Altice, J.
William Dejuan Antonio Galloway, Jr., appeals his convictions for three counts of criminal recklessness, a Level 5 felony, and one count of attempted murder, a Level 1 felony. Galloway claims that the admission of a statement of a deceased witness into evidence at trial violated his right to confrontation under the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution.
We affirm.
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Galloway argues that the trial court erred in admitting Baker’s out-of-court statement into evidence. Specifically, Galloway claims that the admission of the statement violated his right of confrontation under the “Sixth Amendment to the United States Constitution, as well as Article I, Section 13 of the Indiana Constitution.”
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An exception to the right of confrontation exists when the defendant’s “own wrongdoing caused the declarant to be unavailable to testify at trial.” Smoots, 172 N.E.3d at 1279; Scott v. State, 139 N.E.3d 1148, 1153 (Ind. Ct. App. 2020), trans. denied. Additionally, a party who has rendered a witness unavailable for cross-examination through a criminal act—such as a homicide—may not object to the introduction of hearsay statements by the witness on Confrontation Clause grounds. Roberts v. State, 894 N.E.2d 1018, 1024 (Ind. Ct. App. 2008), trans. denied. This “forfeiture by wrongdoing doctrine” is designed to protect the integrity of the judicial process, and when a defendant attempts to undermine that process by procuring or coercing silence from witnesses, the Sixth Amendment right to confrontation may be forfeited. Davis v. Washington, 547 U.S. 813, 833 (2006); Smoots, 172 N.E.3d at 1279. As the United States Supreme Court observed in Reynolds v. U.S.:
The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.
98 U.S. 145, 158 (1878).
Simply put, when a defendant performs an act that is designed to prevent a witness from testifying, he or she may not reap the benefits of that wrongdoing. See id. To hold otherwise would certainly erode the effectiveness of the judicial process. See Scott, 139 N.E.2d at 1155.
For a defendant to have forfeited his confrontation rights by wrongdoing, “the defendant must have had in mind the particular purpose of making the witness unavailable.” Smoots, 172 N.E.3d at 1286 (citing Giles v. California, 554 U.S. 353, 367 (2008)). The State bears the burden of showing by a preponderance of the evidence that the defendant forfeited his right to confrontation under this theory. Davis, 547 U.S. at 833; Smoots, 172 N.E.3d at 1287.
Contrary to Galloway’s assertion, we see no reason to differentiate between the federal and state constitutions regarding the forfeiture by wrongdoing doctrine. That is, Indiana guarantees “face to face” confrontation only of witnesses, not declarants. Ward v. State, 50 N.E.3d 752, 756 (Ind. 2016). In other words, the “face to face” language has not always been interpreted literally. Otherwise, the testimony of all absent witnesses, whether unavailable through death or illness or threat, “would never be admissible at trial.” Id. As our Supreme Court declared in Pierce v. State, “in the case of typical hearsay where a live witness reports what the declarant said the constitutional reference to meeting the ‘witness’ is literally fulfilled because the witness reporting the hearsay is on the stand.” 677 N.E.2d 39, 49 (Ind. 1997). In that situation the declarant is not the witness. Id. That is the case here, as the witnesses who recounted Baker’s out-of-court statements was the detective who testified under oath and whom Galloway confronted face to face. For this reason, we cannot say that Galloway’s constitutional right of confrontation was violated under the Indiana Constitution.
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The evidence in the record establishes that Baker identified Galloway from a photo array as the shooter at Parks’s residence. Baker then gave a detailed statement to police describing Galloway’s actions during the shooting. Shortly after Baker’s cooperation with police, he was shot and killed, whereupon Detective Simpson canvassed the neighborhood where Baker died, and “[e]verybody kept telling” him that “Buddha” killed Baker and that “Buddha” is Galloway’s alias.
In 2020, Detective Adams informed another detective who was investigating the case that he had spoken with Cain, who was incarcerated with Galloway. 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 acknowledgement that he had killed Baker. That is, Galloway’s statement suggested that he had already killed one person. See, e.g., West v. State, 755 N.E.2d 173, 182 (Ind. 2001) (holding that the defendant’s statement, “you see him, I’m going to kill him too,” directed to a deputy sheriff when pointing to a photo of a jailhouse informant while awaiting trial for murder and robbery charges, constituted direct evidence of guilt). 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. Id.
The evidence further established that Galloway informed Cain that he had “bodies,” and Galloway nodded his head when Cain asked Galloway if he had killed Baker. Transcript Vol. 2 at 55. Although Galloway claims that he might have misunderstood what Cain was saying, it is reasonable to conclude from the circumstances that when Cain confronted Galloway as to whether he killed Baker, Galloway’s head nod was in the affirmative.
In light of the foregoing, we conclude that the State sufficiently proved by a preponderance of the evidence that Galloway engaged in conduct to “procure [Baker’s] absence from the trial and to prevent him from testifying against him.” See Smoots, 172 N.E.3d at 1287. 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.
Judgment affirmed.
Vaidik J. and Crone, J., concur.