concurring in result.
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 sepa*41rately to raise some additional points about the statements Howard made during the drug deals themselves.
The following are excerpts of the recorded conversations between Howard and Lehman. This first exchange took place during the August 5th transaction:
DEFENDANT LEHMAN: So, you wanna take two sixteen's?
[HOWARD]: What do you mean?
DEFENDANT LEHMAN: (INAUDIBLE] eights.
[HOWARD]: Does it matter? I mean ... (sic).
DEFENDANT LEHMAN: (INAUDL-BLE] splitting in half if you want the sixteen's.
[HOWARD]: (INAUDIBLE) ain't done nothing (INAUDIBLE).
DEFENDANT LEHMAN: I can weigh it.
[HOWARD]: (INAUDIBLE)] they make em in thirty five, right?
DEFENDANT LEHMAN: Yeah. That's 1.2 and ... (INAUDIBLE).
[HOWARD]: (INAUDIBLE) all that shit man. (INAUDIBLE) around and running around (INAUDIBLE) it's a seventy (70) (INAUDIBLE).
DEFENDANT LEHMAN: (INAUDIBLE) that's what I'm saying.
[HOWARD]: (INAUDIBLE) make a little bit off of it.
DEFENDANT LEHMAN: Yeah.
[HOWARD]: Is it really good though?
DEFENDANT LEHMAN: Yeah.
[HOWARD]: Because I don't want to like tell ... tell (INAUDIBLE) seventy (70) and it be like ... (sic).
DEFENDANT LEHMAN: It's really good. I'm telling ya (sic) straight up.
# # x # # s
DEFENDANT LEHMAN: That was 1-2.
[HOWARD]: Huh?
DEFENDANT LEHMAN: That was 1-2. (INAUDIBLE)] let's see, I'll just give you (INAUDIBLE).
[HOWARD]: Uh, nah, nah, that's cool. (INAUDIBLE). I can go home and break it up. I gone one (INAUDIBLE) at home and (INAUDIBLE). It was at 29 and now it's 1.6. (INAUDIBLE) Sometimes they like to taper. Its ... I usually don't even (INAUDIBLE) go home and (INAUDIBLE).
DEFENDANT LEHMAN: Let's try this.
[HOWARD]: What about putting (INAUDIBLE)?
DEFENDANT LEHMAN: Yeah.
[HOWARD]: (INAUDIBLE)]
DEFENDANT LEHMAN: Yeah.
UNKNOWN FEMALE: (INAUDIBLE)
[HOWARD]: I'm just going to take this off.
DEFENDANT LEHMAN: Hub?
[HOWARD]: Take that ten (10) off (INAUDIBLE).
DEFENDANT LEHMAN: Yeah. (INAUDIBLE)]
# * * * * *
DEFENDANT LEHMAN: Which one you want? The one that (INAUDIBLE) chunk (INAUDIBLE) pounder or the (INAUDIBLE)]
[HOWARD]: I like the chunk. ...
Tr. p. 406-11. The next exchange took place during the August 20th transaction:
[HOWARD]: (on phone) Hey, what's up? I'm outside man. Yeah. You *42got ten (10) of 'em? Huh? All right. Later.
* * *t * *
[HOWARD]: I never seen these ... these twenties (20's)?
DEFENDANT LEHMAN: Yeah.
[HOWARD]: I only seen the thirties (30's).
DEFENDANT LEHMAN: That's what you're lookin' at (INAUDIBLE) thirties (30's).
[HOWARD]: My dude said they make 'em too, though, so I don't know.
DEFENDANT LEHMAN: (INAUDTI-BLE] you going?
[HOWARD]: I gotta run these and then I gotta go to school. I gotta go pick up a dude then go to school.
DEFENDANT LEHMAN: All right.
[HOWARD]: But he might want some more of 'em. I don't know.
DEFENDANT LEHMAN: I just got (INAUDIBLE).
[HOWARD]: Cool. Later man.
Id. at 434-35.
The issue here is whether Howard's statements during the drug deals constituted inadmissible hearsay and whether their introduction at trial violated Lehman's Sixth Amendment confrontation rights. I should first observe that the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)). So if the statements in question were admissible for a valid non-hearsay purpose, then Lehman's confrontation rights are not implicated. See also United States v. James, 487 F.3d 518, 525 (7th Cir.2007) ("[The Sixth Amendment poses no bar to the admission of non-hearsay statements." (citing Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354)).
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 eviden-tiary 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. 498 (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.
For the foregoing reasons, I concur in the result reached by the majority.