MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                    Sep 24 2018, 5:38 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Zachary J. Stock                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General
                                                         Kelly A. Loy
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Delmar Kelly,                                            September 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1162
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Rhett M. Stuard,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         32D02-1710-F2-25



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018           Page 1 of 13
                                          Case Summary
[1]   Delmar Kelly appeals his conviction for dealing in narcotics. He contends that

      the trial court committed fundamental error in allowing the State to present

      evidence of his post-arrest, pre-Miranda silence during trial and to reference this

      evidence during its closing argument because it violated his due-process rights.

      We find no error, but even if there was error, it was not fundamental. We

      therefore affirm the trial court.



                            Facts and Procedural History
      On October 3, 2017, cousins Roosevelt Garrett and Cameron Johnson went to

      a family member’s house in Indianapolis to “hang[] out,” smoke marijuana,

      and drink. Tr. Vol. II p. 222. Kelly, a family friend, also went to the house,

      arriving separately in a rental car. Id. at 224. The three men ended up spending

      the night at the house.


[2]   The next day, October 4, the three men left the house around noon, with Kelly

      driving them in his rental car. While in the car, Roosevelt saw that Kelly had a

      digital scale and a plastic grocery bag. The grocery bag had something inside

      that he could not see. Tr. Vol. III p. 6.


[3]   That same day, the Hendricks County United Drug Task Force was conducting

      a “takedown” at the house of a suspected drug dealer on Jonathan Court in

      Avon. Tr. Vol. II p. 97. After the suspect had been arrested and transported to

      jail and while the officers were searching the house, Detective John Maples

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018   Page 2 of 13
      found a cell phone that he believed belonged to the suspect. The phone, which

      was not locked and did not have a code, displayed a recent text message.


[4]   From the text messages, Detective Maples learned that the suspect had

      attempted to purchase an ounce of methamphetamine the night before, but the

      transaction did not occur. Detective Maples, posing as the suspect, responded

      to the text message. The person apologized and said he would lower the price

      for the trouble. Detective Maples asked the person when he would be at the

      Jonathan Court address, and the person responded that he was coming “now”

      and would be in a Hyundai. Ex. 1. At 4:30 p.m., the person texted, “Im

      pulling” and “Come.” Id. Within a minute, Detective Maples saw a Hyundai

      pull up outside the house on Jonathan Court. Other task-force officers,

      including Detective Brian Petree, were positioned nearby in unmarked cars. As

      the Hyundai pulled up, one of the officers activated his lights and sirens and

      tried to stop the Hyundai. But the driver of the Hyundai—later identified as

      Kelly—“began driving between houses and through backyards.” Tr. Vol. II p.

      123.


[5]   A five-mile car chase ensued, with Detective Petree eventually catching up to

      Kelly. During the pursuit, Kelly passed Avon High School, weaved in and out

      of traffic, and reached speeds up to 70 miles per hour on Dan Jones Road.

      While on Dan Jones Road, Detective Petree saw items being thrown from the

      passenger side of the Hyundai, and he reported the location of the thrown items

      as he was driving. As Kelly turned into The Settlement, a large residential

      neighborhood in Plainfield, a black item was thrown from the Hyundai and hit

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018   Page 3 of 13
      Detective Petree’s windshield. Detective Petree couldn’t tell what side of the

      car this item was thrown from. Once inside The Settlement, Kelly reached

      speeds up to sixty miles per hour and ran stop signs. At some point, however,

      the officers were able to box in the Hyundai. Detective Petree exited his car,

      approached the Hyundai with his gun “[t]rained at the occupants,” and ordered

      the three men to show their hands. Id. at 156. Eventually, all three men put

      their hands up. The officers then ordered the men out of the Hyundai one at a

      time. The men were handcuffed and separated from each other.


[6]   During a search of the Hyundai, five cell phones (some of which were “burner”

      phones) and a box of ammunition were found. Id. at 138. The officers also

      searched the pursuit route and found a bag of heroin, a bag of cocaine, and a

      black digital scale (which Detective Petree identified as the object that had hit

      his windshield).1 One of the bags was found in front of Avon High School. Id.

      at 143.




      1
        The officers looked for the phone that was used to text the suspect, a gun, and more drugs, but they were
      not found. Tr. Vol. II p. 166. According to Detective Petree, it was possible that more items were thrown
      from the Hyundai than he was able to see, because he did not catch up to the car until Avon High School. Id.
      at 130, 142. Moreover, Detective Petree said it was almost impossible to find everything on the five-mile
      pursuit route. See id. at 159 (“[O]n a five mile stretch of road, there is almost no chance you’re going to find
      everything . . . [e]ven with a K-9.”).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018                 Page 4 of 13
[7]   Thereafter, the State charged Kelly with Level 2 felony dealing in a narcotic

      drug (heroin and cocaine) and Level 6 felony resisting law enforcement.2 A

      jury trial was held.


[8]   During opening statement, defense counsel argued that Kelly drove “cousins,

      Cameron and Roosevelt, out to [the house in Avon] for some money and [did]

      not really know what was going on and g[o]t caught up in [a] narcotics bust.”

      Tr. Vol. II p. 91; see also id. (“Kelly was [nothing] more than an unknowing

      means to an end for cousins, Cameron and Roosevelt.”). In support, defense

      counsel played an audiotape of a phone call that Kelly placed from jail to the

      mother of his children the day after his arrest. Id. at 85. During the phone call

      Kelly said:


               [Y]ou know what I was doing, right? Driving around trying to
               make some money and stuff, right? . . . That’s why I got that
               rental and stuff so, basically, I drove somebody out here for some
               money or whatever and, uh, sh**, it was a narcotics bust or
               whatever and I got caught up in it. So now I got to fight a Level
               2 felony . . . . [B]asically, end of the day, I ain’t had nothing on
               me you feel me?


      Ex. 10; Tr. Vol. II p. 86.




      2
        The State also charged Roosevelt and Cameron with Level 2 felony dealing in narcotics. Both men pled
      guilty to Level 4 felony dealing and were sentenced to two years of probation. Tr. Vol. II pp. 243-45; Tr. Vol.
      III p. 4. As a condition of their probation, Roosevelt and Cameron agreed to testify truthfully in this case
      (Roosevelt is the only one who testified though). According to Roosevelt, during his guilty-plea hearing he
      admitted that he, Cameron, and Kelly were in the Hyundai to go deliver drugs. Tr. Vol. II p. 243.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018                Page 5 of 13
[9]   During the direct examination of Detective Maples, the prosecutor asked him

      what happened after the pursuit ended in The Settlement. Detective Maples

      said he “assisted [other officers] with speaking with all three of” the men. Tr.

      Vol. II p. 107. The following exchange then occurred:


              Q        Uh, any admissions by the three about what . . . was going
                       on or what they were doing?


              A        No, there was not.


              Q        Did any of them give you any information about what
                       they were doing?


              A        They did not, no.


              Q        Did anybody act surprised at all that they were in a pursuit
                       and stopped by police?


              A        Yes, . . . I had one I think t[ell] me he slept through the
                       whole thing—wasn’t even sure what was going on. He
                       just woke up.


              Q        (Interposing) Was that the driver of the car?


              A        No.


      Id. at 107-08. During the direct examination of Detective Petree, the prosecutor

      asked him what happened to Kelly after the pursuit ended. Detective Petree

      responded that “Detective Maples . . . interviewed Mr. . . . Kelly.” Id. at 136.

      The following exchange then occurred:

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018   Page 6 of 13
                  Q        (Interposing) Okay. At any point . . . during your
                           observation of . . . Mr. Kelly, did . . . he at all seem
                           befuddled or confused about why he was . . . being
                           stopped?


                                                         *****


                  A        No sir.


                  Q        Did he say anything to you?


                  A        Uh, none of the three really wanted to talk to us.


       Id. at 137. Defense counsel did not object to either exchange on grounds that it

       violated Kelly’s right to remain silent.3


[10]   During closing argument, the prosecutor argued, in part:


                  [Kelly’s] actions prove his intent. His guilty mind; what he was
                  doing in that rental car that he obtained. His 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 . . . stopping me. He wasn’t surprised at all he was being
                  stopped because he knew exactly what was happening. You
                  heard from that jail . . . phone call, he [got] caught up in a
                  narcotics bust. He didn’t know police would be waiting for him
                  when he arrived at that Jonathan Court address. So there’s no



       3
           Defense counsel did object during the second exchange, but it was on different grounds (leading question).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018                 Page 7 of 13
               reason for him to be surprised cause he knew exactly what he
               was doing. Wasn’t surprised 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 time did he stop and say,
               please 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
               [T]he 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 prove his intent that day.


       Tr. Vol. III pp. 42-43. Again, defense counsel did not object. Defense counsel

       then conceded that the State had proven the charge of resisting law enforcement

       but argued that the State had not proven that Kelly knowingly possessed the

       drugs. Id. at 45-50. The jury found Kelly guilty of the dealing and resisting

       charges, and the trial court sentenced him to an aggregate sentence of sixteen

       years, with eight years suspended to probation.


[11]   Kelly now appeals his dealing conviction only.



                                  Discussion and Decision
[12]   Kelly contends that the trial court should not have allowed the State to present

       evidence of his post-arrest, pre-Miranda silence during trial or to reference this




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018   Page 8 of 13
       evidence during its closing argument because it violates his due-process rights.4

       Kelly acknowledges that because he did not object, he must establish

       fundamental error. The doctrine of fundamental error is an extremely narrow

       exception to the waiver rule that requires the defendant to show that the alleged

       error was so prejudicial to the defendant’s rights as to make a fair trial

       impossible. Gavin v. State, 41 N.E.3d 1038, 1042 (Ind. Ct. App. 2015). The

       defendant must show that, under the circumstances, the trial judge erred in not

       raising the issue sua sponte because the alleged error (a) constituted a clearly

       blatant violation of basic and elementary principles of due process and (b)

       presented an undeniable and substantial potential for harm. Id.


[13]   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; Cameron v. State, 22 N.E.3d 588, 592 (Ind. Ct. App. 2014). To

       protect that right, police officers, before questioning citizens in custody, must

       advise them that they have the right to remain silent. Miranda v. Arizona, 384

       U.S. 436, 479 (1966). In Doyle v. Ohio, 426 U.S. 610 (1976), the United States




       4
         As the State points out in its brief, “[t]here is no evidence that Kelly was Mirandized upon apprehension or
       before the police tried to talk to [him] at the scene.” Appellee’s Br. p. 15. Notably, Kelly does not challenge
       this assertion in his reply brief. In the absence of such evidence, we cannot speculate that Miranda rights were
       given to Kelly right after the three men were apprehended and before the officers started talking to them. See
       Myers v. State, 27 N.E.3d 1069, 1080 (Ind. 2015) (explaining that because the party who alleges error has the
       duty to provide a proper record on appeal so that an intelligent review may be made, it would not speculate
       that Miranda warnings were given in the absence of such evidence in the record), reh’g denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018                 Page 9 of 13
       Supreme Court held that the use of a defendant’s silence, which occurs at the

       time of arrest and after receiving Miranda warnings, for impeachment purposes

       violates the Due Process Clause of the Fourteenth Amendment. Id. at 619.

       The underlying rationale was that use of a defendant’s post-arrest, post-

       Miranda silence to impeach an explanation subsequently offered at trial would

       be contrary to the Miranda warnings’ implicit assurance to an individual in

       police custody that silence will carry no penalty. Id. at 618; see also Brecht v.

       Abrahamson, 507 U.S. 619, 628 (1993). The United States Supreme Court has

       also held that a defendant’s post-arrest, post-Miranda silence cannot be used

       substantively in the prosecution’s case-in-chief. See Wainwright v. Greenfield, 474

       U.S. 284, 295 (1986).


[14]   The United States Supreme Court, however, has not addressed the precise issue

       in this case, that is, whether post-arrest, pre-Miranda silence may be used

       substantively in the prosecution’s case-in-chief.5 See United States v. Wilchcombe,

       838 F.3d 1179, 1190-91 (11th Cir. 2016) (discussing circuit split), cert. denied;

       Cameron, 22 N.E.3d at 592 (“Whether a defendant’s post-arrest, pre-Miranda

       silence may be used substantively has yet to be addressed by the United States

       Supreme Court[.]”). Nevertheless, Kelly argues that this Court “has held on




       5
         The United States Supreme Court has held that evidence of a defendant’s post-arrest, pre-Miranda silence
       for impeachment purposes does not violate a defendant’s due-process rights. See Fletcher v. Weir, 455 U.S.
       603, 607 (1982) (“The significant difference between the present case and Doyle is that the record does not
       indicate that respondent Weir received any Miranda warnings during the period in which he remained silent
       immediately after his arrest. The majority of the Court of Appeals . . . sought to extend Doyle to cover Weir’s
       situation . . . . We think that this broadening of Doyle is unsupported by the reasoning of that case and
       contrary to our post-Doyle decisions.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018               Page 10 of 13
       several occasions that ‘a defendant’s post-arrest, pre-Miranda silence cannot be

       used as substantive evidence in the State’s case-in-chief.’” Appellant’s Br. p. 8

       (quoting Ludack v. State, 967 N.E.2d 41, 46 n.5 (Ind. Ct. App. 2012), trans

       denied).


[15]   The Indiana Supreme Court recently addressed the use of a defendant’s post-

       arrest, pre-Miranda silence as substantive evidence in Myers. In that case, the

       defendant asserted an insanity defense, and the State used evidence of his post-

       arrest silence to prove his sanity. Our Supreme Court explained that the

       protections set out in Doyle and Wainwright are triggered by the implicit promise

       that is made to a defendant that he will not be penalized for choosing to

       exercise his right to remain silent. Myers, 27 N.E.3d at 1080. Because there

       was nothing in the record suggesting that Myers had been advised of his

       Miranda rights, the Court held that the State’s use of Myers’s silence did not

       violate his constitutional due-process rights. Id. at 1081. The Court cautioned

       that its analysis was not intended “to suggest that it is permissible for law

       enforcement to indefinitely withhold giving Miranda rights in order to allow the

       prosecution to use any post-arrest pre-Miranda statements at trial.” Id. at 1081

       n.3.


[16]   Kelly acknowledges Myers in his brief. See Appellant’s Br. p. 8 (using a “[b]ut

       see” cite to Myers). However, he makes no attempt to distinguish it.

       Accordingly, in light of the Indiana Supreme Court’s decision in Myers, we

       conclude that the use of Kelly’s silence under these circumstances did not

       violate his constitutional due-process rights.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018   Page 11 of 13
[17]   But even if we found that the trial court erred in allowing the State to present

       evidence of Kelly’s post-arrest, pre-Miranda silence during trial or to reference

       this evidence during its closing argument, the error is not fundamental. The

       State claims that it asked the detectives the questions and then commented on

       Kelly’s silence during closing argument “in an effort to rebut [Kelly’s] defense

       that he was oblivious that there was a drug transaction being scheduled at the

       house on Jonathan Court[.]” Appellee’s Br. p. 17; see also id. at 18. In addition,

       the references to Kelly’s silence during the testimony of Detectives Maples and

       Petree were few and brief in the context of the entire trial. As for the

       prosecutor’s argument during closing that Kelly’s guilty mind was evidenced by

       the things he did not say, the bulk of the prosecutor’s argument focused on

       Kelly’s actions:


               You say you’re going to make some money; you get a clean
               rental car not registered in your name; you show up at a
               prearranged drug deal in the same car that you say you’re going
               to show up; when the police arrive and you find out that you’re
               busted, you drive away for nearly five miles at speeds
               approaching seventy miles per hour giving time to throw out
               evidence of your crime which includes more than ten grams of
               narcotics. Mr. Kelly is guilty of dealing narcotics. I’d ask you to
               find him guilty. Thank you.


       Tr. Vol. III p. 53. Finally, there is substantial evidence that Kelly knew about

       the drugs in the car. See Appellant’s Reply Br. p. 6 (“The State needed to prove

       that Kelly was aware that he was driving with drugs in the car.”). According to

       Roosevelt, Kelly had a digital scale in the rental car and was the one who was

       handling the drugs. Tr. Vol. III p. 5. Kelly then drove the rental car to a drug
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018   Page 12 of 13
       dealer’s house in Avon and led the officers on a high-speed, five-mile chase

       when they tried to pull him over. During the chase, a digital scale and bags of

       drugs were thrown from the car. For these reasons, we cannot say that the

       references to Kelly’s silence made a fair trial impossible. We therefore affirm

       the trial court.


[18]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1162 | September 24, 2018   Page 13 of 13
