# Fowler v. State

> Indiana Court of Appeals · June 14, 2004 · 809 N.E.2d 960

URL: https://www.frixlaw.com/law-library/cases/9714001

## Case

- **Full name:** Aaron G. FOWLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** June 14, 2004
- **Citations:** 809 N.E.2d 960; 2004 Ind. App. LEXIS 1103; 2004 WL 1302657
- **Precedential status:** Published
- **Opinion:** Concurrence by Crone
- **Judges:** Barnes, Mathias, Crone
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Fowler v. State, 2005 Ind. LEXIS 544 (2005).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9714001

## How later opinions describe it (automated extraction)

- finding that a police officer’s “questioning of [the victim] at the scene of the incident just minutes after it occurred does not qualify as classic, ‘police interrogation’ as referred to in Crawford ”
- finding that a victim’s excited utterances, in response to an officer’s initial questioning at the scene of the assault did not constitute testimonial evidence

## Opinion text

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, -- U.S. --, 124 S.Ct. 1354 , 158 LEd.2d 177 (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, 808 N.E.2d 1183 (Ind.2004). In Clark, a murder witness was interviewed under oath by the prosecutor before the defendant was arrested, and the trial court admitted the transeript of the interview at trial. In determining the transeript's admissibility, Justice Boehm concluded that Crawford was inapplicable because the witness had testified at trial. See id., at 1189 n. 2 (stating that the United States Supreme Court "specifically noted that its holding does not alter the rule that 'when the declarant appears *966 for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements'") (quoting Crawford, - U.S. at - n. 9, 124 S.Ct. at 1369 n. 9). Here, although AR. 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 AR. See id., at 1189-90 ("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 evi-dentiary landscape for some time to come and will create countless dilemmas for trial and appellate courts, 1 but I do not believe that we are necessarily faced with that dilemma here. For that reason, I respectfully concur in result.
. 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 Clark) and the admission of statements that traditionally have been deemed less trustworthy.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9714001. Public record. Not legal advice.