ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. BURNS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
COURT OF APPEALS OF INDIANA
AARON G. FOWLER, )
vs. ) No. 49A02-0310-CR-930
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Danielle Gaughan, Master Commissioner
Cause No. 49G16-0307-CM-123009
June 14, 2004
OPINION - FOR PUBLICATION
Aaron Fowler appeals his conviction for domestic battery, a Class A misdemeanor.
The issue before us is whether the trial court erroneously allowed a police
officer to recount statements made by the victim at the time of Fowlers
On July 24, 2003, Indianapolis police officer Mark Decker received a dispatch to
respond to a 911 domestic disturbance call. Officer Decker arrived at the
residence approximately five minutes after receiving the dispatch. There, Officer Decker came
into contact with Fowler and his wife, A.R. Officer Decker observed blood
coming from A.R.s nose and what appeared to be blood on her shirt
and pants. Ten minutes after arriving at the residence, Officer Decker asked
A.R. to tell him what had happened. A.R., who was moaning and
crying, told Officer Decker and his partner that Fowler had punched her several
times in the face.
Officer Decker arrested Fowler, and the State charged him with battery and domestic
battery. A.R. appeared at the bench trial held on September 29, 2003,
and identified pictures of her taken on July 24, 2003. However, she
refused to testify that Fowler had battered her, exclaiming at one point, I
dont want to testify no more! Tr. p. 7. The State
then called Officer Decker, who recounted, over Fowlers objection, A.R.s statements that Fowler
had battered her. Fowler was convicted of domestic battery, and he now
Fowler contends that A.R.s statements to Officer Decker did not fall under the
definition of an excited utterance and, therefore, they were inadmissible hearsay. We
review questions regarding the admissibility of evidence only for a manifest abuse of
discretion resulting in an unfair trial. Williams v. State, 782 N.E.2d 1039,
1045 (Ind. Ct. App. 2003), trans. denied.
Hearsay is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of
the matter asserted. Ind. Evidence Rule 801(c). However, the Evidence Rules
provide an exception to this rule for excited utterances. Indiana Evidence Rule
803(2) defines an excited utterance as a statement relating to a startling event
or condition made while the declarant was under the stress of excitement caused
by the event or condition. Indiana courts have distilled this rule into
three distinct elements that the party seeking admission must prove: (1) a startling
event occurs; (2) a statement was made by a declarant while under the
stress of excitement caused by the event; and (3) the statement relates to
the event. Williams, 782 N.E.2d at 1046.
Here, Officer Decker testified that he arrived at A.R.s residence approximately five minutes
after receiving a domestic disturbance dispatch and that he had the opportunity to
speak with A.R. no more than ten minutes after his arrival. Thus,
about fifteen minutes elapsed between the time of the 911 call placed by
A.R.s friend reporting the incident and A.R.s statements to Officer Decker that he
related at trial. At the time A.R. made the statements implicating Fowler,
she was still crying and bleeding from the nose, claimed to be in
pain, and was having trouble catching her breath. It is reasonable to
infer from this evidence that a startling event had occurred that resulted in
A.R.s bloody nose, that A.R. was still under the stress caused by that
event, and that her statement related to the event. We concluded likewise
under similar facts in Gordon v. State, 743 N.E.2d 376, 378 (Ind. Ct.
App. 2001), where we held the victims statements to a police officer were
excited utterances when the officer arrived on the scene minutes after receiving a
911 dispatch and spoke to the victim, who was visibly shaking and whose
voice was crackling. The trial court here did not abuse its discretion
in concluding that A.R.s statements to Officer Decker were excited utterances.
Although we have concluded that A.R.s statements to Officer Decker fall under the
excited utterance exception to the hearsay rule, that does not end our analysis
today, given a recent and substantial change in Sixth Amendment jurisprudence announced by
the United States Supreme Court while this case was pending, and which we
have analyzed in another case decided today. We incorporate that analysis here:
Specifically, the Court held in March of this year that when the prosecution
seeks to introduce a testimonial out-of-court statement into evidence against a criminal defendant,
the Confrontation Clause of the Sixth Amendment requires two showings: (1) that
the witness who made the statement is unavailable; and (2) that the defendant
had a prior opportunity to cross-examine the witness. Crawford v. Washington, --
U.S. --, 124 S. Ct. 1354, 1374 (2004). In reaching this holding,
the Court squarely criticized and overruled Ohio v. Roberts, 448 U.S. 56, 100
S. Ct. 2531 (1980). Roberts had established the rule that hearsay statements
made by an unavailable witness were admissible against a criminal defendant if the
statement fell within a firmly rooted hearsay exception or otherwise bore particularized guarantees
of trustworthiness. Id. at 66, 100 S. Ct. at 2539.
By contrast, the Crawford opinion held that [l]eaving the regulation of out-of-court statements
to the law of evidence would render the Confrontation Clause powerless to prevent
even the most flagrant inquisitorial practices. Crawford, -- U.S. at --, 124
S. Ct. at 1364. The Court then undertook an analysis of the
state of the common law in 1791, when the Sixth Amendment was adopted,
to support its conclusion that the Framers intended the Confrontation Clause to allow
the admission of out-of-court testimonial statements by an unavailable witness only if the
defendant had a prior opportunity for cross-examination. Id. at --, 124 S.
Ct. at 1365-66. Thus, proper determination of whether an out-of-court statement is
admissible against a criminal defendant is no longer solely governed by whether it
falls within a recognized exception to the hearsay rule. Instead, if the
statement was made in a situation where the defendant did not have an
opportunity for cross-examination, the statement must be excluded if it is testimonial.
If a statement is non-testimonial, its admission in a criminal trial is left
to regulation by hearsay law . . . . Id. at --,
124 S. Ct. at 1370.
The majority in Crawford expressly declined to give a precise definition to the
crucial word testimonial. Id. at --, 124 S. Ct. at 1374.
It did offer some guidance, however. First, testimonial statements need not necessarily
be ones given under oath; unsworn statements may also be testimonial. Id.
at --, 124 S. Ct. at 1364-65. Second, the Court gave the
following examples of testimonial statements:
ex parte in-court testimony or its functional equivalent . . . such as
affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably expect to be used prosecutorially .
. . extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions . . . statements that were made under circumstances
which would lead an objective witness reasonably to believe that the statement would
be available for use at a later trial.
Id. at --, 124 S. Ct. at 1364 (citations omitted).
From these generalities, the Court extrapolated that statements made during a police interrogation
would qualify as testimonial statements. Id. Again, however, the Court declined
to precisely define police interrogation, aside from noting that it used the term
interrogation in its colloquial, rather than any technical legal, sense. Id. at
--, 124 S. Ct. at 1365 n.4. It also found that the
police questioning at issue in the case qualified as interrogation under any conceivable
definition where the witness knowingly gave a recorded statement in response to structured
police questioning . . . . Id. The Court also compared
police interrogation to official pre-trial examinations of witnesses by English magistrates or justices
of the peace before England acquired a professional police force in the 19th
century. Id. at --, 124 S. Ct. at 1364-65. Finally, we
note the Court dwelled at length upon the treason trial of Sir Walter
Raleigh in 1603 and the out-of-court statements of Lord Cobham, Raleighs alleged co-conspirator,
contained in a letter and in an examination before the Privy Council, used
to condemn Raleigh to death. Id. at --, 124 S. Ct. at
. . . . It appears to us that the common denominator
underlying the Supreme Courts discussion of what constitutes a testimonial statement is the
official and formal quality of such a statement. . . .
. . . . [W]e observe that the Supreme Court chose not
to say that any police questioning of a witness would make any statement
given in response thereto testimonial; rather, it expressly limited its holding to police
interrogation. We conclude this choice of words clearly indicates that police interrogation
is not the same as, and is much narrower than, police questioning.
To the extent the Supreme Court said that it used the term interrogation
in its colloquial . . . sense, we believe that reference to a
lay dictionary for a definition of interrogation is appropriate. Id. at --,
124 S. Ct. at 1365 n.4. Interrogation is defined in one common
English dictionary as To examine by questioning formally or officially. The American
Heritage College Dictionary 711 (3d ed. 2000). This is consistent with our
prior observation that the common characteristic of all testimonial statements is the formality
by which they are produced. We also believe that interrogation carries with
it a connotation of an at least slightly adversarial setting. See Rogets
Thesaurus II 556 (Expanded ed. 1988) (listing as first definition of interrogate as
To question thoroughly and relentlessly to verify facts: interrogate the captured soldier.).
We thus hold that when police arrive at the scene of an incident
in response to a request for assistance and begin informally questioning those nearby
immediately thereafter in order to determine what has happened, statements given in response
thereto are not testimonial. Whatever else police interrogation might be, we do
not believe that word applies to preliminary investigatory questions asked at the scene
of a crime shortly after it has occurred. Such interaction with witnesses
on the scene does not fit within a lay conception of police interrogation,
bolstered by television, as encompassing an interview in a room at the stationhouse.
It also does not bear the hallmarks of an improper inquisitorial practice.
See Crawford, -- U.S. at --, 124 S. Ct. at 1364. .
We further note that the very concept of an excited utterance is such
that it is difficult to perceive how such a statement could ever be
testimonial. The underlying rationale of the excited utterance exception is that such
a declaration from one who has recently suffered an overpowering experience is likely
to be truthful. Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000).
To be admissible, an excited utterance must be unrehearsed and made while
still under the stress of excitement from the startling event. Id.
The heart of the inquiry is whether the declarants had the time for
reflection and deliberation. Id. An unrehearsed statement made without reflection or
deliberation, as required to be an excited utterance, is not testimonial in that
such a statement, by definition, has not been made in contemplation of its
use in a future trial. See Crawford, -- U.S. at --, 124
S. Ct. at 1364. . . .
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 Is 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 Deckers 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 Fowlers apparent lack of an opportunity to cross-examine A.R. regarding
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.
The trial court did not abuse its discretion in admitting Officer Deckers testimony
relating A.R.s statements made following the battery, notwithstanding the Supreme Courts recent decision
in Crawford v. Washington. We affirm Fowlers conviction.
MATHIAS, J., concurs.
CRONE, J., concurs in result with separate opinion.
COURT OF APPEALS OF INDIANA
AARON G. FOWLER, )
vs. ) No. 49A02-0310-CR-930
STATE OF INDIANA, )
CRONE, Judge, concurring in result
I agree with the majoritys 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 majoritys determination that the United States Supreme Courts 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 courts 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 transcripts 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 Watsons 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 States case in chief and was still under subpoena and was subject
to being called to testify) (citation omitted), trans. denied.
The fallout from Justice Scalias 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.
Footnote: One such dilemma is that a testimonial/non-testimonial distinction based on the
formality of police questioning may result in the exclusion of statements previously considered
to be highly reliable (such as the sworn statements given in
the admission of statements that traditionally have been deemed less trustworthy.