114 N.E.3d 931
Ind. Ct. App.2018Background
- On Oct 31, 2017 Silvers and Rachelle Gerhart purchased heroin; during a traffic stop Silvers fled and was arrested. Items recovered from the car/occupants included a burnt marijuana cigarette, a straw with white residue (center console), a spoon and a bag with brown residue (in Gerhart’s purse), and a rock of heroin on Gerhart.
- Lab testing showed the straw and some items contained heroin; the rock on Gerhart contained heroin and cocaine. The State charged Silvers with: Count 1 — Level 6 felony possession of cocaine (based on the heroin that also contained cocaine), Count 2 — resisting law enforcement (Misd A), Count 3 — possession of marijuana (Misd B), Count 4 — visiting a common nuisance (Misd B), Count 5 — possession of paraphernalia (Misd C), Count 6 — Level 6 felony possession of a narcotic (heroin).
- The day before trial the prosecutor received a CD of Silvers’s jail calls and briefly listened, recognizing defense counsel’s voice; he stopped playback and reported it. Defense moved to dismiss and requested a continuance to investigate potential attorney-client recordings.
- Jail officials and the deputy prosecutor testified they did not listen to the substance of the recordings; later the CD admitted at trial showed two back-to-back recorded calls in the public visitation room between Silvers and his counsel (the recording system splits calls at the 10-minute mark).
- Jury convicted Silvers on all counts; sentencing produced an aggregate 1,457-day term. On appeal Silvers argued the trial court erred by denying the continuance and that evidence was insufficient for Counts 1 (cocaine) and 5 (paraphernalia).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of continuance after discovery that jail calls captured defense counsel’s voice | State: prosecutor promptly disclosed the discovery, only a few people accessed the CD, and no one listened to substantive calls | Silvers: needed a continuance to investigate who listened to recordings and whether privileged communications were captured | Court held denial was not an abuse: the prosecutor promptly notified court, witnesses testified they did not listen to substance, and the two calls were a single 10-minute communication split by the system, so no prejudice shown |
| Sufficiency of evidence for possession convictions (cocaine and paraphernalia) | State: evidence supports paraphernalia and heroin possession; conceded insufficient evidence that Silvers knew heroin contained cocaine | Silvers: no proof he knew heroin was mixed with cocaine; disputed use/possession of paraphernalia by him | Court affirmed paraphernalia conviction (straw with heroin residue in center console next to him; witness testified he snorted) but reversed cocaine possession due to lack of proof Silvers knew mixture contained cocaine; remanded for resentencing on remaining counts |
Key Cases Cited
- Wilson v. State, 39 N.E.3d 705 (Ind. Ct. App. 2015) (standard for sufficiency review)
- State v. Taylor, 49 N.E.3d 1019 (Ind. 2016) (discussing eavesdropping on attorney–client consultations and remedies)
- Kendrick v. State, 947 N.E.2d 509 (Ind. Ct. App. 2011) (remedy and resentencing when part of a multi-count sentence is vacated)