Glendon B. Sturgill, Jr. v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 21 2018, 10:34 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paul J. Podlejski Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Glendon B. Sturgill, Jr., November 21, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-602
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Angela Warner
Appellee-Plaintiff. Sims, Judge
Trial Court Cause Nos.
48C01-1708-F4-1952
48C01-1604-F5-776
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, Glendon Sturgill, Jr., was convicted of dealing in
methamphetamine, a Level 4 felony, and sentenced to eight years in the
Indiana Department of Correction with three years suspended to probation.
Sturgill appeals his conviction, raising one issue for our review: whether the
trial court committed fundamental error in admitting evidence Sturgill claims
was obtained in violation of the Fourth Amendment to the United States
Constitution and Article 1, section 11 of the Indiana Constitution. Concluding
Sturgill has not demonstrated fundamental error, we affirm.
Facts and Procedural History
[2] Over a period of several weeks in 2016, Detective LeeAnn Dwiggins of the
Madison County Drug Task Force received multiple reports that
methamphetamine was being cooked at a particular residence in Madison
County. Detective Dwiggins identified Sturgill and his girlfriend, Melissa
Bowman, as the occupants of the residence and determined they each had made
multiple purchases of pseudoephedrine and had been blocked from making
further purchases on several other occasions.1
1
Although there was no specific time frame given for the purchases, Officer Dwiggins testified that Sturgill
had made seventy-one purchases of pseudoephedrine and had been blocked from purchasing
pseudoephedrine on an additional eighteen occasions. Bowman had made eighty-six purchases and had been
blocked on fifteen occasions.
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[3] On April 13, 2016, Detective Dwiggins, who had been monitoring the logs of
pseudoephedrine purchases, noticed Bowman had made a purchase of
pseudoephedrine that day. Around 9:00 p.m., Detective Dwiggins,
accompanied by three other officers, went to the residence. As Officer
Dwiggins walked around the house trying to get to an unobstructed door to
knock and talk with the occupants, she noticed a strong chemical odor she
knew from her training and experience to be associated with the manufacture of
methamphetamine. As she returned to the front of the house to tell the other
officers what she had found, she encountered Sturgill in the driveway,
immediately handcuffed him, and asked if anyone else was on the property.
Sturgill said Bowman was in the detached garage and his daughter was inside
the house. Officers entered the residence and the garage to evacuate the
occupants. While in the garage, Detective Dwiggins observed
methamphetamine actively cooking. Sturgill and Bowman were advised of
their rights and gave their verbal and written consent to a search of the
property. The search yielded items associated with the manufacture of
methamphetamine.
[4] The State charged Sturgill with dealing in methamphetamine, a Level 5 felony,
and attempted dealing in methamphetamine, a Level 4 felony.2 Sturgill filed a
motion to suppress evidence obtained as a result of the search of his property,
2
Additional counts of possession of chemical reagents or precursors with intent to manufacture a controlled
substance, maintaining a common nuisance, and possession of methamphetamine, all Level 6 felonies, were
dismissed by the State prior to trial.
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including physical evidence and statements he made to the officers during the
search. The trial court denied the motion to suppress, finding the police had a
legitimate reason to be on the property and the chemical odors they
encountered once there created exigent circumstances supporting further action.
At Sturgill’s request, the trial court certified its order denying the motion to
suppress but this court denied Sturgill’s motion to accept jurisdiction over an
interlocutory appeal. At Sturgill’s jury trial, when the State offered various
items of evidence from the search into evidence,3 Sturgill affirmatively stated he
had no objection to admission of the exhibits. The jury found Sturgill guilty on
both counts. The trial court entered judgment of conviction only on the Level 4
felony attempted dealing in methamphetamine charge and sentenced Sturgill to
eight years with three years suspended to probation. Sturgill now appeals.
Discussion and Decision
I. Standard of Review
[5] Sturgill contends the trial court erred in admitting evidence seized during the
search of his property and the statements derived therefrom because the search
was conducted in violation of his state and federal constitutional rights. A trial
court has broad discretion in ruling on the admission or exclusion of evidence.
Palilonis v. State, 970 N.E.2d 713, 726 (Ind. Ct. App. 2012), trans. denied. An
3
The exhibits included twenty-two photographs in and around the garage, a vial of methamphetamine oil,
and lab results.
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abuse of discretion occurs when the trial court’s ruling is clearly against the
logic, facts, and circumstances presented. Id. “A contemporaneous objection at
the time the evidence is introduced at trial is required to preserve the issue for
appeal, whether or not the appellant has filed a pretrial motion to suppress.”
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). The purpose of the
contemporaneous objection rule is to allow the trial judge to consider the
evidentiary issue in light of any “fresh developments and also to correct any
errors.” Id.[6] Here, Sturgill acknowledges that, despite his pretrial motion to suppress, he did
not object to the admission of the evidence or statements at trial. See
Appellant’s Brief at 9 (noting Sturgill’s trial counsel “failed to raise an objection
to the admission of the evidence . . . throughout the course of the trial”). In
fact, not only did Sturgill fail to object to the trial court’s admission of each
piece of evidence he now attempts to challenge on appeal, he affirmatively
stated that he had “no objection” to admission. See Transcript, Volume II at
214 (photographs of the property); Tr., Vol. III at 55 (items recovered from the
property); 73 (lab report on vial of oil); and 75 (vial of methamphetamine oil).
To avoid waiver of the issue, Sturgill contends the trial court committed
fundamental error in allowing admission of the evidence. The fundamental
error doctrine is an exception to the general rule that failure to object at trial
constitutes procedural default precluding consideration of the issue on appeal.
Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002).
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The fundamental error exception is extremely narrow, and
applies only when the error constitutes a blatant violation of
basic principles, the harm or potential for harm is substantial,
and the resulting error denies the defendant fundamental due
process. The error claimed must either make a fair trial
impossible or constitute clearly blatant violations of basic and
elementary principles of due process. This exception is available
only in egregious circumstances.
Brown, 929 N.E.2d at 207 (citations and quotation marks omitted).
II. Fundamental Error
[7] Our supreme court has held that fundamental error is not available when the
defendant affirmatively states he has no objection to proffered evidence because
in such a case, the defendant has invited the error in its admission. Halliburton
v. State, 1 N.E.3d 670, 678-79 (Ind. 2013) (“The appellant cannot on the one
hand state at trial that he has no objection to the admission of evidence and
thereafter in this Court claim such admission to be erroneous.”). “A finding of
fundamental error essentially means that the trial judge erred . . . by not acting
when he or she should have, even without being spurred to action by a timely
objection.” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014) (internal citation
omitted); see also Winston v. State, 165 Ind.App. 369, 376, 332 N.E.2d 229, 233
(1975) (noting in cases in which fundamental error is found, “the error involved
the mistake or misconduct of the trial judge in the exercise of his own
affirmative duties”). Without a contemporaneous objection, a trial court has no
cause to reconsider its earlier evidentiary ruling. See, e.g., Brown, 929 N.E.2d at
207. And upon the defendant’s express declaration of “no objection,” the trial
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court has no obligation to interject itself on a defendant’s behalf and determine
for itself whether the introduction of a particular piece of evidence was in the
defendant’s best interests. Halliburton, 1 N.E.3d at 679; see also Brewington, 7
N.E.3d at 975 (noting that fundamental error and invited error are closely
related and that “fundamental error gives us leeway to mitigate the
consequences of counsel’s oversights, but invited error precludes relief from
counsel’s strategic decisions gone awry”). Thus, Sturgill has not shown any
error by the trial court in not acting when it had a duty to do so.
[8] Moreover, in Brown v. State, our supreme court concluded that a claim of error
premised on admitting evidence that was the product of an unconstitutional
search and seizure, without more, does not assert fundamental error where
there is “no claim of fabrication of evidence or willful malfeasance” on the part
of the investigating officers or where there is no claim the “evidence is not what
it appears to be.” 929 N.E.2d at 207. Sturgill does not allege that evidence was
fabricated or that the challenged evidence is not what it appears to be. He does
assert that Dwiggins’ conduct was willful malfeasance because she knew she
did not have probable cause that Sturgill was engaged in any illegal activity
when officers entered the property. See Appellant’s Br. at 12-13.
[9] “Malfeasance” is defined as:
Evil doing; ill conduct. The commission of some act which is
positively unlawful; the doing of an act which is wholly wrongful
and unlawful; the doing of an act which person ought not to do
at all or the unjust performance of some act which the party had
no right or which he had contracted not to do.
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Black’s Law Dictionary at 956 (9th ed. 2009). The trial court has already
addressed Sturgill’s claim that the evidence was unlawfully seized because
officers should not have entered his property and determined during the motion
to suppress proceedings that the officers had acted reasonably in entering the
property and conducting the search. Sturgill’s argument on appeal does not
allege anything further that would rise to the level of malfeasance, willful or
otherwise. Even if the officers had been mistaken in their assessment of the
circumstances, this does not rise to the level of willful malfeasance. See Mamon
v. State, 6 N.E.3d 488, 490 (Ind. Ct. App. 2014) (rejecting claim of fundamental
error where defendant argued officer misunderstood the traffic law that formed
the basis for a stop but did not dispute the truth of the officer’s testimony or
exhibits). In Brown, the court noted that admission of evidence as the result of
an improper seizure is not per se fundamental error: “because improperly
seized evidence is frequently highly relevant, its admission ordinarily does not
cause us to question guilt.” 929 N.E.2d at 207.
[10] For these reasons, Sturgill’s claim does not allege fundamental error and we
decline to review Sturgill’s challenge to the admissibility of the evidence. See id.
at 208 (explaining that it is not necessary to resolve the issue of whether a
search was lawful where the defendant had failed to preserve the issue at trial
and where there was no fundamental error).
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Conclusion
[11] Because Sturgill affirmatively consented to the admission of the evidence he
now challenges as improperly admitted and because his claim is premised on an
admission of evidence from an allegedly unconstitutional search, without more,
his claim is not reviewable for fundamental error, and his conviction is
affirmed.
[12] Affirmed.
Baker, J., and May, J., concur.
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