RILEY, J.
Lehman contends that the trial court erred by admitting Howard’s statements which he made during the two transactions and which were audiotaped. These statements were admitted through the testimony of several officers and by playing the audiotapes to the jury. Specifically, Lehman claims that the admission of the deceased confidential informant’s statements constituted inadmissible hearsay and violated his right to confrontation under the United States Constitution.
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We agree with the State that no error, let alone fundamental error, occurred in the admission of Howard’s statements. In Williams v. State, 669 N.E.2d 956, 957 (Ind. 1996), Williams contested the trial court’s admission of two tapes of conversations Williams had with a police informant who died before trial. Id. at 957. Our supreme court ruled that the informant’s statements were not hearsay as they were not admitted for the truth of the matters asserted. Id. at 958. Rather, the informant’s statements were largely designed to prompt Williams to speak and as such, it was the statements made by Williams that really constituted the evidentiary weight of the conversation. Id.
Likewise here, the conversations between Howard and Lehman were short and referenced street drug-dealing terminology. In the August 5 tape, Howard and Lehman talked about weighing out different amounts of cocaine, and discussed a “ball,” “powder,” and “doing a line.” (Tr. p. 263). In the August 20 tape, they mention “30s” and “20s.” These terms only have a specific significance with regard to the drug trade. During the conversations, Howard was questioning Lehman with regard to the drugs. As such, we find that Howard’s statements were not introduced for the truth of the matter asserted and are therefore not hearsay. See Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997), reh’g denied. . . . .
Next, Lehman objects to the trial court’s admission of Howard’s audiotaped statements because it violated his right to confront and cross-examine Howard under the United States Constitution. [Footnote omitted.] The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, states: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
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Since Crawford, the Supreme Court has clarified incrementally the definition of “testimonial.” It first excluded from “testimonial” statements whose primary purpose is to enable police assistance but not statements made to police during an investigation. Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Davis clarified that the testimonial statements are those that are substitutes for live testimony, that is “they do precisely what a witness does on direct testimony . . ..” Id. at 830. Because “[n]o ‘witness’ goes into court to proclaim an emergency and seek help,” statements seeking help during an emergency do not classify as “testimonial.” Id. at 828. By contrast, in the companion case to Davis, Hammon v. Indiana, where the prosecution sought to enter an affidavit by the alleged victim based on conversations with the police in their investigation, the Confrontation Clause barred admission because the officer was seeking to find out “what happened,” not “what is happening.” Davis, 547 U.S. at 830.
The record reflects that at the beginning and end of the August 5 audiotape, Officer Slagel asked Howard to describe the deal. Howard stated that he had arranged to purchase 3.5 grams of cocaine from Lehman at a purchase price of $150. At the end of the tape, Howard described that he had made arrangements with Lehman for the purchase of an “eight ball of cocaine,” went to Lehman’s residence, and that Lehman “served [him] up three and a half.” (Tr. p. 418). At the end of the August 20 audiotape, Howard mentioned that he met Lehman who gave him “ten Adderral, twenty milligrams for fifty dollars.” (Tr. p. 436).
We agree with the State that these statements, made at the beginning and end of both audiotapes, qualify as testimonial. The statements were made with a view to be used prosecutorially or 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. See Crawford, U.S. at 51-52. As such, in order to be admissible, Howard had to testify at trial or had to have been available for cross-examination by Lehman prior to trial. Howard was neither.
CRONE, J., concurs.
VAIDIK, J., concurs in result with separate opinion:
I agree with the majority’s overall conclusions and its disposition of this case. In particular, I agree that the statements confidential informant Howard made before and after each drug transaction constituted testimonial hearsay and were admitted in violation of Lehman’s confrontation rights. I also concur that use of these statements at trial constituted harmless error. I write separately to raise some additional points about the statements Howard made during the drug deals themselves.
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The majority relies on Williams v. State, 669 N.E.2d 956, 958 (Ind. 1996), to conclude that Howard’s statements were not offered for their truth. The majority reasons that Howard’s statements were largely designed to prompt Lehman and that Lehman’s statements constituted the evidentiary weight of the conversation.
I write only to point out that Williams was decided before Crawford, and that there is perhaps a stronger explanation as to why the informant’s remarks are not hearsay. Howard’s statements constituted legally operative conduct. See 30A Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 6371.2 n.493 (Supp. 2009). His words, in conjunction with his and Lehman’s physical interaction, consummated the illegal sale of drugs. See id.; see also 2 Kenneth S. Broun, McCormick on Evidence § 249 (6th ed. 2006) (“Explanatory words which accompany and give character to the transaction are not hearsay when under the substantive law the pertinent inquiry is directed only to objective manifestations rather than to the actual intent or other state of mind of the actor.”). The statements were thus not hearsay, and since they were admissible for a purpose other than establishing their truth, their admission did not violate Lehman’s confrontation rights.