Fowler v. State, 49S02-0412-CR-509.

Docket NºNo. 49S02-0412-CR-509.
Citation829 N.E.2d 459
Case DateJune 16, 2005
CourtSupreme Court of Indiana
829 N.E.2d 459
Aaron G. FOWLER, Appellant (Defendant below),
STATE of Indiana, Appellee (Plaintiff below).
No. 49S02-0412-CR-509.
Supreme Court of Indiana.
June 16, 2005.

Page 460


Page 461

Ann M. Sutton, Marion County Public Defender Agency, Timothy J. Burns, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

Under the recent decision of the Supreme Court of the United States in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), a prior testimonial statement is admissible against the defendant in a criminal prosecution only if the person who makes the statement is available for cross-examination either before the trial or at the trial. We hold that a witness who takes the stand but refuses to answer questions with no claim of privilege is available until the witness refuses to answer after being ordered to do so.

Not surprisingly, this issue, like the scope of "testimonial statements" addressed in Hammon v. State, 829 N.E.2d 444, 2005 WL 1406007 (Ind.2005), arises in the context of a charge of domestic violence. If a witness appears and testifies, the Confrontation Clause as explained in Crawford has no effect. That is what happens in the vast majority of criminal proceedings. Two groups of cases provide the bulk of the exceptions. Victims of domestic abuse, for reasons touched on below, and child victims of sexual abuse, by virtue of their age, are by far the most likely candidates to be unable or unwilling to testify at the trial of the person accused of abusing them. In recognition of the problem presented by the very young victim, our legislature, along with those of many other states, has enacted specific provisions intended to preserve the confrontation rights of the accused but minimize the additional burden that a trial imposes on a child victim. See Pierce v. State, 677

Page 462

N.E.2d 39, 41 (Ind.1997) (discussing Indiana Code section 35-37-4-6 (2004)).

Victims of domestic violence, however, are left to the harsh reality of ordinary trial procedures. Not infrequently a victim is asked to incur the additional emotional and sometimes also financial burden of testifying against a spouse or domestic partner in the interest of deterring other potential abusers. We readily sympathize with victims placed in this situation. We nevertheless are obliged to apply the law as it stands. The discretion to institute a criminal proceeding lies in the hands of the prosecutor. Once a crime is charged, the rules of evidence and the constraints of the Constitution come into play. Highly charged settings such as the victim's refusal to testify in this case undoubtedly present difficult choices for defendants and their lawyers. Nevertheless, we conclude the defendant must ask the trial judge to put a recalcitrant witness to the choice of testifying or contempt, or forego a Confrontation Clause challenge to the introduction of the witness's earlier statements.

Facts and Procedural History

Shortly before dawn on July 24, 2003, Indianapolis Police Officer Mark Decker and trainee Douglas Lepsky responded to a reported domestic disturbance at the home of defendant Aaron Fowler. Decker knocked on the door and was admitted by Sherry Cushionberry, a friend of Ametrua Roar, Fowler's wife. Decker found Roar sitting on a couch, sobbing, and rocking back and forth. She had blood on her pants and shirt, and a bloody nose. In response to Decker's initial inquiry about Roar's condition, she replied without elaboration "everything was alright." As Decker and Lepsky began to leave the residence, Cushionberry told the officers that Fowler was upstairs.

The police went upstairs where, according to Fowler, they wakened him at gun point yelling "Oh yeah, you like to beat on your girlfriend." Fowler responded that he had not done anything to Roar. Fowler was handcuffed and removed from the house. Decker and Lepsky then "re-interviewed" Roar, who gave the account of the evening's events described below.

Fowler was charged with battery and domestic battery. Two months later the State called Roar as its first witness in a bench trial. After some preliminary questions, the State showed Roar pictures of her taken at the scene and asked her how that happened. Roar responded, "I don't want to testify. I can't do this.... I don't want to testify no more!" After a recess the State had no further questions for Roar. The defense then cross-examined Roar as follows:

Q: Miss Roar, you stated that you were there on July 24th in your home, correct?

A: Yes.

Q: Has anybody threatened you to testify today?

A: I don't want to be here. It's too much pressure. I can't do it. I don't want to testify. It's too much pressure and there's too many people talking to me. I don't want to testify no more! I want to go home. I can't do this.

Q: No further questions at this time.

Neither the State nor the defense made any attempt to compel Roar to answer further questions.

Decker then took the stand and testified that in response to the questions "what had happened," "who ... caused physical damage to [your] face," and "where [did] the blood [come] from,"

[Roar] stated that the argument started at approximately one a.m. in the morning. She wanted her husband to

Page 463

come to bed, to go upstairs. They got into an argument. He wanted to stay downstairs. He said, "I'm not going to sleep if I come up there." At that time he did follow her upstairs. Upstairs they got into another verbal argument so to get away from him she went back downstairs. Then a couple more hours elapsed. She goes upstairs and finds him asleep in her daughter's bedroom and she kicks the bed to wake him up and asks him to come into the bedroom to sleep. At that time he jumps up out of bed and makes a statement to her and then starts choking her and punching her in the face....

She stated that he punched her several times in the face and I asked her, "Can you tell me about how many times it was," and she said it was so may times that she lost count.

Over Fowler's hearsay objection, the trial court admitted the testimony under the excited utterance exception.

The trial judge found Fowler guilty of domestic battery, a class A misdemeanor, and imposed a sentence of three hundred sixty-five days. On appeal, the Court of Appeals upheld the trial court's ruling that Roar's statements to Decker were admissible under the excited utterance exception to the hearsay rule. Fowler v. State, 809 N.E.2d 960, 962 (Ind.Ct.App.2004). The Court of Appeals, following its holding in Hammon v. State, 809 N.E.2d 945 (Ind.Ct.App.2004), held that there was no Confrontation Clause violation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because the very nature of an excited utterance "places it outside the realm of `testimonial' statements." Fowler, 809 N.E.2d at 964. We granted transfer. Fowler v. State, 2004 Ind. LEXIS 1030 (Ind. Dec. 9, 2004).

I. Excited Utterance

Fowler contends that his wife's statements to the police were inadmissible hearsay and that they were the only evidence supporting his conviction. For a statement to be admitted under Indiana Rule of Evidence 803(2), the exception for an excited utterance, three elements must be shown: (1) a startling event, (2) a statement made by a declarant while under the stress of excitement caused by the event, and (3) that the statement relates to the event. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind.1996). The ultimate issue is whether the statement is deemed reliable because of its spontaneity and lack of thoughtful reflection and deliberation. Id. at 1347. Determining whether a statement constitutes an excited utterance is essentially a factual determination subject to a clearly erroneous standard of review, sometimes described as the functionally equivalent standard of abuse of discretion. Davenport v. State, 749 N.E.2d 1144, 1148 (Ind.2001).

Officer Decker testified that he arrived at Roar's residence approximately five minutes after receiving a domestic disturbance dispatch and that he spoke with Roar no more than ten minutes after his arrival. Thus, about fifteen minutes elapsed between the time of Cushionberry's 9-1-1 call reporting the incident and Roar's statements to Decker. At the time Roar made the statements implicating Fowler, she claimed to be in pain and was still crying, bleeding from the nose, and having trouble catching her breath. The Court of Appeals found it "reasonable to infer from this evidence that a startling event had occurred that resulted in [Roar]'s bloody nose, that [Roar] was still under the stress caused by that event, and that her statement related to the event.... The trial court here did not abuse its discretion in concluding that

Page 464

[Roar]'s statements to Officer Decker were excited utterances." Fowler, 809 N.E.2d at 962. We agree that Decker's account of Roar's report to him was properly admitted as an excited utterance insofar as state rules of evidence are concerned.

II. Confrontation Clause

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause of the Sixth Amendment to the Federal Constitution prohibits admission in a criminal trial of testimonial statements by a person who is absent from trial, unless the person is unavailable and the defendant had a prior opportunity to cross-examine the person. This constitutional rule prohibits evidence even if it qualifies for a state law hearsay exception. In Hammon v. State, 829 N.E.2d 444 (Ind.2005), we considered what constitutes a "testimonial" statement and concluded that an excited utterance is not necessarily immune from attack under the Confrontation Clause. For purposes of this case we assume without deciding that Roar's account in the "reinterview" was testimonial....

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