Court of App eals of Indiana | Memorandum Decision 2 0

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### MEMORANDUM DECISION 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 de fense of res judicata, collateral estoppel, or the law of the case

. A TTORNEY FOR A PPELLANT Paul J. Podlejski Anderson, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Steven Hosler Deputy Attorney General Indianapolis, Indi ana



### IN THE 

# COURT OF APPEALS OF INDIANA
Dominique Q. Brisker , Ap pellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff October 30, 2020 Court of Appeals Ca se No. 20A

- CR

- 707 Appeal from the Madison Circuit Court The Honorable David A. Happe, Judg e Tr ial Court Cause No. 48C04

- 1711

- F4

- 2743

Crone , Judge .Court of App eals of Indiana | Memorandum Decision 2 0

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- 707 | October 30, 2020 Page 2 of 9 

### Case Summary
[1] Domi nique Q. Brisker appeals his convicti on , following a jury trial, for level 4 felony unla wful possession of a firearm by a ser ious v i olent felon

. Brisker asserts that the trial cou rt v iolated his Si xth Amendment right to confrontation and abused its discretion in admi tting certain evidence at trial

. Finding no constit utional violation or abuse of disc r e tion, w e affi rm. 

### Fact s and Proc e du ral Hist ory [2] O n the afternoon of Novembe r 1, 20 17, Malachi Carter and his girlf riend went to a ga s station in M adison County to meet two frie n ds, Antonio Mo ore and Jason Nave. Mo or e and Nave sat in their cars with a space between them, and Carter exited h is vehicle and stood b etween the two c ars . Ca rt er ’ s girlfriend stayed in the vehicle. As Carter stood between t h e cars, other i ndividuals approached him, including Brisker and Deonta An de rson . Carter knew both Brisker and A nderson wel l

. Carter a nd Ander s on began fighti ng and shoving each other . Bri sker then pulled out a gun , a nd Anderson took the gun from him

an d fired at Carter as Carter ran away

. Ca rter was not hit by any bullets, but Moore was struck in the leg with a bullet. Carter ran across the st r eet and hid under a p orch

. A s he hid, Carte r co uld see and hear that Anderson and Bris ker were lookin g for hi m.
[3] Police were dispatched to the sc en e based upon a report of “ shots fired , ” and Anderson Police Department Detective Ch ris Fraz ier was the f ir st t o arrive

. Tr. Vol. 4 at 87. A fema le witn ess identified Carter, who at the time was walkingCourt of App eals of Indiana | Memorandum Decision 2 0

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- 707 | October 30, 2020 Page 3 of 9 back to ward the gas stat ion , as being involved in the altercation because she

“ saw him running ” from the sc ene . Id

. at 91. Carter was immed iately taken into cust o dy and transported to the Anderson Police Dep artment , where he gave a detailed recorded statem ent iden tifying himself as a victim , Anderson as the shooter , and Brisker as the individual who originally possessed the gun that Anderson used to shoot at Carte r . Carter identified both men in a photo arra y , and h is girlfriend identified Brisker in a photo arra y. 1

[4] Fi ve da ys after the shooting, o n Nov ember 6, 2017, t he St ate charged Brisker with level 4 felony un lawful p ossession of a firearm by a ser iou s violen t felon and level 6 f elony pointing a fire arm . In a s epa rate case, the State charged Anderson with t he attempted mu rder of Carter. That same day , Carter went to the Anderson Police Department and met with Detective N orman Rayford. Carter recanted hi s ea r lier statement identifying Brisker and An der s on, and he d enied being the victim of any shooting . W hen Carter recan ted , he stated that he was not going to be a witness or “ go to court on nobody , ” and he refused to be a “sni tch

. ” State ’ s Forfeiture Ex. 1

. C arter implo red Det ective Rayford to tell A nd erson and Brisker that he w as not cooperating with pol ice. Id

.
[5] O n March 28, 2018, the Sta te filed a motion for a fo rfeiture by wron gdoing he aring

. In the motion , t h e State alleged that it would prove , by a pr e pondera nce of the e vi dence , that both B risk e r and And erson engaged in or

1 P olice also spoke to Moore , who was in the hospital, but he refused to provide any informa tion regarding t he shooting.Court of App eals of Indiana | Memorandum Decision 2 0

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- 707 | October 30, 2020 Page 4 of 9 encouraged wrongdoing that was intended to , and did, procure the

una vailability of Carter as a witn ess for the purpose of preventing Carter from testifying

. The trial court grante d t he motion and held a fo rfe iture hearing on Ma y 15 and 3 1 , 2018

. On August 3, 201 8 , t he court issued its order finding that

“ the State has met its burden to establish forfeiture by wrong doing ” and that both Br i sker and Anderson “ forfeited t heir rights t o c on front and cro ss e xamine ” Carter, resu ltin g in the State be ing p ermitted “ to introdu ce at trial otherwise hearsay stat ements from [Carter], subject to possible limit ations of relevance ” and the Evidence Rule 403 balancing test. App ellant ’ s App. Vol. 2

a t 87

- 88.

[6] The case pr oceeded to trial , and Ca rter ’ s ou t
- of

- court st atement s to police , including his recorded statement identifying Brisker as the indi vidual who possessed the gun , w ere admitted during the State ’ s case - in

- c hief ove r Br isker ’ s continuing o bj e ction

. The defense subsequently called Carter as a wi tness , and he claimed that his initial statement to police was incorrect a nd based upon f

aul ty assumption s o n his part , and that he was high on drugs a t the time of the statem ent. T he jury thereafte r f o und Bris ker gu il ty of level 4 felony unlawful po ssession of a f ire arm by a serious violent felon

. 2 F ollow ing a h earing, the trial court sen tenced Brisker to twelve ye ars , w i th ten years ex ecuted and two years su spended to proba tion

. The trial court a ls o imposed a si x - mont h

2 The State dismissed the point in g a f i rearm charge.Court of App eals of Indiana | Memorandum Decision 2 0

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- 707 | October 30, 2020 Page 5 of 9 sentence for two counts of contempt due to Brisker ’ s dis ruptive and extremely disrespectful beha vior in court

. This appeal e nsued. 

### Discussi on and Decision
[7] B risker asserts that the trial co urt abused its disc reti on in admi tting into
e v idence C a rter ’ s out
- of

- court statements to police

. In general, a trial court has broad discretion in r uling on the admissibility of evidence , and we will disturb a t rial court ’ s ev identiary rulings only up on an abuse of discreti on. Id

. Speers v. State , 9 99 N.E.2d 850, 852 (Ind. 2013) , cert. denied (2014) . A n abuse of discretion occurs only w here the cour t ’ s decision is clearly against the logic and effect of the facts and circumstances, or when the court misinterprets the law. Williams v. State , 43 N. E. 3 d 578 , 581 (Ind. 2015)

. W e may affirm a trial court ’ s evidentiary decision if it is sustainable on any basi s in the record. Barker v. State , 695 N.E.2d 925, 930 (Ind. 1998)

.
[8] W e first address Brisker ’ s argument t hat the admission of Carter ’s out

- of

- cour t state m ents violated his S i xth Amend ment right to con frontation. W hen a d efendant contends that a constitution al violation has resulted from the admission of evidence, our st andard of revie w is de novo. Speers , 999 N.E.2d at 852

. The Six th Amendment ’ s Co nfronta t ion Clause provides, in relevant part, “[i ]n all crimi nal prosecutions, the accuse d shall enjoy the right ... to be confronted with the witnesses against him.” U.S. C ONST
. amend. VI

. This rig ht allows the a dmission of an ab sent wit ness ’ s testimonia l out

- o f

- court statement only if the witness is un available an d the defendant has had a pr ior opportunityCourt of App eals of Indiana | Memorandum Decision 2 0

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- 707 | October 30, 2020 Page 6 of 9 to cross
- examin e th e witness

. Crawford v. Washington , 541 U.S. 36, 59 (2004)

. However, “when the declarant appears for cross

- examinatio n at trial, the Confro n tation Clause places no constraints at all on the use of [the declarant ’ s] prior testimonial statements.... The Clause does no t bar a dmission of a statement so long as the declarant is present at trial to defend or explain it.” Id

. at n. 9. And , ou r s u p reme c ourt has clarified that claimed loss es of memory at trial have no effect on availability for purposes of the Confr ontati on Clause: Although some courts and comment ator s contended that a witness who asserts an inability to recall any significant info r mation is for all practical purposes unava ilable for confrontation, this issue was settled in United States v. Owens , 48 4 U.S. 554, 558 (1988) . In Owens , the Supreme Court ... held that as long as the declarant testifies the Confrontation Clause has b een satisfied ev en if the declarant is unable to recall the events in question. Id . at 55 8

. ... The feigned or real absence of memory is itself a factor for the trier of fact to establish, but does not render the w i tness unavailable. Rather, as Owens explai ne d, it is a factor for the trier of fact to consider in evaluating the witnes s ’ s cu rrent and earlier versions. Id . at 559

... . We conclude that a witness who is present and responds willingly to qu e stions is “a vail able for cross - examination ” as that term is use d in Crawford in discussing the Confrontation Clause, ju st as O wens observed that such a witness is “subject to cross

- examination” under th e co mmon understanding of that phrase. We believe no s ignificance attaches to these slightly dif ferent verbal formula tions.
Fowler v. State , 829 N.E.2d 459, 466 (Ind. 2005) (parallel citations omi tted) , cert. denied (2006)

.Court of App eals of Indiana | Memorandum Decision 2 0

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- 707 | October 30, 2020 Page 7 of 9 [9] Briske r concedes that Carter in fact appeared and testified at tria l. Defense counsel was able to thoroughly examine Carter regarding h is out
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- cou rt
s tatement s to poli ce ident ifying Bris ker as posses sing the gun , and his subse q uent stat ement an d current tri al position recanting that identification. Brisker explained away his prior statements saying , “ [A] fter I later did a [n] evaluation of what happe ned that day ... and ki nda so be red up , I couldn ’ t really tell exactly ... where the bull ets was comi n ’ from [,] ” and upon reflection , “ No , I did not see [Brisker] with an y handgun or any kind of other weapon that day. ” Tr. Vol. 5 at 79. This is more than suff icie nt for the purpos es of the Confrontation Clause , and we fail to see how Brisker can now claim that his right to confrontation w as violated due to the a dmission of Carter ’ s out
- of

- court statements
. 3

[10] A side from his confrontation claim , Brisker briefly ar gues tha t the trial c o urt abused its discretion in failing to limit the ad missibility of Carter ’ s out
- of

- court statements t o impeach ment evidence as op posed to substantive evi dence

. However , t here is nothing in the record to suggest th a t defense counsel ma de a specific objecti o n on that b asis or requested an admonishment or a jury

3 Brisker premise s the entire ty of his Sixth Amendment argument on the trial court ’ s ruling , both pretrial and at the outset of the State ’ s case - in

- chief, that Carter ’ s out
- of

- court st atem en t s to police w ould be admitted as substantive evide nce pursuant to the “ forfeiture by wrongdoing ” d octrine , which provides that if the defendant ’ s own wrongdoing caused the declarant to be unavailable to testify at trial, then the defendant has forfeited h i s right to confro nt that witness. Scott v. Sta te , 1 39 N.E.3d 1148, 1153

- 54 (Ind. Ct. Ap p. 2020 ) , tr

ans . d en ied ; see also Ind. Evidence Rule 804(b)(5) ( known as the “forfeiture by wrongdoing” hearsay exception , wh ich permits admission of a “statement offer ed against a party that h as engaged in or encou r age d wrongdoing t hat was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant from attending or testifying.” )

. However, bec ause Carter did , in fact, attend trial and testify , we find B ri ske r ’ s claim tha t his right to confrontation was somehow v iolated by the trial court ’ s ruling regarding forfeiture t o be wholly inapposite

.Court of App eals of Indiana | Memorandum Decision 2 0

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- 707 | October 30, 2020 Page 8 of 9 instruction limiting the use of any of Carter ’ s out
- of

- court statements to impeac hment only

. Accordingly, any challenge to the use of Carter ’s prior statements a s substantive evi denc e is waived. See La wrence v. State , 959 N.E.2d 385, 389

- 90 (Ind. Ct. App. 2012) (citing Humphrey v. State , 680 N.E.2d 836, 839 (Ind.1997) ( fa ilure to object or request proper admonishment as to limited admissibility of evidence res ul ts in waiver of error on appeal) ) , trans. denied ; see
a lso Ind. Evidence Rule 105 (“If the court admits evidence that is admissible against a party or for a purpose

— but not against another par ty or for another purpose

— the court, on timely request, must restrict t he evidence to its proper scope and instruct the jury accordingly.”)

.
[11] W aiver notwithstanding, it is well settled that a prior out
- of

- court statement is admissible as substantive evi denc e if the declarant testifie s at trial and is subject to cross
- examination concerning the statement, and the statement is “ an identification of a person shortly after perceiving the person. ” I nd . Evidence Rule 801(d)(1)( C )

. Carter ’s prior statement s to p olice identifying Brisker as the in dividual who possessed the gun, check all o f those bo xes , an d , on t he recor d be fore us, Brisker would be u nable to f ormulate a viable argument t hat they do

n ot
. The trial court did not abuse its discretion in admitting the statements

. See Kendall v. State , 790 N.E.2d 122 , 12 7

- 28 (Ind. Ct . A pp. 2003) (witness ’ s prior statement to pol ice i dentifying defendant as driver of car used in crime was admissible as substantive evidence under Evidence Rul e 801(d)(1)(C ) w here witness recanted her prior identification statement at trial identifying de fen dant) , trans. denied ; see also R obin son v. State , 682 N.E. 2d 80 6, 810 (Ind. Ct.Court of App eals of Indiana | Memorandum Decision 2 0

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. Based upon the for e go ing, we affirm Brisker ’ s conviction

.
[12] A ffirmed

. Robb, J., and Brown, J., concur.