FRIEDLANDER, J.
On cross-examination, defense counsel asked Detective Melton about inconsistencies in the testimonies of the victims and the lack of physical evidence from the scene linking Lane to the crime. Counsel also reviewed with the witness the evidence police had against Lane including the identifications by both surviving victims and the contact phone number listed for “Little Mike” in Derrington’s cellphone, with police tying both the nickname and the number (812-454-7192) to Lane. The cross-examination continued in part as follows:
Q And beyond that all of the evidence that was in the boxes and all the evidence that’s in the bags and all the evidence that’s been introduce[d], there’s nothing else that ties Michael Lane to this crime?
A The statement he made to me in the car on the way back from Chicago?
Q Assuming you got that statement correct….
A Yes.
Q That’s it?
A I believe so.
Transcript at 629.
During a subsequent sidebar, the State argued that Lane had opened the door to hearsay evidence linking the 678-372-6455 number to Lane. The State claimed the door was opened when the defense asked Detective Melton if there was nothing else that tied Lane to the crime. In fact, police had learned during an interview with Obie Davis (Lane’s cousin) that the 678 number was affiliated with Lane.
Following a brief recess, the trial court ruled in favor of the State as follows:
[Court:] I do believe that [defense counsel’s question] gives the impression to the jury that there’s nothing else that this Detective relied on to tie Mr. Lane to the crime and therefore I do think it’s opened the door to the evidence of the telephone number….
***
[Defense:] Well, with regard to the Court’s ruling, defendant’s position is that this is hearsay evidence, that the admission of said evidence violates Crawford in that the declarant is not available to be cross examined about the information that the officer is going to testify to, Mr. Davis isn’t here, apparently has never been under subpoena by the State….
***
[Court:] I do agree that there is, I had sustained a hearsay objection to this evidence previously, but under open the door and the cases that talk about opening the door does indicate that otherwise inadmissible evidence can be admissible if the door opens and I think that’s occurred in this case, so any other record?
Id. at 643-44.
We initially determine whether the admission of this hearsay evidence violated the Confrontation Clause, which is embodied in the Sixth Amendment to the United States Constitution. The clause prohibits the admission of an out-of-court statement if it is testimonial, the declarant is unavailable, and the defendant had no prior opportunity to cross-examine the declarant. King v. State, 985 N.E.2d 755 (Ind. Ct. App. 2013), trans. denied. The only issue in this case is whether Davis’s statement to police regarding the phone number was testimonial.
To determine whether a statement such as this is testimonial, we look at the primary purpose of the conversation between police and the declarant. Id. If the circumstances indicate that the primary purpose of the conversation was to gather evidence of past events potentially relevant to later criminal prosecution, then the statements are testimonial and protected by the Confrontation Clause.9 King v. State, 985 N.E.2d 755.
The State argues that the statement given by Davis during police questioning was not testimonial because its “original purpose” was not to create a record for trial but to “assist police in identifying the person who committed the crimes against Hooper, Derrington, and Hurst.” Appellee’s Brief at 24. We cannot agree. The record indicates that Lane was the primary suspect within an hour or two of the shooting and well before Detective Melton interviewed Davis. The purpose of the interview was to gather evidence and to locate Lane. Further, there was no ongoing emergency when Davis was formally questioned several days after the shooting. The statement was clearly testimonial.
Despite the nature of this hearsay statement, the trial court found it admissible because Lane had opened the door. As a matter of modern evidence law, the trial court may well have been correct in determining that Lane opened the door to admission of this evidence. See Kubsch v. State, 784 N.E.2d 905 (Ind. 2003). We must be mindful, however, that we are faced with a constitutional challenge to the admission of Davis’s testimonial statement rather than a challenge based on evidentiary rules.
Several other jurisdictions that have decided cases after Crawford v. Washington, 541 U.S. 36 (2004), have applied the “open the door” rule in holding testimonial hearsay admissible where the defendant has opened the door to such evidence. See, e.g., United States v. Holmes, 620 F.3d 836 (8th Cir. 2010); United States v. Lopez-Mendia, 596 F.3d 716 (10th Cir. 2010); People v. Rogers, — P.3d —, 2012 WL 5457358 (Col. Ct. App. 2012); State v. Birth, 158 P.3d 345 (Kan. Ct. App. 2007). At least one jurisdiction has concluded otherwise:
If there is one theme that emerges from Crawford, it is that the Confrontation Clause confers a powerful and fundamental right that is no longer subsumed by the evidentiary rules governing the admission of hearsay statements. Thus, the mere fact that Cromer may have opened the door to the testimonial, out-of-court statement that violated his confrontation right is not sufficient to erase that violation. In this, too, we agree with Professor Friedman, who has postulated that a defendant only forfeits his confrontation right if his own wrongful conduct is responsible for his inability to confront the witness. Friedman, Confrontation, 86 Geo. L.J. at 1031. If, for example, the witness is only unavailable to testify because the defendant has killed or intimidated her, then the defendant has forfeited his right to confront that witness. A foolish strategic decision does not rise to the level of such misconduct and so will not cause the defendant to forfeit his rights under the Confrontation Clause.
United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004).
We agree with the majority of jurisdictions that have found that a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause. This waiver of rights, however, is not as broadly applied as in non-constitutional contexts due to the presumption against the waiver of constitutional rights. See United States v. Holmes, 620 F.3d 836. We hold that for a waiver of the fundamental constitutional right of confrontation to be effective, such waiver must be “clear and intentional.” Id. at 843 (“decision to waive…must be done intentionally and for valid, tactical purposes”). See also United States v. Lopez-Mendia, 596 F.3d at 731 (“[w]here, as here, defense counsel purposefully and explicitly opens the door on a particular (and otherwise inadmissible) line of questioning, such conduct operates as a limited waiver”). The standard is not met here, as there is no indication in the record that the alleged waiver was done intentionally. Accordingly, the trial court erred in concluding that Lane opened the door to admission of this testimonial statement.
BAKER, J., and VAIDIK, J., concur.