Surely one meaning of "wrong" when speaking of appellate decisions has to be that a decision is contrary to controlling precedent. (And I still don't know how the Missouri Supreme Court had the chutzpah to buck the U.S. Supreme Court in Roper. And who'd have thought that SCOTUS would affirm?!!?)
Back on July 18th, the Court of Appeals came out with Frye v. State. It's a Crawford case decided a month after the U.S. Supreme Court, in Hammon v. Indiana--the companion case to Davis v. Washington--, reversed the Indiana Supreme Court's decision in Hammon v. State.
The Court of Appeals does something in Frye that I don't think I've ever seen before: it goes through the Indiana Supreme Court's Hammon analysis, using it for precisely the proposition that SCOTUS rejected and reversed on 29 days previously. And I do not know whether it makes it better or worse that the Court of Appeals drops a footnote saying that it is aware of the SCOTUS decision, but the testimony at issue, it thinks, is non-testimonial within the meaning of the SCOTUS decision.
You really have to see this to believe it:
Frye argues that the case of Crawford v. Washington, 541 U.S. 16 (2004), prevents the admission of certain hearsay evidence if it is testimonial because it violates the confrontation clause of the federal Constitution. A testimonial statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings. Wallace v. State, 836 N.E. 2d 985, 995 (Ind. Ct. App. 2005). In evaluating whether a statement is for purposes of future legal utility, the motive of the questioner, more than that of the declarant, is determinative, but if either is principally motivated by a desire to preserve the statement it is sufficient to render the statement testimonial. Hammon, 829 N.E.2d at 456. The Indiana Supreme Court in Hammon, quotes from the Court of Appeals opinion of the same case, Hammon v. State, 809 N.E.2d 945, 952 (Ind. Ct. App. 2004):
[T]hat the common denominator underlying the Supreme Court’s [the Crawford opinion] discussion of what constitutes a testimonial statement is the official and formal quality of such a statement. Accordingly, the court reasoned that the Supreme Court limited its holding in Crawford to police interrogation, which carries with it a connotation of an at least slightly adversarial setting. The Court of Appeals held 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. This conclusion has been cited for the proposition that preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an ‘interrogation. Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police interrogation as that term is used in Crawford.
(Internal citations and quotation marks omitted.)
We are of the opinion that the foregoing quote is equally applicable to the fact situation in this appeal and that Chastain’s statement to Officer Harper was not testimonial.
Slip op. at 6-7.
Think of what the correct citation to the Indiana Supreme Court's Hammon should look like:
Hammon v. State . . . rev'd on same grounds by Hammon v. Indiana . . . .
The online docket for Frye provides, perhaps, some basis to infer an explanation. The briefing in Frye was completed in March. One might guess that the Court of Appeals knew that SCOTUS had granted cert. in Hammon, wrote an opinion anyway, and then sat on it until the SCOTUS decision. The path of least work then, after SCOTUS reversed, was simply to drop the footnote to say that the SCOTUS decision did not make any difference in the case.
Maybe it did and maybe it didn't. The facts are written to fit with the Indiana Supreme Court's (rejected) Hammon analysis, which practically equates an excited utterance with non-testimonial statements:
Officer Harper testified that a startling event occurred when an armed Frye invaded Royal’s residence, that Chastain was distraught, crying, and hysterical, and her statement related to the event, which was occurring or had occurred immediately beforehand.
Slip op. at 5. To apply the SCOTUS Hammon analysis, one would have to know what Chastain actually said. Was she asking for help or telling Officer Harper what happened? Or both?
How very strange.