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Court clarifies continuing objection procedure

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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.

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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