Court clarifies continuing objection procedure

Back to TopCommentsE-mailPrintBookmark and Share

If a trial court grants a continuing objection, counsel doesn't have to object each time the class of evidence is subsequently offered, but if the trial court doesn't specifically grant the right to a continuing objection, counsel must object to the evidence as it is offered in order to preserve the issue on appeal, the Indiana Court of Appeals ruled today.

The appellate court used its opinion in Brandi Hayworth v. State of Indiana, No. 07A01-0804-CR-197, to clarify that the proper procedure when a continuing objection is granted is for counsel to remain silent during the subsequent admission of that class of evidence. In the instant case, Brandi Hayworth's attorney attempted to lodge a continuing objection, which wasn't granted. Subsequently, counsel would object to some evidence as either a continuing objection or offer no objection.

Hayworth was on trial for felony dealing in methamphetamine, felony possession of methamphetamine, and possession of anhydrous ammonia or ammonia solution with the intent to manufacture methamphetamine while in possession of a firearm. Brown County Deputy Sheriff Scott Southerland prepared an affidavit for a search warrant of her home based on information from an unidentified informant; at trial, Southerland testified the informant hadn't actually seen any methamphetamine on the property, hadn't seen Hayworth manufacture the drug on the property or use the drug. The trial court denied Hayworth's motion to suppress; she was found guilty of felony dealing and possession of methamphetamine.

The Court of Appeals found Hayworth waived the issue that the trial court erred by admitting evidence found at her home during the execution of the search warrant. Because the trial court didn't grant her a continuing objection, she had to object to each and every piece of evidence in order to preserve her challenge on appeal; instead, for unknown reasons, Hayworth said "no objection" to some evidence, was silent about the admission of other evidence, or said "continuing objection." By saying "no objection" to the majority of evidence against her, she waived her right to appeal that evidence, wrote Judge Nancy Vaidik.

However, the appellate court examined the admission of evidence for fundamental error. The trial court found the totality of the circumstances corroborated the informant's statements, but the Court of Appeals disagreed. The information affirmed in the search warrant was information the general public could gather by passing by the home and there was no evidence the informant had given the police correct information in the past, wrote the judge. Southerland's testimony at trial said the informant hadn't actually seen any drug activity, making his affidavit misleading. The hearsay in this case fails to satisfy the Fourth Amendment or Indiana Code Section 35-33-5-2, wrote Judge Vaidik, as there was no probable cause to support the search warrant.

The good faith exception also doesn't apply in the case because the magistrate was misled by the information in the affidavit. Southerland's admissions at the suppression hearing amount to deliberate, reckless, or grossly negligent conduct and the error of admitting the evidence was so prejudicial to Hayworth's rights that a fair trial was impossible, wrote Judge Vaidik. The appellate court reversed her convictions and remanded the case.


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.