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.
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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
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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
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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.
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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).
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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
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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.
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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
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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:
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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
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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.
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