FOR PUBLICATION Jan 09 2015, 9:47 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY D. STONEBRAKER GREGORY F. ZOELLER Clark County Chief Public Defender Attorney General of Indiana Jeffersonville, Indiana BRIAN REITZ Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JEROME SHECKLES, ) ) Appellant-Defendant, ) ) vs. ) No. 10A04-1405-CR-204 ) STATE OF INDIANA, ) ) Appellee-Plaintiff, )
APPEAL FROM THE CLARK CIRCUIT COURT The Honorable Jerome F. Jacobi, Judge Cause No. 10C02-1208-FA-068
January 9, 2015
OPINION – FOR PUBLICATION
BAILEY, Judge Case Summary
Jerome Sheckles (“Sheckles”) was convicted of Dealing in Cocaine, as a Class A
felony,1 and was adjudicated to be a Habitual Substance Offender.2 He now appeals.
We affirm.
Issues
Sheckles raises three issues for our review. We restate these as four issues:
I. Whether Sheckles was deprived of his right to a speedy trial under Criminal Rule 4(C);
II. Whether the trial court erred when it declined Sheckles’s request to require the State to identify a confidential informant;
III. Whether Sheckles’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated by certain evidentiary rulings; and
IV. Whether the State laid an adequate foundation under the “silent witness theory” for the admission into evidence of a video recording.
Facts and Procedural History
On April 20, 2012, Jeffersonville Police Department Detective Sergeant Dan
Lawhorn (“Detective Lawhorn”) was working with a confidential informant during an
investigation of drug activity near a housing complex in Jeffersonville. After searching the
informant and wiring the informant with surveillance equipment, including audio and video
recorders, Detective Lawhorn drove the informant to a shopping center, where the
1 Ind. Code § 35-48-4-1(b)(3)(B)(iii) (West 2013). All statutory citations refer to the version of the Indiana Code in effect at the time of trial unless otherwise indicated herein. 2 I.C. § 35-50-2-10.
2 informant had agreed to attempt to purchase cocaine from individuals previously unknown
to the informant.3 Other officers monitored the scene.
The informant approached two men who were standing together; one of these men
was Sheckles. The informant purchased .17 grams of cocaine from Sheckles and the other
man. In the course of investigations later in the year, police arrested Sheckles.
On August 27, 2012, Sheckles was charged with Dealing in Cocaine and Possession
of Cocaine, as a Class B felony.4 The State also alleged Sheckles to be a Habitual
Substance Offender.5
Sheckles’s case had originally been set for trial on December 11, 2012; the trial date
came and went, but no trial occurred. On May 29, 2013, Sheckles and the State agreed to
a trial date of September 17, 2013 in this case, which was taken in order to coordinate trials
in this case and another matter pending against Sheckles. On August 15, 2013, as a result
of a scheduling conflict, the trial court sua sponte reset the case for a trial on October 15,
2013.
On September 4, 2013, Sheckles filed a motion to continue the trial, and a trial date
of January 7, 2014, was set.
3 Detective Lawhorn referred to this type of transaction as a “cold buy.” (Tr. 248.) 4 I.C. § 35-48-4-6(b)(2)(B)(iii). 5 I.C. § 35-50-2-10.
3 No trial was conducted on January 7, 2014. On January 22, 2014, Sheckles declined
a plea agreement and the State moved the court to set the case for trial. On January 27,
2014, Sheckles filed a motion seeking discharge in this case, contending that his speedy
trial rights had been violated.6
On February 6, 2014, the trial court conducted a hearing on Sheckles’s motion for
discharge and denied the motion.
On February 11, 2014, the trial court conducted pretrial hearings on motions filed
by the parties. Among the motions addressed was a motion Sheckles filed seeking the
identity of the confidential informant. The trial court denied this motion.
A bifurcated jury trial was conducted on February 11 and 12, 2014, addressing first
the substantive charges against Sheckles, and subsequently the Habitual Substance
Offender allegation. At the conclusion of the first phase of the trial, the jury found Sheckles
guilty of both Dealing in Cocaine and Possession of Cocaine, as charged. During the
second phase of the trial, the jury found as true the State’s allegation that Sheckles was a
Habitual Substance Offender.
On April 4, 2014, a sentencing hearing was conducted. At the conclusion of the
hearing, the trial court entered judgment of conviction against Sheckles for Dealing in
Cocaine, as a Class A felony; merged the guilty verdict for Possession of Cocaine into the
conviction for Dealing in Cocaine; and adjudicated Sheckles a Habitual Substance
6 Sheckles, represented by counsel throughout these proceedings, had previously filed handwritten pro se motions for a speedy trial.
4 Offender. The court sentenced Sheckles to thirty-five years imprisonment for Dealing in
Cocaine, enhanced by five years as a result of Sheckles’s Habitual Substance Offender
status.
This appeal ensued.
Discussion and Decision
Speedy Trial
Sheckles first contends that the trial court erred when it denied his motion for
discharge pursuant to our speedy trial rules.
Criminal Rule 4 provides, in relevant part:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule.
Ind. Crim. Rule 4(C). Where a defendant moves for and obtains a continuance, or when a
delay in trial is caused by the defendant, “any time limitation … shall be extended by the
amount of the resulting period of such delay caused thereby.” Crim. R. 4(F).
Criminal Rule 4 implements a defendant’s constitutional right to a speedy trial.
Fuller v. State, 995 N.E.2d 661, 664 (Ind. Ct. App. 2013), trans. denied. In addition to
defendant-requested continuances functioning to extend the period in which a defendant
must be tried, see Crim. R. 4(F), our supreme court has held that when a trial court
5 schedules trial to begin outside the scope of the one-year period provided for in Rule 4(C),
a defendant must object to that setting or waive right to speedy trial under the rule for the
ensuing delay. Bostic v. State, 980 N.E.2d 335, 340 (Ind. Ct. App. 2012) (quoting State ex
rel. Bramley v. Tipton Cir. Ct., 835 N.E.2d 479, 481 (Ind. 2005)). Thus, in Bostic, this
Court held that continuances and the absence of objections from the defendant to court-set
trial dates functioned to defeat the defendant’s claim that he was denied a speedy trial. Id.
at 340.
We review appeals from the denial of a motion for discharge under Criminal Rule
4 for clear error.
Where a trial court makes a factual finding … based on disputed facts … we neither reweigh the evidence nor determine the credibility of witnesses. We consider only the probative evidence and reasonable inferences supporting the judgment and reverse only on a showing of clear error. Clear error is that which leaves us with a definite and firm conviction that a mistake has been made.
Austin v. State, 997 N.E.2d 1027, 1040 (Ind. 2013) (citations and quotations omitted).
Sheckles’s initial hearing in the instant case occurred on September 5, 2012. An
initial trial date of December 11, 2012 came and went, and the case proceeded with no trial
date. On May 29, 2013, Sheckles and the State conducted a pretrial conference because
“[Sheckles] wanted to coordinate the dates in this case with Mr. Sheckles [sic] other
pending case.” (Tr. at 15.) As a result of this conference, a trial date of September 17,
2013 was set. On August 15, 2013, the trial court sua sponte ordered the trial continued to
October 15, 2013, due to calendar conflicts related to a judicial conference. On September
6 4, 2013, Sheckles himself moved for a new trial date due to ongoing plea agreement
negotiations. The trial was consequently rescheduled to January 7, 2014 but no trial was
conducted on that date.
On January 22, 2014, Sheckles rejected a plea agreement and the State moved the
court to set a trial date. The court set the case for trial on February 11, 2013. On January
27, 2014, Sheckles filed his motion for discharge. The trial court subsequently denied the
motion, finding that there was “clear evidence of … acquiescence in the adjusting of dates.
Which was done to help everyone, as it says in Rule 4.” (Tr. at 28.)
As best we can discern, Sheckles appears to argue that although he acquiesced to
the September 17, 2013 trial date, which came about as a result of his participation in the
May 29, 2013 pretrial conference, he was entitled to discharge on January 27, 2014 because
at the time of the May 29, 2013 pretrial conference, there was no established trial date from
which to seek a continuance. Rather, the first trial date of December 11, 2012 had lapsed
and no subsequent date had been set. Sheckles appears to argue that though he acquiesced
to a delay from May 29, 2013 to September 17, 2013, and again as the result of two
continuances from September 17, 2013 to January 7, 2014, he was entitled to discharge on
January 7, 2014.
Sheckles appears to argue that absent a fixed trial date prior to May 29, 2013, no
portion of the delay resulting from the May 29, 2013 to September 17, 2013 interlude may
be attributed to him, because the trial date set as a result of the May 2013 pretrial conference
was not the result of a continuance. Yet the language of Rules 4(C) and 4(F) provide that
7 a delay caused by the defendant—distinct from any form or continuance—is among the
bases upon which discharge may be denied when a defendant has not been brought to trial
within the Rule 4(C) one-year period. Acquiescence to a trial date beyond the one-year
period of Rule 4(C) is among those delays that may be attributed to the Defendant, and
Sheckles consistently acknowledges his acquiescence. Further, two continuances were
entered between May 29, 2013 and January 7, 2014; one of these, continuing the trial date
from October 15, 2013 to January 7, 2014, was the result of Sheckles’s request.
Despite this, Sheckles contends that his “claim for relief was given new life when
the State did not proceed with his trial on January 7, 2014.” (Appellant’s Br. at 13.) But
he does not directly challenge the trial court’s finding of his acquiescence, nor does he deny
that one of the continuances subsequent to the planned September 17, 2013 trial date was
attributable to him. It is true that Sheckles is not estopped from asserting his Criminal Rule
4 speedy trial rights as against the State. See Raber v. State, 622 N.E.2d 541, 545 (Ind. Ct.
App. 1993), trans. denied, abrogated on other grounds, Clark v. State, 659 N.E.2d 548 (Ind.
1995). But lack of estoppel alone is not a sufficient basis from which Sheckles may obtain
the relief he seeks; he must still establish his entitlement to discharge. Clark, 659 N.E.2d
at 551. And the simple lack of a trial date at the points in time during which Sheckles’s
case appears to have “fallen off the docket” does not by itself constitute a basis for
discharge.
8 Sheckles has failed to establish any basis upon which we can conclude that the trial
court erred when it denied his motion for discharge. We accordingly decline to disrupt the
trial court’s order on that motion.
Confidential Informant Identity
Sheckles next contends that the trial court erred when it did not require the State to
reveal the identity of the confidential informant who conducted the controlled buy which
led to Sheckles’s arrest.
It has long been held in Indiana that “[t]he general policy is to prevent disclosure of
an informant’s identity unless the defendant can demonstrate that disclosure is relevant and
helpful to his defense or is necessary for a fair trial.” Mays v. State, 907 N.E.2d 128, 131
(Ind. Ct. App. 2009) (quoting Schlomer v. State, 580 N.E.2d 950, 954 (Ind. 1991)), trans.
denied. The defendant seeking disclosure must bear the burden of proving its necessity.
Id. Speculation that disclosure of the informant’s identity may be useful is insufficient to
meet this burden, and “an informant’s identity shall not be disclosed to permit a mere
fishing expedition.” Id. (citations and quotations omitted). And as with other evidentiary
rulings, we will not reverse where any claimed error did not interfere with the substantive
rights of a party. See Ind. Trial Rule 61 (affording no relief on appeal for harmless error).
Sheckles contends the trial court should have ordered disclosure of the informant’s
identity so that he could elicit testimony concerning the role of the informant in the
controlled buy. Sheckles contends that the informant characterized the cocaine purchased
from Sheckles as “a big ol [sic] f---ing chunk” (Tr. at 236), but that the amount of cocaine
9 recovered was .17 grams. Sheckles contends this amount was small enough to “easily be
hidden from an officer conducting a search of the informant” (Appellant’s Br. at 16), and
“would be impossible to characterize … as a ‘big chunk.’” (Appellant’s Br. at 17.) Thus,
it appears that Sheckles would argue that he should have been able to learn the informant’s
identity in order to examine the informant concerning his role in the controlled buy and the
amount of drugs the informant obtained from Sheckles.
Our review of the record, including the transcription of statements recorded by
police during the controlled buy, reveals that the informant said something about a “big …
chunk.” (Tr. at 236.) We cannot, however, discern in context whether the informant was
requesting a large amount of cocaine, or was receiving a large amount of cocaine; Sheckles
contends the latter was the case. Moreover, as the State observes, law enforcement officers
searched Sheckles before and after the controlled buy. Sheckles had the opportunity and
did cross-examine each of these officers concerning their role and the informant’s role in
the controlled buy that led to Sheckles’s arrest. Sheckles’s arguments are of the speculative
type disfavored by Indiana’s general policy preventing disclosure of an informant’s
identity, and fail to establish how Sheckles was prejudiced by the trial court’s refusal to
order disclosure of the confidential informant’s identity. We accordingly affirm the trial
court’s denial of Sheckles’s request for the confidential informant’s identity with respect
to Sheckles’s claimed need to further ascertain the informant’s role in the controlled buy.
10 Confrontation
We turn now to Sheckles’s several contentions that the trial court’s evidentiary
rulings violated his rights under the Confrontation Clause of the Sixth Amendment to the
United States Constitution, which provides in relevant part, “In all criminal prosecutions,
the accused shall enjoy the right … to be confronted with the witnesses against him.”
We review rulings on the admissibility of evidence for an abuse of discretion.
Vaughn v. State, 13 N.E.3d 873, 879 (Ind. Ct. App. 2014), trans. denied. A trial court’s
decision is an abuse of discretion when the decision is clearly against the logic and effect
of the facts and circumstances before the court. Id. Even then, however, we will not
reverse the judgment if the court’s ruling was harmless error. Id.
Confidential Informant
Along with his argument that the confidential informant’s identity should have been
disclosed under Indiana law, Sheckles contends that the trial court’s denial of his request
to identify the confidential informant violated his confrontation rights. Specifically, he
contends that the right of confrontation “demands that this Court prohibit the State from
hiding a confidential informant from the exposure and insight that are only provided
through the crucible of confrontation and cross examination.” (Appellant’s Br. at 17.)
Beyond this bald assertion, however, Sheckles fails to develop this argument. We
accordingly conclude that he has waived for purposes of appellate review any contention
that the trial court’s denial of his request for the informant’s identity violated his
confrontation rights under the Sixth Amendment to the Constitution. See Ind. Appellate
11 Rule 46(A)(8)(a) (requiring cogent argumentation and reference to applicable law and the
record). We accordingly decline to reverse the trial court’s decision not to require the State
to identify the confidential informant.
Video Recording
Sheckles further contends that the trial court abused its discretion when it admitted
into evidence the video recording of the controlled buy, because admission into evidence
of that recording violates his rights under the Confrontation Clause. Sheckles
acknowledges the numerous rulings of this Court that such recordings are not hearsay, let
alone the type of testimonial hearsay subject to the constitutional requirements of
confrontation. Rather, Sheckles contends that the State’s reliance at trial upon the “silent
witness theory” for admissibility of the video must yield to changes in the law of
confrontation.
The silent witness theory, as first adopted by this Court, permits the admission of
photographs as substantive evidence, so long as that evidence is also relevant. Bergner v.
State, 397 N.E.2d 1012, 1014-15 (Ind. Ct. App. 1979).7 Addressing solely the question of
foundation, the Bergner Court hesitated to set forth “extensive, absolute foundation
requirements,” and instead required a “strong showing of the photograph’s competency
and authenticity.” Id. at 1017. Thus, the Bergner Court warned against the problems of
7 The Bergner Court observed that “some Indiana cases require the photographs aid jurors’ understanding of other evidence,” but expressed skepticism that this was necessary for admission in all cases. Bergner, 397 N.E.2d at 1015.
12 distortion of images and the possibility of alteration of images in a manner that
misrepresents the images taken, and opined that where images were taken by automatic
devices, “there should be evidence as to how and when the camera was loaded, how
frequently the camera was activated, when the photographs were taken, and the processing
and chain of custody of the film after its removal from the camera.” Id. The silent witness
theory has continued in use since its adoption by Indiana courts in 1979, and has since been
extended to the use of video recordings. See, e.g., Mays, 907 N.E.2d at 131-32.
Here, Sheckles challenges the ongoing propriety of Bergner’s adoption of the silent
witness theory in light of Supreme Court jurisprudence since 2004 concerning the
Confrontation Clause of the United States Constitution; he refers to the line of cases
beginning with Crawford v. Washington, 541 U.S. 36 (2004). Sheckles contends that
Bergner and its progeny—and with them, the silent witness theory—were implicitly
overruled by Crawford. The Crawford Court rejected as violating the Confrontation Clause
testimonial hearsay which, though otherwise admissible under the rules of hearsay,
nevertheless was introduced into evidence in criminal prosecutions without an opportunity
for cross-examination of the declarant by the defendant. Id. at 53-59. In particular, the
Crawford Court rejected prior case law that permitted the admission of testimonial hearsay
that “falls under a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of
trustworthiness.’” Id. at 60 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)).
Sheckles identifies as rooted in the same doctrine, and thus subject to the same
weaknesses, the “particularized guarantees of trustworthiness” of Ohio v. Roberts and the
13 foundation requirements of Bergner. Sheckles’s argument does little more than attempt to
equate the two lines of cases, and provides little further analysis. His claim, then, is waived
for appellate review. See App. R. 46(A)(8)(a).
We note, however, that the Bergner Court expressly addressed the confrontation
concerns associated with the admissibility of photographic (and, later, video) evidence, by
requiring that a proper foundation be laid for admission of the photographic or video
evidence, which in turn affords a defendant the opportunity to conduct cross-examination
before the photographs or video records may be admitted into evidence. Bergner, 397
N.E.2d at 1018. That is, the Bergner Court built into the requirements of the silent witness
theory the core confrontation elements the Supreme Court would later hold were required
for the admission of laboratory reports and other testimonial materials. See, e.g.,
Melendez-Diaz v. Mass., 557 U.S. 305, 317-19 (2009) (discussing the constitutional
requirement of cross-examination even for forensic lab tests that might otherwise be
deemed to have the Roberts “particularized guarantees of trustworthiness”). We cannot,
then, conclude that the Supreme Court’s Crawford lines of cases have abrogated or
otherwise undercut Bergner and its progeny.
We find no basis upon which to conclude under the Confrontation Clause that the
trial court abused its discretion when it admitted the video recording into evidence. We
therefore decline to reverse the trial court on those grounds.
14 Admissibility of the Video under the Silent Witness Theory
We turn to the last issue Sheckles presents on review, whether the State laid an
adequate foundation for the admission of the video of the controlled buy under the
requirements of the silent witness theory.
Sheckles’s argument on this point is that the testimony of Detective Lawhorn was
insufficient to lay a foundation as to the authenticity requirements set forth by Bergner.
Sheckles acknowledges that Detective Lawhorn testified concerning the storage and
preparation of the recording device, the successful use of the device in the controlled buy,
and preservation of the video recording obtained from the device. However, Sheckles
contends that this was insufficient because there was no explanation of “how the device
actually worked;” the media upon which the recording was initially preserved; and whether
there was opportunity for tampering with the recording at some point during the transfer of
the video footage to Detective Lawhorn’s computer, the evidence bin, and a secured
location within the Jeffersonville Police Department. (Appellant’s Br. at 20.)
Simply put, Sheckles’s argument on appeal amounts to a request that we second-
guess the trial court’s assessment of Detective Lawhorn’s testimony as to the authenticity
of the recording and the chain of custody of the media containing the video. We decline
to do so, as Sheckles’s assertions fail to establish that the trial court’s decision was clearly
against the logic and effect of the facts and circumstances before it during the trial. See
Vaughn v. State, 13 N.E.3d at 879. We find no abuse of discretion in the admission of the
15 video recording under the silent witness theory, and accordingly decline to reverse the trial
court.
Conclusion
Sheckles was not deprived of his right to a speedy trial under Criminal Rule 4(C).
The trial court did not err when it denied Sheckles’s request for disclosure of the
confidential informant’s identity. Sheckles’s confrontation rights were not violated. The
trial court did not abuse its discretion when it admitted into evidence the video recording
of the controlled buy.
Affirmed.
ROBB, J., and BROWN, J., concur.