Court of Appeals of Indiana | Memorandum Decision 82A01-1711-CR-2730 | September 28, 2018 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Matthew J. McGovern

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Marquelle Smith,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 28, 2018

Court of Appeals Case No.

82A01-1711-CR-2730

Appeal from the Vanderburgh 

Circuit Court

The Honorable David D. Kiely, 

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 
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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, 
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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 
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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 
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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. 
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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 
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(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, preMiranda 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. 
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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 
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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.