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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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