                                                          FILED
                                                        May 09 2012, 8:44 am

FOR PUBLICATION                                                CLERK
                                                             of the supreme court,
                                                             court of appeals and
                                                                    tax court




ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

PATRICIA CARESS MCMATH                         GREGORY F. ZOELLER
Marion County Public Defender Agency           Attorney General of Indiana
Indianapolis, Indiana
                                               JODI KATHRYN STEIN
                                               Deputy Attorney General
                                               Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

HALSTON THOMAS,                                )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )      No. 49A02-1109-CR-830
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )


                   APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Patricia Gifford, Senior Judge
                        The Honorable Robert Altice, Jr., Judge
                          Cause No. 49G02-1104-MR-24426


                                       May 9, 2012

                             OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
         Halston Thomas appeals his conviction of Murder,1 a felony, and Carrying a Handgun

Without a License,2 a class A misdemeanor. Thomas presents the following restated issue

for review: Did the trial court err in admitting deposition testimony of a witness who refused

to testify at trial and whom Thomas had an opportunity to examine at the deposition?

         We affirm.

         The facts favorable to the conviction are that late in the morning of November 9,

2009, Andre Drake was visiting a friend, Temia Crossley, who lived in a second-floor

apartment in an apartment building located at 6387 Terrance Drive in Indianapolis. Drake’s

vehicle, with stickers on the trunk prominently displaying the identifying words “dre day”,

was parked in front of the building. Transcript at 27. As the two started to leave, Drake ran

into another friend, Channing Gordon, at the top of the stairs and the two exchanged phone

numbers. While Drake and Gordon spoke, three men, including Thomas and Lamar Hall,

entered the apartment building’s first-floor main entrance. Thomas and Drake had been in an

altercation several months before. Gordon knew Thomas as “Noodles.” Crossley, who was

standing near the door when the men entered, saw that Thomas was carrying a handgun. She

immediately ran upstairs to her apartment and went inside.

         Gordon saw Thomas climb the stairs, pointing a handgun at Drake. Gordon knocked

on the door of Apartment C, which was also located on the second floor, and went inside. He




1
    Ind. Code Ann. § 35-42-1-1 (West, Westlaw through end of 2011 1st Regular Sess.).
2
    Ind. Code Ann. § 35-47-2-1 (West, Westlaw through end of 2011 1st Regular Sess.).

                                                   2
heard the barrel of Thomas’s gun spinning just before he went inside Apartment C, the one

beside Crossley’s. Seconds later, once inside their respective apartments, Crossley and

Gordon heard essentially the same thing concerning the ensuing encounter between Drake

and Thomas. Crossley heard Drake say, “Man take everything you want.” Transcript at 55.

Gordon heard Drake “yell”, “you can have it all.” Id. at 107. Both heard the sound of a

struggle and then both heard multiple gunshots. Crossley thought she heard ten or eleven

shots, while Gordon thought he heard three or four. Seconds later, Drake knocked on

Crossley’s door and she let him inside. He told her he had been shot in the chest and asked

her to call 911. Drake entered the apartment and collapsed on the living room floor. He gave

Crossley a .40-caliber handgun he had been carrying and asked her to hide it, which she did

by putting it in her closet.

       Drake was shot four times – twice in the arm and twice in the back. One of the shots

in the back lacerated his kidney, severed his aorta, and passed through his liver and

diaphragm. This shot proved to be fatal to Drake. Ultimately, police recovered three bullets

from Drake’s body and two from the apartment hallway. All five bullets were .32 caliber.

Police interviewed Crossley, who told them she had seen one of the men before, several days

earlier at the Speedway store where she worked. Police viewed a store surveillance

videotape with Crossley and she identified a man as the one she thought had accompanied the

man who held the handgun on the day Drake was shot. That man turned out to be Hall.

Detective Mark Prater interviewed Hall, who eventually told him that the man who shot

Drake in the apartment building was called “Noodles.” He then informed the detective that



                                             3
Noodles’s name was Halston Thomas.3

        Detective Prater subsequently interviewed Thomas. Thomas admitted shooting Drake,

but claimed he did so in self-defense and then blacked out. On April 12, 2011, Thomas was

charged with murder and carrying a handgun without a license. In June 2011, Jade Stone

was incarcerated in Marion County on a charge of conspiracy to commit robbery, a class A

felony. At that time, she approached Detective Prater and told him she had information

concerning the Drake shooting. According to Stone, she knew Thomas as “Beefy.” In

March 2011, she had been involved in a conversation with Thomas, Tiana Cathy, and Briscoe

Jones. She heard Thomas tell Jones “[t]hat he had killed somebody and that he was looking

for the witness on the case that testified against him to kill him.” Id. at 168. According to

Stone, Thomas identified the witness in question by what he drove – an older model, “tealish-

blue Camaro, two door.” Id. That car was later connected to Hall.

        Thomas was tried on the above charges before a jury. Gordon was called to testify,

but refused to do so despite a court order and despite being found in contempt of court for

failing to testify. Thomas testified on his own behalf. His description of the incident differed

significantly from the trial testimony of Crossley and the deposition testimony of Gordon.

According to Thomas, he was unarmed when he entered the apartment building and

encountered Drake. Drake, on the other hand, was armed with two revolvers, one bigger than

the other. According to Thomas, Drake pulled out the smaller gun and pointed it at Thomas,




3
   At trial, Hall recanted all of the information he had provided to Detective Prater during the interview,
claiming he was lying to the detective for his own best interests.

                                                    4
which precipitated a struggle, during which Thomas wrested control of the gun from Drake.

As Drake reached for the bigger revolver and ran up the stairs, Thomas fired the gun he was

holding, striking Drake as set out previously. Thomas claimed that, at the time he fired the

shots at Drake, Drake was standing at the top of the stairs and Thomas was standing at the

bottom. The jury found Thomas guilty as charged. Further facts will be provided where

relevant.

       When Gordon refused to testify at trial, the trial court granted the State’s request to

read Gordon’s deposition testimony into evidence. Thomas contends that, in so doing, the

trial court deprived him of his constitutional right to confront the witnesses against him

because he did not have an adequate opportunity to confront and cross-examine Gordon.

“The decision whether to allow admission of prior recorded testimony is within the sound

discretion of the trial court.” Kendrick v. State, 947 N.E.2d 509, 515 (Ind. Ct. App. 2011),

trans. denied, cert. denied, 2012 WL 113503 (U.S. Mar. 19, 2012) (citing Garner v. State,

777 N.E.2d 721 (Ind. 2002)).

       Thomas’s argument rests chiefly upon our Supreme Court’s decision in Howard v.

State, 853 N.E.2d 461 (Ind. 2006). In Howard, the defendant was tried on child molesting

charges. The alleged victim, who was twelve years old at the time of trial, became upset

after answering a few preliminary questions and then refused to answer any more questions,

including any questions of substance concerning the alleged molestations. The court tried

several times, without success, to determine how it could alleviate the witness’s reluctance to

testify further. Failing that, the trial court declared the witness unavailable and, over defense

objection, granted the State’s request to admit the child’s pretrial deposition testimony into

                                               5
evidence. The defendant appealed to this court, which affirmed his conviction. Our Supreme

Court granted transfer. Although the Supreme Court ultimately determined that the trial

court erred in admitting the deposition, its discussion leads us to the opposite conclusion with

respect to Gordon’s deposition.

       In addressing the admissibility of the alleged victim’s deposition in Howard, the Court

noted the requirement set out by the United States Supreme Court that “if testimonial

evidence is at issue, then ‘the Sixth Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination.’” Id. at 465 (quoting Crawford

v. Washington, 541 U.S. 36, 68 (2004)).

       Thomas characterizes the deposition of Gordon as a discovery deposition, not a

testimonial deposition, and therefore impliedly argues that Crawford does not apply.

According to Thomas, a discovery deposition, unlike a testimonial deposition, “does not give

the defendant an adequate opportunity for cross-examination of the witness because the case

is in the discovery stage and defense counsel may not yet have all the available information

to conduct an effective cross-examination.” Appellant’s Brief at 5. Our Supreme Court

addressed a similar argument in Howard. We first note the Court’s observation that “witness

statements made during depositions are generally understood and widely recognized as

testimonial.” Howard v. State, 853 N.E.2d at 465. Nevertheless, noting that “Crawford

provides no guidance concerning what ‘opportunity’ is sufficient to satisfy the demands of

the Sixth Amendment,” the Court acknowledged that litigators often divide depositions into

two categories: discovery and testimonial. Howard v. State, 853 N.E.2d at 469. It also

acknowledged that the motivation for taking a deposition for discovery purposes might differ

                                               6
from that of a testimonial deposition. The Court, however, seemed disinclined to resolve the

question by undertaking an analysis that resulted in placing the deposition in one category or

the other. Instead, the Court made two observations that guided its inquiry into whether the

deposition in question was admitted consistent with the Crawford standard.

       First, the Court described the deposition in Howard as “a vigorous and lengthy

examination” that “lasted approximately two hours and resulted in ninety-two typewritten

pages[.]” Id. at 469. The Supreme Court cited these facts to support its rejection of

Howard’s claim that he had been denied his right of confrontation. Thomas would have us

interpret the Supreme Court’s language in doing so as reflecting its view that depositions that

are not similarly long and involved will not satisfy the requirement that the deposition be

testimonial. We reject this interpretation for reasons that will be explained below. Thomas

next contrasts the lengthy deposition conducted in Howard with the one conducted in the

present case, where his “counsel specifically limited the deposition to discovery matters and

did not conduct an extensive cross-examination to “‘cast doubt on the credibility’ of Gordon.

Read into the transcript, the deposition is only 25 pages long and the questions asked by

defense counsel were directed at what Gordon knew about the case.” Appellant’s Brief at 5.

Therefore, the argument goes, because the deposition of Gordon was not as vigorous and

lengthy as the one in Howard, the Crawford requirements were not met.

       At this point, Thomas segues into a discussion of the most facially important of the

Crawford elements, i.e., the opportunity to confront the witness during the deposition.

Thomas contends he did not have an opportunity to confront Gordon at Gordon’s deposition

because the scope of defense counsel’s questioning of Gordon was strictly limited – by

                                              7
Gordon’s counsel. Thomas contends, “Thomas’ counsel specifically limited the deposition to

discovery matters and did not conduct an extensive cross-examination to ‘cast doubt on the

credibility’ of Gordon.” Id. In fact, at the very outset of the deposition, counsel explained

his intentions in that regard:

       Mr. Gordon, we’re here for a discovery deposition today. What that means is
       this isn’t intended to replace you coming to trial, if there is a trial on this
       matter and testifying in front of a jury. Does that make sense?

                                      * * * * * *

       [A]ll right because this is a discovery deposition there are specifically some
       subject areas that I’m not going to cover. Also, the style and manner of the
       questioning would be different if this was intended to replace you testifying in
       Court. Does that make sense?

                                       * * * * *

       [M]y client, Halston Thomas is not here today and he’s not waiving his right to
       have – to confront cross-examine witnesses or to have a face-to-face meeting
       with the witnesses against him, okay.

Transcript at 100-101. Clearly, counsel did not intend to question Gordon vigorously or in

depth. This is not to say, however, that counsel did not have the opportunity to do so. The

restrictions placed upon the scope, tenor, and purpose of the deposition were self-imposed

and not dictated by law. Our reading of Howard leads us to conclude that the critical inquiry

centers upon whether the opportunity was presented, not whether it was seized.

       We return here to the conclusion left unexplained above, i.e., the mere fact that a

deposition was not as vigorous and lengthy as the one before the Court in Howard does not




                                              8
foreclose the possibility that it will be classified as testimonial4 in nature and, as such,

admissible if it meets the criteria set out in Crawford. After observing that the deposition in

Howard was, in fact, vigorous and lengthy, and did not support a claim that the defendant did

not have an opportunity to confront the witness in that setting, the Court stated:

        Second, and perhaps more importantly, Crawford speaks only in terms of the
        “opportunity” for adequate cross-examination. The right of confrontation
        under the Sixth Amendment is honored where “the defense is given a full and
        fair opportunity to probe and expose [testimonial] infirmities [such as
        forgetfulness, confusion, or evasion] through cross-examination, thereby
        calling to the attention of the factfinder the reasons for giving scant weight to
        the witness’ testimony.” Maryland v. Craig, 497 U.S. 836, 847, 110 S.Ct.
        3157, 111 L.Ed.2d 666 (1990) (quoting Delaware v. Fensterer, 474 U.S. 15,
        22, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)). Whether, how, and to
        what extent the opportunity for cross-examination is used is within the control
        of the defendant. … Only where a defendant has never had the opportunity to
        confront and cross-examine a witness does the admission of prior testimony at
        a subsequent proceeding violate the constitutional right of confrontation.

Howard v. State, 853 N.E.2d at 470 (emphasis supplied). This language reflects that

opportunity is the critical inquiry. Thomas’s counsel had the opportunity to conduct a

thorough and vigorous questioning of Gordon, but for unexplained reasons chose to limit its

scope to something less than that. Notwithstanding those self-imposed strictures, the

opportunity was there and thus Crawford was satisfied. We therefore conclude that the State

established that Gordon was unavailable to testify at trial, and that Thomas had an

opportunity to cross-examine Gordon at the deposition, which was testimonial in nature. See




4
   We also observe that it is not relevant that counsel classified the deposition of Gordon as a discovery
deposition.

                                                    9
Crawford v. Washington, 541 U.S. 36.

       Finally, we observe that even assuming that Crawford’s requirements were not met,

any error in admitting the deposition was harmless. “[A] denial of the right of confrontation

is harmless error where the evidence supporting the conviction is so convincing that a jury

could not have found otherwise.” Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000).

There is no question about Thomas’s identity as the shooter, because he admitted shooting

Drake. The case turned upon whether the jury would believe Thomas’s claim that he acted in

self-defense. The jury would have to believe Thomas’s account of the occurrence in several

key respects, including: (1) Thomas’s claim that he arrived at the scene unarmed, (2) Drake

initiated the confrontation by pulling a gun and pointing it at Thomas’s face, (3) Thomas

wrested control of that gun from Drake, and (3) Thomas shot Drake while Thomas was at or

near the bottom of the stairs and Drake was at the top of the stairs and attempting to pull

another gun from his pocket.

       Crossley testified that when Thomas entered the building she was at the bottom of the

stairs leading up to the second floor and saw a gun in Thomas’s pocket. At the moment

Thomas and his companions entered the building, Gordon and Drake were talking to each

other near the top of the aforementioned staircase. When she saw the gun, Crossley ran up

the stairs past Drake and Gordon and into her apartment. Once inside her apartment,

Crossley heard the sounds of a scuffle and heard Drake say “Man, take everything you want”

at about the same time multiple gunshots rang out. Transcript at 55.

       The key points of difference between her account and Thomas’s include her testimony

that Thomas was already armed when he showed up at the scene, that the incident started

                                             10
with Drake upstairs and Thomas downstairs, and that Drake’s statement just before the

shooting started was consistent with his desire to placate Thomas and to forestall Thomas’s

aggression. Gordon’s testimony was consistent with Crossley’s, adding only that he saw

Thomas pull the gun out of his pocket and point it at Drake’s chest or abdomen. At that point

Gordon ran into a nearby apartment. Thus, Gordon’s deposition testimony merely duplicated

Crossley’s in nearly all respects. Moreover, the forensic evidence showed that the bullets

that entered Drake’s back reflected either a downward trajectory or a slightly upward

trajectory. This was entirely inconsistent with Thomas’s account that he was eight to ten feet

below Drake when he fired the fatal shots. Rather, it is consistent with the view that the

shooting occurred at or near the top of the stairs and that Thomas would have had to climb

the stairs to reach Drake’s location in order to get there in the few seconds after Crossley left

the scene.

       In view of the strength of the evidence of guilt and in view of the fact that Gordon’s

deposition testimony was, largely, merely cumulative of Crossley’s, even assuming for the

sake of argument that the trial court erred in admitting Gordon’s deposition, the error was

harmless.

       Judgment affirmed.

MAY, J., and BARNES, J., concur.




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