ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Nicole M. Schuster
Deputy Attorney General
Indianapolis, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
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No. 52S02-0412-CR-510
HERSHEL HAMMON,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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On Remand from the Supreme Court of the United States
No. 05-5705
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September 7, 2006
Boehm, Justice.
The facts of this case are recited in the opinions of the Supreme Court of the United
States, Davis v. Washington, 126 S. Ct. 2266 (2006), and this Court, State v. Crawford, 829
N.E.2d 444 (Ind. 2005). The Supreme Court of the United States has remanded this case to us
for further disposition. The final sentence of the majority opinion of that Court states:
We have determined that, absent a determination of forfeiture by wrongdoing, the
Sixth Amendment operates to exclude Amy Hammon’s affidavit. The Indiana
courts may (if they are asked) determine on remand whether such a claim of
forfeiture is properly raised and, if so, whether it is meritorious.
Davis, 126 S. Ct. at 2280.
We held that Amy’s affidavit was barred by the Sixth Amendment but that the testimony
of the officers who responded to a report of domestic disturbance at the Hammon home was
admissible, even though it recounted statements made to the officers by Amy Hammon. We
believe that Davis compels exclusion of an officer’s testimony as well to the extent the officer
testifies to statements made to the officer at the Hammon home by Amy or any other person who
did not testify at trial.
Because this case is reversed for admission of evidence in violation of the Sixth
Amendment, it may be retried. See Lockhart v. Nelson, 488 U.S. 33, 38 (1988); Townsend v.
State, 632 N.E.2d 727, 731 (Ind. 1994). If the case is retried, it will be a matter for the trial court
to resolve in the first instance any issue that may arise as to whether evidence otherwise excluded
by the Sixth Amendment may nevertheless be admitted under the doctrine of forfeiture explained
by the Supreme Court at 126 S. Ct. at 2280.
The judgment of the trial court is reversed. This case is remanded to the trial court.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
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