FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS     STEVE CARTER
Indianapolis, Indiana     Attorney General of Indiana

JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana

AARON G. FOWLER,        )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 49A02-0310-CR-930
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

Hammon v. State, No. 52A02-0308-CR-693, slip op. pp. 7-12 (Ind. Ct. App. June 14, 2004) (footnotes omitted).
    Guided by this analysis, we conclude, as we did in Hammon, that the statement A.R. gave to Officer Decker was not a “testimonial” statement. A.R.’s statement “was not given in a formal setting even remotely resembling an inquiry before King James I’s Privy Council; it was not given during any type of pre-trial hearing or deposition; it was not contained within a ‘formalized’ document of any kind.” Id. at 10. Additionally, Officer Decker’s questioning of A.R. at the scene of the incident just minutes after it occurred does not qualify as classic, “police interrogation” as referred to in Crawford. Finally, the very nature of A.R.’s “excited utterance” to Officer Decker places it outside the realm of “testimonial” statements. We hold, given the nature of the police questioning in this case and the nature of the statement itself, that A.R.’s statement to Officer Decker was “non-testimonial” and admissible as evidence against Fowler, notwithstanding Crawford and Fowler’s apparent lack of an opportunity to cross-examine A.R. regarding her statement.
We would be remiss if we failed to observe that just before trial, Officer Decker apparently had threatened A.R. with a charge of filing a false police report if she refused to testify against Fowler. The prosecutor also asked the trial court to direct A.R. to answer his questions regarding whether Fowler had battered her, which the trial court refused to do. Given the psychological complexities of domestic violence cases, it is not at all clear to us that such an approach in trying to “encourage” a victim to testify is desirable. One recent scholarly article estimates that between eighty and ninety percent of domestic violence victims recant their accusations or refuse to cooperate with a prosecution. See Tom Lininger, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind. L. Rev. 687, 709 n.76 (2003). The reasons why a victim might choose to recant or not cooperate are varied and complex, including a fear of additional violence by the abuser, a belief that the abuser will “change” if no prosecution occurs, and legitimate economic concerns if the abuser was the primary financial provider and is facing prison time. See Comment, All States Should Adopt Spousal Privilege Exception Statutes, 55 J. Mo. B. 249, 249 (1999). A domestic violence victim should not be placed in the situation of being intimidated not only by the aggressor, but also by the State and its representatives. Although we understand the frustration experienced by the State when a victim refuses to testify, we note the large number of cases from this court and our supreme court delineating the excited utterance exception to the hearsay rule, the sufficiency of such evidence to support a domestic violence conviction, our presumption that a police officer will interview a victim shortly after a domestic violence incident, and our belief announced today that Crawford v. Washington should not substantially curtail the admission of excited utterances in these types of cases.

     IN THE
     COURT OF APPEALS OF INDIANA

AARON G. FOWLER,    )
)
Appellant-Defendant,    )
)
vs.    )    No. 49A02-0310-CR-930
)
STATE OF INDIANA,    )
)
Appellee-Plaintiff.    )

CRONE, Judge, concurring in result
    I agree with the majority’s conclusion that A.R.’s statements to Officer Decker fall under the excited utterance exception to the hearsay rule and that the trial court did not abuse its discretion in admitting those statements. Nevertheless, I respectfully disagree with the majority’s determination that the United States Supreme Court’s recent decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), applies to the facts of this case.
    Instead, I believe that we should follow our supreme court’s even more recent analysis in Clark v. State, No. 48S00-0205-CR-270 (Ind. May 19, 2004). In Clark, a murder witness was interviewed under oath by the prosecutor before the defendant was arrested, and the trial court admitted the transcript of the interview at trial. In determining the transcript’s admissibility, Justice Boehm concluded that Crawford was inapplicable because the witness had testified at trial. See id., slip op. at 4 n.2 (stating that the United States Supreme Court “specifically noted that its holding does not alter the rule that ‘when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements’”) (quoting Crawford, 124 S. Ct. at 1369 n.9). Here, although A.R. could be characterized as uncooperative, she testified at trial and could have been recalled for cross-examination regarding the statements she made to Officer Decker at the scene of the crime. As such, Fowler was not denied an opportunity to confront A.R. See id., slip op. at 5 (“Clark argues that because Watson’s statement was admitted after Watson left the stand, Clark had no opportunity to cross-examine Watson, but he gives no reason why he could not have recalled Watson. He has not established a violation of his right to cross-examine.”); see also Kielblock v. State, 627 N.E.2d 816, 821 (Ind. Ct. App. 1994) (finding no abuse of discretion in admission of audiotape and transcript of victim interview where victim had testified during State’s case in chief and “‘was still under subpoena and was subject to being called to testify’”) (citation omitted), trans. denied.
    The fallout from Justice Scalia’s “clarification” of the Confrontation Clause in Crawford will reverberate through the evidentiary landscape for some time to come and will create countless dilemmas for trial and appellate courts, See footnote but I do not believe that we are necessarily faced with that dilemma here. For that reason, I respectfully concur in result.