264 Ind. 708 | Ind. | 1976
Dissenting opinion on order denying petition for transfer to the Supreme Court of Indiana.
Dissenting Opinion On Petition To Transfer
In appellant’s first appeal in 1972, we did not review the ruling of the trial court denying his motion to suppress drugs on Fourth Amendment grounds because, “that question was waived by appellant when counsel for the appellant expressly stated that he had no objection to the admission of the questioned objects into evidence.” Harrison v. State, (1972) 258 Ind. 359, 362, 281 N.E.2d 98, 99. Appellant established in his post-conviction hearing, that his counsel had no strategy or reason in mind in failing to make the necessary in-trial objection; and it necessarily follows from this showing that appellant cannot be deemed to have knowingly waived his Fourth Amendment claim when his counsel made no objection. Henry v. Mississippi, (1964) 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408. The lawyer who defended him at trial testified that he was young and inexperienced and was ignorant of the requirement of the law that one must object at trial in order to preserve for appeal the issue of the admissibility of the drugs. I think that we should grant appellant a review of the ruling of the trial court on his motion to suppress. In order to achieve this end, I would vote to grant transfer and take the case over.
Note. — Reported at 344 N.E.2d 293.
