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Kelly v. State

Supreme Court of Indiana

May 22, 2019

Delmar Kelly, Appellant (Defendant below),
v.
State of Indiana, Appellee (Plaintiff below)

          Argued: January 17, 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

          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

          OPINION

          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:

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 ...

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