*1 negligence Kramers’s relevant stat- mined in accordance with child demon- are designated evidence Charities against The Catholic utes. claims discussed Thus, that Catholic Charities strates I affirm the would barred. even be- with the Kramers possibility this judgment in fa- summary grant court’s knew a birth mother was fore Charities. vor of Catholic with them. placing her child interested App. p. By accepting the 120. Appellant’s risks, the Kramers despite its
placement bonding with begin opportunity
had the likely their child almost
what the moment at birth. ad- I the notion
Finally, agree with permit- by Catholic Charities vanced CLARK, Appellant- M. Dontae liability agencies to avoid ting adoption Respondent, rights enforcing parental parent agency no effort through Agencies keep can their good. public and focus their attention on
costs down Indiana, Appellee-Petitioner. STATE and families serving pregnant women No. 27A04-1306-CR-269. seeking provide good homes for chil- release/agreement dren. Appeals Court of of Indiana. agencies signed permits adoption Kramers without fear public to continue serve the March blamed a birth mother being whenever her father changes putative mind or a at the last minute.
appears compelling, goals
Even more such can agen- accomplished permitting without totally if and when liability
cies to avoid
they engage truly wrongful behavior.7 present
But those are not circumstances Again, the Kramers knew almost
here. process beginning adoption
from the putative register up could father
thirty days after a is born and take child baby despite placement child’s words, In
adoption. designated Kramers
evidence established that the had pre- A knowledge
actual of this risk. merely check indi-
placement would have registered
cated that no man had as the
baby’s putative father. above, forth I be-
For reasons set deter- properly
lieve that trial court adop- adoptive parents not informed of example might if an tive were 7. Such an occur agency knowledge that had actual tion fact. prospec- baby's registered had father but *3 Rittman, County Grant Public
C. Robert Defender, Marion, IN, Attorney Appel- lant. Zoeller,
Gregory Attorney F. General of Indiana, Deputy Scharnberg, Karl M. At- General, IN, torney Indianapolis, Attor- neys Appellee.
OPINION BRADFORD, Judge.
CASE SUMMARY Appellant-Respondent ap- Dontae Clark D peals his conviction Class felo- ny possession. Police officers working in an area known as a hotbed of activity illegal drug observed known up stopped dealer walk to a vehicle passenger’s “synthetic with someone in the speak package or K-2 police spice.” When followed vehicle to p. seat. Tr. store, they Clark a convenience observed vehicle, Clark returned pro- side passenger vehicle from the exit the ceeded back to the area it had previ- been the store. One of the officers and enter ously. The detectives called for a marked him Clark inside and observed
followed perform car could stop a traffic package of K-2 purchase spice. followed, only to observe the vehicle vehicle, and the vehicle returned again stopped 3600 block and Clark to where it had been previously. returned running down middle of the street followed, but, a traffic The officers before their direction. Detective posi- Fleece occur, they running saw stop could tioned way, his vehicle Clark’s displayed *4 of their di- up the middle the street in badge, and identified himself as a po- stop rection. The officers told Clark lice stop, officer. When told to Clark com- weapons. of them and one frisked him for plied. pat-down, the other no- During officer began Detective Fleece an outer-cloth- bag marijuana pock- of in ticed a an inside on ing pat-down Clark with Detective Size- coat. point, et of Clark’s At that Clark nearby. more standing The of headlights quickly apprehended. fled but Clark Detective Fleece’s vehicle were pointing argues admission of the general of direction and trial at his constituted fundamental error Detective Sizemore was using his flash- discre- and that court abused its light. conducting As Detective Fleece was admitting opinion testimony tion in certain pat-down, Detective Sizemore observed by the given Finding officers. no baggy a “clear plastic containing green- arguments, merit in Clark’s we affirm. ish, leafy brown substance [he] kn[e]w marijuana” protruding from an inside AND FACTS PROCEDURAL jacket. pocket of p. Clark’s Tr. 105. Ac- HISTORY Sizemore, cording to Detective approximately p.m. January At 11:80 on The flap of coat was laid open. 2012, 18, County Grant Detective Sheriffs That’s not a result of Detective Fleece’s and Todd Fleece Marion Police Detective pat Detective down. Fleece started to Sizemore, drug task Shawn members of a his outter clothing commence pat [sic] force, patrolling were near the block safety. down for officer’s As he did Marion, Washington of a “known South that, I come around to the part front p.Tr. 97. Fleece area[.]” Detective the Defendant and when I I did that Clark, Marvin “person noticed known to flap observed that the was open on the somebody [police] participates who jacket observed the bag of weed illegal the sale distribution of nareot- pocket plain view. ics[,]” standing at the side of a passenger p. Tr. 37-38. When Detective Sizemore speaking passenger. vehicle said, weed[,]” got “pushed “he’s Clark off p.Tr. The detectives drove around Fleece and Detective started to run block and returned in see the time to towards the Tr. leaving p. northeast[.]” 107. The vehicle area. The detectives ap- detectives chase and gave eventually followed the vehicle to a store convenience Western, prehended at 38th and where observed Detective Clark. Sizemore bag enter identified the substance in the passenger’s Clark exit side and as mar- substance, however, ijuana. the store. Detective Sizemore followed The was not purchase into the store analyzed chemically, apparently Clark and saw him because admissibility of evidence enough to submit large not sample was sound discretion within the Po- State to Indiana testing pursuant 58, Curley v. court. policy. lice will trans. denied. We (Ind.Ct.App.2002), 2012, charged 20, the State January On on the court’s decision only reverse a trial pos- felony marijuana D with Class showing of upon a admissibility of evidence resisting A misdemeanor and Class session Id. An abuse an abuse of discretion. December On enforcement. law court’s may if the trial occur of discretion the evi- suppress a motion filed logic clearly against decision On March person. on his dence found be facts and circumstances effect of the motion the trial court denied court, if the court has misinter fore 8, 2013, at April On suppress. Appeals Id. The Court preted the law. trial, jury jury of a bifurcated conclusion if it is ruling may affirm the trial court’s felony D mari- guilty Class found Clark basis in the rec any legal sustainable resisting guilty and not juana possession ord, the reason though it was not even 3, 2013, the May On law enforcement. Moore v. by the trial court. enunciated years to three sentenced Clark trial court (Ind.Ct.App. incarceration. 2005), reweigh do not trans. denied. We *5 the evidence the evidence and consider AND DECISION DISCUSSION ruling. trial court’s most favorable to the the Trial Court Committed I. Whether 1008, State, 1012 v. 852 N.E.2d Hirshey Admit- Error When it Fundamental (Ind.Ct.App.2006), trans. denied. Marijuana the Seized ted Person Fourth Amendment that contends Amendment to the The Fourth marijuana the erroneously court admitted provides States Constitution United Clark, however, as he him. seized from secure in people of the to be right “[t]he the ex object not when acknowledges, did effects, houses, papers, and persons, their Generally, an issue is was admitted. hibit and sei unreasonable searches against objected to at if it is not appeal waived for zures, violated, and no War shall not be 411, State, v. Tillberry trial. cause, issue, probable upon rants shall but However, if (Ind.Ct.App.2008). n. 1 415 affirmation, par by Oath or supported error,” a “fundamental the court made describing place ticularly meaning prejudicial an error “so searched, things to be persons and the trial is that a fair rights of a defendant overriding “The function of seized.” lack of ob impossible,” then the rendered protect personal is to Fourth Amendment right appeal. waive the on jection does not against unwarranted privacy dignity (Ind. State, 914, 919 v. Wilson Schmerber v. Cal by intrusion the State.” 1826, 16 rule 757, 767, error Ct.App.2010). fundamental 384 86 S.Ct. ifornia, U.S. (1966). constitutes a only People when error “In “applies L.Ed.2d 908 Wolf [v. Colorado, 25, 27, principles, violation of basic 338 U.S. 69 S.Ct. blatant State of substantial, (1949) (overruled 1359, for harm is potential harm or L.Ed. 1782 93 Ohio, 367 U.S. by Mapp error denies the defen v. resulting grounds and the other (1961)) 1684, 643, 1081 ] Id. Fun 6 L.Ed.2d process.” due 81 S.Ct. dant fundamental ‘(t)he pri security of one’s Respon recognized that the we requires damental error arbitrary intrusion ordinary vacy against than greater prejudice show dent of the Fourth being ‘at the core police’ as Id. error. reversible
997 ” error, society.’ ‘basic to a has to show less Amendment’ and free failed much funda Id. mental error. Detective Sizemore testified unequivocally exposure the con challenge does not Although Clark pocket traband in Clark’s not a was result detectives, he initial detention Fleece’s pat-down, Detective and it is marijuana argues that discovered poison well-settled “the ‘fruit pocket his coat nonetheless improper ous tree’ doctrine has no application when ly admitted because Detective Fleece’s ‘indepen derivative evidence has an unconstitutional. “[I]t ” dent Id. (quoting sourcef.]’ Silverthorne jurispru well-settled Fourth Amendment U.S., 385, 392, v. Lumber 251 Co. U.S. 40 may, dence without a warrant (1920)). 64 S.Ct. L.Ed. 319 Put an cause, briefly or probable detain an indi way, seizure of the if, purposes vidual for investigatory based was not result of any illegal search and facts, on specific and articulable the officer so was not the fruit of any poisonous tree. suspicion reasonable that criminal ” Indeed, apparent it activity afoot.’ ‘may be Overstreet was, fact, seized pursuant the so- (Ind.Ct.App. N.E.2d view” “open called doctrine. When a po 2000) Ohio, (quoting Terry v. 392 U.S. prior lice officer views contraband to an (1968)), 20 L.Ed.2d S.Ct. constitutionally intrusion into a protected Moreover, trans. denied. area, “search” no in the constitutional [ajfter Terry making stop, if an officer sense occurred. Sayre fear danger, may has a reasonable he 708, 712, (Ind.Ct.App.1984), trans. perform carefully patdown limited denied. probable officer must have “[A]n clothing suspect the outer in an cause to property believe attempt weapons to discover might to assault seized is connected activity.” be used the officer. to criminal *6 State, (Ind. Terry patdown The should be confined Cochran v. 429 N.E.2d 674 protective purpose. to its If facts the Ct.App.1981). Detective Sizemore was not by known the at the time the officer of constitutionally-protected in space when he are a stop such that man of reasonable and, saw the bag pocket, Clark’s accord caution would believe that action the testimony, to ing immediately recog he taken appropriate, was the Fourth marijuana. nized that it contained illegal Amendment is satisfied. failed to Clark has establish fundamental State, regard. error in Parker v. 697 N.E.2d 1267 (citations omitted), (Ind.Ct.App.1998) II. the Whether Trial Abused Court trans. denied. Admitting its Discretion in argues that allegedly Clark the Testimony Certain illegal pat-down discovery led of mentioned, As previously marijuana, rendering it inadmissible. of within admissibility evidence is “The poisonous ‘fruit of the tree’ doctrine court, of sound discretion and we is one exclusionary facet of the rule of only will a reverse trial court’s decision on evidence admissibility which bars a admissibility of upon evidence show criminal proceeding evidence obtained ing of an of that Curley, abuse discretion. in the course of unlawful searches at State, 777 N.E.2d seizures.” v. Clark contends Hanna both (Ind.Ct.App.2000). if we Detective Fleece’s and Detective Even assume weapons for was Sizemore’s identification of the substance unconstitutional, pocket marijuana we conclude that seized from as was testified that marijuana. to Detective Fleece testimony due opinion
inadmissible he years had At the time over course thirteen foundation. lack of sufficient schools, trial, drug Rule had tak- Indiana Evidence attended numerous of Clark’s technical, 702(a) scientific, or “If en a half dozen courses in the visual identi- provided,1 knowledge will assist the marijuana, had been trained specialized fication or the evidence of fact to understand trier its identify by packaging. to issue, fact in a witness determine a to he also Detective Fleece testified skill, by knowledge, expert as qualified an marijuana and familiar with the odor of education, may tes- training, or experience, oregano, from odor distinct opinion in the form of an tify thereto For appearance. a similar of wheth- “The determination otherwise.” that he part, Detective Sizemore testified testify as an qualified er a witness is class at Indiana Law had attended a is within the sound discretion expert Academy regarding drug Enforcement not, court, be ruling will dis- trial whose officer recognition, police had been an abuse of discretion.” turbed absent years, yearly seven and one-half attended Copeland recognition, was familiar classes “The (Ind.Ct.App.1982). qualifications raw and had marijuana, with odor of by practical established expert may marijuana. handled raw Detective Size- training.” experience as well as formal also was familiar more testified that he Id. marijuana, appearance recog- with of raw marijua- nized odors and burnt matter, an initial As na, and in numerous participated had mar- object failed to when Detective Sizemore summary, ijuana-related arrests. In both pocket identified the substance detectives indicated that had been the issue and so waived had years, officers several taken purpose appellate review. objection pro drug recognition, is to numerous classes on contemporaneous rule by preventing party appearance mote a fair trial were familiar with both the sitting idly by appearing marijuana. as and odor of ruling sent to offer of evidence or conclude that the court did not We only cry the court foul when the out allowing abuse its both detec- discretion goes against Purifoy come him. opinion tives offer an on the nature of (Ind.Ct.App.2005), *7 person. the substance found on In omitted). (citation “The rule trans. denied context, appellate an analogous Indiana parties requires objections to voice time courts have held more than once that a error avoided may so harmful be or person particular drug familiar with a corrected a fair and verdict will proper and through may qualified an expert use be as secured.” Id. be offer to a opinion to as whether certain See, drug. question substance in is that notwithstanding, Waiver we State, 409, 410-11, e.g., Pettit v. 258 Ind. question choose to address whether (1972) (“We 807, 808 hold that the State laid a sufficient foundation for qualified may both a narcotic addict admissibility properly detectives’ testi give mony past experience at issue as reason of his to identifying substance 1, 2014, 702(a) opinion expert’s January Effective now otherwise if scienti- Rule fic, technical, provides, specialized or other knowl- qualified expert by edge help to A who is as an will the trier of fact understand witness skill, knowledge, experience, training, or or to determine a fact issue. evidence testify may of an education form 999 State, 1214, 1216-17 which given Vasquez that a substance he 741 opinion N.E.2d (Ind.2001). into a nar- injected body contained State, See also Boggs v. 928 drug with which he has demonstrated (offi cotic N.E.2d 865-67 (Ind.Ct.App.2010) at familiarity.”); Copeland, 430 N.E.2d 396 testimony that cer’s based on training (“The Ussery was State demonstrated that he experience and had “no doubt” drugs addict who had taken drug green, leafy substance was was years. Us- prison, over thirteen While sufficient to establish identity drug); sery drug prevention was involved in a State, 540 McConnell v. N.E.2d 103- where he books program studied various (“In (Ind.Ct.App.1989) 04 our Offi opinion, Ussery that he pamphlets. admitted testimony cer Lewis’s that the substance previously used and sold dilaudids. Us- appeared was sufficient that he dilaudid sery testified had seen evidence jury from could infer a million The State pills ‘probably times’. was marijuana[.]”).2 substance Ussery had sufficient demonstrated lay testify expert.”). as an In addition to experience Detectives no reason not least as give We see at testimony, Fleece’s and Sizemore’s there weight experi- training much was other circumstantial evidence support can ence one receive as a law enforcement ing finding possessed illegal The trial abuse officer. court did not its shortly drugs. Very before his apprehen in allowing Detectives Fleece discretion sion, approached a known dealer opinions and Sizemore to offer iden- in which Clark a passenger vehicle tity of the substance seized from Clark’s appeared interact with him. Addi pocket. tionally, pushed Detective Fleece although argue not Finally, Clark does flight attempted immediately De after detectives’ insuffi- testimony is tective Sizemore announced to Detective cient to establish that the material seized Fleece that Clark had “Flight “weed.” person we ob- marijuana, may and related conduct be considered Supreme serve that Indiana Court jury determining defendant’s guilt.” following involving stated the in a ease State, (Ind. Dill v. N.E.2d officer identification of toluene: 2001). flight may “Evidence be consid identity proven of a drug can be “[T]he ered circumstantial con as evidence of by circumstantial evidence.” Clifton guilt.” sciousness Brown v. (Ind.1986). (Ind.1990). The State is true opin- The same of toluene. The produced sufficient evidence to sustain someone sufficiently ion of experienced for marijuana Clark’s conviction posses drug may identity, with the establish its sion. may evidence. circumstantial judgment the trial court af- Although analysis Id. chemical one firmed. *8 perhaps to way, way, and the best estab- identity persons compound,
lish the in experienced may the area be able to J., MATHIAS, concurs in part and smoke, identify cigarette marijuana, and opinion. concurs in result with if every even toluene. This is true even PYLE, J., may not be up opinion. citizen to that task. concurs with analysis quantities, ap- it is of some the State While concern that chemical it does not marijuana expert analyzed by pear preclude the an did not to conviction under Indiana policy Supreme precedent. due to chemist Indiana State Police Court drug the a reasonable MATHIAS, J., identity beyond in concurring part concurring result. doubt. ad- majority however, the that the
I concur with by majority, As noted found marijuana of the on Clark mission regarding present Clark does not a claim did not consti- during search instead sufficiency of the evidence and I also fundamental error. concur with tute erred only claims that court failed majority preserve that regarding the testimony admission of the court appeal argument during the identity the substance found into evidence the testi- admitting erred But to ob- pat-down search. failed mony that substance testimony, and ject to Detective Sizemore’s sepa- But I write marijuana. found was preserve this issue therefore failed that it unneces- rately because I believe Nor has that our review. he established sary evidentiary argu- to address Clark’s testimony was funda- admission of on the merits. ment Therefore, I believe that mental error. correctly notes that our majority object the ba- Clark’s failure to should be person court held that a suffi supreme I, holding, given my sis of our reserva- may illicit ciently familiar with an tions, choose to neither would address an expert opinion as to offer an qualify evidentiary claim nor the merits of ques the substance in regarding whether sufficiency Accordingly, of the evidence. I Ind. drug. tion is Pettit fully majority regard with the with concur 410-11, (1972). I presented by to the first issue Clark and I supreme that our court acknowledge also regard concur in result with to the second that, expert held the absence of issue. testimony analysis, on chemical based identity of a testi drug be established PYLE, Judge, concurring. mony “sufficiently of someone experienced my I with the col- concur result drug” with that indicates that the sub However, leagues’ decision. I believe it is at illicit drug. stance issue was an Halse thought an necessary to add additional n. 1 ma case, footnote 2. In this the record reveals (Ind.2005). sought the State obtain chemical In the case certain as substances such analysis marijuana of the seized so marijuana, which our case law shows has a expert conclusively identify more could it appearance, distinct odor and I do not as The State from prevented such. testimony doubt that the of someone suffi- analysis obtaining that because Indiana ciently experienced might the drug with laboratory policy prohibits State Police prove marijuana the substance quan- below a certain testing beyond a reasonable doubt. But I am tity. more concerned when it comes to the iden- Supreme precedent While Indiana Court tity drugs that of chemicals and are not as allows the State to this roadblock avoid readily lay Should a identifiable. witness identify law having a enforcement officer qualify expert be allowed to upon training based or her white, purposes testifying pow- laboratory’s present experience, cocaine, dery substance is that a small policy prevents prosecutors, deprives crystal rock-like crack cocaine? What jurors, testimony considering expert identity pill? about the of a Even if such *9 admissible, iden- principles based on scientific used to testimony is I am troubled itself, can, tify marijuana. particularly impor- This is testimony such establish required tant because State doubt, beyond an a reasonable
prove, alleged actually
item jurors
marijuana. Additionally, are in- a proof beyond reasonable
structed be firmly means that con-
doubt marijuana. that the item is When
vinced item expert testifies that an has been macroscopically, microscopically,
examined tests,
subjected layer to color thin chroma- chromatography,
tography, gas his or testimony goes long way
her toward marijuana,
identifying beyond item as Thus, increasing doubt. public
reasonable justice
confidence Indiana’s criminal
system.
The selection of the of evidence type should, before
bring jury as much as be
possible, unconstrained administra- decisions, jurors
tive should be able to to bring
assume the State endeavored likely best case to trial. There is
its laboratory’s reason behind pol-
rational but
icy, type of administrative decision counsel, prosecutors,
impacts defense jurors,
judges, and defendants. For these
reasons, I respectfully would submit that laboratory’s policy decision recon- by our in the colleagues
sidered executive
branch. McCLELLAN,
Michael E.
Appellant-Defendant, Indiana, Appellee-Plaintiff.
STATE
No. 39A04-1305-CR-248.
Court of Appeals of Indiana.
April