Scott v. State Of Ind., 79A05-0812-CR-746.
| Decision Date | 03 June 2010 |
| Docket Number | No. 79A05-0812-CR-746.,79A05-0812-CR-746. |
| Citation | 924 N.E.2d 169 |
| Parties | Robert L. SCOTT, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
COPYRIGHT MATERIAL OMITTED
Cara C. Putman, Jason W. Bennett, Lafayette, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Defendant-Appellant Robert L. Scott appeals his convictions of two counts of Class B felony possession of a firearm by a serious violent felon (Ind.Code § 35-47-4-5(c)); one count of Class C felony battery with a deadly weapon (Ind.Code § 35-42-2-1); one count of Class D felony of pointing a firearm (Ind.Code § 35-47-4-3); and one count of Class A misdemeanor resisting law enforcement (Ind.Code 35-44-3-3). We affirm in part and remand in part.
Scott raises three issues for our review, which we restate as:
In the early morning hours of January 6, 2008, Thea and Jeremy Dalton were working at a bar in Lafayette, Indiana, when a person they knew as “Deek,” who was later identified as Scott, came into the bar. Scott was not welcome in the bar, so Thea told him to leave. Scott refused to leave and followed Thea behind the counter, so she shoved him and again told him to leave. Thea called the police while Jeremy told Scott to leave. Scott told Jeremy to “keep [his] woman under control,” or “South Florida was going to come back and visit [them] and bullets would be flying.” (Tr. at 109-10). Scott left the building, with Thea and Jeremy following.
Lafayette Police Officer Chris Cudworth arrived on the scene within a minute of the dispatch. He was driving a patrol car and was in uniform, including a windbreaker clearly marked with police insignia. Officer Cudworth attempted to stop Scott, but Scott spun around and hit him in the middle of the chest. Upon realizing that Scott had a gun in his hand, Officer Cudworth took a step backward and fell in the mud. He saw Scott look at the gun in his hand with wide eyes and then run away through the mud. The gun appeared to be a derringer.
Scott eventually eluded Officer Cudworth, and Detective Daniel Shumaker was assigned to investigate the incident. On the evening of January 6, 2008, Detective Shumaker believed he had identified “Deek's” name and address. Due to the nature of the incident that morning, Detective Shumaker, who was in plain clothes, took several uniformed officers with him to the address for a “knock and talk” to determine whether the “Scott” at the address was the person the police wanted to question. Three officers were stationed in the back of the house, out of the Scott's sight, and two uniformed officers accompanied Detective Shumaker to the door.
Detective Shumaker knocked several times before hearing a response. A few minutes later, Scott opened the door and invited the detective to come into the house. Detective Shumaker asked Scott to step outside and speak with him. Scott matched the description given by Officer Cudworth as the man he had chased that morning. A woman also exited the house and Scott assured Detective Shumaker that there was no one else inside.
Detective Shumaker was concerned that there were others in the house, and he asked Scott whether officers could search the house to look for other individuals. Scott, who was not under arrest, agreed to the search. Officer Amor came around the house and joined Officer Gard in the one- to two-minute search. The officers noticed a door immediately to the right of the front door, and they entered the room, which turned out to be a bedroom. The officers observed that a mattress and box spring set was on the floor, and because they knew from experience and training that individuals sometimes hide in hollowed out box springs, they moved the mattress. No one was hiding therein, but the officers did find a muddy, loaded derringer.
During the time of the search, Scott was not handcuffed, no guns were pointed at him, and he was not under arrest. In response to a question by Detective Shumaker, Scott revealed that there was a nine-millimeter handgun under the couch and a derringer under the mattress. After being alerted to the additional gun, Officer Amor went back inside and recovered the nine millimeter. Police officers also recovered a muddy jacket and muddy blue jeans from the bedroom, items that Scott's girlfriend said were worn by Scott on the previous evening.
Detective Shumaker told Scott that he would like to obtain a statement about what happened at the bar. Scott told him that he had gone to the bar, left after a disagreement, and that as he left, someone approached him from behind. Scott said that he spun and jammed the person with his index finger. After several requests, Scott revealed his name, birth date, and social security number. He agreed to come to the station to give a statement, and on the way to the station he was arrested when Detective Shumaker learned that there was an active warrant from Florida for Scott's arrest. Scott was subsequently advised of his Miranda rights.
The State charged Scott with the above-mentioned offenses. Scott filed a motion to suppress, arguing that the search was illegal because it was neither a valid protective sweep nor the result of voluntary consent. The motion, which also challenged the admissibility of Scott's admission of the nine-millimeter handgun's location, was denied. Scott was tried by a jury and found guilty of battery, pointing a firearm, and resisting law enforcement. During the second phase of the bifurcated proceedings, the trial court found Scott guilty on the serious violent felon charges.
Scott was sentenced to a total of twenty-nine years-eight years on the C felony battery, with three years concurrent for the D felony pointing a firearm; plus one year for the misdemeanor resisting law enforcement, with twenty years on each B felony firearm possession conviction. The B felony convictions were concurrent with each other but consecutive to the rest.
Scott now appeals.
Scott contends that the trial court abused its discretion in admitting the derringer and the nine-millimeter gun into evidence. A trial court has broad discretion in ruling on the admissibility of evidence. Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003). We will reverse a trial court's ruling on the admissibility of evidence only when the ruling constitutes an abuse of the court's discretion. Id. An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id.
The State contends that Scott has waived this argument because trial counsel failed to make timely objections to evidence regarding the derringer. A pre-trial motion to suppress does not preserve an error for appellate review; the defendant must make a contemporaneous objection sufficient to preserve the issue for appeal. Berry v. State, 574 N.E.2d 960, 965 (Ind.Ct.App.1991) trans. denied. The failure to make such an objection waives any claim on appeal that the evidence was improperly admitted. Brown v. State, 783 N.E.2d 1121, 1126 (Ind.2003). Even a valid continuous objection to evidence ruled admissible at a suppression hearing is waived when counsel states “no objection” to such evidence at trial. Hayworth v. State, 904 N.E.2d 684, 693-94 (Ind.Ct.App.2009).
Our examination of the trial transcript discloses that Scott's trial counsel did not make a continuing objection to the admission of the derringer, and she did not object to portions of Officer Amor's testimony about the derringer and the two bullets found inside the gun. (Tr. at 272-73; 287-80). When the State offered into evidence Exhibit 36, the derringer itself, trial counsel responded with “no objection,” and counsel again stated “no objection” when the State offered Exhibits 39 and 40, the bullets found inside the gun. (Tr. 277; 280). In addition, trial counsel did not raise an objection when another officer, Officer Gard, testified about finding the derringer under the mattress. (Tr. 325). This issue has been waived.
Waiver notwithstanding, we conclude that Scott would not prevail if a timely objection had been made. Under the Fourth Amendment to the United States Constitution, police generally must obtain a search warrant from a neutral magistrate prior to searching a person or private property, subject to “ ‘certain carefully drawn and well-delineated exceptions.’ ” Sellmer v. State, 842 N.E.2d 358, 362 (Ind.2006) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Because warrantless searches are per se unreasonable, the State bears the burden of proving that a search falls within one of the well-delineated exceptions to the warrant requirement. Johnson v. State, 766 N.E.2d 426, 432 (Ind.Ct.App.2002) trans. denied.
One of these well-recognized exceptions is a voluntary and knowing consent to a search. Krise v. State, 746 N.E.2d 957, 961 (Ind.2001). Here, Scott's argument regarding consent to the search that culminated in the discovery of the derringer is that the search went beyond his consent. Specifically, he argues that he consented to a search for individuals and that a search between the mattress and the box springs in the bedroom was not, in the mind of a reasonable person, a search for individuals.
The scope of a defendant's consent is measured by a standard of objective reasonableness-what a typical reasonable person would...
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