                          NONPRECEDENTIAL DISPOSITION
                            To be cited only in accordance with
                                   Fed. R. App. P. 32.1




                United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604


                                  Argued April 22, 2015
                                  Decided May 13, 2015



                                             Before

                            JOEL M. FLAUM, Circuit Judge
                            DANIEL A. MANION, Circuit Judge
                            DAVID F. HAMILTON, Circuit Judge



No. 13-3750                                           Appeal from the United States District
                                                      Court for the Central District of
UNITED STATES OF AMERICA,                             Illinois

                       Plaintiff-Appellee,            No. 13-CR-40001

       v.                                             Sara Darrow, Judge.

DARRIUS HAYDEN,

                    Defendant-Appellant.



                                         ORDER

       Darrius Hayden was convicted of one count of unlawful possession of a firearm
by a felon, in violation of 18 U.S.C. § 922(g)(1). At trial, the government introduced a 911
call and statements to police made by the victim, even though the victim did not testify.
Hayden argues that this violated his Sixth Amendment right to confrontation because
No. 13-3750                                                                       Page 2




the victim was not subject to cross-examination by defendant’s counsel at any point in
the proceeding. We affirm.

                                    I. Background

        Diego Shears was robbed of a necklace and mobile telephone outside a
convenience store in Rock Island, Illinois on the morning of December 4, 2012. Moments
later, he encountered his cousin, Michael Ross, and informed him that he had just been
robbed. Ross had seen Shears and Hayden (whom he knew through mutual
acquaintances) speaking as he approached the store, but did not recognize the
encounter as a robbery until Shears informed him that it was.

        Shears then borrowed Ross’s telephone and called 911. He informed the operator
of his location and declared that “there’s a dude running around with a gun and a black
sweater shirt. He just [expletive] robbed me from my phone and everything.” App. Br.
at A9. The operator then asked a series of questions, including the following:

      Operator:     What was he wearing?

      Shears:       He [was] wearing ... [a] gray and black striped hoodie.

      Operator:     Did he show a weapon or anything?

      Shears:       Hell yeah, he got a big ass black gun. He just (inaudible) it on my
                    head, (inaudible) drop it off, he going [to] find my ass ...

      Operator:     Which way was he walking?

      Shears:       He was walking towards the courts ... .



Id. at A9–A10.

       Shears’s 911 call was interrupted by the arrival of Rock Island police officers
Phillip Ledbetter and Kris Kuhlman, who had been several blocks away in their patrol
vehicle when they heard the call of an armed robbery announced on the police radio.
No. 13-3750                                                                         Page 3




Seeing them approach, Shears flagged them down while he spoke with the operator.
Once the 911 operator ascertained that the police had arrived, the call was terminated.
In total, the 911 call lasted approximately two minutes and forty-five seconds.

        Speaking to the police, Shears informed them that he had just been robbed and
that the suspects had fled through a nearby park. He pointed towards a house at the
north end of the park and indicated that the suspects could be located at this residence.
Officer Ledbetter suspected that Hayden and his cousin Elliot Cameron were involved
in the robbery; he knew the two teenagers from his work in the neighborhood and he
remembered having seen Hayden the day before wearing a gray and black striped
sweatshirt matching the type described by Shears. The two officers drove towards a
nearby house belonging to Cameron’s mother.

        They parked, dismounted, and approached the house from the back alley. Once
there, the officers saw Cameron. Ledbetter approached Cameron, patted him down, and
seized a black .40 caliber Taurus handgun from Cameron’s waistband. Approximately
fifteen minutes later, police obtained consent from Cameron’s mother to search the
house. Hayden was descending the staircase when they arrived. They found the gray
and black striped sweatshirt and blue bandana on a bed in a downstairs bedroom. They
also located the gold chain necklace described by Shears underneath a mattress in the
upstairs bedroom.

       Cameron pleaded guilty to a state charge and testified against Hayden.
He testified that he walked with Hayden to the convenience store and identified him
from footage from the store’s surveillance camera that was taken on the morning in
question. He did not witness any robbery because he left the convenience store without
Hayden. He also testified that he walked home and did not see Hayden again until
Hayden arrived at his mother’s house, handed a black handgun to him, and told him to
get rid of it. Another witness, Bobby Walker, testified that Hayden hid the necklace
under a mattress in an upstairs bedroom.

       The government tried to locate Shears but was unable to do so; therefore, he did
not testify. In his absence, the government sought to play the recording of the 911 call to
the jury and to enter it into evidence through the testimony of Officer Ledbetter. The
defense did not object and the trial judge admitted it into evidence. Indeed, the defense
No. 13-3750                                                                           Page 4




brought two motions in limine, neither of which addressed Shears’s statements to Ross,
the police, or his 911 call.

       The jury convicted Hayden of being a felon in possession of a firearm, and the
court sentenced him to 110 months imprisonment, a sentence at the low end of the
guideline range. On appeal, the defense argues that the admission of Shears’s 911 call
and statements to Officer Ledbetter violated Hayden’s Sixth Amendment right of
confrontation because the statements were testimonial and Hayden had no opportunity
before or during trial to cross-examine Shears about those statements. In contrast, the
government argues that Hayden waived this issue by failing to lodge an objection at
trial.

                                        II. Analysis

        Hayden did not object to the the admission of Shears’s 911 call and statements to
Ross and the police, so we review the admission of such evidence for plain error. United
States v. Hudson, 627 F.3d 309, 312 (7th Cir. 2010). Plain error exists where: (1) there was
an error; (2) it was plain; (3) it affected the defendant’s substantial rights; and, (4) it
seriously affected the fairness, integrity, or public reputation of the judicial proceedings.
United States v. Nance, 236 F.3d 820, 824 (7th Cir. 2000). Each element must be
established to constitute plain error. Id.

       A.     Confrontation Clause

      The Confrontation Clause of the Sixth Amendment (binding on the states under
the Fourteenth Amendment) establishes that a criminal defendant has the right to cross-
examine any witness who testifies against him. In Crawford v. Washington, the Supreme
Court held that, with certain exceptions, the Confrontation Clause barred the
introduction of “testimonial” statements where the defendant is not afforded an
opportunity to cross-examine the witness about the statement at trial or at an earlier
proceeding. 541 U.S. 36, 68 (2004).

       Here, we decline to address the government’s waiver argument because the
matter is easily dispatched on its own merits. Statements are non-testimonial when they
are made to police under circumstances indicating that the primary purpose of the
inquiry is to meet an ongoing emergency rather than to establish or prove past events
No. 13-3750                                                                           Page 5




relevant to a later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822 (2006). It
is the primary purpose of the statement at the time it was made that determines
whether it is testimonial. For this reason, statements obtained by police to enable them
to meet an ongoing emergency are non-testimonial even where those same statements
are used later by the prosecution against the defendant at trial. The inquiry into the
primary purpose of a statement is an objective one in which a court evaluates the
circumstances in which the encounter between the individual and police occurs to
determine if there is an ongoing emergency. Michigan v. Bryant, 131 S. Ct. 1143, 1156
(2011).

        Focusing on the primary purpose of the statements, it is clear that the 911
recording and the statements to the police officers do not fall within the class of
statements recognized as “testimonial.” Davis, 547 U.S. at 822–26. In Davis, a victim of
domestic violence called 911 as her assailant fled the scene. The Supreme Court held
that the recording was non-testimonial and therefore could be admitted even where the
caller was not available for trial or cross-examination. The Court noted that: “A 911 call
... and at least the initial interrogation conducted in connection with a 911 call, is
ordinarily not designed primarily to establish or prove some past fact, but to describe
current circumstances requiring police assistance.” Davis, 547 U.S. at 827.

       Like Davis, the 911 call at issue and statements to police were non-testimonial
because their primary purpose was to provide police officers with basic information to
address an ongoing emergency. The statements occurred within minutes of the robbery
while an armed suspect was still fleeing the scene and they provided only basic
information that might enable police to capture the suspect. The content of the call was
limited to informing police that a robbery had occurred; the location of the robbery; that
the robber wore a gray and black striped shirt; that the robber was armed; and that the
robber fled in a certain direction. For this reason, the statements were clearly non-
testimonial and it was proper for the trial court to allow them into evidence.

       Finally, there is Shears’s statement to Ross that he had been robbed. Here, there
is no suggestion that Ross, who is the cousin of Shears, was acting in any official or law
enforcement capacity when he spoke with Shears after the incident. The Supreme Court
has never addressed in detail whether (or in which situations) statements to friends or
acquaintances qualify as testimonial. Still, none of the factors that normally characterize
testimonial statements are apparent here: the statement was not made in response to an
No. 13-3750                                                                          Page 6



inquiry from Ross about whether a crime had just occurred; no criminal investigation
had begun at that point as the incident had occurred only moments before; and the
statement formed part of a request for Shears to use Ross’s phone to obtain assistance.

       For this reason, we need not address the open question of whether statements to
acquaintances can be testimonial. It suffices that this one is not because it lacks all the
characteristics of a testimonial statement. To hold otherwise would yield the
incongruous result of recognizing Shears’s statements to his cousin as testimonial, while
holding that identical statements to police officers and a 911 operator only moments
later were not.

       B.     Hearsay

        We must also address whether the statements were inadmissable as improper
hearsay evidence. Hearsay is a statement, other than one made by the declarant while
testifying at a trial or hearing, offered in evidence to prove the truth of the matter
asserted. Fed. R. Evid. 801(c). Such statements are not admissible unless they fall under
an existing exception to the hearsay rules. Fed. R. Evid. 802.

        Here, there is no question that the recordings contain numerous factual
statements that were offered by the government to prove the facts asserted therein. In
other words, they were hearsay, and are inadmissable unless they fall within some
available exception. “Excited utterances” have long been held to be an exception to the
hearsay rules under the premise that a person is unlikely to fabricate lies while his mind
is preoccupied with the stress of an exciting event. United States v. Joy, 192 F.3d 761, 766
(7th Cir. 1999). Rule 803(2) defines an “excited utterance” as a “statement relating to a
startling event or condition, made while the declarant was under the stress of the
excitement caused.” Fed. R. Evid. 803(2). In determining that the statements properly
qualify as excited utterances, we focus on three things: (1) whether a startling event
occurred; (2) whether the declarant made the statement while under the stress and
excitement caused by the event; and, (3) whether the statement relates to the startling
event. See United States v. Zizzo, 120 F.3d 1338, 1355 (7th Cir. 1997).

        Here, each of these three factors is present. The statements were made shortly
after a robbery where the victim was confronted with a large gun. Naturally, a shorter
time period between the event and the statement renders the statement more likely to
No. 13-3750                                                                        Page 7



be an excited utterance than the product of deliberative thought. It follows that a person
robbed at gunpoint on a random morning will be in an excited state for at least some
period of time afterward. In this case, the 911 call and conversation with Ross and the
police were made within minutes when Shears was still under the excitement caused by
the robbery. Finally, the statements provided basic information about the event so that
the police could provide immediate assistance. For this reason, the statements qualify as
excited utterances and are an exception to the hearsay rules.

       For these reasons, there was no error in admitting Shears’s 911 call, his
statements to police officers, and his statements to Ross. The order of conviction entered
by the district court is AFFIRMED.
