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ATTORNEYS FOR APPELLANT Ann M. Sutton Marion County Public Defender Agency Indianapolis, Indiana Timothy J. Burns Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 49S02-0412-CR-509 AARON G. FOWLER, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Marion Superior Court, No. 49G16-0307-CM-123009 The Honorable Danielle Gaughan, Master Commissioner _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0310-CR-930 _________________________________ June 16, 2005 Boehm, Justice. Under the recent decision of the Supreme Court of the United States in Crawford v. Washington, 541 U.S. 36 (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 crossexamination 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, ___ N.E.2d ___ (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 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

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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 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. . . .

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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 (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 Cushion-

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berry'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 [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 (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, ___ N.E.2d ___ (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. For the reasons explained below we conclude that Decker's testimony reporting Roar's statements was nevertheless properly admitted into evidence. Crawford reexamined and redefined the scope of the Confrontation Clause, but it did nothing to alter the principles governing declarants who are available for cross-examination at trial. Crawford overruled the portion of Ohio v. Roberts, 448 U.S. 56 (1980), that had authorized the admission of hearsay statements based on findings of particularized guarantees of trustworthiness. Confrontation, not reliability or trustworthiness, is the foundation of the Sixth Amendment right. Crawford, 541 U.S. at 59. Although the Court found the opportunity for crossexamination to be the essential requirement of the Confrontation Clause, it did not hold that all testimonial statements must have been subject to cross-examination at the time they were made.

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To the contrary, the Supreme Court explicitly reaffirmed its holding in California v. Green, 399 U.S. 149 (1970): Finally, we reiterate 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 . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. Crawford, 541 U.S. at 59 n.9. Thus, if the declarant "appears for cross-examination at trial,"-- sometimes treated as equivalent to "available"--the opportunity for cross-examination on the witness stand is sufficient for purposes of the Confrontation Clause. When the Court of Appeals considered this case, Judge Crone concurred in the result on the ground that Roar's appearance at trial satisfied the Confrontation Clause. Fowler, 809 N.E.2d at 965 (Crone, J., concurring). Judge Crone considered the result dictated by this Court's decision in Clark v. State, 808 N.E.2d 1183 (Ind. 2004). In Clark, a witness who testified at trial had been interviewed under oath by the prosecutor before the defendant was arrested. After the witness had testified, the trial court admitted the transcript of the earlier interview. We held "the federal right of confrontation has not been denied when the witness is available for crossexamination." Clark, 808 N.E.2d at 1189 (citing United States v. Valdez-Soto, 31 F.3d 1467, 1470 (9th Cir. 1994)). In a footnote we added: "the very recent decision of the United States Supreme Court in [Crawford], does not affect this case because Watson testified at trial." Id. at 1189 n.2. The defendant in Clark argued that because the witness's prior statement was admitted after the witness had left the stand, the defendant had no opportunity for cross-examination. However, we held that because the defendant gave no reason why he could not have recalled the witness, a violation of the Confrontation Clause was not established. Id. at 1189-90; 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. We adhere to the view that a witness is not unavailable simply because the witness does not take the stand. If the attendance of the witness can be obtained through subpoena or otherwise, that person is available. Thus, tools to compel attendance must be exhausted before a claim of violation of the Confrontation Clause will be entertained. Pavlik v. United States, 951 F.2d 220, 224 (9th Cir. 1991) (any harm to the defendant because of lack of

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an "effective opportunity" to confront a non-testifying witness was self-inflicted because the defendant made no attempt to subpoena the witness). As explained below, we think this doctrine is relevant, even though it is not dispositive of this case because Roar was present at the trial and did take the stand. In Crawford itself, the defendant's wife was never subject to cross-examination either before or at the defendant's trial. She did not testify because of a Washington state rule that goes further than Indiana's marital privilege and prevents altogether a married person from testifying without the consent of the spouse. Crawford, 541 U.S. at 40. Her pretrial statements to police were nevertheless admissible under a Washington state hearsay exception. 1 The Supreme Court held that her statements were testimonial and their admission violated the Confrontation Clause because the defendant had no opportunity to cross-examine her. Id. at 68. The precise issue in this case is whether a witness who is present and takes the stand, but then refuses to testify with no valid claim of privilege, is a witness who "appears for crossexamination" (as that term is used in Crawford) if no effort is made to compel the witness to respond. The more general unresolved issue under Crawford is what it means to say a witness is "available at trial for cross-examination." Discussions of this issue have often expressed the issue as whether the witness is physically in the courtroom and takes the stand. If so, the person is at trial and can be questioned. But even if a witness takes the stand, inability to obtain answers in cross-examination can arise from the witness's real or professed lack of memory, from incapacity due to age or other limitation, from a claim of privilege, or, as in Roar's case, from a simple refusal to answer. Pre-Crawford decisions, not always consistently, held the witness to be "available for cross-examination" in some of these circumstances but not in others. Whether a witness is unavailable for purposes of the Confrontation Clause is a question of law. See Jennings v. Maynard, 946 F.2d 1502, 1504 (10th Cir. 1991) ("We review an issue of unavailability under the Confrontation Clause de novo."). The question of availability of a witness has arisen in a variety of related but different contexts. Although Crawford is a recent and abrupt shift in the breadth of the Confrontation Clause, we have some polestars. As already
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The prosecution invoked the Washington Rule 804(b)(3) exception for statements against penal interest because the wife's statements implicated her, as well as her husband, in the crime. Crawford, 541 U.S. at 40.

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noted, Crawford held that a witness who was precluded from testifying by a rule of state law is not available. Crawford also explicitly reaffirmed Green, which dealt with a witness who claimed not to recall the answer. 2 541 U.S. at 59. The Supreme Court there held that the Confrontation Clause is not violated by admitting a declarant's out of court statement as long as the declarant testifies as a witness and is "subject to full and effective cross-examination." Green, 399 U.S. at 158. Although some courts and commentators contended that a witness who asserts an inability to recall any significant information is for all practical purposes unavailable for confrontation, this issue was settled in United States v. Owens, 484 U.S. 554, 558 (1988). 3 In Owens, the Supreme Court, citing Justice Harlan's "scholarly concurrence" in Green, held that as long as the declarant testifies the Confrontation Clause has been satisfied even if the declarant is unable to recall the events in question. Id. at 558. In the context of addressing the defendant's concomitant challenge under Evidence Rule 801(d)(1)(C), Owens observed that "[o]rdinarily a witness is regarded as `subject to cross-examination' when he is placed on the stand, under oath, and responds willingly to questions." Id. at 561. The feigned or real absence of memory is itself a factor for the trier of fact to establish, but does not render the witness unavailable. Rather, as Owens explained, it is a factor for the trier of fact to consider in evaluating the witness's current and earlier versions. Id. at 559. Justice Scalia is the author of both Crawford and Owens. We conclude that a witness who is present and responds willingly to questions is "available for cross-examination" as that term is used in Crawford in discussing the Confrontation Clause, just as Owens observed that such a witness is "subject to cross-examination" under the common understanding of that phrase. We believe no significance attaches to these slightly different verbal formulations.

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In Green, a juvenile had told the police officer that the accused had furnished marijuana to the juvenile. The juvenile then testified at the accused's preliminary hearing to the same effect. 399 U.S. at 151. At the trial, however, the juvenile said that he was under the influence of LSD at the time and was unable to remember how he had obtained the marijuana. Id. at 152. Both the prior testimony of the juvenile in the preliminary hearing and the police officer's testimony relating what the minor had told him were admitted into evidence. Id. The Court noted that the testimony of the juvenile in the preliminary hearing was under oath and subject to cross-examination at that time. Id. at 151. 3 See, e.g., 4 Clifford S. Fishman, Jones on Evidence, Civil and Criminal

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