*1 engaged campaign in a tactical to my lawyer Wheeler to fire times tried several liking. more to his procure counsel myself the represent court to your thru against have be I’ve seen only results equivocation did not—without Wheeler representation I feel if the best me. So subsequent indicating conduct vacilla- or from the Public de- to come going isn’t self-representa- right his of tion —assert I’ll be in better care office I feel fender’s counsel did Accordingly, appellate tion. only I trust me. myself, representing significant and obvious not overlook a deprived of his claim that Wheeler was 459.) letter, The second received (App. right self-representa- Sixth Amendment 20, 2008, part: in relevant provided May tion. spoken not with Feb. 4th I have [S]ince Conclusion attorney neither attorney nor have any nor took any my request, fulfilled fails to demonstrate a reason- Wheeler trail, for preparing [sic] precautions that the outcome of his probability able by my filed attor- I believe the motion have different appeal direct been. merit and contained ney without appellate had counsel raised a Faretta the court and nothing but lies to deceive claim. has not shown that he was Wheeler the motion granting the court into appellate trick the effective assistance of denied my lawyer up the fact that help to cover counsel. I’ve written job. his or her doing
isn’t Affirmed. well Defender and as the head Public lawyer or to a new requesting the courts NAJAM, J., PYLE, J., concur. I can right represent myself, to my use I need prison, to don’t myself send go- me who isn’t representing
someone ver- get guilty a not ing attempt dict. 469.) (App. asked that he April On Wheeler GYAMFI, Appellant Lawrence In the represent himself. be allowed Defendant, letter, highlighted perceived he subsequent performance in his counsel’s deficiencies Indiana, Appellee-Plaintiff. STATE written letters to and indicated that he had lawyer self-repre- a new or obtain either No. 30A01-1311-CR-487. specific He did not make a sentation. of Indiana. Appeals Court the trial court at that time. request of later, for dismissal of “the Still he asked Sept. 2014. im- attorney,” arguably assigned current Rehearing Denied Nov. subsequent that there would be plying 466.) Moreover, assigned attorney. (App. relies were upon
the letters which Wheeler communications part a small of numerous undertaken for the with the trial court purpose bringing apparent assessment of coun- unfavorable Wheeler’s sum, appears performance. sel’s *2 Zoeller,
Gregory Attorney F. General Indiana, Talbot, Prekopa Deputy Monika General, IN, Indianapolis, Attor- Attorney neys Appellee.
OPINION
RILEY, Judge.
STATEMENT OF THE CASE Appellant-Defendant, Gyamfi Lawrence (Gyamfi), appeals his conviction for Count fraud, § felony, a D 35- Class Ind.Code 43-5-4(1), II, theft, a D felo- Count Class 35-43-4-2(a), III, ny, § I.C. and Count felony, § forgery, a 35-43-5- Class C I.C. 2(b)(1).
We and remand. reverse
ISSUE issues,
Gyamfi three of which raises one we find we restate dispositive which as: the trial court abused its Whether by admitting discretion certain evidence which was derivative evidence during an seizure. unlawful AND HISTORY FACTS PROCEDURAL 31, 2012, May at 12:46 a.m. and 12:47 On a.m., Discover charges two were made to a at located in Speedway Card store (the Greenfield, County, Hancock Indiana Transaction). Hancock The Dis- County belonged to cover Card Sarah Whitmer Holland, (Whitmer), resides in New who Pennsylvania. approximately 1:45 day,
That same a.m., Police Nate Whitestown (Officer Harves) dispatched Harves was County in Stop Love’s Boone on Truck attempt- report that two individuals were Sorrell, L. Randall V. Christianne purchase electronic tablets with ing Brock, Castle, IN, Attorneys Ap- New After he at the stolen card. arrived credit pellant. (Tr. they might report want to a crime.” stop, truck Officer Harves detained p. individuаls, were who identified Asiedu.1 While was
and David day, May Still that same Detec- detained, per- Officer Harves searched his tive Ralston contacted Detective Trent Gyamfi’s per- located son and vehicle and Smoll of the Hancock Sheriff’s De- identification, cards, several credit sonal (Detective Smoll) partment to inform him showing receipt and a the Hancock working he ease finding receipt, Of- Upon Transaction. County. Ralston Detective forwarded ficer Harves contacted store Smoll “some information” to Detective “so County to it that in Hancock inform he [Hancock could continue with case in have might County.]” transaction involved stolen On June recording opened investigation card make a Detective Smoll credit and to charges, which resulted filed on June camera surveillance from around the time of the transaction. *4 County prosecutor’s Boone The offiсe a.m., approximately At 8:00 charges against Gyamfi arising filed out of ended; shift he Harves’ informed Detec- Stop. his at the Love’s arrest Truck On of the tive Scott Ralston Whitestown Po- 11, 2012, following hearing October on a (Detective Ralston), Department lice Gyamfi’s motion suppress, to the Boone him report arrest and handed his and fur- County granted trial court the motion and information, ther which contained his notes “[ejvidence per- ordered taken from the County on the Hancock Transaction. Offi- sons the of and vehicles and [Asiedu] cer Harves Detective told Ralston about (State’s 1). [Gyamfi] suppressed.” [ ] Exh. County the Hancock Transaction and ad- Thereafter, the Boone County trial court Speedway
vised him to “check out the in all of charges arising dismissed out the (Transcript p. Greenfield.” County incident. At point some between 8:00 a.m. and 26, 2012, On June State filed an noon, following his conversation with Offi- County Information the Hancock Circuit Harves, cer Detective Ralston contacted Court, charging Gyamfi with Count Speedway Corporate Security representa- fraud, felony, D § a Class I.C. 35-43-5- tive, (Seifert), pulled Brian Seifert who 4(1); II, theft, felony, Count a Class D I.C. still of shots the Transaction from the 35-43-4-2(a). 29, § 2012, On November footage. day, surveillance Also that same request the State filed a to amend the Detective Ralston contacted Discover Card by III, charging adding Information Count investigator McNаlly (McNally). William forgery, felony, § a Class C 35-43-5- I.C. conversation, During McNally this 2(b)(1), emailed which subsequently approved Detective Ralston screen shots the cred- 29, the trial court. Also on November County account related the Hancock 2012, Gyamfi filed a motion to dismiss and Following Transaction. his call with Dis- discharge, asserting for that all of the Card, cover Detective Ralston called the derivatively gained State’s evidence was as management store in a result or information learned leads cause, Hancock and them advised “that obtained in the Boone which joined Gyamfi's separate trial appeals, appeal court cause with instituted Asiedu’s co-defendant's, Asiedu, David for cause trial. his conviction is handed down on the same Both defendants were convicted sen- date case. as this together. Although tenced both defendants Herron v. an abuse of discretion. of of for violation suppressed had been 761, A (Ind.Ct.App.2004). 768 state constitutional federal and Gyamfi’s admitting evi- trial court error in 15, 2018, claim of the trial January On rights. appeal may presented not be dence hearing on suppression a court conducted timely objection trial unless there is 18, 2013, February On motion. Gyamfi’s objection, if “stating specific ground sup- the motion court denied the trial apparent not from ground was specific exception with the to all evidence press “as Evidence Rule context.” Ind. suppressed” specifically of the evidence 103(a)(1). Therefore, preserve ap- (Ap- Court. County Superior the Boone error in the ad- review a claimed pellate App. p. pellant’s evidence, make party must mission of through September September On objection that is suffi- contemporaneous At was conducted. jury trial fully the trial court ciently specific to alert evidence, jury found close of thе Doescher, legal issue. See Raess On October charged. as Gyamfi guilty (Ind.2008). hearing, the trial sentencing after a trial, videotape was At the surveillance to concurrent sentenced who re- Gyamfi’s objection, over admitted years on each Count. terms of two objections raised his motion newed facts Additional appeals. now object not to the suppress. Gyamfi did necessary. provided will be Whitmer, McNally, Sei- testimony of the Hancock they explained fert when AND DECISION DISCUSSION jury. Gyamfi to the County Transaction *5 trial, the trial court admit- During the testimony “for objected to Officer Harves’ depicting video ted the surveillance cited,” which the previously the reasons Transaction, Whitmer’s County (Tr. 270). Hancock Like- p. overruled. trial court statement, testimony of Discover Card wise, objected during the testimo- Seifert, Whitmer, as McNally, and as well Ralston and Smoll based nies of Detectives Harves, and Detec- testimony of objection and re- previously on his stated Gyamfi contends and Smoll. tives Ralston objection2 continuing to show a quested testimony and ev- this admitted that all of The trial court testimony. the entire a result derivatively gained as continuing objec- idence was request for a granted during of information or leads objection overruled. tion but showed and seizure Boone the unlawful search rule, ob general failure to As Thus, that as County. Gyamfi maintains in the waiver an ject at trial results testimоny is fruit of the evidence and appeal. Herron purposes issue for tree, violated his its admission poisonous State, (Ind.Ct.App. I, to Article rights pursuant constitutional 2004). However, if adherence to the nor 11 of the Indiana Constitution. Section appellate procedure mal rules of I. Review Standard of is so result in the waiver of an error which deny appel operates trial harmful that it evidentiary rulings of a process, appellate on lant fundamental due great ap deference court are afforded Id. Insofar may “bypass court those rules.” only upon showing and are reversed peal 103(b). that, appeal.” Ind. Evid. R. January of error for effective It should be noted Therefore, longer any need to there no is definitely rules the court ‘‘[o]nce trial, objection request to show a con- renew an or party need not renew an at record tinuing objection. preserve objection proof to a claim or offer of Here, object as failed to to certain during admit- following Gyam- evidence, ted we will County, nevertheless address fi’s arrest in Boone Officer Harves Gyamfi’s claim because we conclude discovered a receipt showing that the Hancock the error in the instant case Transaction. amounts to Information derived just such a fundamental receipt error. from the prompted Officer Harves
to сontact Speedway store and to re- quest copy of the camera surveillance of II. Fruit thé Poisonous Tree the Transaction. In continuation of the Gyamfi contends the trial that investigation, Officer gave Harves all the abused its discretion admitting testimo- information to Detective Ralston and told' ny and evidence which derivatively specifically to him “check out the Speed- gained as a result of information or leads (Tr. way.” p. Still that day, same obtained during the unlawful search and Detective Ralston contacted McNally at seizure in County. Boone Gyamfi main- Discover Card and Seifert that receipt tains establishing the Han- Corporate Security. Later day, De- cock Transaction was discovered tective Ralston contacted Detective Smoll during Officer Harves’ Gyamfi’s search of in Hancock County apprise him possi- vehicle. As this search was declared ille- charges ble in Hanсock County. gal, all evidence obtained as a result there- trial, At Detective agreed Ralston tree, of becomes fruit of the poisonous his decision to contact Discover Card and its admission the trial court violated Speedway Corporate Security came about Gyamfi’s rights I, pursuant to Article Sec- “as a result of the work that Officer tion 11 of the Indiana Constitution. (Tr. Harves” had p. done. Similarly, Detective Smoll testified that all evidence The purpose of Article Sec presented in the Hancock County case was tion 11 of the Indiana Constitution is “to “all derived from those officers making [ ] protect from unreasonable police activity, the stop there in County.” those areas of life that Hoosiers regard 42). Detective Smoll received all the evi- private.” Trotter v. Ralston, dence from Detective who “pretty The, 572, 580 (Ind.Ct.App.2010). “fruit of *6 (Tr. much informed of everything.” [him] poisonous the tree” doctrine is one facet He “really admitted that he didn’t exclusionary the rule of evidence which get any more discovery or information on bars the admissibility in a pro criminal 46-47). pp. [his own].” ceeding of evidence obtained in the course unlawful searches and seizures. The unlawfulness of the search and sei- State, 384, (Ind. Hanna v. 389 zure in Boone County is not contested and Ct.App.2000). In application, the doctrine the State conceded at trial that the Boone only bars not directly obtained, evidence County search illegal was and the evidence but also evidence derivatively gained as a that had been suppressed by the Boone result of information learned or leads ob Superior Court should sup- be during tained an unlawful search or sei pressed by the trial court in the instant zure. doctrine, Id. To invoke the a de cause. While the original receipt of the fendant must show that the search and Hanсock Transaction was excluded seizure illegal was in the place. first court, Id. the trial it is clear that the there is illegal Where no search or sei contested evidence that was nevertheless zure, there can be poison no fruit of the admitted amounted to evidence as ous tree. Id. a direct result of information that exclusionary rule circumvent the during illegal the learned Harves had has no purposes appli Fourth Amendment Hanna, 726 N.E.2d аt See search. cation under the Indiana Constitution.” application the attempt prevent In an Relying supreme opinion on our court’s in poisonous fruit of the of the of the doctrine (Ind. 719, 726 Shotts v. tree, on the alternative the relies State 2010), the Trotter reaffirmed and dis- attenuation inevitable theories of protecting unique Indiana’s commitment covery. rights, stating that because our personal A. Attentuation jurisprudence on what is “reason focuses First, that the disputed asserts the State “totality able” under the circum sufficiently means found evidence was stances,” 1, Section 11 some Article purged to be distinguishable so as greater protections cases confers indi illegality. Specifically, primary taint of rights than the Fourth Amendment vidual that no evidence of the State maintains Trotter, N.E.2d at 582. affords. 933 As illegal initial and Officer Harves’ such, exclusionary rule is calculated to rather, admitted; the State contеnds misconduct, applica discourage police “was pur- that all evidence admitted found this tion of rule here serves deterrent independent to Detective Ralston’s suant Accordingly, function. attenuation (State’s p.Br. investigation.” place jurisprudence doctrine has no 1, Article 11 of the Section Indiana all that not evidence is agree We Constitution, prevail the State cannot un subject tree and poisonous fruit of the theory. der this suрpression simply because would not illegal police but for have come to Discovery B. Inevitable U.S., 371 activity. Wong Sun v. U.S. (1963). Next, 487-88, on the L.Ed.2d 441 State relies inevitable 83 9 S.Ct. discovery it contends doctrine when jurisprudence has rec Fourth Amendment eventually the fraud have been dis- exclusionary to the would ognized exception the State support, covered. relies rule in where the connection be cases stating that testimony, Whitmer’s she police conduсt and the illegal tween the credit card would have checked her state- subsequent discovery of evidence “be reported ment and would have fraudu- attenuated deterrent come[s] so activity Discover Card exclusionary rule lent to both longer effect of the no Furthermore, Illinois, again disregarding police. 422 justifies its cost.” Brown investigatory steps, Officer Harves initial 95 S.Ct. L.Ed.2d U.S. (1975). that Detective the State also maintains Specifically, some situa “[i]n investigаtion” tions, “independent Ralston’s sufficiently the causal chain is atten up the ultimately have turned evi- dissipate any illegal [the uated to taint *7 (State’s that at trial. the dence was admitted police activity], allowing evidence p.Br. to be during seized a search admitted.” (Ind.Ct. 882, State, v. 878 N.E.2d 887 Cole Under the Fourth Amend is known as the attenua
App.2007). This ment, discovery exception inevitable to the tion doctrine. the exclusionary “permits the rule intro State, eventually However, v. of in Trotter 933 duction evidence error, no 572, there been (Ind.Ct.App.2010), we con have been located had N.E.2d 582 is no for in that instance ‘there nexus cluded attenuation doctrine as it that “the ” taint.’ provide sufficient to Shultz v. currently separate analysis as a exists 1138
State,
961,
ROBB,
(Ind.Ct.App.
965
742 N.E.2d
J. concurs and concurs with
BRADFORD,
2001),
However,
part,
concurring
denied.
the inevit
J.
trans.
concurring
separate opinion.
in result
discovery exception
able
has not been
adоpted as matter of Indiana Constitu
BRADFORD,
part
J. concurs in
State,
tional
770 N.E.2d
law. Ammons v.
concurs in result with separate opinion.
927,
(Ind.Ct.App.2002),
935
trans. denied.
BRADFORD, Judge, concurring in part,
Our
court has
held
supreme
previously
concurring in result.
that “our
state constitution mandates
the majority
I concur with
that the trial
the
un
evidence found as
result of [an
admitting
court abused its discretion in
the
search be suppressed.”
constitutional]
evidence, i.e.,
challenged
security
tape
Shultz,
(quoting
Williams,
443-44,
431,
467
104
U.S.
S.Ct.
2501,
(1984)).
vestigator fraud potential for the notification Ralston,3 notification of from Detective from Whitmer would charges unauthorized Phoenix Fraud Cen- gone to the first have (Tr. 221) Phoenix Fraud Cen- If the ter. YATES, Appellant-Defendant, Jerome large there was a determined that ter fraud, may it have enough potential case of McNally, may have contacted
notifiеd who Indiana, Appellee-Plaintiff. STATE of 221) Further, noth- law enforcement. No. 49A02-1312-CR-993. Sei- indicates that Brian ing in the record fert, investigator fraud corporate Appeals of Indiana. Court have taken Corporation, would Sept. 2014. necessary challenged to save the steps call he received phone evidence absent reporting poten-
from Detective Ralston in the tial occurrence of fraud Greenfield questioned about Spеedway store. When evidence, challenged catalog life of testimony was uncertain. Seifert Seifert’s acknowledged “only that hard drives have whether that be storage space,
so much eighty days, et- ninety days, one hundred cetera, the oldest data in the tapes over drives.” Tr. 229. When asked hard taken directly long it would have “[h]ow recorded for that section of video to be over,” “I responded, Seifert don’t know.” p.Tr. 229. ly séarch in after he conducted the unlawful undisputed that Detective Ralston initi- It is investigation receiving County. after a file of ated his collected Officer Harves short- information