Joe A. Viverett v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 19, 2023
• Docket: 22A-CR-02076
• Status: Published

Opinion

FILED Jul 19 2023, 8:49 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anna Onaitis Holden Theodore E. Rokita Zionsville, Indiana Indiana Attorney General Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joe A. Viverett, July 19, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-2076 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven J. Rubick, Appellee-Plaintiff Magistrate Trial Court Cause No. 49D20-2201-F4-608

Opinion by Judge Crone Judge Kenworthy and Senior Judge Robb concur.

Crone, Judge.

Court of Appeals of Indiana | Opinion 22A-CR-2076 | July 19, 2023 Page 1 of 9 Case Summary [1] Joe A. Viverett appeals his convictions, following a jury trial, for two counts of

level 4 felony unlawful possession of a firearm by a serious violent felon (SVF).

He was also found to be a habitual offender. We reframe the multiple issues

raised on appeal as whether the trial court erred in admitting evidence at trial.

The crux of Viverett’s argument revolves around the warrantless entry into his

home by parole officers that he alleges violated his rights under the Fourth

Amendment to the United States Constitution and Article 1, Section 11 of the

Indiana Constitution. Concluding that Viverett failed to properly preserve his

challenge to the trial court’s admission of evidence, we affirm.

Facts and Procedural History [2] On January 5, 2022, Indiana Department of Correction parole officers went to

a home on North Brentwood Avenue in Marion County where they believed

parolee Lance Lewis had been staying. The home belonged to Viverett. As a

condition of his parole, Lewis signed a contract allowing officers to conduct

compliance checks at residences where he was staying. Lewis had recently

failed multiple drug screens, and officers received information that he may have

been “involved in an incident” that took place at the Brentwood Avenue

address. Tr. Vol. 2 at 30. Lewis was summoned to the parole office, and, during

interrogation, officers confiscated his cellphone and a set of keys. Although

Lewis initially denied residing at that address, officers confirmed that he had

sent multiple text messages giving the Brentwood Avenue address as his own

and that he was also trying to get utilities at that address placed in his name.

Court of Appeals of Indiana | Opinion 22A-CR-2076 | July 19, 2023 Page 2 of 9 Through GPS tracking points, officers further confirmed that Lewis’s car had

been parked primarily at that address. The Brentwood Avenue address had not

been approved by the parole office. Accordingly, officers went to the

Brentwood Avenue address to do a compliance check. When the parole officers

arrived, they knocked on the door and announced themselves. Nobody

answered, so they used keys given to the parole office by Lewis to open the

front door. Officers entered the home and immediately did a protective sweep

for their safety. Two officers entered an upstairs bedroom, where they found

Viverett and a female sleeping in a bed. Officers observed a handgun in plain

view on the floor next to the bed. In other areas of the house, the parole officers

observed another handgun, a box of what appeared to be synthetic marijuana, a

digital scale, and a pipe containing white residue.

[3] Based upon their observations, the parole officers requested assistance from the

Indianapolis Metropolitan Police Department (IMPD). IMPD officers sought

and obtained a search warrant for the residence. Thereafter, a shotgun was

found underneath the mattress where Viverett had been sleeping. Officers also

located a video security system and observed footage showing Viverett holding

both a shotgun and a handgun.

[4] The State charged Viverett with two counts of level 4 felony unlawful

possession of a handgun by an SVF, level 4 felony unlawful possession of a

shotgun by an SVF, and class C misdemeanor possession of paraphernalia.

Viverett filed a motion to suppress evidence on May 5, 2022. Following a

hearing, Judge Jennifer Harrison denied the motion. Specifically, Judge

Court of Appeals of Indiana | Opinion 22A-CR-2076 | July 19, 2023 Page 3 of 9 Harrison found that it was “reasonable for the parole officers to believe that this

was either [Lewis’s] residence, his place of employment or a location where his

personal property could reasonably be located.” Id. at 80. Judge Harrison

concluded that, based on the “totality of the circumstances,” the parole officers

were simply “executing the conditional release agreement[,]” and therefore “the

entry into the home and the protective sweep that occurred in the home is legal

which then led to the search warrant which we’re not here to contest today.” Id.

at 80-81.

[5] Thereafter, the State dismissed the class C misdemeanor charge but added a

habitual offender allegation. A jury trial was held before Magistrate Steven

Rubick on July 13, 2022. At the outset of trial, Viverett lodged a continuing

objection to the admission of any evidence found following the parole officers’

warrantless entry of his home, asserting that he believed that his pretrial motion

to suppress should have been granted. Magistrate Rubick ruled that Judge

Harrison’s denial of the motion to suppress would stand but approved the

continuing objection. The jury found Viverett guilty of both firearm possession

charges. Viverett waived his right to a jury trial as to the habitual offender

allegation, and Magistrate Rubick found him to be a habitual offender. Viverett

was sentenced to concurrent eight-year sentences for the firearm possession

convictions, and his sentence for possession of a handgun was enhanced by six

years based upon the habitual offender finding. This appeal ensued.

Court of Appeals of Indiana | Opinion 22A-CR-2076 | July 19, 2023 Page 4 of 9 Discussion and Decision [6] Viverett challenges the trial court’s “admission of the evidence—the firearms—

discovered as a result of the parole officers’ warrantless entry into his home.”

Appellant’s Br. at 10. Viverett acknowledges that although he filed a pretrial

motion to suppress that was denied, because this appeal follows a completed

trial and conviction, the suppression issue is no longer viable, and the issue is

characterized as a request to review the trial court’s decision to admit any

challenged evidence. Casillas v. State, 190 N.E.3d 1005, 1012 (Ind. Ct. App.

2022), trans. denied. We generally review the trial court’s ruling on the

admission or exclusion of evidence for an abuse of discretion. Rogers v. State,

130 N.E.3d 626, 629 (Ind. Ct. App. 2019). We will reverse a ruling on the

admission of evidence for an abuse of discretion, which occurs only when the

ruling is clearly against the logic and effect of the facts and circumstances and

the error affects a party’s substantial rights. Clark v. State, 994 N.E.2d 252, 260

(Ind. 2013).

[7] Viverett makes clear that he is not challenging the trial court’s decision to admit

any specific piece of evidence. Rather, he attempts to revive the suppression

issue by asserting that the “State adduced no evidence during the jury trial” to

establish the legality of the search of his home. Appellant’s Br. at 5. In other

words, Viverett is challenging the overall sufficiency of the State’s foundational

evidence offered at trial, arguing that “[t]he in-trial evidence explaining the

parole agents’ warrantless entry into Mr. Viverett’s home” was “lacking”

compared to what was offered during the suppression hearing. Id. at 16.

Court of Appeals of Indiana | Opinion 22A-CR-2076 | July 19, 2023 Page 5 of 9 [8] The State contends that Viverett did not preserve his current evidentiary

challenge because he failed to make a proper contemporaneous objection and

specific showing at trial. We agree. It is well settled that “[a] pre-trial motion to

suppress does not preserve an error for appellate review; rather, the defendant

must make a contemporaneous objection providing the trial court with an

opportunity to make a final ruling on the matter in the context in which the

evidence is introduced.” D.A.L. v. State, 937 N.E.2d 419, 422 (Ind. Ct. App.

2010). The rule requiring a contemporaneous objection “is no mere procedural

technicality; instead, its purpose is to allow the trial judge to consider the issue

in light of any fresh developments and also to correct any errors.” Shoda v. State,

132 N.E.3d 454, 461 (Ind. Ct. App. 2019).

[9] Viverett is correct that if a defendant makes a contemporaneous objection

during trial to the State’s foundational evidence, and the evidence is not the

same as at the suppression hearing stage, the trial court must determine whether

certain evidence is admissible based upon the testimony and evidence presented

at trial. Casillas, 190 N.E.3d at 1012. Indeed, under such circumstances, while

the trial court “may not wholly dismiss direct evidence at trial and accept

evidence from the motion to suppress hearing in its place,” the trial court is

permitted to “reflect upon the foundational evidence from the motion to

suppress hearing” to the extent that such evidence was not “in direct conflict

with the evidence introduced at trial.” Kelley v. State, 825 N.E.2d 420, 426 (Ind.

Ct. App. 2005).

Court of Appeals of Indiana | Opinion 22A-CR-2076 | July 19, 2023 Page 6 of 9 [10] Here, however, the trial court was deprived of such an opportunity because that

is not the objection that Viverett made. At the outset of trial, Viverett lodged a

simple “standing objection” to “literally anything – physical items found in the

house and statements made by any person as I believe the entry into the home

was unconstitutional.” Tr. Vol. 2 at 88. The trial court acknowledged the

standing objection but ruled that the pretrial denial of the motion to suppress

would stand.

[11] It is well established that once a continuing objection is approved, “trial judges

... need not necessarily rehear evidence and arguments relating to admissibility

issues previously heard and determined during pre-trial proceedings.” Joyner v.

State, 678 N.E.2d 386, 393 (Ind. 1997). Our supreme court has offered guidance

for the proper way to handle a trial objection on an issue decided in a pretrial

hearing:

When a simple objection for the purpose of preserving appellate rights is made, the trial judge should consider the pre-trial determination res judicata and binding upon him and overrule the objection.[ 1] If, however, the trial objection is based upon new factual or legal matter, a simple overruling of the objection would not be appropriate. In that instance, the trial judge may expect, and indeed require, that he be provided with an accurate summary description of such new matter. Thereafter, either of two levels of judicial response is appropriate. The trial judge may

1 This Court has noted that the “suggestion that the doctrine of res judicata is applicable to pre-trial evidentiary rulings would appear to be an inadvertent error” and applies only to matters that have been fully litigated and where a final determination has been made prior to trial. Kelley, 825 N.E.2d at 425 n.3 (citing Joyner, 678 N.E.2d at 393).

Court of Appeals of Indiana | Opinion 22A-CR-2076 | July 19, 2023 Page 7 of 9 summarily overrule the objection if the new matter could in no event result in a determination of inadmissibility. This summary disposition may be made upon consideration of counsel’s description, or, in the discretion of the judge, after having permitted the defense to call witnesses, to present its new matter. On the other hand, if the trial judge deems such new matter to be of sufficient substance, he may conduct a hearing on the motion to suppress, having a scope appropriate under the circumstances, and reconsider the issue of admissibility.

Magley v. State, 263 Ind. 618, 634-35, 335 N.E.2d 811, 821 (1975), overruled on

other grounds by Smith v. State, 689 N.E.2d 1238 (Ind. 1997).

[12] Viverett’s simple objection here clearly did not alert the trial court that any new

factual or legal matters had arisen since the suppression hearing. Moreover, at

no time during trial did he assert that the State’s foundational evidence

justifying the warrantless entry into his home was lacking or contradictory to

that offered at the suppression hearing. Nevertheless, he suggests that rather

than summarily affirming the pretrial suppression ruling at the outset of trial,

the trial court should have “reopened the suppression issue for in-trial

litigation.” Appellant’s Br. at 16. But this was neither requested nor required of

the trial court. A trial court will not be found to have abused its discretion by

not stopping the trial and conducting a full evidentiary hearing to reopen a

suppression issue absent evidence presented at trial in direct conflict with the

evidence presented at the suppression hearing. Strickland v. State, 119 N.E.3d

140, 148 (Ind. Ct. App. 2019) (citing Kelley, 825 N.E.2d at 426), trans. denied.

Viverett does not argue that the evidence presented at trial was in direct conflict

with evidence presented at the suppression hearing, and he does not direct this Court of Appeals of Indiana | Opinion 22A-CR-2076 | July 19, 2023 Page 8 of 9 Court to any such evidence in the record. Without more, neither the trial court

nor this Court must fully revisit the suppression issue.2 Viverett’s convictions

are affirmed.

[13] Affirmed.

Kenworthy, J., and Robb, Sr.J., concur.

2 We acknowledge that, in this case, different judicial officers presided over the suppression hearing and the trial. Our supreme court has explained, Where, as in the case at bar, the judge who conducts the trial is not the judge who conducted and determined the pre-trial motion, obstacles to a full and fair reconsideration at trial exist. The trial judge is not acquainted with the evidence presented in the pre-trial hearing. Consequently, he is unable to weigh the old evidence with the new. This problem does not arise, of course, where the trial judge makes a summary denial of the objection based upon an inadequate showing of substantial new matter. Magley, 263 Ind. at 635, 335 N.E.2d at 821. As noted above, the trial court here was not required to fully revisit the suppression issue absent a showing of “new factual or legal matter[s],” and thus the change of judicial officers here is of no moment. See id.

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