Moss v. State , 165 Ind. App. 502 ( 1975 )

335 N.E.2d 633 (1975)

Gregory MOSS, Appellant,
v.
STATE of Indiana, Appellee.

No. 2-1273A266.

Court of Appeals of Indiana, Second District.

October 15, 1975.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Russell D. Millbranth, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION ON PETITION FOR REHEARING

SULLIVAN, Presiding Judge.

Gregory Moss petitions this Court for rehearing of his appeal from a conviction of possession of heroin. In our original opinion (August 26, 1975), Ind. App., 333 N.E.2d 141, we held that any possible error in the admission of the heroin itself was not grounds for reversal in light of Moss' failure to object to testimony about the heroin which, standing alone, was sufficient to sustain the conviction.

I

Moss asserts that we erred in finding that the testimony was admitted without objection. He argues that specific objections to the testimony concerning the heroin were not necessary to preserve error because his counsel's in-trial motion "to suppress the evidence obtained as a result of the search" sufficed to meet the objection requirement for both the heroin and the testimony. Moss relies on Eisenshank v. State (1926), 197 Ind. 463, 467, 150 N.E. 365, 366, wherein it is stated that "[w]hen there has been a sufficient and specific objection to the testimony, it is not necessary to repeat the objection whenever testimony of the same class is offered." See also State v. Monninger (1962), 243 Ind. 174, 182 N.E.2d 426 (quoted rule acknowledged but not applied); Faust v. State (1974), Ind. App., 319 N.E.2d 146 (quoted rule acknowledged but not applied); G.W. Opell Co. v. Phillips (1929), 90 Ind. App. 552, 169 N.E. 354.

The numerous recent cases cited in our original opinion as support for the general rule that a specific objection must be made contemporaneously with the questioned evidence, 333 N.E.2d at 143, tend to diminish the strength of the Eisenshank precedent. To the extent that the rule stated therein retains validity in this state, it must be read in the context of the facts in Eisenshank, supra, and G.W. Opell Co., supra, the only cases which our research has disclosed in which the rule has been applied.

The facts of those cases do not equate with the facts here. In Eisenshank, a properly specific objection to the second in a series of four consecutive, nearly identical questions to the same witness was allowed to suffice for the last two questions. In G.W. Opell Co., the proper objection to a particular question to one witness obviated the necessity of objecting to a nearly identical question to the same witness later in that witness' examination. Moss asserts that his oral motion "to suppress the evidence obtained as a result of the search" made early in the trial is sufficient to eliminate the need for objecting contemporaneously with the varying testimony of four different witnesses produced later.

To so apply the Eisenshank rule would place a burden on the trial court inconsistent with the theme of the recent cases cited in our original opinion. Cf. Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98; Winston v. State (1975), Ind. App., 332 N.E.2d 229. Rather than require the trial court to constantly consider whether a challenged piece of evidence is governed by an earlier, perhaps remote objection made to evidence arguably of a different nature, we think it better practice and more consistent with recent cases "for objecting counsel to ask the judge to have the record to show that it is understood that the objection goes to all other like evidence, and when later evidence is offered, to have it noted that the earlier objection applies." McCormick, Evidence 118 (2d Ed. 1972). In this connection, it should be noted that Moss' earlier objection in the form of his Motion to Suppress was to physical rather than testimonial evidence.

II

Moss argues that we erred in considering the testimony concerning the heroin in our application of the harmless-constitutional-error rule of Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. While there is language in the Harrington opinion which supports Moss' position that allegedly tainted evidence cannot be considered as part of the evidence which must be "overwhelming" (395 U.S. at 254, 89 S.Ct. at 1728-1729), such a qualification to the test is absent from the subsequent case of Brown v. United States (1973), 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.

While the Brown court does say that "[i]n this case, as in Harrington v. California * * *, the independent evidence" is overwhelming (411 U.S. at 231, 93 S.Ct. at 1570), we do not see in this statement a requirement that the "overwhelming" evidence must be wholly unrelated to the possibly erroneously allowed evidence. We think the Brown court's use of the phrases "other evidence" and "independent evidence" simply signifies a recognition that the possibly improperly received evidence cannot itself be considered but that the application of the rule must rest on whether the evidence which was properly received is "overwhelming". We held in the opinion on the merits that the testimony was properly received, properly considered to the extent of its probative value, and "alone or in part may support a verdict or finding." McCormick, Evidence, 125-126 (2d Ed. 1972). Thus we deny the Petition for Rehearing.

BUCHANAN, J., concurs in result.

WHITE, J., concurs in the denial of the petition for rehearing for the reasons stated in Presiding Judge Sullivan's opinion of August 26, 1975, without either agreeing or disagreeing with the views expressed in today's opinion.