Barry Lee Cook v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 05 2018, 10:27 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jerry T. Drook Curtis T. Hill, Jr. Marion, Indiana Attorney General of Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Barry Lee Cook, March 5, 2018 Appellant-Defendant, Court of Appeals Case No. 27A05-1708-CR-1851 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-1602-F4-4

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 1 of 12

Case Summary and Issue [1] Following a jury trial, Barry Lee Cook was convicted of dealing in a narcotic

drug and unlawful possession of a firearm by a serious violent felon, both Level

4 felonies. Cook now appeals his convictions, presenting only one issue for our

review which we restate as: whether the trial court abused its discretion when it

allowed a confidential informant’s deposition to be admitted as evidence at trial

under the “forfeiture by wrongdoing” hearsay exception. Concluding the trial

court did not abuse its discretion, we affirm.

Facts and Procedural History [2] In January 2016, the Marion Police Department apprehended H.B., a young

woman named as a suspect in a recent robbery. At the time, H.B. was leaving

the Greentree Apartments complex, a location under surveillance by the Grant

County Joint Effort Against Narcotics (“JEAN team”) due to recent drug

activity. In exchange for the State foregoing criminal charges against her, H.B.,

an admitted heroin addict, agreed to make controlled buys at the Greentree

Apartments complex and was assigned a confidential informant number. [3] Thereafter, and under the surveillance of the JEAN team, H.B. contacted Cook,

her purported drug supplier in Greentree Apartments, and arranged to purchase

heroin. This phone call was recorded and JEAN detectives fitted H.B. with a

video recording device and supplied her with $150 of “buy money” to make the

purchase of heroin. The “buy money” was photocopied and recorded on a

Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 2 of 12

digital device. H.B. was then transported back to the Greentree Apartments

complex and, under surveillance by JEAN detectives, entered an apartment to

make contact with Cook. [4] In a video later presented at trial, H.B. found Cook seated at a table next to

Evelyn Huffman, one of two women present in the apartment along with Carly

Snyder. A handgun was positioned on the table nearby, and H.B. took a seat

before handing Cook the “buy money.” Cook accepted the money and handed

H.B. five small bags of heroin weighing a total of .33 grams. H.B. then placed

the heroin inside a Cigarillo package handed to her by Huffman and

rendezvoused with Detective Leland Smith outside the apartment complex. [5] The JEAN team then obtained and executed a search warrant on the

apartment. Inside, officers located Cook, Snyder, and Huffman, and found a

handgun on the floor near where Cook was seated. The “buy money” was also

found in Cook’s pockets and he was arrested and charged with dealing in a

narcotic drug and unlawful possession of a firearm by a serious violent felon,

both Level 4 felonies. [6] At trial, Snyder and Huffman testified against Cook. Snyder testified that she

observed Cook move the handgun from the table to the floor where it was

discovered by officers. Snyder also testified that Cook had instructed her to

package a specific amount of heroin and that she had witnessed Cook hand a

woman heroin in exchange for cash. Similarly, Huffman testified that she

Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 3 of 12

witnessed Cook hand a woman heroin in exchange for cash and that the

woman put the drugs in a Cigarillo package, which she had handed her. [7] After H.B. failed to appear at trial, the State presented evidence that Cook and

one of his cellmates, Devin Sims, had called several individuals, including

Cook’s mother and sister, asking them to persuade H.B. not to testify against

Cook. Julie Autry, an investigator with the Grant County Prosecutor’s Office,

testified that H.B. was afraid and had reported several threats. Autry also

testified that she had listened to a number of jail phone calls and that she

recalled hearing Sims attempting to obtain H.B.’s phone number and telling the

recipient of the phone call to tell H.B. “not to go to Court, that she needs to stay

where she is.” Transcript, Volume 2 at 122. Over Cook’s objection, the trial

court permitted the State to present H.B.’s pretrial deposition pursuant to the

“former testimony” hearsay exception and the “forfeiture by wrongdoing”

hearsay exception. H.B. had stated in the deposition that she went to Greentree

Apartments and gave Cook cash in exchange for drugs. [8] The jury found Cook guilty of dealing in a narcotic drug, and, in a second

phase of the trial, the jury found Cook guilty of unlawful possession of a firearm

by a serious violent felon, both Level 4 felonies. Thereafter, the trial court

sentenced Cook to concurrent sentences of eight years executed in the Indiana

Department of Correction followed by two years suspended to probation. Cook

now appeals.

Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 4 of 12

Discussion and Decision [9] Cook contends that the trial court abused its discretion in admitting H.B.’s

deposition under the “forfeiture by wrongdoing” hearsay exception and that, in

so doing, the trial court violated his Sixth Amendment right to confrontation.

I. Standard of Review [10] A trial court has broad discretion to admit or exclude evidence, including

purported hearsay. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). Rulings on

the admission of evidence are reviewed for abuse of discretion. McHenry v.

State, 820 N.E.2d 124, 128 (Ind. 2005). An abuse of discretion occurs when the

trial court’s decision is clearly against the logic and effect of the facts and

circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012).

II. Hearsay [11] The Sixth Amendment to the United States Constitution provides that “in all

criminal prosecutions the accused shall enjoy the right . . . to be confronted with

the witnesses against him.”1 Through incorporation, the Sixth Amendment

applies to the states under the Fourteenth Amendment’s Due Process and Equal

Protection Clauses. Pointer v. Texas, 380 U.S. 400, 406 (1965). In criminal

cases, the Confrontation Clause prohibits the use of any hearsay against the

1 Although Cook also alleges that his right to confrontation under Article 1, Section 13 of the Indiana Constitution was violated, he makes no separate argument on that basis. Therefore, we need not address the issue separately. Jackson v. State, 735 N.E.2d 1146, 1150 n. 1 (Ind. 2000).

Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 5 of 12

accused in a criminal case unless the declarant is unavailable to testify and the

accused had a prior opportunity to cross-examine the declarant. Crawford v.

Washington, 541 U.S. 36, 59 (2004). [12] Hearsay is an out-of-court statement offered for “the truth of the matter

asserted.” Ind. Evidence Rule 801(c)(2). Hearsay is generally not admissible as

evidence, Evid.R. 802, and whether a statement is hearsay, “will most often

hinge on the purpose for which it is offered.” Blount, 22 N.E.3d at 565. As a

general rule, “the deposition testimony of an absent witness offered in court to

prove the truth of the matter asserted represents classic hearsay.” Jackson, 735

N.E.2d at 1150. “However, under both Indiana Trial Rule 32 and Indiana

Evidence Rule 804 this hearsay testimony may be admissible as evidence at trial

as an exception to the hearsay rule.” Id.

A. Forfeiture by Wrongdoing [13] Indiana Evidence Rule 804(b) provides:

Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.

***

(5) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant

Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 6 of 12

as a witness for the purpose of preventing the declarant from attending or testifying.

[14] We first addressed Rule 804(b)(5) in White v. State, 978 N.E.2d 475 (Ind. Ct.

App. 2012), trans. denied. There, because Rule 804(b)(5) 2 was patterned on its

federal counterpart, Federal Evidence Rule 804(b)(6), we looked to federal case

law and relied upon the following explanation of the forfeiture by wrongdoing

hearsay exception by the Second Circuit Court of Appeals:

prior to finding that a defendant waived his confrontation rights with respect to an out-of-court statement by an actual or potential witness admitted pursuant to Rule 804(b)(6), the district court must hold an evidentiary hearing outside the presence of the jury in which the government has the burden of proving by a preponderance of the evidence that (1) the defendant (or party against whom the out-of- court statement is offered) was involved in, or responsible for, procuring the unavailability of the declarant “through knowledge, complicity, planning or in any other way;” and (2) the defendant (or party against whom the out-of-court statement is offered) acted with the intent of procuring the declarant’s unavailability as an actual or potential witness. . . . The government need not, however, show that the defendant’s sole motivation was to procure the declarant’s absence; rather, it need only show that the defendant was motivated in part by a desire to silence the witness. . . . Further, in order to avoid the admission of facially unreliable hearsay, the district court should undertake a balancing of probative value against prejudicial effect in accordance with Fed.R.Evid. 403. The district court’s findings after a hearing will not be disturbed unless they are clearly erroneous, and we are particularly hesitant to disturb the court’s

2 “[Rule 804(b)(5)] was not in the original Evidence Rules, but was adopted by amendment effective [July 1,] 2009.” Id.

Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 7 of 12

determinations when they are based on its evaluation of the credibility of witnesses.

Id. at 479-80 (citing United States v. Dhinsa, 243 F.3d 635, 653-54 (2nd Cir.

2001), cert. denied, 534 U.S. 897 (2001)) (citations and quotations omitted). [15] Here, following a hearing outside the presence of the jury, the trial court

concluded:

[U]nder 804(B)(5) a statement offered against a party that wrongfully caused the declarant’s unavailability having listened to the testimony of Ms. Autry as well as all of the jail calls that were submitted by the State, I do find that the State has shown that the defendant wrongfully caused the unavailability of [H.B.] and therefore that he has waived his right to, his [Crawford v. Washington] right essentially to confront and cross-examine that person in, in person during the trial, so the deposition is admissible and the State may present that by having it read into the record.

Tr., Vol. 2 at 142. [16] On appeal, Cook confines his argument solely to the issue of balancing under

Rule 403.3 Although unsupported by citations to precedent, Cook suggests that

the trial court abused its discretion when it “failed to make any statement to

3 Indiana Evidence Rule 403 provides: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.

Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 8 of 12

indicate that she made any determination that the probative value of the [Rule]

804(b)(5) evidence outweighed the danger of unfair prejudice.” Brief of

Appellant at 15. For several reasons, we disagree. [17] We begin by observing that Cook never objected to the admission of H.B.’s

prior deposition on Rule 403 grounds. “To preserve a claimed error in the

admission of evidence, a party must make a contemporaneous objection that is

sufficiently specific to alert the trial judge fully of the legal issue.” Raess v.

Doescher, 883 N.E.2d 790, 797 (Ind. 2008) (internal quotations omitted). “The

requirement that evidentiary objections be made timely is for the purpose of

permitting a trial court to take appropriate preventative or corrective action

during trial.” Stephenson v. State, 29 N.E.3d 111, 119 (Ind. 2015). Had Cook

timely objected to the deposition’s admission on Rule 403 grounds, the trial

court could have easily made a statement that the probative value of the Rule

804(b)(5) evidence outweighed the danger of unfair prejudice—just as Cook

now requests. But, since Cook failed to lodge a timely objection, absent

fundamental error, he is procedurally foreclosed from raising this issue on

appeal. Id. at 118. [18] Waiver notwithstanding, Cook has failed to demonstrate the trial court abused

its discretion. We have previously explained that the weighing of the probative

value of evidence against the danger of unfair prejudice “is a discretionary task

best performed by the trial court.” Bryant v. State, 984 N.E.2d 240, 249 (Ind. Ct.

App. 2013), trans. denied. Here, Cook has failed to provide us a basis to

question the trial court’s decision; rather, Cook advances an argument

Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 9 of 12

regarding a potential contradiction between video evidence and H.B.’s

deposition, which is an argument pertaining to the evidence’s weight, not its

admissibility. And finally, contrary to Cook’s apparent claim on appeal, a trial

court does not abuse its discretion simply by failing to make a specific finding

regarding the application of Rule 403. Fry v. State, 748 N.E.2d 369, 372 (Ind.

2001) (“Although the trial court did not make a specific finding on the balance

of prejudice and probative value, it did not abuse its discretion under Rule

403.”). Therefore, we conclude the trial court did not abuse its discretion in

admitting H.B.’s prior deposition under Rule 804(b)(5).

B. Harmless Error [19] Regardless of whether the trial court abused its discretion, any such error would

be harmless. “Generally, errors in the admission of evidence are to be

disregarded unless they affect the substantial rights of a party.” Hoglund v. State,

962 N.E.2d 1230, 1238 (Ind. 2012). In determining the effect of the evidence

on a defendant’s substantial rights, we look to the probable impact on the fact

finder. Id. Moreover, the “improper admission [of evidence] is harmless error

if the conviction is supported by substantial independent evidence of guilt

satisfying the reviewing court there is no substantial likelihood the challenged

evidence contributed to the conviction.” Id. [20] First, the trial court admitted H.B.’s prior deposition under two different

hearsay exceptions: “former testimony” and “forfeiture by wrongdoing.” The

trial court explained:

Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 10 of 12

Alright, so at this point I’m going to go ahead and rule on the issue that I have before me and that is the admissibility of the deposition. I see two theories upon which it can come in, the first of those is 804(B)(1) as former testimony. The defendant wanted to depose [H.B.]. [H.B.] was produced for that deposition. Therefore, the, the [sic] deposition is former testimony from this case given during a lawful deposition and it’s now offered against a party who had an opportunity and similar motive to develop by direct, cross, or re-direct examination so under 804(B)(1) it comes in, and under 804(B)(5) . . . I do find that the State has shown that the defendant wrongfully caused the unavailability of [H.B.]

Tr., Vol. 2 at 141-42. Thus, even if Cook successfully demonstrated that the

evidence was inadmissible under the “forfeiture by wrongdoing” hearsay

exception, he was still required to demonstrate the trial court abused its

discretion by admitting the evidence under the “former testimony” exception.

Cook, however, waived this issue by failing to raise it on appeal. Ind. Appellate

Rule 46(A)(8); Dye v. State, 717 N.E.2d 5, 13 (Ind. 1999). Therefore, any error

under Rule 804(b)(5) was harmless because the evidence was otherwise

admissible. See Wallace v. State, 79 N.E.3d 992, 997 (Ind. Ct. App. 2017)

(noting that it is well established that our court may affirm an evidentiary

decision based on any legal theory supported by the record). [21] Moreover, there was substantial independent evidence of Cook’s guilt. The

record reveals that both Snyder and Huffman testified to Cook’s sale of heroin

to H.B. as well as the surrounding events: Snyder testified that she packaged the

heroin for the deal and Huffman testified that she gave H.B. a Cigarillo package

that H.B. later used to conceal the heroin. Snyder testified that she witnessed Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 11 of 12

Cook in possession of the handgun prior to the officers’ arrival and the handgun

was found near where Cook was seated. Officers also discovered the

previously-recorded “buy money” in Cook’s pockets. Accordingly, any error

would be harmless.

Conclusion [22] For the reasons set forth more thoroughly above, we conclude the trial court did

not abuse its discretion when it admitted H.B.’s prior deposition under Rule

804(b)(5), and that even if it did, any such error would be harmless. We

therefore affirm Cook’s convictions. [23] Affirmed.

Crone, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018 Page 12 of 12