                                                                    FILED
                                                             May 22 2019, 2:51 pm

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




                          IN THE

  Indiana Supreme Court
            Supreme Court Case No. 18S-CR-585

                      Delmar Kelly,
                  Appellant (Defendant below),

                              –v–

                     State of Indiana,
                    Appellee (Plaintiff below)


        Argued: January 17, 2019 | Decided: May 22, 2019

              Appeal from the Hendricks Superior
                  Court No. 32D02-1710-F2-25
             The Honorable Rhett M. Stuard, Judge

    On Petition to Transfer from the Indiana Court of Appeals
                        No. 18A-CR-1162



                   Opinion by Justice David
Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.
David, Justice.

   After a jury found defendant guilty of dealing in a narcotic drug and
resisting law enforcement, he appealed his conviction, arguing that the
trial court committed fundamental error by allowing the State to present
evidence of his post-arrest, pre-Miranda silence during trial. Finding that
Kelly opened the door to this evidence and also finding no fundamental
error, we affirm the trial court.


Facts and Procedural History
   Detective Maples of the Hendricks County Drug Taskforce recovered a
cell phone from a suspected drug dealer. He then used the phone to pose
as a drug dealer himself and set up a meeting with Defendant, Delmar
Kelly, to purchase drugs. When Kelly arrived at the agreed upon location,
officers attempted to block his vehicle and make an arrest, but Kelly
maneuvered around them and led police on an almost five-mile chase
before stopping in a residential neighborhood. During the chase, several
items were thrown from the car, including a digital scale, heroin, and
cocaine. When the officers finally forced Kelly to a stop, three men were
removed from the car at gunpoint, handcuffed, and separated. The two
other men besides Kelly were Roosevelt Garrett and Cameron Johnson.
There is no evidence regarding when any of the three men received
Miranda warnings.

   During Kelly’s jury trial, defense counsel began her opening statement
by playing a jail call wherein Kelly stated that he was driving to make
some money and “got caught up in” a “narcotics bust” but that he “ain’t
had nothing on [him].” (Tr. Vol 2. at 86; State’s Ex. 10.) Defense counsel
then went on to ask the jury to decide whether Kelly was part of the whole
drug deal or just got caught up in the bust. She suggested he was an
“unknowing means to an end” for his co-defendants. (Tr. Vol. 2 at 91.)

   For its part, the State elicited testimony from two officers about Kelly’s
actions following his arrest:




Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019           Page 2 of 9
      State:                     Uh, any admission by the three about
                                 what – what was going on or what they
                                 were doing?
      Detective Maples:          No, there was not.
      State:                     Did any of them give you information
                                 about what they were doing?
      Detective Maples:          They did not, no.


                                         ***
      State:                     Did . . . Mr. Kelly appear to be befuddled
                                 or confused about why he was being
                                 stopped?
      Detective Petree:          No, sir.
      State:                     Did he say anything to you?
      Detective Petree:          Uh, none of the three really wanted to
                                 talk to us.


   (Tr. Vol. 2, pp. 107-08, 137.)

        The prosecutor then argued in closing, in relevant part:

      [Kelly’s] guilty mind is also proven by things he didn’t say.
      After the pursuit when he was given a chance to talk, to say
      what happened, to say, I don’t know, [Roosevelt] just asked me
      to drive him to see a friend for money, we didn’t hear that. He
      didn’t say that. He didn’t say I was just driving out here to
      meet a friend. I’ve [g]ot no idea why you’re-why you’re
      stopping me. He wasn’t surprised at all he was being stopped
      because he knew exactly what was happening. You heard from
      the jail call-ca-phone call, he [was] caught up in a narcotics
      bust. He didn’t know police would be waiting for him when he
      arrived at that [drug dealer’s] address.


      So there’s no reason for him to be surprised [be]cause he knew
      exactly what he was doing. Wasn’t surprised and at no time
      during that five-mile pursuit did he stop voluntarily. At no


Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019               Page 3 of 9
      time did he stop and say, please I – I was scared; I ran after
      driving through those yards, I just had to stop. I realize my
      mistake. No, he drove through those yards; drove through on
      150, Dan Jones, weaving in and out of traffic; approaching
      speeds of nearly seventy miles per hour on Dan Jones. Speeds
      of nearly sixty miles per hour in the Settlement neighborhood.
      Only stopped when that neighborhood got so winding, so
      difficult to navigate that he had nowhere else to go. His
      affirmative conduct proves his intent to deal that day. The
      things he didn’t say, no expression of confusion to prove his
      intent that day.


(Tr. Vol. 3, pp. 42-43.) Kelly’s counsel did not object to any of the above
statements on the grounds that they violated his right to remain silent.
(He did object on other grounds.)

   The jury found Kelly guilty of dealing in a narcotic drug and resisting
law enforcement. Kelly appealed, only challenging the dealing in
narcotics conviction, and argued that the trial court committed
fundamental error by allowing the State to present evidence of his post-
arrest, pre-Miranda silence during trial.

   In a 3-0 memorandum decision, the Court of Appeals affirmed. Kelly v.
State, 2018 WL 4558306 (Ind. Ct. App. Sept. 24, 2018). Relying on this
Court’s decision in Myers v. State, 27 N.E.3d 1069, 1080 (Ind. 2015), the
court held that there was no error in using Kelly’s post-arrest, pre-Miranda
silence as substantive evidence against him during trial. Kelly, 111 N.E.3d
at *4. Further, even if there was an error, the Court of Appeals concluded
that it was not fundamental error because: (1) the references to Kelly’s
silence were used to rebut his defense that he was oblivious to a drug
transaction taking place; and (2) there was substantial evidence that Kelly
knew about the drugs in the car. Id. at *5.

  Kelly petitioned for transfer which we granted, thereby vacating the
Court of Appeals opinion. See Ind. Appellate Rule 58(A).




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Standard of Review
   Because Kelly did not object at trial, he must establish fundamental
error. Fundamental error is an exception to the general rule that a party's
failure to object at trial results in a waiver of the issue on appeal. Benson v.
State, 762 N.E.2d 748, 755 (Ind. 2002). A fundamental error is one that
“make[s] a fair trial impossible or constitute[s] a clearly blatant violation
of basic and elementary principles of due process presenting an
undeniable and substantial potential for harm.” Durden v. State, 99 N.E.3d
645, 652 (Ind. 2018) (internal citations and quotations omitted). This
exception is very narrow and includes only errors so blatant that the trial
judge should have acted independently to correct the situation. Id.
Further, “merely because the error relates to a violation of a constitutional
right does not, in and of itself, render it fundamental error requiring this
Court consider the matter absent an objection at trial.” Wilson v. State, 514
N.E.2d 282, 284 (Ind. 1987).


Discussion and Decision
   Kelly argues that the trial court committed fundamental error by
allowing the State to comment on his silence after arrest but prior to the
issuance of Miranda warnings. Our Court of Appeals applied Myers v.
State, 27 N.E.3d 1069, 1080 (Ind. 2015), to find that because there is nothing
in the record to suggest that Kelly had been advised of his Miranda rights,
the State’s use of Kelly’s silence did not violate his constitutional rights.
However, we find that Myers does not apply here. Applying other more
analogous cases, we find that: 1) Kelly opened the door to the prosecutor’s
comments regarding his silence; and 2) because the mentions of his silence
were minimal and there is ample evidence of his guilt, there is no
fundamental error here.

   The Fifth Amendment to the U.S. Constitution, made applicable to the
states through the Fourteenth Amendment, provides that no person shall
be compelled in any criminal case to be a witness against himself. U.S.
Const. amend. V.; Bleeke v. Lemmon, 6 N.E.3d 907, 925 (Ind. 2014). To
protect that right, police officers must advise citizens in custody that they


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have the right to remain silent prior to questioning. Miranda v. Arizona,
384 U.S. 436, 479 (1966). Further, the U.S. Supreme Court has held that the
government cannot use post-arrest, post-Miranda silence against a
defendant for either impeachment purposes or substantively in the
prosecution’s case-in-chief. Doyle v. Ohio, 426 U.S. 610, 618 (1976);
Wainwright v. Greenfield, 474 U.S. 284, 295 (1986).

   However, whether a defendant’s post-arrest, pre-Miranda silence may
be used substantively as evidence against a defendant has yet to be
addressed by the United States Supreme Court. Also, the federal circuits
are split on this issue. See United States v. Wilchcombe, 838 F.3d 1179, 1190
(11th Cir. 2016) (“. . . the circuit courts do not agree as to when the
government may comment on a defendant's silence.”). Indiana courts
have held that post-arrest, pre-Miranda silence cannot be used as
substantive evidence in the State’s case-in-chief. See Akard v. State, 924
N.E.2d 202, 209 (Ind. Ct. App. 2010) (defendant's post-arrest, pre-Miranda
silence could not be used as part of the State's case-in-chief), aff'd in part
and reversed in part on other grounds, 937 N.E.2d 811 (Ind. 2010); Peters v.
State, 959 N.E.2d 347, 353 (Ind. Ct. App. 2011); Rowe v. State, 717 N.E.2d
1262, 1267 (Ind. Ct. App. 1999) (defendant's pre-Miranda silence could not
be used in State's case-in-chief).

    In Bieghler v. State, 481 N.E.2d 78, 92 (Ind. 1985), this Court set forth a
five-part test to determine if the use of defendant’s post-arrest, post-
Miranda silence was harmless. In Rowe, our Court of Appeals adopted this
test for cases in which the State referred to defendant’s pre-Miranda silence
in its case-in-chief. 717 N.E.2d at 1267.

    With regard to whether defendant’s post-arrest, pre-Miranda silence can
be used for impeachment purposes, the U.S. Supreme Court has held that
it can be used. Fletcher v. Weir, 455 U.S. 603, 607 (1982). Further, our courts
have found that where a defendant opens the door, a prosecutor may
comment on a defendant’s post-arrest, pre-Miranda silence. See Cameron v.
State, 22 N.E.3d 588, 592-93 (Ind. Ct. App. 2014); Ludack v. State, 967 N.E.2d
41, 45 (Ind. Ct. App. 2012). Finally, our courts have declined to find
fundamental error when they have determined a prosecutor made
improper comments but where the comments were isolated statements



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and there was ample evidence of defendant’s guilt. See Owens v. State, 937
N.E.2d 880, 894 (2010); cf., Nichols v. State, 974 N.E.2d 531, 536 (Ind. Ct.
App. 2012) (finding the prosecutor’s comments regarding defendant’s
silence were fundamental error when the prosecutor’s comments were
obviously made to suggest defendant’s silence was indicative of guilt and
there was not overwhelming evidence of guilt).

   Here, Kelly’s defense counsel presented in opening the theory that
Kelly was merely trying to make money driving others around and
unwittingly got caught up in a drug bust. In response, the State elicited
testimony from police about Kelly’s demeanor at the time of his
apprehension in effort to counter the concept that Kelly had no idea what
was going on. The State asked police officers if Kelly said anything, and
they responded that he did not. During the State’s closing, it took the
matter further by stating that Kelly’s guilty mind was demonstrated
because he had the chance to talk but did not say what he was doing or
ask why he was stopped, nor did he look, act, or express any confusion.

   As noted above, our Court of Appeals applied this Court’s opinion in
Myers, 27 N.E.3d at 1080, to find that because there is nothing in the record
to suggest that Kelly had been advised of his Miranda rights, the State’s
use of Kelly’s silence did not violate his constitutional rights. Kelly v. State,
111 N.E.3d 262 (Ind. Ct. App. 2018), transfer granted, opinion vacated.
However, Myers does not go so far as to state that any post-arrest, pre-
Miranda statements may be used against a defendant. Instead, Myers
notes that even if Myers was provided with Miranda warnings, under the
facts and circumstances of that case, a constitutional violation did not
occur because the testimony at issue in that case was from Myers’s
mother, who commented that he did not want to speak to police and that
he wanted an attorney. Further, in footnote 3 of our Myers opinion, we
state that our constitutional analysis is case-specific. Therefore, Myers
does not apply to the situation before us.

   Instead, we find Cameron v. State, 22 N.E.3d 588 (Ind. Ct. App. 2014), to
be more factually analogous to the present case. There our Court of
Appeals declined to decide whether defendant’s post-arrest, pre-Miranda
silence is protected because it found that even if the prosecutor’s questions



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and comments were a violation, Cameron opened the door to them. Id. at
592-93. Essentially, Cameron argued that the victim stabbed him as part of
his defense theory, and the State offered testimony and an argument in
effort to show that Cameron had not actually suffered any injuries. Id. at
590-91. Part of that testimony and argument went to the fact that
Cameron did not say anything to reflect that he was injured or hurt. Id.
Similarly, in this case, Kelly offered his defense theory that he was
unaware of the drug deal but rather was an unwitting participant, and in
response, the State offered testimony and argument that he was aware of
the drug deal, both because he did not say anything indicating that he was
unaware of why the police were arresting him and because of his
demeanor and behavior. Accordingly, we find that Kelly opened the door
to the State’s response that included comments about his silence.

   Further, even if the trial court erred in admitting the State’s evidence
and argument about Kelly’s post-arrest, pre-Miranda silence, this error is
not a fundamental one for the reasons articulated in Owens v. State, 937
N.E.2d 880, 894 (Ind. Ct. App. 2010). That is, the reference to Kelly’s
silence in the officer’s testimony was minimal in the context of the entire
trial. Also, while the statements made by the prosecution in closing did
reference Kelly’s silence, they went more towards Kelly’s unsurprised
demeanor and behavior than his silence. Additionally, the evidence of
Kelly’s guilt was substantial. Kelly was driving a car containing drugs
and a scale. He fled the dealer’s house and led police on an almost five-
mile chase during which the drugs and scale were thrown from the car.
The references to his post-arrest, pre-Miranda silence did not make his trial
fundamentally unfair in light of this other evidence.


Conclusion
   We hold that Kelly opened the door to the State’s presentation of
evidence and argument related to his post-arrest, pre-Miranda silence and
that the trial court did not commit fundamental error in admitting this
evidence. We affirm the trial court.




Indiana Supreme Court | Case No. 18S-CR-585 | May 22, 2019          Page 8 of 9
   Rush, C.J., and Massa, Slaughter and Goff, JJ., concur.

ATTORNEYS FOR APPELLANT
Zachary J. Stock
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General

Kelly A. Loy
Angela N. Sanchez
Brian Woodard
Deputy Attorneys General
Indianapolis, Indiana




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