Winston v. State, 2--1173A258

• Docket Nº: No. 2--1173A258
• Citation: 165 Ind.App. 369, 332 N.E.2d 229
• Case Date: August 14, 1975
• Court: Court of Appeals of Indiana

Page 229

332 N.E.2d 229 165 Ind.App. 369 Charles WINSTON, Appellant,
v.
STATE of Indiana, Appellee. No. 2--1173A258. Court of Appeals of Indiana, Second District. Aug. 14, 1975.
Rehearing Denied Sept. 10, 1975.

[165 Ind.App. 370]

Page 230

Harriette Bailey Conn, Public Defender, William B. Bryan, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Henry O. Sitler, Deputy Atty. Gen., Indianapolis, for appellee.

[165 Ind.App. 371] SULLIVAN, Presiding Judge.

Charles Winston was charged by indictment on September 21, 1971 with possession of heroin in violation of the 1935 Narcotics Act, IC 1971, 35--24--1--2, Ind.Ann.Stat. § 10--3520 (Burns 1956) as amended by Acts 1961, ch. 90, § 2, p. 172--173. ¹ Winston was tried to the court without jury on February 10, 1972, found guilty as charged, and sentenced to a term of two to ten years imprisonment.

The record reveals that on April 28, 1971, Winston was placed under surveillance by Officers Brenton and Robertson of the Indianapolis Police Department as he stood in the doorway of a poolroom in the 400 block of West North Street in Indianapolis. The officers were acting on the basis of a tip given them by a 'reliable' informant moments before they began surveillance. The content of the tip was excluded by the trial court.

As the officers watched, Winston was approached by another man whose identity is not disclosed. After conferring briefly, Winston removed his shoe, reached inside it, and extracted a yellow package. Both Officers saw Winston open the package and reach inside it. Officer Robertson stated that he saw Winston take something from the package and give it to the other man. Winston then returned the yellow package to his shoe and put the shoe back on while the other man walked away. After Winston's transferee had left, the Officers approached Winston, identified themselves, asked Winston to remove his shoe, and, when Winston did so, retrieved the package. The yellow package was later found to contain several 'bindles' of heroin.

Winston's motion to correct errors and supporting memorandum assert three alleged errors in the trial below:

1. The trial judge erred in admitting testimony concerning the yellow package and what it contained.

[165 Ind.App. 372] 2. The trial judge erred in overruling Winston's motion for dismissal made pursuant to Ind. Rules of Procedure, Trial Rule 41(B). ²

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3. There was insufficient evidence to sustain the

conviction. ERROR IN THE ADMISSION OF TESTIMONY

CONCERNING HEROIN NOT PROPERLY BEFORE THIS COURT

Winston argues that the trial court's exclusion of the substance in the yellow package on fourth amendment grounds required the trial judge to exclude all testimony concerning the heroin as 'tainted' by an illegal seizure. We voice no opinion concerning the merits of Winston's theory because we conclude that any error in the admission of crucial testimony concerning the heroin is not properly before this court.

A settled rule of appellate practice in Indiana is that error may not be predicated on the admission of evidence unless there was timely objection in the trial court. Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98; Hendley v. State (1974), Ind.App., 311 N.E.2d 849. To be sufficient to preserve error, the objection must not only be timely but must be specific with respect to the reason the objector believes the evidence incompetent. Gaynor v. State (1966), 247 Ind. 470, 217 N.E.2d 156; Smith v. State (1974), Ind.App., 307 N.E.2d 875. The fact that the alleged inadmissability of a particular piece of evidence rests on constitutional rather than common law or statutory grounds has not deterred the Indiana courts from applying the specific and timely objection requirement with equal force in such cases. See Harrison v. State, supra; Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133; Sargeant v. State (1970), 255 Ind. 252, 263 N.E.2d 525; Tyler v. State (1968), 250 Ind. 419, 236 N.E.2d 815; Mosby v. State (1975), Ind.App., 329 [165 Ind.App. 373] N.E.2d 600; Hardin v. State (1972), Ind.App., 287 N.E.2d 359; Johnson v. State (1972), Ind.App., 281 N.E.2d 922.

When Officer Robertson testified that the yellow package came from Winston's shoe, Winston's trial counsel merely stated 'I object.' Robertson later stated that the package had been in Winston's possession prior to the arrest. This time there was no objection whatever. Winston's trial counsel did not object when Robertson described how he had placed the yellow package in a sealed envelope, initialed the envelope, and placed it in the police property room lock box. Finally, there was no objection to Police Chemist Philips' testimony that he had removed the initialed envelope from the police property room, scientifically analyzed the contents of the yellow package, and discovered that the bindles in the package contained heroin. Winston's failure to properly object to this testimony constitutes a waiver of alleged error in the testimony's admission. Harrison v. State, supra; Gaynor v. State, supra; Mosby v. State, supra; Hardin v. State, supra.

It could be argued that we should consider the admission of Robertson's and Phillips' testimony concerning the heroin as 'fundamental error'. The 'fundamental error' doctrine permits a reviewing court to consider the merits of an improperly raised error if the reviewing court finds that 'the record reveals error so prejudicial to the rights of the Appellant that he could not have had a fair trial.' Grier v. State (1968), 251 Ind. 214, 216--217, 240 N.E.2d 494, 496. ³ The doctrine of

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'fundamental error' allows an appellate court to by-pass the normal rules of appellate procedure, such as the requirement of a timely and specific [165 Ind.App. 374] objection, and, in so doing, to disregard the sound judicial policy underlying that procedure. ⁴ The circumvention of established...