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. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

ADVERTISEMENT