Argued: January 17, 2019
from the Hendricks Superior Court No. 32D02-1710-F2-25 The
Honorable Rhett M. Stuard, Judge.
Petition to Transfer from the Indiana Court of Appeals No.
ATTORNEYS FOR APPELLANT ZACHARY J. STOCK INDIANAPOLIS,
ATTORNEYS FOR APPELLEE CURTIS T. HILL, JR. ATTORNEY GENERAL
KELLY A. LOY ANGELA N. SANCHEZ BRIAN WOODARD DEPUTY ATTORNEYS
GENERAL INDIANAPOLIS, INDIANA
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.
and Procedural History
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.
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.)
part, the State elicited testimony from two officers about
Kelly's actions following his arrest:
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