from the Cass Superior Court The Honorable James K.
Muehlhausen, Judge Trial Court Cause No. 09D01-1711-F6-433
ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Office
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Ian McLean Supervising Deputy Attorney General
VAIDIK, CHIEF JUDGE.
Jacob Lee Silvers was convicted of several drug-related
crimes. He now appeals, arguing that the trial court erred in
denying his motion to continue the trial and that the
evidence is insufficient to support two of his convictions.
The State concedes that the evidence is insufficient to
support one of the convictions. Although we reverse that
conviction and remand for resentencing, we affirm the trial
court on the other issues.
and Procedural History
In October 2017, Silvers and Rachelle Gerhart were
romantically involved and regularly used drugs together,
including heroin, methamphetamine, and marijuana. On October
31, Rachelle, driving her silver Pontiac Grand Am, and
Silvers picked up Dustin Ecklebeck, and the trio drove to
Kokomo to purchase heroin from Dustin's dealer. After
purchasing the heroin, Rachelle and Silvers dropped off
Dustin at his house. As they dropped him off, Silvers's
mother, Michelle (who was staying at Dustin's house), ran
out of the house yelling at them not to leave her because her
boyfriend (Scott Powers) had just called the police. Tr. Vol.
II p. 193. Silvers ordered Rachelle, who was preparing a
needle to inject herself with heroin, to drive away without
his mother; however, he changed his mind and told Rachelle to
wait on her. When Michelle got in the car, she was
At about the same time, Cass County Sheriff's Deputy
Scott Turney received a dispatch to be on the lookout for a
silver Pontiac Grand Am. Shortly thereafter, Deputy Turney
passed a silver Pontiac Grand Am. As he passed the car, the
three occupants-two females and one male-all stared at him,
which was unusual. When Rachelle, Silvers, and Michelle saw
the brake lights on the police car illuminate, Silvers and
Michelle ordered Rachelle to "hurry up and go."
Id. at 194. Deputy Turney radioed another officer in
the area, Detective Thomas Heflin, that the Grand Am had just
passed him and that he was going to turn around to catch up
to it. Detective Heflin positioned himself to intercept the
car and waited. Soon thereafter, Detective Heflin observed
the Grand Am abruptly pull into a Quonset hut (a semi-circle
building made of sheet metal, commonly used during World War
II). Detective Heflin pulled in behind the car and activated
his emergency lights. Silvers exited the front passenger-side
door and fled on foot but was soon apprehended.
The Grand Am was searched, and numerous items were found,
including a burnt marijuana cigarette in the front
passenger-side door and a blue plastic straw with white
residue in the center console (Exhibit 5). Officers also
found a Ziploc bag containing brown residue (Exhibit 12) and
a spoon (Exhibit 8) in Rachelle's purse as well as a rock
of heroin on her person (Exhibit 6). It was later determined
that Exhibit 5 contained heroin, Exhibit 6 contained heroin
and cocaine, and Exhibit 12 contained heroin. Ex. 18 (lab
The State ultimately charged Silvers with Count 1: Level 6
felony possession of cocaine (for the heroin that also
contained cocaine, Exhibit 6), Count 2: Class A misdemeanor
resisting law enforcement, Count 3: Class B misdemeanor
possession of marijuana, Count 4: Class B misdemeanor
visiting a common nuisance, Count 5: Class C misdemeanor
possession of paraphernalia (straw or spoon), and Count 6:
Level 6 felony possession of a narcotic drug (heroin).
Silvers was in the Cass County Jail while awaiting trial. On
the morning of March 5, 2018, the day before the jury trial
was set to begin, the Cass County jail commander gave the
deputy prosecutor an updated recording of Silvers's jail
calls on CD. When the deputy prosecutor began listening to
the calls, he recognized defense counsel's voice. The
deputy prosecutor turned off the recording and went to the
Cass County Prosecutor. After consulting the Indiana
Prosecuting Attorneys Council, the State requested a hearing,
which was held later that day. During the hearing, the deputy
prosecutor told the trial court that when he started
listening to the first call on the CD, he recognized defense
counsel's voice "within a few seconds." Tr.
Vol. II p. 5. He then "immediately" stopped the
recording and moved on to the second call. He listened to a
"few seconds" of that call and again recognized
defense counsel's voice. Id. He then stopped the
recording. The deputy prosecutor told the trial court that he
heard "nothing of substance relating to the case"
and that he wanted to give the CD, which was the only copy
that he was aware of, to the trial court for safekeeping.
Id. The trial court told the parties that since it
had heard nothing that appeared to affect the trial, the
matter would be more fully addressed at trial the next day.
Later that night, Silvers filed a motion to dismiss the
charges based on the State's "outrageous
conduct" in recording protected attorney-client
conversations. Appellant's App. Vol. II p. 86.
The next day, the parties met for a continued hearing as well
as for a hearing on Silvers's motion to dismiss. In
addition, Silvers orally requested a continuance so that he
could depose the jail commander, "anybody else at the
jail that's listening to these conversations," and
"everyone at the prosecutor's office who may have
listened to this." Tr. Vol. II p. 15. The State then
presented evidence of how conversations are recorded in the
Cass County Jail. First, an inmate can place a phone call in
the cell pod; these phone calls are recorded (unless the
phone call is to an attorney who has asked the jail to have
his/her phone number blocked from recording). Second, there
is a public visitation room, where visitors can see the
inmates through plexiglass and talk to them using a phone;
these calls, which are set up for ten minutes, are audio
recorded. Last, there is an attorney meeting room where
attorneys can privately meet with their clients; these
conversations are not audio recorded.
Regarding the specifics of this case, the jail commander
testified under oath that on the morning of Monday, March 5,
he "pulled" Silvers's calls from Friday through
the weekend and gave them to the deputy prosecutor.
Id. at 32. He verified that the CD was not blank by
clicking on the first file. As soon as he heard the
advisement that the call may be recorded, he stopped the CD
and did not listen to any more. Id. at 33, 38. He
did not listen to any of the substance of the calls.
Id. at 39. The assistant jail commander-the only
other person with access to the system that records the
calls-testified under oath that in helping the
prosecutor's office figure out in this case the wording
of the advisements for each type of call, he listened to the
CD up to the point where the advisement started and then
"hit stop." Id. at 53. He also did not
listen to any of the substance of the calls. Id.
Defense counsel cross-examined both witnesses. In addition,
the State admitted an affidavit from the deputy prosecutor,
who said that he "did not hear anything substantively
about the case during the few seconds the recording was
played" and that he "stopped the playback
immediately upon recognizing the defense ...