Rashaad Mario Santaz Bass, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Rashaad Mario Santaz Bass appeals his convictions, following a bench trial, of murder, a felony;¹ armed robbery, as a Level 5 felony;² and unlawful possession of a firearm by a serious violent felon, a Level 4 felony.³ We affirm.

Issues

[2] Bass raises the following two restated issues:

I. Whether the trial court committed reversible error when it admitted the deposition testimony of two witnesses.

II. Whether the State presented sufficient evidence to support his conviction of armed robbery, as a Level 5 felony.

Facts and Procedural History

[3] On December 3, 2020, Daniel Perry drove his friend Justus Hudson to a local convenience store to meet Bass, who had dealt drugs to Hudson in the past. Hudson wanted to buy drugs from Bass again, but he owed Bass money from prior drug deals, which Bass had been trying to collect for a few days. Bass's friend, Joey Schott, was driving Bass around that evening to “do drug deals.” Tr. v. III at 120.

[4] After Perry and Hudson arrived at the convenience store parking lot and while Schott waited in his car, Bass walked up to Hudson, who was sitting in the front passenger seat of Perry's car. Bass had his hand in his pocket, which led Perry to believe that Bass was in possession of a “pistol.” Ex. v. I at 153. In fact, Bass had a gun in his pocket with his finger on the trigger. After a short conversation with Hudson, Bass opened the front passenger side car door, reached in, “snatched” Hudson's phone out of Hudson's hands, and said, “[L]et me get my money.” Tr. v. III at 123, 149. In response, Hudson said, “You ain't takin’ sh*t from me[,]” and the two began to “tussle.” Ex. v. I at 150, 151-52. As the argument between Hudson and Bass “started escalating[,]” Perry “started the car, put it in reverse, and just [ ] slammed the gas to the floor” while the passenger door was still open. Id. at 153. As “the car was starting to move,” Perry heard a gunshot. Id. at 154.

[5] When Schott heard the gunshot, he ran from his parked vehicle. Bass, who still had Hudson's phone, ran back to Schott's vehicle, drove away, picked up Schott, and fled the scene. Bass drove to his apartment, where he told Schott that he had shot Hudson. Schott asked Bass if the shot had hit Hudson, and Bass stated that he did not know, but he had “aimed” his gun at Hudson's chest. Ex. v. I at 208. Bass told Schott not to discuss the events of that evening. Following the shooting, Bass dismantled the gun, separately buried the components, donated the clothes he was wearing at the time of the shooting, and destroyed Hudson's phone.

[6] Hudson was shot and wounded and subsequently died from his wounds. The State charged Bass with two counts of murder;⁴ one count of armed robbery, as a Level 3 felony;⁵ one count of unlawful possession of a firearm by a serious violent felon, a Level 4 felony; and one count of carrying a handgun without a license, a Class A misdemeanor.⁶ Bass's counsel deposed Perry and Schott on June 29, 2021. Perry's deposition testimony included his statement that he was “sober” on December 3, 2020, and had been sober for “a week or two.” Ex. v. I at 157. On October 28, 2022, Bass's counsel deposed Shelby Allee, Hudson's girlfriend. Shelby testified at her deposition that she and Hudson had exchanged Facebook messages on the evening of December 3, 2020. On June 16, 2023, the State discovered and disclosed to Bass the December 3, 2020, Facebook messages between Hudson and Shelby.

[7] Perry died on February 16, 2024.⁷ On June 23, Bass filed a motion in limine seeking to exclude Perry's deposition testimony from evidence. Bass waived his right to a trial by jury, and his bench trial took place on June 25 and 26. On the first day of trial, the court admitted Perry's deposition testimony over Bass's objection. Bass cross-examined Shelby regarding the December 3, 2020, Facebook messages between her and Hudson, though the messages were not admitted into evidence. Shelby testified that Hudson's reference to “bo[i]” in the Facebook messages was a reference to heroin, and the reference to “ice” was a reference to methamphetamine. Tr. v. II at 222. Shelby testified that Hudson was getting the heroin “for Daniel” Perry and the methamphetamine for Shelby's mother. Id. Shelby further testified that Perry was “probably” intoxicated on the evening of the shooting because “[h]e was a drug addict.” Id. at 223.

[8] During the second day of trial, the State asked the court to find Schott to be an unavailable witness because he had not appeared for trial as requested by the State. The prosecutor recounted to the court the steps the State had taken to secure Schott's attendance at trial. Bass's counsel objected that the State had failed to show a good faith effort to secure Schott's appearance. The court found that Schott was unavailable and admitted his deposition testimony into evidence.

[9] The trial court found Bass guilty as charged but vacated one count of murder and the carrying a handgun without a license count. The court also reduced the Level 3 felony armed robbery count to Level 5 felony robbery. The court entered judgments of conviction on one count of murder, one count of robbery as a Level 5 felony, and one count of unlawful possession of a firearm by a serious violent felon. The court sentenced Bass to an aggregate term of sixty-six years in prison and two years on probation. This appeal ensued.

Discussion and Decision

Issue One: Admission of Deposition Testimonies

Standard of Review

[10] Bass challenges the admission of the deposition testimonies of Perry and Schott under Rule of Evidence 804, which provides an exception to the rule against hearsay when the declarant is unavailable at trial. Generally, we review a trial court's ruling on the admission of evidence for an abuse of discretion. E.g., McWhorter v. State, 117 N.E.3d 614, 618 (Ind. Ct. App. 2019), trans. denied. Specifically, “[t]he decision to admit former testimony of an unavailable witness [as an exception to the hearsay rule] is within the sound discretion of the trial court[,] and we will not reverse absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial.” Id. (internal quotation marks and citation omitted). However, Bass also challenges the admission of Perry's and Schott's deposition testimonies as alleged violations of his Sixth Amendment right to confront witnesses against him. U.S. Const. amend. VI.⁸ We review such constitutional claims de novo. See, e.g., Brittain v. State, 68 N.E.3d 611, 617 (Ind. Ct. App. 2017), trans. denied.

Perry's Deposition Testimony

[11] Perry's deposition testimony is “former testimony” under Evidence Rule 804, which defines former testimony, in relevant part, as that which:

(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 ․ an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Ind. Evidence Rule 804(b)(1).

[12] While former testimony is hearsay, it may be admissible as an exception to the rule against hearsay if the declarant is “unavailable” at trial. Brittain, 68 N.E.3d at 617; Evid. R. 804(b). Similarly, former testimony is admissible under the Confrontation Clause of the Sixth Amendment only if the defendant had a prior opportunity to examine the now-unavailable declarant. See, e.g., Brittain, 68 N.E.3d at 617. One way in which a declarant is considered unavailable is if he “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness.” Evid. R. 804(a)(4).

[13] Bass does not dispute that Perry was “unavailable” at trial because he had died. However, he asserts that Perry's former testimony is nevertheless inadmissible under both Evidence Rule 804 and the Confrontation Clause because Bass did not have an opportunity and similar motive to develop Perry's testimony at the deposition as he did at trial. Specifically, Bass maintains that, because he did not know at the time of Perry's deposition about the December 3, 2020, Facebook messages between Hudson and Shelby that referred to drugs, he did not have the opportunity or motive to question Perry about his drug use at the time of the shooting.

[14] The right to an “adequate and effective cross-examination ․ 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.” Berkman v. State, 976 N.E.2d 68, 77 (Ind. Ct. App. 2012) (internal quotation marks omitted) (quoting State v. Owings, 622 N.E.2d 948, 950 (Ind. 1993)), trans. denied. However, “the critical inquiry centers upon whether the opportunity was presented, not whether it was seized.” Thomas v. State, 966 N.E.2d 1267, 1272 (Ind. Ct. App. 2012) (citing Howard v. State, 853 N.E.2d 461 (2006)), trans. denied.

[15] Not only did Bass have the opportunity, but he did, in fact, question Perry at his deposition about his drug use on the evening of the shooting. Bass asked Perry whether Perry and Hudson were “doing any drugs or drinking anything” the night of the shooting, to which Perry responded, “No, we weren't.” Ex. v. I at 136. Bass later asked Perry again about his sobriety on the night of the shooting in the following exchange:

Q: ․ so were you sober at the time?

A: Yeah, I was.

Q: Do you know how long you had been sober for? By any chance?

A: I was very early on into it.

Q: For like, a day --

A: Like, a --

Q: -- a few weeks?

A: -- week or two.

Id. at 157. Thus, Bass had the opportunity to cross-examine ⁹ Perry; “whether, how, and to what extent the opportunity for cross-examination [was] used” was within his own control. Brittain, 68 N.E.3d at 618 (internal quotation marks omitted) (quoting Howard, 853 N.E.2d at 470).

[16] Furthermore, Bass questioned Shelby at trial about the references to drugs in the Facebook messages and elicited testimony from her to the effect that, on the evening of the shooting, Perry was procuring drugs and was “probably” intoxicated because “[h]e was a drug addict.” Tr. v. II at 223. Therefore, Bass was able to elicit testimony at trial that potentially undermined the credibility of Perry's deposition testimony that he was sober on the night of the shooting.

[17] Bass also had a similar motive ¹⁰ during the deposition as he would have had at trial to question Perry about his drug use on December 3, 2020. That is, at both times, Bass would have been “highly incentivized to highlight any problem with [the declarant's] perception and recollection and to elicit from h[im] any evidence that tended to negate or lessen [the defendant's] criminal culpability.” McWhorter, 117 N.E.3d at 618. As this Court has previously noted, “[w]e believe that a prudent defense attorney conducting a discovery deposition in a criminal case would not only attempt to ascertain what the substance of the testimony might be but also explore avenues by which the testimony or the witness's credibility might be attacked.” Berkman, 976 N.E.2d at 78. And that is, in fact, what Bass's attorney did.

[18] The trial court did not err under either the Rules of Evidence or the Confrontation Clause when it admitted Perry's former deposition testimony into evidence.

[19] Schott's deposition testimony is also “former testimony” for purposes of Rule of Evidence 804 and the Confrontation Clause in that it was given by a witness at a lawful deposition in the current proceeding and was offered against Bass, who had an opportunity to—and did—develop Schott's testimony by examination at that deposition. However, Bass maintains the testimony is nevertheless inadmissible because Schott was not “unavailable” as required by Evidence Rule 804 and the Confrontation Clause of the Sixth Amendment.

[20] Under Rule of Evidence 804(a)(5), one way in which a declarant is considered “unavailable” is if the declarant “is absent from the trial” and the proponent of the declarant's statement “has not been able, by process or other reasonable means, to procure ․ the declarant's attendance.” Similarly, a “witness is unavailable for purposes of the Confrontation Clause requirement only if the prosecution has made a good faith effort to obtain the witness's presence at trial[.]” Garner v. State, 777 N.E.2d 721, 724-25 (Ind. 2002). “Reasonableness is the test that limits the extent of alternatives the State must exhaust.” Id. Accordingly, the issuance of a subpoena is not an absolute prerequisite to proving a good faith effort to obtain a witness's presence at trial. See Hardy v. Cross, 565 U.S. 65, 71 (2011). While the State must present evidence establishing a witness's unavailability, there is no “testimonial requirement” that it do so in particular detail. Winston v. State, 206 N.E.3d 1183, 1186 (Ind. Ct. App. 2023), trans. denied. And, where the State has made its showing of a good faith, reasonable effort, we will not engage in speculation about whether additional efforts might have secured the witness's attendance. See Berkman, 976 N.E.2d at 76.

[21] For example, in Berkman a panel of this Court found that the State had made “a good faith, reasonable effort” to procure an unavailable witness where the prosecutor “indicated” to the trial court that, about one month prior to trial, the State “had unsuccessfully attempted to serve [the defendant] with a subpoena” at his last known address and “had been unable to contact [the defendant] via telephone.” 976 N.E.2d at 76. And we refused to engage in speculation about whether the State could have procured the witness's attendance with more effort. Id. at 78. Similarly, in Winston, a panel of this Court found the State had made a good faith, reasonable effort to procure a witness's attendance at trial when the State had mailed subpoenas to the addresses it had for the witness, called the phone numbers it had for the witness, and sent officers to the addresses it had for the witness and the witness's family members. 206 N.E.3d at 1186.

[22] Here, on the second day of trial on June 26, the State informed the court of the following actions it had taken to secure Schott's appearance at trial. Prior to June 2024, the State had sent subpoenas to Schott at an Illinois address he had provided to them. In June 2024, the State had begun additional attempts to contact Schott, including contacting Schott's family. It had sent officers out to Schott's known addresses. It had called the four phone numbers it had for Schott but learned they had been disconnected. It had attempted to locate and serve Schott at a hearing in a pending case in another county, but Schott had failed to appear there, resulting in the issuance of a warrant for his arrest. A week before trial, the State had learned of a new address for Schott and had gone there but been unable to locate Schott. The leasing office at that address had informed the State that Schott was being evicted.

[23] Also, during the week before trial, the prosecutor had been able to locate and contact Schott through social media and had spoken with him by phone. During that conversation, the prosecutor had told Schott that “his testimony would be on Wednesday or Thursday [of the coming week] and[,] in fact[,] it could be either” and that the prosecutor would need to meet with Schott “ahead of time.” Tr. v. III at 26. The prosecutor had then told Schott “where the trial was going to happen.” Id. Schott had “expressed some concerns” about “his active warrant.” Id. Therefore, the prosecutor had “reached out to Johnson County to see if [the State] could have the warrant recalled in order for [Schott] to come and testify without the fear of being arrested.” Id. The State “relayed that information to Mr. Schott, however [Schott] had ceased all communication, [and] he [wa]s no[ longer] on social media.” Id.

[24] That record establishes that the State in this case made more effort to procure Schott's attendance at trial than the efforts we have found adequate in other cases. Cf., e.g., Berkman, 976 N.E.2d at 76. The trial court did not err under either the Rules of Evidence or the Confrontation Clause when it determined that the actions of the State were reasonable, good faith efforts to procure Schott's attendance at trial and that Schott was unavailable.

[25] Despite the record of the State's diligent, good faith efforts to obtain Schott's attendance at trial, Bass contends the court erred in finding Schott was unavailable because the State requested such a finding at the beginning of the second day of trial, i.e., Wednesday, June 26, rather than waiting to see if Schott would appear later that day or the next day. However, the record discloses that the State informed Schott his testimony would be needed on “either” of two days—that Wednesday or Thursday—and that the State would need to meet with Schott beforehand. In that way, the State notified Schott that he needed to be at the trial at the beginning of Wednesday, June 26, at the latest.¹¹ It is undisputed that Schott did not appear at the trial at that time or anytime later that day as the trial concluded; therefore, Schott was “absent from trial.” Evid. R. 804(a)(5). Bass's contentions that Schott might have appeared for trial if the State had waited longer or taken additional actions is mere speculation, especially given Schott's recent history of failing to appear at the hearing in another county.

Issue Two: Sufficiency of the Evidence

[26] Bass challenges the sufficiency of the evidence to support his conviction of robbery, as a Level 5 felony. When reviewing the sufficiency of the evidence needed to support a criminal conviction,

we neither reweigh the evidence nor judge the credibility of witnesses․. [W]e only consider the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence. A conviction will be affirmed if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. It is the job of the fact-finder to determine whether the evidence in a particular case sufficiently proves each element of an offense, and we consider conflicting evidence most favorably to the trial court's ruling.

Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (internal quotation marks and citations omitted).

[27] To support Bass's conviction of robbery, as a Level 5 felony, the State was required to prove that Bass (1) knowingly or intentionally (2) took property (3) from Hudson (4) by using or threatening to use force (5) on any person. I.C. § 35-42-5-1(a)(1). Indiana courts have

long recognized that the particular degree of force necessary to constitute robbery is not defined by statute or the common law. We have held that the degree of force used to constitute the crime of robbery has to be a greater degree of force than would be necessary to take possession of the victim's property if no resistance was offered and that there must be enough force to constitute violence. The nature of the threatened force is not material in the definition of robbery as a Class C [now Level 5] felony and any threat of force, conveyed by word or gesture will suffice.

Maul v. State, 467 N.E.2d 1197, 1199-1200 (Ind. 1984).

[28] Here, Bass concedes that there is sufficient evidence that he knowingly or intentionally took property (i.e., Hudson's cell phone) from Hudson, but he claims there is insufficient evidence that he did so by force. We disagree. Bass's own testimony shows that he did not merely “pick[ ] up” Hudson's phone “from Hudson's lap,” as he now claims in his brief. See Appellant's Br. at 24. Rather, Bass testified that he opened the front passenger side car door, reached in, “snatched” Hudson's phone out of Hudson's “hands,” and said, “[L]et me get my money.” Tr. v. III at 123, 148-49. Perry's deposition testimony further shows that Hudson then resisted Bass taking his phone by saying, “You ain't takin’ sh*t from me” and then “tussl[ing]” with Bass. Ex. v. I at 150, 151-52. Perry backed up his car when the argument between Hudson and Bass “started escalating[.]” Id. at 153. Bass then shot Hudson and ran away with Hudson's phone. This was substantial evidence of probative value to prove that Bass took Hudson's phone from Hudson by using force on him. Bass's contentions to the contrary are merely requests that we reweigh the evidence and/or judge witness credibility, which we will not do. See Willis, 27 N.E.3d at 1066.

Conclusion

[29] The trial court did not err under either the Indiana Rules of Evidence or the Confrontation Clause of the Sixth Amendment when it admitted into evidence the deposition testimonies of the two unavailable witnesses, i.e., Perry and Schott. And the State presented sufficient evidence to support Bass's conviction of robbery, as a Level 5 felony.

[30] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1(1).

2.   I.C. § 35-42-5-1(a)(1).

3.   I.C. § 35-47-4-5.

4.   The second count of murder was killing while committing robbery. I.C. § 35-42-1-1(2).

5.   I.C. § 35-42-5-1(a)(1). Bass was ultimately convicted of robbery as a Level 5, rather than Level 3, felony.

6.   I.C. § 35-47-2-1; I.C. § 35-47-2-1(e)(2).

7.   Perry's death was not related to the charges against Bass.

8.   Bass does not raise a challenge under the Indiana Constitution.

9.   The exception to the rule against hearsay applies not only where there is a prior opportunity to “cross-” examine the unavailable witness, but also where there is an opportunity to develop the witness's testimony through “direct ․ or redirect examination.” Evid. R. 804(b)(1)(B). Similarly, our Supreme Court has held that taking a witness's pretrial deposition provided the opportunity to “cross-examine” as required under the Confrontation Clause. E.g., Howard v. State, 853 N.E.2d 461, 469-70 (Ind. 2006).

10.   In his brief, Bass asserts that he did not have the “same” motive at the deposition as he would have had at trial. Appellant's Br. at 14. However, Bass does not cite any authority stating that the motive must be the “same” rather than similar, nor does he develop an argument on that point. Regardless, Evidence Rule 804(b)(1)(B) clearly provides that the motive must be “similar,” not the same or identical.

11.   Because the prosecutor informed Schott that someone from the State would need to meet with Schott “ahead of time,” arguably Schott should have arrived before the beginning of trial on Wednesday, June 26. Tr. v. III at 26.

Bailey, Judge.

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.