      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                      FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                               Sep 28 2018, 9:07 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
      Matthew J. McGovern                                      Curtis T. Hill, Jr.
      Anderson, Indiana                                        Attorney General of Indiana
                                                               Ian McLean
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Marquelle Smith,                                         September 28, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               82A01-1711-CR-2730
              v.                                               Appeal from the Vanderburgh
                                                               Circuit Court
      State of Indiana,                                        The Honorable David D. Kiely,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               82C01-1702-F4-1040



      Mathias, Judge.

[1]   Following a jury trial in Vanderburgh Superior Court, Marquelle Smith

      (“Smith”) was convicted of Level 5 felony possession of a narcotic drug, Class


      Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018       Page 1 of 9
      B misdemeanor possession of marijuana, and Class B misdemeanor criminal

      mischief. The trial court sentenced Smith to an aggregate term of six years of

      incarceration. Smith appeals and presents one issue for our review, which we

      restate as whether the trial court committed fundamental error by permitting a

      witness for the State to refer to Smith’s post-arrest, pre-Miranda silence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On the night of February 20, 2017, officers from the Evansville Police

      Department (“EPD”) were dispatched to the area of Jefferson Avenue and

      South Bedford avenue in Evansville, Indiana, to a report of shots fired and

      people arguing over a handgun. EPD Officers Trendon Amuzie (“Officer

      Amuzie”) and Blake Hollins (“Officer Hollins”) responded to the call and

      arrived to see Smith and two other men fighting over an object, which they

      suspected might be a weapon. EPD Officer Hebert Adams (“Officer Adams”)

      soon joined his fellow officers.


[4]   The officers exited their patrol cars and approached the men with their weapons

      drawn. The officers identified themselves as police officers and ordered the men

      to cease their struggling and place their hands in the air. The other two men

      complied with the officers’ commands, but Smith walked away and got into his

      vehicle. The police ordered Smith to stop, but he ignored them and started his

      vehicle. Smith then looked directly at Officer Adams and drove his car at

      Adams, who later testified that Smith “was aiming straight at me.” Tr. Vol. 2,

      Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018   Page 2 of 9
      p. 174. Officer Adams jumped out of the path of Smith’s vehicle to avoid being

      hit. Officers Adams and Hollins fired several shots at the direction of Smith’s

      vehicle.


[5]   Smith was unharmed and attempted to turn into an alleyway. Smith, however,

      missed the turn and struck a nearby shed. The three officers, now joined by two

      other EPD officers, approached the car and ordered him to show his hands and

      exit the vehicle. When Smith again refused to comply, the officers attempted to

      forcibly remove Smith, but he continued to resist by clinging to the steering

      wheel. The police finally used an electronic stun device on Smith and were able

      to remove him from the car. Undeterred, Smith was verbally combative with

      the officers and threatened them. The police had to use both handcuffs and leg

      restraints to prevent Smith from kicking them.


[6]   When the officer’s searched Smith’s person incident to arrest, they discovered

      two packages containing what appeared to be illicit drugs. One package

      contained a leafy green substance that appeared to be, and later tested positive

      as, marijuana. The other package contained an off-white substance that field

      tested positive as cocaine. However, subsequent laboratory spectrographic

      analysis determined that the substance was actually heroin. Laboratory

      measurements revealed that the first package contained 20.57 grams of

      marijuana, and the other package contained 7.45 grams of heroin.


[7]   On February 22, 2017, the State charged Smith with one count of Level 4

      felony possession of cocaine (later amended to Level 5 felony possession of a


      Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018   Page 3 of 9
       narcotic drug), two counts of Level 5 felony attempted battery by means of a

       deadly weapon, one count of Class B misdemeanor possession of marijuana,

       and one count of Class B misdemeanor criminal mischief.


[8]    A two-day jury trial commenced on September 27, 2017, and, on the first day of

       trial, Smith requested to represent himself. After questioning Smith, the trial

       court permitted Smith to proceed pro se but appointed standby counsel to assist

       Smith. One of the State’s witnesses was EPD Detective Brent Melton

       (“Detective Melton”), who was involved in the investigation of the incident

       with Smith. The prosecuting attorney asked Detective Melton if he had any

       interaction with Smith on the night of February 20, 2017. Detective Melton

       testified as follows:


               It wasn’t very pleasant. I tried to interview him at Headquarters
               in a recording room, he wouldn’t tell me his name, didn’t even
               get the chance to read him his rights, we didn’t even get to that
               point, the interview ended very quickly. It wasn’t a pleasant
               encounter.


       Tr. Vol. 2, p. 242. Smith did not object to this testimony.


[9]    At the conclusion of the trial, the jury found Smith guilty of Level 5 felony

       possession of a narcotic drug, Class B misdemeanor possession of marijuana,

       and Class B misdemeanor criminal mischief. The jury acquitted Smith on the

       remaining counts.


[10]   On October 27, 2017, the trial court sentenced Smith to concurrent terms of six

       years of incarceration on the Level 5 felony conviction, and 180 days on both

       Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018   Page 4 of 9
       misdemeanor convictions. That same day, Smith filed what he styled as a

       motion to correct error, 1 which the trial court immediately denied. Smith now

       appeals.


                                             Standard of Review
[11]   Smith’s sole claim on appeal is that the trial court committed fundamental error

       by permitting Detective Melton to refer to Smith’s post-arrest, pre-Miranda

       silence. Questions regarding the admission of evidence are entrusted to the

       sound discretion of the trial court. Fuqua v. State, 984 N.E.2d 709, 713 (Ind. Ct.

       App. 2013), trans. denied. Accordingly, on appeal, we typically review the trial

       court’s decision only for an abuse of that discretion. Id. The trial court abuses its

       discretion only if its decision regarding the admission of evidence is clearly

       against the logic and effect of the facts and circumstances before it, or if the

       court has misinterpreted the law. Id.


[12]   At trial, however, Smith did not object to the evidence he now claims was

       improperly admitted. Smith therefore argues, as he must, that the admission of

       this evidence was so egregious as to amount to fundamental error. See Sampson

       v. State, 38 N.E.3d 985, 992 (Ind. 2015) (noting that the failure to object at trial

       forfeits the issue for review unless fundamental error occurred). The




       1
         This pro se motion was filed before the trial court had entered a judgment of conviction, but the trial court
       did not hear argument or consider the motion until after it had entered judgment. Smith’s motion argued that
       Smith possessed both cocaine and heroin, neither in an amount sufficient to constitute a Level 5 felony, and
       that the State had improperly combined the two substances in order to reach the weight necessary for a Level
       5 felony. The trial court rejected Smith’s unsupported allegations and denied the motion.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018           Page 5 of 9
       fundamental error doctrine is an exception to the general rule that the failure to

       object at trial constitutes procedural default or “waiver” precluding

       consideration of the issue on appeal. Id. The fundamental error exception is

       “extremely narrow” and reaches only those errors that are so blatant that the

       trial judge should have taken action sua sponte. Knapp v. State, 9 N.E.3d 1274,

       1281 (Ind. 2014) (citing Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014)). The

       fundamental error exception applies only when the error constitutes a blatant

       violation of basic principles, the harm or potential for harm is substantial, and

       the resulting error denies the defendant fundamental due process. Sampson, 38

       N.E.3d at 992. Thus, “fundamental error is a daunting standard that applies

       ‘only in egregious circumstances.” Knapp, (quoting Brown v. State, 799 N.E.2d

       1064, 1068 (Ind. 2003)).


                                      Discussion and Decision
[13]   The use of a defendant’s post-arrest, post-Miranda warning silence is strictly

       prohibited, whether it is used as substantive evidence or for impeachment

       purposes. Willsey v. State, 698 N.E.2d 784, 791 (Ind. 1998) (citing Doyle v. Ohio,

       426 U.S. 610 (1976); Wainwright v. Greenfield, 474 U.S. 284 (1986)). The use of

       pre-arrest, post-Miranda warning silence is similarly protected. See Kubsch v.

       State, 784 N.E.2d 905, 914 (Ind. 2003) (citing Kappos v. Hanks, 54 F.3d 365, 368




       Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018   Page 6 of 9
       (7th Cir. 1995) (“[T]he fact that an arrest ha[s] not yet occurred does not render

       Doyle inapplicable.”)).2


[14]   Although the United States Supreme Court has yet to directly address the

       question, Indiana courts have held that post-arrest, pre-Miranda silence cannot

       be used as substantive evidence in the State’s case-in-chief.3 Peters v. State, 959

       N.E.2d 347, 353 (Ind. Ct. App. 2011) (citing Akard v. State, 924 N.E.2d 202, 209

       (Ind. Ct. App. 2010), trans. granted, summarily aff'd in relevant part, 937 N.E.2d

       811 (Ind. 2010); Rowe v. State, 717 N.E.2d 1262, 1267 (Ind. Ct. App. 1999)). A

       defendant’s post-arrest, pre-Miranda silence may, however, be used for

       impeachment purposes. Peters, 959 N.E.2d at 353 (citing Fletcher v. Weir, 455

       U.S. 603, 607 (1982)).


[15]   In the present case, we cannot say that Detective Melton’s testimony amounted

       to fundamental error. Detective Melton did not directly mention Smith’s silence

       or intimate that such silence was proof of his guilt. In describing his interaction

       with Smith, Detective Melton stated that when he tried to interview Smith, he

       was so combative that he would not even give his name. Melton also testified




       2
         The use of pre-arrest, pre-Miranda silence is not prohibited by the Fifth Amendment if the defendant does
       not invoke the privilege against self-incrimination. Cameron v. State, 22 N.E.3d 588, 592 n.1 (Ind. Ct. App.
       2014) (citing Salinas v. Texas, 570 U.S. 178, 181–83 (2013) (plurality holding that a defendant’s pre-arrest, pre-
       Miranda silence was not protected by the Fifth Amendment where the defendant simply remained silent and
       did not invoke his right against self-incrimination); see also Barton v. State, 936 N.E.2d 842, 851 (Ind. Ct. App.
       2010) (noting that a prosecutor’s comment on a defendant’s pre-arrest, pre-Miranda silence is not prohibited)
       (citing Teague v. State, 891 N.E.2d 1121, 1124 (Ind. Ct. App. 2008)), trans. denied; Hilliard v. State, 609 N.E.2d
       1167, 1170 (Ind. Ct. App. 1993)).
       3
           The State requests that we reconsider our precedent on this matter. We decline.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018             Page 7 of 9
       that he did not get a chance to read Smith his Miranda rights. The only question

       Detective Melton apparently asked was Smith’s name. A defendant does not

       have a Fifth Amendment right to withhold such non-incriminating information.

       See Loving v. State, 647 N.E.2d 1123, 1126 (Ind. 1995) (noting that

       administrative questions such as a defendant’s name are “removed from the

       requirements of Miranda”) (citing Pennsylvania v. Muniz, 496 U.S. 582, 601–02

       (1990)). Moreover, the prosecuting attorney did not further mention Smith’s

       silence, nor did the State argue that his refusal to answer questions was

       indicative of guilt.


[16]   Furthermore, the evidence against Smith was rather strong. The State

       introduced police body-camera footage of the confrontation with Smith,

       including footage of the illicit drugs recovered from Smith. And, although he

       later tried to deny it, Smith conceded during his opening statement that he

       possessed marijuana. See Tr. Vol. 2, p. 114 (“I know I’m guilty of marijuana, but

       as far as tryin[g] to harm the Officers, I would never do that.”) (emphasis

       added).


[17]   Smith attempts to undermine the State’s evidence by noting that the other

       substance found on his person initially field tested positive for cocaine. But the

       State’s expert witness from the Indiana State Police Laboratory testified with

       scientific certainty that the substance found on Smith was heroin. He explained

       the field test as follows:


               A field test is a test where a certain chemical or a certain agent is
               applied to a drug and a color results from it. And that can be
       Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018   Page 8 of 9
               indicative of the presence of something. The problem with these tests
               are that they’re not specific. So many things could yield a positive color
               test. That’s why we submit things to the laboratory and do a lot
               more specific testing than that. Cocaine is one that’s known to be -
               that field test giving a positive for a variety of things. And so as such,
               all you could say from it is it might be cocaine, but it certainly is
               not that it is cocaine.


       Tr. Vol. 3, pp. 30–31 (emphasis supplied). This witness further testified that

       “[t]here was no indication whatsoever there was any cocaine in this item,” and

       that he was certain the substance was heroin because “I have no other

       conclusion to reach when mass spectrum gives a perfect heroin spectrum and

       everything else is consistent with that. There’s no other conclusion I could

       possibly reach.” Id. at 31.


[18]   Given the overwhelming nature of the evidence against Smith and the fact that

       the brief allusion to Smith’s silence was not further mentioned or relied upon by

       the State as substantive evidence, we cannot say that Detective Melton’s

       testimony was so egregious as to amount to fundamental error. We therefore

       affirm the judgment of the trial court.


[19]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018   Page 9 of 9
