ILNews

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

ADVERTISEMENT