MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                               Jul 27 2018, 9:15 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brenzell Bell,                                           July 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1711-CR-2603
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable James Snyder,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1610-F2-42416



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2603 | July 27, 2018            Page 1 of 10
[1]   Brenzell Bell appeals his convictions for dealing in a narcotic drug, dealing in

      methamphetamine, possession of a controlled substance, possession of

      marijuana, and possession of paraphernalia. Bell raises one issue which we

      revise and restate as whether the trial court abused its discretion in admitting

      into evidence the statements he made to police during the execution of a search

      warrant. We affirm.


                                            Facts and Procedural History

[2]   On October 25, 2016, Indianapolis Metropolitan Police Detective Beniam

      Kumbi went to a house on Chester Avenue in Marion County with a SWAT

      team to serve a search warrant. The police secured the house, and Detective

      Kumbi read the search warrant and Miranda warnings1 to the persons in the

      house, including Bell. In executing the warrant, police discovered a firearm,

      loaded magazines, and marijuana on the couch in the living room, a pipe on

      the floor, a shotgun in a bedroom closet, a box of shotgun ammunition in a

      bedroom window, and a body shop repair receipt containing Bell’s name and

      the address of the house in the basement. In the kitchen, police discovered two

      digital scales, a bottle of NoDoz, a strip of suboxone, and sandwich baggies.

      They recovered methamphetamine with a weight of 4.71 grams, a substance

      containing heroin and fentanyl with a weight of 27.88 grams, marijuana with a

      weight of 2.1 grams, and buprenorphine.




      1
          See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), reh’g denied.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2603 | July 27, 2018   Page 2 of 10
[3]   While at the house, Bell indicated to Detective Kumbi that he lived there and

      Detective Kumbi recorded the conversation. At one point during the recorded

      conversation, Detective Kumbi asked “[y]eah, he’s just using you to sell his

      shit. How much money do you make,” and Bell replied “[u]h, if I sell it, like, a

      hundred a gram or, you know, one to seventy” and “[a]nywhere from about

      seventy to a hundred, depending on who come through.” State’s Exhibit 47 at

      4. Detective Kumbi asked “[h]ow much would you say you sell in a day,” and

      Bell answered “[s]ome days none. Some days might move, like, five grams.

      Some days, you know, two or three grams. It’s just like a, you know, anywhere

      between forty to five grams - forty dollars’ worth to five, six grams. Or some

      days no - there has been days none.” Id.


[4]   The State charged Bell, as amended, with: Count I, dealing in a narcotic drug as

      a level 2 felony; Count II, dealing in methamphetamine as a level 3 felony;

      Count III, possession of a narcotic drug as a level 3 felony; Count IV,

      possession of methamphetamine as a level 5 felony; Count V, possession of a

      controlled substance as a level 6 felony; Count VI, possession of marijuana; and

      Count VII, possession of paraphernalia. Bell filed a motion to suppress his

      statements to Detective Kumbi during the execution of the warrant. Following

      a hearing, the court found that Bell knowingly and voluntarily waived his

      Miranda rights and denied his motion to suppress. At his jury trial, Bell

      objected to the admission of his statements to Detective Kumbi, and the court

      overruled his objection and admitted the recording and transcript of the

      recording of Bell’s statements. Bell testified that he had been living at the house


      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2603 | July 27, 2018   Page 3 of 10
      for five to six months, he did not know about the drugs, and with respect to his

      conversation with Detective Kumbi that he “was just telling him what he

      wanted to hear after I kept telling him I didn’t have anything to do with

      anything.” Transcript Volume II at 176. The jury found Bell guilty as charged,

      and the court entered judgment of convictions on Counts I, II, V, VI, and VII.

      The court sentenced him to an aggregate sentence of twenty years with three

      years suspended and ordered that one year of the executed portion of his

      sentence be served through community corrections.


                                                   Discussion

[5]   The trial court has broad discretion to rule on the admissibility of evidence.

      Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). We review its rulings for abuse

      of that discretion and reverse only when admission is clearly against the logic

      and effect of the facts and circumstances and the error affects a party’s

      substantial rights. Id. However, we will not reverse an error in the admission

      of evidence if the error was harmless. Turner v. State, 953 N.E.2d 1039, 1058

      (Ind. 2011).


[6]   Bell claims the State did not show that he knowingly, intelligently, and

      voluntarily waived his Miranda rights. He further argues that the recording

      presented by the State was not a “complete and continuous rendition of the

      interrogation with the absence of the Miranda warning in the beginning and the

      talk of providing information for some type of deal at the end” and that his

      statements were inadmissible based on Ind. Evidence Rule 617. Appellant’s

      Brief at 17. He also argues that, under the circumstances of the police
      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2603 | July 27, 2018   Page 4 of 10
      possession and control of the room and the resources available to the police, the

      premises was a place of detention.


[7]   The State responds that Detective Kumbi advised Bell of his Miranda rights and

      that Bell stated he understood his rights, waived those rights, and continued

      talking to Detective Kumbi. It argues that Bell did not object to admission of

      his statements on the basis of Evidence Rule 617, he does not argue

      fundamental error occurred, Rule 617 is not applicable as the statements were

      not made at a place of detention, and the rule was satisfied because there was

      an electronic recording of the statements. It also argues that any error in the

      admission of his statements is harmless.


[8]   With respect to Bell’s Miranda claims, we observe that the State bears the

      burden of proving beyond a reasonable doubt that the defendant voluntarily

      and intelligently waived his rights and that the defendant’s statement was

      voluntarily given. Treadway v. State, 924 N.E.2d 621, 635 (Ind. 2010). Once

      this standard is met, it is not error to admit the statement. Id. When reviewing

      a challenge to the trial court’s decision to admit the defendant’s statement, we

      do not reweigh the evidence but instead examine the record for substantial

      probative evidence of voluntariness. Id. A waiver of Miranda rights occurs

      when the defendant, after being advised of those rights and acknowledging that

      he understands them, proceeds to make a statement without taking advantage

      of those rights. Id. The admissibility of a statement is controlled by

      determining from the totality of the circumstances whether it was made



      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2603 | July 27, 2018   Page 5 of 10
       voluntarily and not induced by violence, threats, or other improper influences

       that overcame the defendant’s free will. Id.


[9]    The recording of the conversation between Bell and Detective Kumbi admitted

       into evidence reveals that Detective Kumbi stated, at the beginning of the

       recording, “[h]e been read his Miranda Rights and the search warrant. And,

       uh, we’ll conduct a[n] interview.” State’s Exhibit 46a at 0:27-0:33. Detective

       Kumbi asked “[y]ou understand this is a search warrant,” and Bell replied

       affirmatively. Id. at 0:39-0:44. Detective Kumbi asked “[y]ou understand your

       rights,” and Bell replied “I mean, yeah. I mean, I do. I understand my rights.

       I just – I don’t – damn, man. What the f--- am I gone [sic] do?” Id. at 0:44-

       0:56.


[10]   The record further reveals that Detective Kumbi testified at trial that he read

       Miranda warnings to Bell from a pre-printed card, that he then had a

       conversation with Bell, and that he recorded Bell’s statements. He testified that

       his recollection was that the warnings included “you have the right to remain

       silent, anything you say, can and will be used against you in a court of law.”

       Transcript Volume II at 183. Detective Kumbi indicated at the suppression

       hearing that he read the Miranda warnings from a department card and that Bell

       acknowledged and said he understood his Miranda rights. Detective Kumbi

       indicated that he asked Bell if he understood his rights and still wanted to talk

       to him, that Bell replied affirmatively, and that he did not threaten or at any

       time tell Bell that he had to talk to him. The record supports the conclusion

       that Bell was advised of his Miranda rights and voluntarily waived them and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2603 | July 27, 2018   Page 6 of 10
       that the State carried its burden to demonstrate waiver. See Treadway, 924

       N.E.2d at 635.


[11]   As for Bell’s argument that his statements to Detective Kumbi were

       inadmissible on the basis of Evidence Rule 617, we note that a party may not

       object to the admission of evidence on one ground at trial and seek reversal on

       appeal based on a different ground. Malone v. State, 700 N.E.2d 780, 784 (Ind.

       1998). Bell argued before the trial court that he did not waive his Miranda rights

       but did not object to the admission of the statements on the basis of Rule 617.

       Accordingly, this issue is waived. Because he waived this argument, he can

       prevail only by meeting the fundamental error standard, which requires him to

       show that the trial court should have raised the issue sua sponte due to a blatant

       violation of basic and elementary principles, undeniable harm or potential for

       harm, and prejudice that makes a fair trial impossible. See Harris v. State, 76

       N.E.3d 137, 140 (Ind. 2017).


[12]   Bell does not argue fundamental error and in any event, the trial court did not

       commit fundamental error. Evidence Rule 617 is not applicable in this case as

       it provides that, in a felony criminal prosecution, evidence of a statement made

       by a person during a custodial interrogation in a place of detention shall not be

       admitted against the person unless an electronic recording of the statement was




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2603 | July 27, 2018   Page 7 of 10
       made, preserved, and is available at trial except under certain circumstances.2

       Ind. Evidence Rule 617(a). For purposes of the rule, “Place of Detention”

       means “a jail, law enforcement agency station house, or any other stationary or

       mobile building owned or operated by a law enforcement agency at which

       persons are detained in connection with criminal investigations.” Ind.

       Evidence Rule 617(b).


[13]   In Steele v. State, police approached the defendant in a parked vehicle, arrested

       him for public intoxication, and transported him to a nearby gas station where

       an officer read the defendant his Miranda rights and the defendant admitted that

       he had been alone and had driven the vehicle. 975 N.E.2d 430, 430-431 (Ind.

       Ct. App. 2012), trans. denied. We held on appeal that Evidence Rule 617 was

       not applicable because the officer’s interrogation of the defendant did not occur

       in a place of detention and the rule does not, either explicitly or implicitly,

       impose an affirmative duty on law enforcement officers to transport a person to

       a place of detention before conducting a custodial interrogation. Id. at 432.


[14]   In Fansler v. State, the defendant was lured to a motel room by the prospects of

       sexual intercourse and a drug sale by law enforcement who had posed as a

       buyer, and the defendant was arrested soon after arriving at the room. Fansler v.




       2
         “Electronic Recording” means “an audio-video recording that includes at least not only the visible images
       of the person being interviewed but also the voices of said person and the interrogating officers.” Ind.
       Evidence Rule 617(b).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2603 | July 27, 2018            Page 8 of 10
       State, 100 N.E.3d 250, 251-252 (Ind. 2018).3 After the defendant’s pockets were

       emptied and his Miranda warnings were read, the defendant made two

       incriminating statements in response to police questions. Id. at 252. The

       defendant argued on appeal that the significant control that law enforcement

       wielded over the motel room transformed it into a space operated by law

       enforcement as a place of detention for purposes of Rule 617. Id. at 254. The

       Indiana Supreme Court disagreed and observed that law enforcement

       temporarily used the room to pose as drug buyers, there was no indication that

       the room was significantly altered or that the room was set aside for the

       exclusive use of law enforcement, police did not exercise the type of long-term

       control that is ordinarily associated with operating a space and their use of the

       room was sporadic by any measure as they used the room in only three sting

       operations within the prior year, and the primary use of the motel room was

       surveillance, not interrogation. Id. at 254-255.


[15]   We cannot conclude, in light of Steele and Fansler, that Detective Kumbi and the

       SWAT team police exercised the type of long-term control ordinarily associated

       with operating a space to transform the house at which they executed the search

       warrant into a place of detention for purposes of Rule 617. We also observe

       that the statements made by Bell and which he challenges on appeal were

       recorded. The trial court did not commit fundamental error when it did not sua




       3
        Bell cites to this Court’s opinion in Fansler v. State, 81 N.E. 3d 671 (Ind. Ct. App. 2017), but the Indiana
       Supreme Court granted transfer on October 24, 2017.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2603 | July 27, 2018                 Page 9 of 10
       sponte exclude Bell’s statements to Detective Kumbi on the basis of Evidence

       Rule 617.4


                                                       Conclusion

[16]   For the foregoing reasons, we affirm Bell’s convictions.


[17]   Affirmed.


       Bailey, J., and Crone, J., concur.




       4
         Further, even if any error was committed in admitting Bell’s statements, the error was harmless. “Under
       federal harmless error analysis, which is triggered by an error affecting the Defendant’s federal constitutional
       rights, the State has the burden of proving beyond a reasonable doubt that the error complained of did not
       contribute to the verdict obtained.” Black v. State, 794 N.E.2d 561, 565 (Ind. Ct. App. 2003). The State has
       met that burden here. The State presented evidence that the police discovered a loaded firearm, loaded
       magazines, a pipe, a shotgun, a box of shotgun shells, a body shop repair receipt containing Bell’s name and
       the address of the house, two digital scales, a bottle of NoDoz, a strip of suboxone, sandwich baggies,
       buprenorphine, 4.71 grams of methamphetamine, 27.88 grams of a substance containing heroin and fentanyl,
       and 2.1 grams of marijuana. The State presented testimony that the items and drugs discovered throughout
       the house were more consistent with a person being a drug dealer than a user.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2603 | July 27, 2018              Page 10 of 10
