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A man who lodged a “standing objection” to “literally anything” stemming from a warrantless search of his home didn’t argue the evidence presented at trial was in direct conflict with evidence presented at a suppression hearing, so the trial court didn’t need to revisit the issue, the Court of Appeals of Indiana has affirmed.
Joe Viverett was convicted by a jury in July 2022 of two counts of Level 4 felony unlawful possession of a firearm by a serious violent felon. He was also found to be a habitual offender.
The previous January, Indiana Department of Correction officers had gone to a home in Marion County where they believed a parolee was staying. The home belonged to Viverett.
The parolee had signed a contract allowing officers to conduct compliance checks at residences where he was staying as a condition of his parole. The parolee initially denied living at the address, but officers confirmed he sent text messages giving the address as his own.
The address wasn’t approved by the parole office, so officers went there to do a compliance check. Nobody answered the door, so officers used keys previously confiscated from the parolee to enter.
Officers found Viverett sleeping in a bedroom upstairs and believed he had a gun in plain view on the floor. Officers also saw other guns around the house, a box of what appeared to be synthetic marijuana, a digital scale and a pipe containing white residue.
The officers requested assistance from Indianapolis police, who obtained a search warrant. Officers found a shotgun and located a video security system that showed footage of Viverett holding a shotgun and handgun.
Viverett was charged with two counts of Level 4 felony unlawful possession of a handgun by a serious violent offender, Level 4 felony unlawful possession of a shotgun by a serious violent offender and Class C misdemeanor possession of paraphernalia.
Viverett filed a motion to suppress evidence, which a judge in the Marion Superior Court denied, finding it was reasonable for the officers to conclude the address was the parolee’s residence or a place where his personal property could be.
The state dismissed the misdemeanor charge but added a habitual offender allegation.
At trial, Viverett lodged a continuing objection to the admission of any evidence found following the parole officers’ warrantless entry to his home. A magistrate judge ruled the judge’s denial of Viverett’s motion to suppress would stand but approved the continuing objection.
A jury found Viverett guilty of both firearm possession charges. Viverett waived his right to a jury trial for the habitual offender allegation, and the magistrate judge found him to be a habitual offender.
He 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.
On appeal, Viverett challenged the trial court’s “admission of the evidence — the firearms — discovered as a result of the parole officers’ warrantless entry into his home.”
He acknowledged that although his pretrial motion to suppress was denied, because the 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.
But the Court of Appeals affirmed Viverett’s convictions, ruling he “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 to any such evidence in the record.”
Without more, the Court of Appeals ruled, “neither the trial court nor this Court must fully revisit the suppression issue.”
The opinion says Viverett was correct that if a defendant makes a contemporaneous objection during trial to the state’s foundational evidence and the evidence isn’t the same as at the suppression hearing stage, then the trial court must determine whether certain evidence is admissible based on the testimony and evidence presented at trial.
“Here, however, the trial court was deprived of such an opportunity because that is not the objection that Viverett made,” the opinion says.
Instead, 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.”
“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,” the opinion says.
In a footnote, the Court of Appeals acknowledged different judicial officers presided over the suppression hearing and the trial but, citing the Indiana Supreme Court decision in Magley v. State, 263 Ind. N.E.2d (1975), “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.”
Judge Terry Crone wrote the opinion. Judge Dana Kenworthy and Senior Judge Margret Robb concurred.
The case is Joe A. Viverett v. State of Indiana, 22A-CR-2076.
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