COA: Statement of dead man properly admitted as evidence

A northern Indiana man’s constitutional rights weren’t violated when a trial court admitted a statement from a dead witness into evidence, the Court of Appeals of Indiana has ruled.

The case of William Dejuan Antonio Galloway, Jr. v. State of Indiana, 21A-CR-1127, began in September 2019, when Stephanie Parks was renting a house in Gary. Parks’ son, Sean Baker, was staying with Parks, as were several other individuals.

One evening around midnight, Parks was asleep on the couch when she heard a knock at the door. Baker opened the door and found William Dejuan Antonio Galloway Jr., who said his phone was dead and asked to borrow Baker’s phone to make a call for gas money.

After Baker retrieved his phone and returned to the door, Galloway pulled a handgun from his waistband, aimed the weapon at the man’s chest and demanded money.

At some point, Galloway pushed Parks to the floor and pointed the gun at her. Baker ran to the kitchen to grab a knife, and Galloway shot Parks multiple times.

Galloway ran out the front door, and Ebonie, one of Parks’ daughters, called 911. While she was speaking with the dispatcher, Galloway fired shots into Baker’s bedroom through the window.

Shortly thereafter, Baker and the others heard a car speed away. Baker told Ebonie that “Buddha,” which was Galloway’s nickname, was the shooter. Also, during the police investigation, Parks and Baker identified Galloway as the shooter from a photo array, and Baker provided a statement to police describing what had occurred.

The state subsequently charged Galloway with four counts of Level 1 felony attempted murder, one count of Level 2 felony attempted armed robbery, one count of Level 3 felony attempted armed robbery, one count of Level 3 felony aggravated battery and three counts of Level 5 felony criminal recklessness. Five days later, Galloway was charged under a second cause number with Level 6 felony escape and Class B misdemeanor criminal mischief. The Lake Superior Court subsequently granted the state’s motion for joinder.

Baker was shot and killed sometime after the incident.

Gary Detective Silas Simpson canvassed the neighborhood where Baker was killed, and “[e]verybody kept telling [him]” that “Buddha” had shot Baker. Also, Detective Kristopher Adams told Simpson that he had spoken with Dontaineun Cain, an inmate at the Lake County Jail, who said Galloway had admitted to killing Baker.

The state filed a motion for forfeiture by wrongdoing, which requested the admission of Baker’s statements to police regarding the shooting at Parks’ residence.

At a subsequent hearing, Galloway’s counsel argued that the admission of Baker’s statement to police identifying Galloway as Parks’ shooter would violate his right of confrontation under the Indiana Constitution and the United States Constitution. But the trial court determined Galloway had caused Baker’s unavailability to testify at trial, so Baker’s statement was admissible under the “forfeiture by wrongdoing exception.”

A jury found Galloway guilty of Level 1 felony attempted murder where Baker was the victim, Level 3 felony aggravated battery where Parks was the victim and three counts of Level 5 felony criminal recklessness. It also found him guilty on the escape and criminal mischief charges.

The trial court sentenced Galloway to 57½ years.

On appeal, Galloway argued the trial court erred in admitting Baker’s out-of-court statement into evidence, again claiming it violated his constitutional rights.

But Pointing to Ward v. State, 50 N.E.3d 752 (Ind. 2016), and Pierce v. State, 677 N.E.2d 39 (Ind. 1997), the Court of Appeals denied Galloway’s claims.

“Contrary to Galloway’s assertion, we see no reason to differentiate between the federal and state constitutions regarding the forfeiture by wrongdoing doctrine,” Judge Robert Altice wrote for the court. “That is, Indiana guarantees ‘face to face’ confrontation only of witnesses, not declarants.

“… In other words, the ‘face to face’ language has not always been interpreted literally,” Altice continued. “Otherwise, the testimony of all absent witnesses, whether unavailable through death or illness or threat, ‘would never be admissible at trial.’”

Moving to the merits, the Court of Appeals determined the state met its burden of proof.

“In 2020, Detective Adams informed another detective who was investigating the case that he had spoken with Cain, who was incarcerated with Galloway,” Altice wrote. “Cain reported that Galloway’s brother — Giovante — had informed him that Galloway had killed Baker. Cain also told the detective that Galloway admitted shooting Baker, and that Galloway ‘was gonna kill him too.’

“In our view, Galloway’s statement to Cain amounted to a tacit acknowledgment that he had killed Baker,” the judge continued. “That is, Galloway’s statement suggested that he had already killed one person. … Similarly, as the statement at issue here was made during the discussion of Galloway’s role in Baker’s death, such was direct evidence of Galloway’s guilt.

“… Galloway may not take advantage of Baker’s inability to testify, which was the natural consequence of his own misconduct — shooting and killing him. Thus, Galloway’s wrongdoing forfeited his right to confront Baker’s statement to law enforcement and, as a result, his confrontation rights under the Sixth Amendment and Indiana Constitution were not violated by the admission of Baker’s statement at trial.”

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