Kenneth N. McFall v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 29 2019, 8:51 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Jesse R. Drum
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth N. McFall, April 29, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2322
v. Appeal from the Perry Circuit
Court
State of Indiana, The Honorable Mary Lucille
Appellee-Plaintiff. Goffinet, Judge
The Honorable Karen A. Werner,
Magistrate
Trial Court Cause No.
62C01-1804-F3-325
Najam, Judge.
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Statement of the Case
[1] Kenneth N. McFall appeals his convictions following a jury trial for dealing in
methamphetamine, as a Level 3 felony; possession of marijuana, as a Class B
misdemeanor; and possession of paraphernalia, as a Class C misdemeanor. He
presents three issues for our review, which we restate as follows:
1. Whether McFall preserved for appellate review his
argument that the trial court erred under the Fourth
Amendment and Article 1, Section 11 of the Indiana
Constitution when it admitted evidence that law
enforcement officers had seized pursuant to a search of his
residence.
2. Whether the trial court abused its discretion when it did
not allow a witness to testify in front of the jury.
3. Whether the trial court abused its discretion when it
declined to give a proffered jury instruction.
[2] We affirm.
Facts and Procedural History
[3] On April 23, 2018, Sergeant Jason Shadwick of the Tell City Police Department
applied for a search warrant for McFall’s residence. In support of his request
for the search warrant, Sergeant Shadwick filed an affidavit of probable cause
that stated in part:
On April 23, 2018[,] Officer Bryan Hammack and Affiant both
observed a 2001 tan or grey Chevrolet truck park along Jefferson
Street at 747 14th Street. Officer[s] were conducting surveillance
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in the area in reference to tips received by citizens of drug dealing
from this residence and another nearby residence. In the past,
Tell City Police Department has also received information of
Kenny McFall dealing in methamphetamine. While conducting
surveillance on this residence, Officer Hammack observed Kenny
McFall exit his home and go to the vehicle for a short time. Mr.
McFall then went back to his residence and the vehicle left the
residence. A short time later, Officer Hammack and I conducted
a traffic stop on the vehicle in question on Franklin Street after
observing the vehicle disregard a stop sign and discovering the
vehicle plate was false/fictitious, coming back to a 1996 maroon
Dodge.
I then identified the driver as Henry Kellems. Mr. Kellems
displayed an unusual level of nervousness. Mr. Kellems also
indicated that he didn’t have current insurance on the vehicle and
his driver status was found to be HTV (Habitual Traffic
Violator). During the course of the traffic stop, I deployed my
K9 partner, “Piko” to perform a free air sniff of the vehicle.
During the free air sniff of the vehicle, K9 “Piko” gave a positive
alert of a narcotic odor coming from the vehicle’s interior.
During a subsequent search of the vehicle, I located a clear
plastic bag containing a crystal like substance that appeared to be
methamphetamine. That substance also field tested positive for
methamphetamine. It should be noted that K9 “Piko” is a
certified narcotics detection and police patrol dog.
During an interview with Mr. Kellems, he confirmed that the
substance was methamphetamine and that Mr. McFall delivered
it to his vehicle when he arrived. Mr. Kellems admitted to
getting methamphetamine from Kenny McFall’s residence in the
past. Mr. Kellems stated that today, he and Kenny made a prior
arra[nge]ment by phone that he would trade some sandstones to
Kenny for some meth. Mr. Kellems stated the amount wasn’t
agreed upon prior to meeting Kellems [sic] today. However, Mr.
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Kellems did cite other times of trading things to McFall for
methamphetamine.
Mr. Kellems admitted that Kenny McFall had provided him with
methamphetamine in the past prior to today, as well as today.
Mr. Kellems also corroborated Officer Hammack’s surveillance
of McFall coming out of his residence and delivering the bag of
methamphetamine to him (Kellems) in his vehicle.
Appellant’s App. Vol. II at 164-65. The trial court granted the search warrant
that same day.
[4] Later that evening, officers executed the search warrant. During the search,
officers found an Altoids tin that contained a baggie with 7.92 grams of
marijuana and rolling papers, an eyeglasses case that contained a corner baggie
of methamphetamine that was tied with a blue twist tie and a pipe that had
methamphetamine residue in it, an Altoids tin that contained four corner
baggies of methamphetamine that were tied with blue twist ties, plastic baggies
missing their corners, $658 in cash, and two long guns.
[5] The State charged McFall with two counts of dealing in methamphetamine, as
Level 3 felonies (Counts I and II); one count of possession of
methamphetamine, as a Level 5 felony (Count III); one count of maintaining a
common nuisance, as a Level 6 felony (Count IV); one count of possession of
marijuana, as a Class B misdemeanor (Count V); and one count of possession
of paraphernalia, as a Class C misdemeanor (Count VI).
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[6] On May 24, McFall filed a motion to suppress any evidence seized during the
search of his residence. In that motion, McFall asserted that the search warrant
was unlawful because the affidavit for probable cause that Sergeant Shadwick
had filed in support of his request for the search warrant contained only
untrustworthy information. During the hearing on McFall’s motion, McFall
specifically asserted that the affidavit in support of the search warrant was based
only on hearsay statements and that the affidavit did not contain any
information to indicate that the hearsay statements were reliable or credible.
The trial court denied McFall’s motion.
[7] The trial court held a jury trial from August 6 through August 8. During the
trial, the State called Officer Hammack as a witness and questioned him about
the search of McFall’s house. Specifically, the State asked Officer Hammack
what officers had found during the search, and Officer Hammack stated that
“[t]here was marijuana found, and there was methamphetamine found.” Tr.
Vol. III at 163. At that point, McFall objected. The trial court overruled
McFall’s objection, but, on McFall’s request, the trial court stated that it would
show a continuing objection.
[8] The State moved to admit as evidence photographs that officers had taken at
McFall’s house. Specifically, the State moved to admit the following: a picture
of a baggie of marijuana and rolling papers; a picture of an Altoids tin with
marijuana; a picture of an open eyeglasses case that contained a glass pipe and
a corner baggie of methamphetamine that was tied with a blue twist tie; a
picture of an Altoids tin that contained four corner baggies of
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methamphetamine, all of which were tied with blue twist ties; and a picture of a
trashcan that contained baggies missing their corners. The trial court asked
McFall if he had any objection to the admission of the photographs, and
McFall responded, “No, Your Honor.” Id. at 164.
[9] During his testimony, Officer Hammack testified that the presence of four
corner baggies of methamphetamine at McFall’s house “indicates . . . that this
would be a dealing situation.” Tr. Vol. III at 169. He further testified that the
presence of baggies with missing corners indicates “that the defendant is dealing
in methamphetamine.” Id. Additionally, Officer Hammack testified that,
based on his experience, “[i]t is inconsistent . . . for a user to buy four separate
baggies of that nature. It just doesn’t happen. It’s never happened, that I can
recall in my 12 or so years.” Id. at 178. Rather, he stated that is more common
for an individual to get one baggie that contains the amount of
methamphetamine that the person had purchased. Further, Officer Hammack
testified that he had never seen methamphetamine packaged with blue twist
ties, which he testified was “unique.” Id. at 187. Officer Hammack testified
that, after seeing the baggies with blue twist ties in McFall’s house, “[i]t further
confirmed [his] suspicions that the methamphetamine that Mr. Kellems had in
his vehicle,” which was also in a baggie tied with a blue twist tie, “came from
Mr. McFall’s residence.” Id. at 187.
[10] The State also called Sergeant Shadwick as a witness. Sergeant Shadwick
testified that, when he first arrived at McFall’s house, McFall told him that “he
may have a small amount of methamphetamine in an Altoids container in the
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living room.” Id. at 206. Sergeant Shadwick also testified that a corner baggie
tied with a blue twist tie is “not something that [he has] ever seen.” Id. at 207.
The State then moved to admit as evidence the corner baggie of
methamphetamine that officers had found in an eyeglasses case during the
search of McFall’s house. When the trial court asked McFall if he had any
objections, he responded: “No objection.” Id. at 209.
[11] The State also moved to admit as evidence the Altoids tin that contained four
corner baggies of methamphetamine. Again, when asked if he had any
objections to the admission of that evidence, McFall stated: “No objection.”
Id. at 212. And when the State moved to admit the four corner baggies of
methamphetamine, he again stated that he had no objection. Sergeant
Shadwick testified that, based on his training, having four baggies of
methamphetamine is not indicative of personal use. He further testified that he
believed that the baggie of methamphetamine that Kellems had, which was tied
with a blue twist tie, “definitely came from” McFall’s residence because it
matched the four baggies of methamphetamine at McFall’s house that were
also tied with blue twist ties. Id. at 210.
[12] The State then moved to admit as evidence $658 in cash that officers had
collected from McFall’s residence. McFall again stated that he had no
objection. McFall also stated that he had no objection when the State moved to
admit as evidence the Altoids tin that contained a baggie of marijuana. McFall
again stated the he had no objection when the State moved to admit the baggie
of marijuana that officer had seized during the search of his house.
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[13] After the State concluded its case-in-chief, McFall presented evidence in his
defense. McFall attempted to call Kellems as a witness. Because Kellems had
a pending criminal charge against him and because he planned to invoke his
right against self-incrimination, the trial court heard arguments from the parties
as to whether Kellems should be allowed to testify in the presence of the jury.
McFall asserted that, under the Sixth Amendment, he should be allowed to
question Kellems in the presence of the jury so that the jury could hear Kellems
invoke his Fifth Amendment right. The State responded and stated that it
would not be proper for the jury to hear Kellems invoke his right against self-
incrimination. The trial court permitted Kellems to testify but only outside the
presence of the jury, where he advised the trial court that he would invoke his
Fifth Amendment right against self-incrimination.
[14] McFall then testified in his defense. During his testimony, he admitted that he
had possessed the marijuana and methamphetamine. He further testified that
he did not sell the methamphetamine to Kellems but, rather, that Kellems had
given him the methamphetamine in exchange for work that he had done for
Kellems.
[15] At the conclusion of the parties’ presentation of evidence, McFall proposed the
following jury instruction:
Because possession with intent to deliver is a mental state, it can
be established only by considering the behavior of the relevant
actor, the surrounding circumstances, and the reasonable
inferences to be drawn therefrom. Circumstantial evidence of
intent may support a conviction. Possession of a large amount of
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narcotic substance is circumstantial evidence of the intent to
deliver. The more narcotics a person possesses, the stronger the
inference that he intended to deliver it rather than consume it
personally.
Tr. Vol. IV at 43. The State objected on the ground that the instruction was
misleading. The trial court declined to give McFall’s proffered jury instruction.
[16] At the conclusion of the trial, the jury found McFall guilty as charged, and the
trial court entered judgment of conviction on all six counts. The trial court then
held a sentencing hearing on August 28. At the hearing, the court vacated
McFall’s convictions on Counts II, III, and IV “for double jeopardy purposes.”
Id. at 73. The court sentenced McFall to an aggregate term of eight years in the
Department of Correction. This appeal ensued.
Discussion and Decision
Issue One: Admission of Evidence
[17] McFall first contends that the trial court erred under the Fourth Amendment
and Article 1, Section 11 of the Indiana Constitution when it admitted as
evidence items law enforcement officers had seized during the search of his
residence. McFall’s arguments that the search of his residence violated his
Fourth Amendment and Article 1, Section 11 rights raise “questions of law that
we review de novo.” Redfield v. State, 78 N.E.3d 1104, 1106 (Ind. Ct. App. 2017)
(quotation marks omitted), trans. denied.
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[18] On appeal, McFall contends that the search of his house was illegal “because
the search warrant was not supported by probable cause[.]” Appellant’s Br. at
19. Specifically, McFall asserts that the search was improper because the
affidavit for probable cause only contained “classic hearsay statements” and
because the affidavit “contain[ed] no information corroborating” those
statements.” Id. at 22, 23. But we need not address whether there was probable
cause to issue the search warrant because we agree with the State that McFall
has failed to preserve for our review the question of the admissibility of the
evidence obtained during the search.
[19] During his trial, McFall requested, and the trial court granted, a continuing
objection to the admission of any evidence that law enforcement officers had
seized during the search of his residence. It is well settled that “Indiana
recognizes continuing objections.” Hayworth v. State, 904 N.E.2d 684, 691 (Ind.
Ct. App. 2009). That is because “continuing objections serve a useful purpose
in trials. That is, they avoid the futility of and waste of time inherent in
requiring repetition of the same unsuccessful objection each time evidence of a
given character is offered.” Id. at 692.
[20] However, while continuing objections are useful, “there are dangers to using
continuing objections.” Id. For example, in Hayworth, police officers obtained
a warrant to search Hayworth’s residence. During the search, officers found
guns, methamphetamine, and numerous items associated with the manufacture
of methamphetamine. Id. at 688. Prior to trial, Hayworth filed a motion to
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suppress all evidence seized during the execution of the search warrant. Id.
Following a hearing, the trial court denied Hayworth’s motion. Id. at 689.
[21] During Hayworth’s ensuing jury trial, the State moved to admit as evidence the
items seized during the search. Id. at 690. Hayworth affirmatively stated that
she did not object to the admission of a photograph of lithium, which an officer
had testified was the main ingredient in methamphetamine. The State then
attempted to introduce as evidence a methamphetamine shopping list. At that
point, Hayworth lodged a continuing objection to all evidence seized from her
house, which the trial court overruled. Id. However, Hayworth affirmatively
stated that she had no objection when the State subsequently moved to admit
the following specific evidence that had been seized from her house: a close-up
photograph of firearms, the firearms, glass jars and a grinder, a photograph of a
propane tank with anhydrous ammonia, a photograph of a reaction vessel, a
sample taken from the reaction vessel, a photograph of another tank that
contained anhydrous ammonia, a photograph of lithium battery packaging, and
a methamphetamine shopping list. Id. at 691-92.
[22] Hayworth appealed her convictions and asserted that the trial court had erred
when it admitted as evidence the items seized from her house. On appeal, this
Court acknowledged that Hayworth had filed a continuing objection to the
admission of evidence obtained during the search of her house. But this Court
stated that, after she had lodged her continuing objection, the proper procedure
would have been for Hayworth to have remained silent when the
State introduced those various exhibits. But Hayworth did much
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more than that. Instead, she affirmatively said, “No objection.”
This was confusing to the trial court, the State, and now us, the
reviewing court, leaving us to speculate as to why she bounced
back and forth between continuing objection and no objection.
Id. at 693-94. Further, on appeal, Hayworth “assert[ed] that ‘No objection’
really meant ‘no objection other than the continuing objection.’” Id. at 694. But
this Court declined to “read ‘No objection,’ a simple and powerful two-word
phrase, to have such a meaning.” Id. Accordingly, despite her continuing
objection, because Hayworth had explicitly stated that she had no objection to
the admission of the vast majority of the evidence against her, this Court held
that she had waived her objection to the admission of that evidence. Id.
[23] Similarly, here, McFall requested, and the trial court granted, a continuing
objection to the admission of evidence that officers had seized during the search
of his residence. Because the trial court permitted his continuing objection, the
proper procedure upon the State’s request to admit the specific items of
evidence was for McFall to remain silent or to state that he had no objection
other than the continuing objection. But McFall did not do that. Instead,
McFall affirmatively stated that he had no objection to the admission of the
following evidence seized from his house: numerous pictures of marijuana and
methamphetamine, a picture of baggies missing their corners, several corner
baggies of methamphetamine, $658 in cash, and two long guns. In essence,
McFall stated that he had no objection to almost all of the evidence against
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him. McFall has therefore waived his objection to the admission of the
evidence seized during the execution of the search warrant. 1 See id.
Issue Two: Kellems’ Testimony
[24] McFall next contends that the trial court abused its discretion when it did not
allow Kellems to testify in front of the jury. As the Indiana Supreme Court has
stated:
Generally, a trial court’s ruling on the admission of evidence is
accorded “a great deal of deference” on appeal. Tynes v. State,
650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best
able to weigh the evidence and assess witness credibility, we
review its rulings on admissibility for abuse of discretion” and
only reverse “if a ruling is ‘clearly against the logic and effect of
the facts and circumstances and the error affects a party’s
substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind .2013)).
Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015).
[25] McFall specifically contends that the trial court abused its discretion when it did
not allow Kellems to invoke his right against self-incrimination in front of the
jury because it was part of McFall’s “reasonable defense strategy” and because
it would “bolster his claim that Kellems was the actual perpetrator of the
dealing offense.” Appellant’s Br. at 37. However, our Supreme Court has held
1
McFall makes no argument that the admission of the evidence seized from his house constituted
fundamental error. Indeed, McFall does not acknowledge that he affirmatively stated that he had no
objection to the admission of any of the evidence.
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that “defendants do not have a right to force a witness to invoke the Fifth
Amendment privilege before the jury.” Stephenson v. State, 864 N.E.2d 1022,
1047 (Ind. 2007).
[26] McFall acknowledges that our Supreme Court’s holding in Stephenson is
“inconsistent” with his argument. Appellant’s Br. at 37. But he also asserts
that the holding in Stephenson is “also completely inconsistent” with our
Supreme Court’s holding in Johnson v. State. Id. In Johnson, which was an
appeal from the denial of a petition for post-conviction relief, the Indiana
Supreme Court held that Johnson’s attorney had not rendered ineffective
assistance of counsel for failing to request an immediate limiting instruction
after Johnson’s accomplice invoked his Fifth Amendment right in the presence
of the jury. 719 N.E.2d 812, 815 (Ind. 1999). That Court further held that the
actions of Johnson’s attorney of pointing out to the jury that Johnson’s
accomplice had refused to testify “could represent a reasonable trial strategy
to . . . bolster the defendant’s theory” that the accomplice had committed the
crime instead of Johnson. Id.
[27] Contrary to McFall’s assertions, the Supreme Court in Johnson did not hold that
a defendant has a right under the Sixth Amendment to force a witness to invoke
his right against self-incrimination in front of the jury. Instead, that Court
simply held that, if a witness does invoke that right, it was a reasonable trial
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strategy for the defendant’s attorney to use that fact to bolster his defense.
Accordingly, McFall’s reliance on Johnson is misplaced. 2
[28] As discussed above, the Court in Stephenson stated that a defendant does not
have the right to force a witness to invoke the Fifth Amendment in front of the
jury. See Stephenson, 864 N.E.2d at 1047. Because McFall did not have the
right to call Kellems as a witness for the sole purpose of having Kellems invoke
his Fifth Amendment right in front of the jury, we cannot say that the trial court
abused its discretion when it did not allow Kellems to testify in front of the jury.
Issue Three: Jury Instruction
[29] Finally, McFall asserts that the trial court abused its discretion when it failed to
tender his proffered jury instruction. Our Supreme Court has set out our
standard of review.
“The trial court has broad discretion as to how to instruct the
jury, and we generally review that discretion only for abuse.”
Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012). To determine
whether a jury instruction was properly refused, we consider:
“(1) whether the tendered instruction correctly states the law; (2)
whether there was evidence presented at trial to support giving
the instruction; and (3) whether the substance of the instruction
was covered by other instructions that were given.” Lampkins v.
State, 778 N.E.2d 1248, 1253 (Ind. 2002). In doing so, “we
2
McFall also asserts that, “[t]o the extent that there is any conflict between Johnson and Stephenson, this
Court should adopt the rationale in Johnson.” Appellant’s Br. at 37. However, it is well settled that “we are
bound to follow the court’s most recent pronouncement on the issue.” Howse v. State, 627 N.E.2d 441, 444
(Ind. Ct. App. 1999). Accordingly, even if the two cases were in conflict, we would be required to follow the
Supreme Court’s decision in Stephenson as it was decided more than seven years after Johnson.
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consider the instructions ‘as a whole and in reference to each
other’ and do not reverse the trial court ‘for an abuse of that
discretion unless the instructions as a whole mislead the jury as
to the law in the case.’” Helsley v. State, 809 N.E.2d 292, 303
(Ind. 2004) (quoting Carter v. State, 766 N.E.2d 377, 382 (Ind.
2002)).
McCowan v. State, 27 N.E.3d 760, 763-64 (Ind. 2015).
[30] McFall’s tendered jury instruction stated as follows:
Because possession with intent to deliver is a mental state, it can
be established only by considering the behavior of the relevant
actor, the surrounding circumstances, and the reasonable
inferences to be drawn therefrom. Circumstantial evidence of
intent may support a conviction. Possession of a large amount of
narcotic substance is circumstantial evidence of the intent to
deliver. The more narcotics a person possesses, the stronger the
inference that he intended to deliver it rather than consume it
personally.
Tr. Vol. IV at 43. On appeal, McFall contends that the trial court abused its
discretion when it declined to give that jury instruction because it is an accurate
statement of the law, the evidence and his defense supported giving the
instruction, and no other instruction covered the substance of that instruction.
[31] McFall is correct that his proffered jury instruction is technically a correct
statement of the law. See Richardson v. State, 856 N.E.2d 1222, 1227 (Ind. Ct.
App. 2006). However, “[i]nstructions that unnecessarily emphasize one
particular evidentiary fact, witness, or phase of the case have long been
disapproved.” Ludy, 784 N.E.2d at 461. Here, McFall’s instruction
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emphasized one piece of evidence, namely the amount of methamphetamine
that McFall possessed. However, the State also presented evidence to
demonstrate McFall’s intent to deliver in addition to the amount of
methamphetamine that was in his possession. Specifically, the State presented
evidence that McFall had four individual baggies of methamphetamine instead
of one baggie. Both Sergeant Shadwick and Officer Hammack testified that the
possession of four baggies indicated that it “would be a dealing situation.” Tr.
Vol. III at 169. Further, the State presented as evidence baggies from McFall’s
residence that were missing their corners, which both officers again testified was
indicative of dealing. Because McFall’s proffered jury instruction improperly
emphasized one particular piece of evidence, we cannot say that the trial court
abused its discretion when it declined to give that instruction.
Conclusion
[32] In sum, we hold that McFall has waived any challenge to the admission of
evidence that officers obtained during the search of his residence despite his
continuing objection because he affirmatively stated that he had no objection to
the admission of almost all of the evidence. We further hold that the trial court
did not abuse its discretion when it did not allow Kellems to testify in front of
the jury or when it declined to give McFall’s proffered jury instruction. We
therefore affirm McFall’s convictions.
[33] Affirmed.
Pyle, J., and Altice, J., concur.
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