MEMORANDUM DECISION                                                  Mar 09 2016, 9:06 am


Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Marce Gonzalez, Jr.                                     Gregory F. Zoeller
Dyer, Indiana                                           Attorney General of Indiana

                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Duriel Jareau Williams,                                 March 9, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A03-1507-CR-927
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Samuel L.
Appellee-Plaintiff.                                     Cappas, Judge
                                                        Trial Court Cause No.
                                                        45G04-1302-MR-2



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016          Page 1 of 15
[1]   Duriel Jareau Williams appeals his conviction for murder. Williams raises one

      issue, which we revise and restate as whether the trial court abused its

      discretion in admitting certain former testimony pursuant to Ind. Evidence Rule

      804. We affirm.


                                      Facts and Procedural History

[2]   On January 28, 2013, Erich Beard was shot and killed in Lake County, Indiana.

      Prior to the shooting, Brandi Phillips, who had previously dated Williams, had

      been traveling around in Gary in Beard’s truck with Beard, Williams, and

      another woman. Phillips was present when Williams and Beard exited the

      truck and Williams pointed a gun at Beard and shot him three or four times. At

      some point after the shooting, Phillips was riding in a car with her aunt and saw

      Williams, who entered the car and told Phillips that she “better not have ran

      [her] mouth.” Transcript at 385. Police later contacted Phillips and showed

      her a photographic array, and Phillips identified a person in the array as

      Williams but refused to sign it.


[3]   On February 12, 2013, the State charged Williams with the murder of Beard.

      On April 23, 2013, Williams filed a Petition to Let to Bail arguing that the proof

      was not evident and the evidence was not strong, and the matter was referred to

      a magistrate for a hearing scheduled for May 28, 2013. On May 28, 2013,

      Williams filed a motion to continue the bail hearing, which the court granted in

      part and denied in part, stating: “The State of Indiana indicates there is one

      witness that has been properly served to be here. That testimony will need to be

      taken today. The remainder of the hearing will be continued. The new date
      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 2 of 15
      will be coordinated with the magistrate.” Appellant’s Appendix at 52. Phillips

      testified before Magistrate Natalie Bokota that she was afraid to testify but that

      she was present when Williams shot Beard. Phillips was questioned by the

      State and Williams’s defense counsel, attorney Roseann Ivanovich. The

      hearing on the petition to let to bail was ultimately continued indefinitely on

      Williams’s motion.


[4]   A jury trial began on May 4, 2015, before Judge Samuel Cappas. At trial,

      Williams was represented by attorney John Maksimovich. As a preliminary

      matter prior to jury selection, the State informed the trial court that it had not

      been successful in securing Phillips’s presence as a witness at trial and had

      requested a writ of body attachment for her arrest. Specifically, the prosecutor

      stated:

                Your Honor, the State filed a Verified Motion For Writ of Body
                Attachment, to summarize what the State of Indiana has done.
                The State of Indiana has attempted to serve Brandi Phillips, an
                eyewitness to the alleged crime in this case with a subpoena and I
                have the investigator here that did this, but he is available to
                testify if the Court wants to hear from him. But I will summarize
                what the State has done. We had the Investigator Adams serve
                Brandi Phillips at her address, which is listed in the Verified
                Motion as on Burr Street, in Gary, Indiana. He left a copy at her
                address. He certified mailed a copy and regular mailed a copy.
                In addition to that, Adams went to her parents [sic] home located
                on Garfield Street in Gary, Indiana, left a copy of the subpoena
                for Brandi Phillips with her dad, also certified and regular mailed
                to that address as well. The State did receive back, the green card
                from the certification from the Garfield Street address which, to
                the State’s knowledge the only --- I’m sorry, Brandi Phillips’
                mother lives at that address, her name is Brenda. The signature
      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 3 of 15
              on the certified, although hard to read, looks more to the State
              that it would be the Brandi Phillips that signed it, rather than
              Brenda Phillips, but we do know at this point that she has been
              served at both addresses in all manners possible with a subpoena
              and that at least someone at the Garfield Street address signed for
              that subpoena. Wallace Adams, from our office, spoke with both
              her mother and her father regarding the subpoena and her need
              to be here today to testify. Myself, Miss Gonzalez and Detective
              Stout also went to her apartment and to her parents [sic]
              residence and spoke with her father about the subpoena and her
              need to be here to testify today. No one has heard from her after
              all of our efforts to attempt to locate her and because of that, we
              are asking that the Court grant our Motion and issue a Writ of
              Body Attachment for her arrest.


      Transcript at 3-5. Williams stated he had no objection. The court granted the

      State’s request and ordered a warrant for Phillips’s arrest.


[5]   On the third day of trial, the State informed the court that it had been unable to

      locate Phillips. Specifically, the prosecutor stated:

              Your Honor, the State of Indiana has made diligent efforts to
              locate Brandi Phillips, one of our witnesses. She has been served
              by leaving a copy at her address, certified mail, regular mail.
              Same process at her parents’ residence. Wallace Adams from
              our office had spoken to your [sic] parents about her need to
              appear here. Myself, Miss Gonzalez, and Lieutenant Stout spoke
              with her dad about her need to be here and attempted to locate
              her at her last known residence.

              In addition to that, since we -- the Court issued the Writ of Body
              Attachment on Monday, officers from the Gary Police
              Department have been attempting to locate her. In fact,
              attempted to locate her again last night with a group from the


      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 4 of 15
              department that does such things as try to locate missing
              witnesses and suspects and people of that nature.

              I have checked the jail list. She has not been arrested by another
              agency. Therefore at this point, the State of Indiana believes that
              under 80 -- evidence Rule 804([a])(5) she is unavailable. And we
              will be requesting to read in her transcript from the Petition to
              Let Bail Hearing, at which the defendant was represented by
              Miss Ivanovich and had the opportunity to question Miss
              Phillips. And he was present for that hearing as well.


      Id. at 290-291.


[6]   Williams’s counsel objected to the admission of Phillips’s testimony. He

      argued that Phillips was not truly unavailable and noted that a green certified

      mail ticket had been signed on a date around April 18th. He argued that the

      police officers who attempted to locate Phillips should come to court and tell

      the court about their efforts to locate her and that, without the officers’

      testimony, it could not be determined that she was unavailable. Williams’s

      counsel further argued that the bail hearing was held before Magistrate Bokota

      rather than Judge Cappas and that Williams had been represented by different

      counsel at the bail hearing. He also argued that the issue at the bail hearing was

      different than the issue at trial, that at the bail hearing the issue was whether

      Williams’s liberty should be restrained, that at trial the issue is whether

      Williams in fact committed the criminal offense, and that the penalty at trial is

      much more severe. In response, the State argued that the evidence rules do not

      require that it bring in the officers who looked for Phillips, that the State’s

      representations as to those efforts are satisfactory, the motive to develop

      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 5 of 15
      testimony is not required to be the same but is required to be similar, it more

      than established that Phillips was unavailable, and that it is irrelevant whether

      defense counsel or the trial judge was at the bail hearing. The court overruled

      Williams’s objection and admitted the testimony of Phillips from Williams’s

      bail hearing. The jury found Williams guilty of murder on May 6, 2015, and

      the court sentenced him to sixty-five years.


                                                  Discussion

[7]   The issue is whether the trial court abused its discretion in admitting the former

      testimony of Phillips. The admissibility of evidence is within the sound

      discretion of the trial court. Berkman v. State, 976 N.E.2d 68, 74 (Ind. Ct. App.

      2012), trans. denied, cert. denied, 134 S. Ct. 155 (2013). We will reverse a trial

      court’s decision on the admissibility of evidence only upon a showing of an

      abuse of that discretion. Id. An abuse of discretion may occur if the trial

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

      circumstances before the court or if the court has misinterpreted the law. Id.


[8]   Williams asserts that the court abused its discretion in admitting into evidence

      at trial the testimony Phillips had provided at his bail hearing. He notes that his

      trial counsel objected to the admission of Phillips’s prior testimony on the

      grounds that the issue at the bail hearing was different than the issue at trial and

      that the penalty after trial is more severe, and he notes that his trial counsel was

      not the attorney who represented him at the bail hearing. He contends that “the

      tactical and practical reasons may be critically distinct as to cross-examination

      of a witness at the very beginning of a criminal case when evidence is presented
      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 6 of 15
       solely to a judge or magistrate, as opposed to the trial and presentment of

       evidence before a jury” and that “a factual inquiry should be required in

       criminal cases where [Evidence] Rule 804(b)(1) is invoked.” Appellant’s Brief

       at 9-10. He argues that the State’s efforts to procure the attendance of Phillips

       at his trial were insufficient to satisfy a reasonableness standard in a murder

       prosecution. He also asserts that “[o]ur current jurisprudence places defense

       counsel in the clairvoyant position of electing whether to forego discovery

       depositions and petition to set bail hearings to protect a defendant from future

       unavailability claims.” Appellant’s Reply Brief at 2.


[9]    The State maintains that the court did not abuse its discretion in finding that

       Phillips was unavailable as the State was unable to procure her attendance by

       reasonable means and that Williams had the incentive and opportunity to cross-

       examine Phillips at the time she gave her sworn testimony at the bail hearing.

       The State argues that the context of a bail hearing in a murder case creates an

       obvious incentive to challenge testimony that would be inculpatory if offered at

       trial, that Williams’s counsel questioned Phillips at length at the bail hearing,

       that the substitution of defense counsel did not create lack of identity in interest,

       and that any error in admitting Phillips’s prior testimony was harmless given

       the other evidence presented at trial.


[10]   Ind. Evidence Rule 804(b) provides in part:

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

               (1)     Former Testimony. Testimony that:
       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 7 of 15
                       (A)      was given as a witness at a trial, hearing, or lawful
                                deposition, whether given during the current
                                proceeding or a different one; and

                       (B)      is now offered against a party who had – or, in a
                                civil case, whose predecessor in interest had – an
                                opportunity and similar motive to develop it by
                                direct, cross-, or redirect examination.

[11]   Ind. Evidence Rule 804(a) provides in part:


               A declarant is considered to be unavailable as a witness if the
               declarant:

                                                    *****

                       (5)      is absent from the trial or hearing and the
                                statement’s proponent has not been able, by process
                                or other reasonable means, to procure:

                                (A)     the declarant’s attendance, in the case of a
                                        hearsay exception under Rule 804(b)(1) . . . .

[12]   A witness is not unavailable unless prosecutorial authorities make a good-faith

       effort to secure his presence at trial. Berkman, 976 N.E.2d at 76 (citations

       omitted). “If no possibility of procuring the witness’s attendance exists, ‘good

       faith’ demands nothing of the prosecution; however, if there is even a remote

       possibility affirmative measures will be successful, good faith may demand their

       effectuation.” Id. (citation omitted). “The extent to which the prosecution

       must go to produce a witness is a question of reasonableness.” Id.


[13]   “The decision whether to invoke the rule allowing admission of prior recorded

       testimony is within the sound discretion of the trial court.” Davis v. State, 13

       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 8 of 15
       N.E.3d 939, 946 (Ind. Ct. App. 2014) (citing Berkman, 976 N.E.2d at 74

       (quoting Johnston v. State, 517 N.E.2d 397, 399 (Ind. 1988))), trans. denied.


[14]   In Berkman, the defendant asserted the trial court abused its discretion in

       admitting the deposition testimony of Paul Barraza, that the State had failed to

       adequately show that Barraza was unavailable, and that the deposition

       testimony should not have been admitted because Berkman did not have an

       opportunity for cross-examination and did not have a similar motive when

       deposing Barraza. 976 N.E.2d at 76. When seeking to introduce Barraza’s

       deposition testimony, the prosecutor stated that his office gave Barraza’s

       address and telephone number to an investigator who was unable to serve

       Barraza with a subpoena, that his office had been unable to contact Barraza by

       telephone, that Barraza was subject to at least one open arrest warrant, and that

       the prosecutor believed Barraza to be in Florida avoiding the warrant. Id. at 72.

       This court concluded, with respect to Barraza’s unavailability, that the State

       had made a reasonable, good-faith effort to secure Barraza’s presence at trial.

       Id. at 76. We noted that Barraza had failed to appear for two trials, that the

       State had subpoenaed Barraza at his last known address and had given its

       investigator his last known address and telephone number to no avail, that

       “[w]hether the State could have secured Barraza had it put forth considerably

       more effort is speculative at best,” and that “[g]iven that Barraza was already

       subject to at least one [] arrest warrant, there was no reason for the State to

       request a [] writ of body attachment.” Id. at 76-77.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 9 of 15
[15]   We further noted, with respect to whether the defendant had an opportunity for

       adequate or effective cross-examination, that at no point in Barraza’s

       deposition, the reading of which spanned ninety-four pages in the transcript,

       was there the slightest indication that the defendant was denied the opportunity

       to attempt to undermine Barraza or his testimony by asking any questions he

       saw fit. Id. at 77-78. As to whether the deposition testimony was developed

       with a similar motive, we found that, even if the primary motive of a discovery

       deposition is to obtain a preview of a witness’s testimony, this does not exclude

       the need to understand how the witness’s story and credibility might be

       attacked, that a prudent defense attorney would explore such avenues, and that

       the defendant’s counsel did just that by spending considerable time impeaching

       Barraza and exploring his motive. Id. at 78. We further noted that the

       defendant’s counsel questioned Barraza at length and that the defendant did not

       explain how he was prevented from pursuing lines of questioning fully or how

       they would have been pursued any differently at trial. Id. We concluded that

       the motive for the discovery deposition, as well as how the deposition actually

       played out, was similar enough to that of trial testimony to satisfy the

       requirements of Evidence Rule 804(b)(1), and held that the trial court did not

       abuse its discretion in admitting Barraza’s former testimony. Id. at 78-79.


                                        A. Phillips’s Unavailability

[16]   With respect to Phillips’s unavailability, we observe that, on the first day of

       trial, the deputy prosecutor informed the court that Investigator Adams had

       attempted to serve Phillips with a subpoena at her address, that he had left a

       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 10 of 15
       copy at her address, and that he had mailed a copy to her by certified mailed

       and by regular mail. The prosecutor also informed the court that Investigator

       Adams had visited the home of Phillips’s parents, left a copy of the subpoena

       for Phillips with her father, and that he also mailed a copy of the subpoena to

       the address of Phillips’s parents by certified mail and regular mail. The

       prosecutor further explained that the State received notification that a person

       had signed for the copy of the subpoena sent to the address of Phillips’s parents

       by certified mail, but that it was not clear whether the signature belonged to

       Phillips or to her mother. The prosecutor also stated that Investigator Adams

       had spoken with both Phillips’s mother and father regarding the subpoena and

       the need for Phillips to be present to testify at trial. Finally, the prosecutor

       informed the court that she, along with another deputy prosecutor and Gary

       Police Lieutenant Delmar Stout, visited Phillips’s apartment and her parents’

       residence and spoke with her father about the subpoena and the need for

       Phillips to be present to testify at trial. The State requested a writ of body

       attachment for the arrest of Phillips, which the court granted.


[17]   On the third day of trial, the deputy prosecutor informed the court that it had

       been unable to locate Phillips, stating that, since the court had issued the writ of

       body attachment, officers from the Gary Police Department had been

       attempting to locate her and that a group within the department had attempted

       to locate her again the previous night and were unsuccessful. The prosecutor

       also noted that she checked the jail list and that Phillips had not been arrested

       by another agency.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 11 of 15
[18]   We conclude that the State made reasonable, good-faith efforts to secure the

       presence of Phillips for Williams’s trial. The State had subpoenaed Phillips at

       the addresses known to it, requested the court issue an order for her arrest, had

       law enforcement attempt to locate her, visited her parents’ residence, and

       checked to see if she had been arrested by another agency. Whether the State

       could have secured her presence had it put forth additional effort is speculative.

       We cannot say that, under the circumstances, the State was required to take

       additional steps to secure Phillips. See Berkman, 976 N.E.2d at 76-77 (holding

       the State was not required to do more than it did to secure Barraza); see also

       Davis, 13 N.E.3d at 945-946 (noting the repeated efforts of the State to bring

       two witnesses to court and holding the witnesses were unavailable under

       Evidence Rule 804). Additionally, the court was permitted to rely upon the

       information provided by the deputy prosecutor in determining that Phillips was

       unavailable for purposes of Evidence Rule 804(a). See Berkman, 976 N.E.2d at

       76-77 (the trial court relied on the statements of the prosecutor regarding the

       State’s efforts to locate Barraza). The State demonstrated that Phillips was

       unavailable as a witness under Ind. Evidence Rule 804(a). See Tiller v. State, 896

       N.E.2d 537, 543-544 (Ind. Ct. App. 2008) (noting that the State explained its

       efforts to secure a witness’s attendance, which included contact and attempted

       contact by the prosecutor, service by subpoena, and the attempt of a detective to

       locate the witness, and noting that on the first day of trial the court granted the

       State’s motion for a writ of body attachment and the witness never appeared,

       and holding that the State’s efforts in securing the witness’s appearance at trial


       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 12 of 15
       were reasonable and the witness’s former deposition testimony was properly

       admitted under Ind. Evidence Rule 804(a)(5) and (b)(1)), reh’g denied.


                              B. Opportunity for Adequate Examination

[19]   We next turn to Williams’s assertions that he was denied the opportunity for an

       adequate or effective examination of Phillips and that his motive for

       questioning Phillips at the bail hearing was not similar to his motive to question

       her at his trial. The Indiana Supreme Court has stated that “the right to

       adequate and effective cross-examination is fundamental and essential to a fair

       trial [and] includes the right to ask pointed and relevant questions in an attempt

       to undermine the opposition’s case, as well as the opportunity to test a witness’s

       memory, perception and truthfulness.” State v. Owings, 622 N.E.2d 948, 950

       (Ind. 1993); see also Berkman, 976 N.E.2d at 77. “Murder . . . shall not be

       bailable, when the proof is evident, or the presumption strong.” Ind. Const. art.

       1, § 17. The Indiana Supreme Court has held that, “as a general rule, murder . .

       . shall not be bailable, except in either one of two cases: 1st. When the proof is

       not evident; 2d. When the presumption is not strong.” Fry v. State, 990 N.E.2d

       429, 434-435 (Ind. 2013) (citation and internal quotation marks omitted).


[20]   While Williams may have questioned Phillips at the bail hearing with the goal

       of showing that the proof of his guilt was not evident and the presumption not

       strong, in order to prevail on his petition to let bail it was necessary for him to

       challenge the accuracy of Phillips’s testimony or undermine her credibility. At

       no point during Phillips’s testimony at the bail hearing, the reading of which

       spanned about seventy-four pages in the transcript, is there any indication that
       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 13 of 15
Williams was not provided the opportunity to challenge her testimony and

credibility. His counsel devoted significant time to questioning Phillips

regarding her observations of the events of January 28, 2013. In particular,

counsel thoroughly questioned Phillips regarding her relationships with

Williams, Beard, and the other passenger; the actions, demeanor, and behavior

of Williams and Beard prior to the shooting; her distance from Williams and

Beard at the time of the shooting and her ability to observe their interactions

and Williams’s actions; and her interaction with Williams and the police

following the shooting. Williams does not explain how he was prevented from

questioning Phillips fully or how his questioning would have been pursued

differently at trial. Williams’s motive at the bail hearing, in light of our review

of Phillips’s testimony as a whole and the questioning of her by Williams’s

counsel, was sufficiently similar to that of trial testimony to satisfy the

requirements of Evidence Rule 804(b)(1). See Berkman, 976 N.E.2d at 78

(noting the defendant did not explain how he was prevented from pursuing

lines of questioning fully or how they would have been pursued any differently

at trial and holding “that the motive for the discovery deposition, as well as

how the deposition actually played out, was similar enough to that of trial

testimony to satisfy the requirements of Evidence Rule 804(b)(1)”). Williams

was provided the opportunity for an adequate and effective examination of

Phillips.




Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 14 of 15
                                                   Conclusion

[21]   Based upon our review of the record, we conclude that the trial court did not

       abuse its discretion in admitting Phillips’s testimony from the May 28, 2013 bail

       hearing into evidence at Williams’s trial. For the foregoing reasons, we affirm

       Williams’s conviction for murder.


[22]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-927| March 9, 2016   Page 15 of 15
