrest. During Trooper Waikel's testimony, the following exchange occurred:
[Prosecutor]: Okay what happened next?
[Waikel]: He is not talking to us. He won't say a word. I mean there was a cut to one of his hands and I'm trying to ask if he is okay. You know there is a minor crash so I want him to respond to me in some way shape or form. He is not responding to me, but I do smell the odor of the alcoholic beverage, which would coincide with the alcohol in the vehicle. And I also notice his eyes are bloodshot. And through my experience that would be a good case for operating while intoxicated. Since he is not responding to me and there's a possibility that there is an injury I made the call to transport him to the hospital. I requested R.J. Nethaway, a Warsaw Officer, to transport him to the hospital and I followed right behind.
[Prosecutor]: Do you remember when you are talking with the Defendant what questions you actually asked of him?
[Waikel]: Not specifically questions, no, but I just know that he refused to answer anything as far as medical. You know, I probably asked him why did you run and things of that nature, but not specifically.
[Prosecutor]: He didn't say anything?
[Waikel]: Not a word.
(Tr. at 264–65.) Waikel also mentioned Peters' silence when asked about any health conditions he may have:
Due to the possible cross-contamination, because I went hands on with him and handcuffed him when we found him, even though he was cooperative I have to touch his hands and there is possible blood contamination. So I just try to ask him, you know, do you have anything that I need to know about that might harm me as far as blood born [sic] pathogens or any diseases that I need to be concerned about. He wouldn't even answer that, wouldn't even give me the pleasure of answering back for my own safety.
( Id. at 265–66.) Waikel again referenced Peters' silence during re-examination by the prosecutor:
[Prosecutor]: When was it in the chase that you realized that the Defendant's hands were cut?
[Waikel]: ... The reason—You know he had a cut, but the reason I decided, since he wasn't talking to us, the reason I had to make the decision to go to the hospital was essentially because of the crash. He was traveling over 30 miles per hour and of course the ER doctor did do a CT scan. That is one of the questions they usually ask you; were you going over 30 miles an hour when you crashed, and I estimated him to be going over that. So the ER doctor asked that, did the CT scan, everything checked out okay, since he wasn't talking to the ER doctor much either.
( Id. at 394.) Waikel also mentioned Peters' silence during re-cross-examination, when Peters asked, “And so it is your testimony that you were worried that Mr. Peters was hurt because of this crash?” Waikel responded, “There is always a possibility and since he wasn't talking to us we have to decide.” ( Id. at 403.) Peters did not object during any of Officer Waikel's testimony regarding Peters' silence.
The first objection to testimony referencing Peters' silence occurred during Officer Nethaway's testimony:
[Nethaway]: And I took him back into the ER and they treated his hands and also Trooper Waikel read him the implied consent warning because he would not, when asked to take the Breathalyzer he wouldn't, actually he wasn't talking at all. And [sic] read him the implied consent— [Prosecutor]: Not talking at all because of pain? Did he give any reason—
[Defense]: Objection.
(SIDEBAR INAUDIBLE)
[Judge]: Alright sustain the objection. Please rephrase the question.
[Nethaway]: I didn't observe anything that would keep him from speaking. My take on it was that he didn't want to speak with me.
[Defense]: Objection Your Honor. May we approach?
[Judge]: Go ahead.
(SIDEBAR INAUDIBLE)
[Judge]: Alright. I will overrule the objection. The officer can answer the question.
( Id. at 335–36.) During cross-examination Peters' counsel asked Officer Nethaway about Peters' silence:
[Defense]: You testified that Mr. Peters wasn't speaking with you on that day, is that right? Jeremy wouldn't talk to you?
[Nethaway]: When I was at the vehicle he did not speak to me at all.
[Defense]: None. At the end of the day we really don't know why he wasn't talking to you, isn't that right?
[Nethaway]: That's correct.
( Id. at 339.) Peters contends the prosecutor's use of his post-arrest silence violates his Fifth Amendment right against self-incrimination.
Peters did not object to Trooper Waikel's testimony. The failure to make a contemporaneous objection to the admission of evidence at trial results in waiver of the error on appeal. Brown v. State, 783 N.E.2d 1121, 1125 (Ind.2003). The record before us does not reveal on what grounds Peters objected to Officer Nethaway's testimony. Therefore we cannot determine whether, on appeal, Peters is arguing a different ground than he argued at the trial court, which would result in waiver.5 See White v. State, 772 N.E.2d 408, 411 (Ind.2002) ().
Despite Peters' waiver, we may reverse if he is able to demonstrate fundamental error. Wilson v. State, 931 N.E.2d 914, 919 (Ind.Ct.App.2010), trans. denied. Fundamental error is “error...
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