                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                  October 6, 2005 Session

                  STATE OF TENNESSEE v. LARRIE MACLIN


            Appeal by permission from the Court of Criminal Appeals
                       Criminal Court for Shelby County
                    No. 03-00140 Hon. Chris Craft, Judge.



              No. W2003-03123-SC-R11-CD - Filed January 18, 2006



                                             AND


        STATE OF TENNESSEE v. MICHAEL LEBRON ANDERSON


           Appeal by permission from the Court of Criminal Appeals
                     Criminal Court for Hamilton County
                 No. 242279 Hon. Douglas A. Meyer, Judge.

                              ________________________

              No. E2004-00694-SC-R11-CD - Filed January 18, 2006
                          ________________________


We granted permission to appeal these cases and then consolidated them to determine a question
common to both: whether the admission at trial of an unavailable witness’s “excited utterance” to
law enforcement officers at the crime scene violated the defendant’s right to confront witnesses
against him. We conclude that—depending on the particular facts of a case—an excited utterance
can be “testimonial.” If the statement is determined to be “testimonial,” then under Sixth
Amendment analysis as outlined in Crawford v. Washington, 541 U.S. 36 (2004), and under Article
I, Section 9 of the Tennessee Constitution, which guarantees the defendant’s right to “meet the
witnesses face to face,” it is inadmissible unless the witness was unavailable and the defendant had
a prior opportunity for cross-examination. If the statement is not testimonial, then admissibility is
governed by the standards of Ohio v. Roberts, 448 U.S. 56 (1980). We reverse the Court of Criminal
Appeals in State v. Maclin and dismiss charges against the defendant for reckless aggravated assault;
we affirm the lower court’s conviction in State v. Anderson of the defendant for burglary of a
building other than a habitation.

 Tenn. R. App. P. 11 Appeals by Permission; Judgments of the Court of Criminal Appeals
                          Affirmed in Part, Reversed in Part.

WILLIAM M. BARKER , C.J., delivered the opinion of the court, in which E. RILEY ANDERSON ,
ADOLPHO A. BIRCH , JR., JANICE M. HOLDER , and CORNELIA A. CLARK, JJ. joined.

Lance Chism, Memphis, Tennessee, attorney for Defendant-Appellant, Larrie Maclin.

Ardena J. Garth, District Public Defender, Donna Robinson Miller, Assistant District Public
Defender, Chattanooga, Tennessee, attorneys for Defendant-Appellant, Michael Lebron Anderson.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney General,
attorneys for Appellee, State of Tennessee in State v. Larrie Maclin.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Brent C.
Cherry, Assistant Attorney General; William Cox, District Attorney General; and Boyd Patterson,
Assistant District Attorney General, for Appellee, State of Tennessee in State v. Michael Lebron
Anderson.

                                            OPINION

                                   FACTUAL BACKGROUND

                                         A. State v. Maclin

        On the afternoon of August 28, 2002, Memphis Police Officers Ronald Weddle and James
Gaylor were dispatched to a residence in Memphis, Tennessee, to investigate a 911 hang-up call.
When they knocked on the door, both the female victim, May Newby, and the defendant, Larrie
Maclin, answered the door. The officers informed them that they were responding to a 911 call.
Although the defendant told the officers that their assistance was not needed, Ms. Newby, who was
crying and very emotional, told the officers that she made the call because the defendant assaulted
her.

       Ms. Newby gave the following account of events to the officers: The defendant was her
boyfriend of nine years. He had picked her up from work that day, and on the way home they got


                                                -2-
into an argument. At one point, the defendant pulled a pistol from between the seats, pointed it at
her head, and told her that he would shoot her if she did not be quiet. When she continued to argue
with him, the defendant began hitting her in the face with his hands and again threatened to kill
her—and her children—if she did not stop arguing. He also threatened to hit her with the pistol but
never did so. When she and the defendant arrived at the house, he wrapped the gun in a blue towel
and placed it somewhere inside the truck. Once inside the house, she and the defendant continued
to argue, and the defendant struck her several times in the head with his hands.

       Officer Weddle testified that when he and Officer Gaylor arrived, Ms. Newby’s face was
noticeably swollen, and the inside of her lip was split and bleeding. After hearing her version of
events, they asked the defendant if he had anything to say. He refused to give a statement.
Thereafter, the officers detained the defendant. They also looked through the windows of his truck
and saw, in plain view, the barrel of a weapon from under a blue cloth on the seat. Police
confiscated the gun, a .38 caliber revolver loaded with five live rounds.

         The defendant was arrested and later indicted for (1) aggravated assault by knowingly causing
Ms. Newby to reasonably fear imminent bodily injury by displaying a deadly weapon1 and (2) being
a felon in possession of a handgun.2 Before trial, Ms. Newby died and was therefore unavailable to
testify at trial. The defendant moved to exclude her statements to police on the grounds that (1) they
were not excited utterances and (2) to admit them would violate his right to confront a witness
against him. The trial court, however, ruled that the victim’s statements were excited utterances and
admissible at trial.

        At trial, the parties stipulated that Ms. Newby died of causes unrelated to acts of the
defendant or the facts of the case and, therefore, she was unavailable as a witness. The parties also
stipulated that at the time of the alleged offenses, the defendant was a felon, stemming from a 1980
conviction. The evidence presented to the jury consisted primarily of the testimony of Officer
Weddle, who testified concerning Ms. Newby’s statements at the scene. The defendant testified to
the following: That on the date of the alleged offense, he fired the victim, who worked for him,
because she left the office unattended that day for an extended period. When she returned to the
office, her face was already swollen and she appeared upset.3 She was carrying the gun in a paper
sack. He admitted that he and the victim had argued that day, but he denied hitting her or threatening
her with the gun.




        1
            Tenn. Code Ann. § 39-13-102(a)(1)(B) (1997 & Supp. 2001).

        2
            Tenn. Code Ann. § 39-17-1307(b)(1)(A) (1997 & Supp. 2001).

        3
          The implication from the defendant’s version of the events was that Ms. Newby had been assaulted by
someone else before she returned to the office that day.

                                                      -3-
        The jury gave credence to Ms. Newby’s account of events, as related through Officer Weddle,
and found the defendant guilty of the lesser offense of reckless aggravated assault4 and being a felon
in possession of a handgun. The trial court imposed concurrent sentences of four years and two years
for the respective convictions.

        The defendant appealed, raising numerous issues, including (1) whether admission of the
victim’s hearsay statements to police violated his right to confrontation; (2) whether the victim’s
hearsay statements to police were improperly characterized as “excited utterances” and admitted
under a hearsay exception in Tennessee Rule of Evidence 803(2); and (3) whether the trial court
improperly instructed the jury on the charge of reckless aggravated assault.5 The Court of Criminal
Appeals held that the victim’s statements were not “testimonial” in nature; therefore, the
requirements of the recent United State Supreme Court decision Crawford v. Washington, 541 U.S.
at 68,—which conditions admissibility of out-of-court testimonial statements on unavailability of
the witness and a prior opportunity for cross-examination—did not apply. Since the statements were
characterized as “nontestimonial,” the court applied the test of Ohio v. Roberts, 448 U.S. at 66, to
determine whether the victim’s statements were admissible under a “firmly rooted hearsay
exception” or bore particularized guarantees of trustworthiness. The court concluded that the
statements qualified as excited utterances under Tennessee Rule of Evidence 803(2) and were
properly admitted. Regarding the jury instruction on reckless aggravated assault, however, the court
concluded that the trial court erred by failing to include the element of “bodily injury” and that the
error was not harmless. Accordingly, the court remanded the case to the trial court for retrial on the
offense of reckless aggravated assault.

       The defendant applied for, and this Court granted, permission to appeal the following issues:
(1) whether the defendant’s right to confrontation was violated; (2) whether the victim’s hearsay
statements were improperly admitted; and (3) whether reckless aggravated assault is a lesser included
offense of aggravated assault by causing another to reasonably fear bodily injury.


                                            B. State v. Anderson

        On August 5, 2002, shortly after 10:00 p.m., Officer Brian Smith of the Chattanooga Police
Department was patrolling the 1600 block of Adams Street in downtown Chattanooga when he heard
a burglar alarm. As he approached the 600 block of Main Street and tried to locate the source of the
alarm, he saw a group of juveniles standing on the sidewalk. They flagged him down and,
responding to his inquiry about what was wrong, told him that a large African-American male with
a bald head just kicked in the door of a business across the street. They were all speaking at once.
When he asked whether the man was still inside, they responded that he was.


        4
            Tenn. Code Ann. § 39-13-102(a)(2) (1997 & Supp. 2001).

        5
          Maclin’s conviction for being a felon in possession of a handgun was affirmed by the Court of Criminal
Appeals and is not an issue for us here.

                                                      -4-
        Officer Smith went to the door pointed out by the juveniles and pushed on it. The door was
open and unsecured, and a light was on inside the building. Officer Smith then requested backup
units. As more officers arrived, Officer Smith pushed the door open and saw the defendant, Michael
Anderson, running out from behind a display counter. After the defendant was arrested, Officer
Smith, another officer, and a K-9 unit checked the building for other suspects. No one else was
found inside. The office had been ransacked, with drawers pulled out, file cabinets damaged from
forced entry, computers overturned, and papers scattered everywhere. The inside burglar alarm had
been ripped off the wall and smashed. Ultimately, however, the only item determined to be missing
was some change that had been left in the cash register when the store closed earlier that evening.
The defendant began to moan and complain of chest pain. He was taken to Erlanger Hospital for
evaluation. While waiting to be seen, the defendant saw a hospital employee he knew. He
commented to the hospital employee that he was “getting too old to be doing this kind of stuff,” and
he apologized to Officer McCommon for making him come out and do “all the stuff that we are
having to go through.”

         The defendant was charged with burglary of a building other than a habitation.6 At trial, the
State was unable to locate the juvenile witnesses who flagged down Officer Smith. Following a
pretrial hearing on a motion to suppress the juveniles’ statements, the court ruled that the statements,
although hearsay, were excited utterances and admissible as an exception to the hearsay rule. The
trial court allowed Officer Smith to testify, among other things, that the juveniles near the scene
stated they saw a large African-American male with a bald head kicking in the door of the business.
The defendant rested without presenting any evidence. The jury found the defendant guilty.
Following a sentencing hearing, the trial court sentenced him as a habitual offender to twelve years.


       On appeal to the Court of Criminal Appeals, the defendant argued that permitting Officer
Smith to testify about the juveniles’ statements violated his right to confront the witnesses against
him. The court concluded that the statements at issue were excited utterances. The court
acknowledged the holding of Crawford v. Washington that testimonial hearsay against a criminal
defendant is not admissible unless the witness is unavailable and the defendant had a prior
opportunity to cross-examine the witness. However, the court held that an excited utterance, by its
very nature, is not “testimonial.” Accordingly, the court held that the juveniles’ statements were
admissible under the excited utterance exception to the hearsay rule.

       The defendant applied for, and this Court granted, permission to appeal the following issues:
(1) whether admission of the juvenile witnesses’ hearsay statements violated his right to
confrontation and (2) whether the juvenile witnesses’ hearsay statements to police were improperly
admitted under a hearsay exception.




       6
           Tenn. Code Ann. § 39-14-402 (1997 & Supp. 2002).

                                                     -5-
                                             ANALYSIS

                                        A. Standard of Review

        As a general rule, questions concerning the admissibility of evidence rest within the sound
discretion of the trial court; an appellate court will not interfere with the exercise of this discretion
absent a clear abuse appearing on the face of the record. See State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); State v. Harris, 839 S.W.2d
54, 73 (Tenn. 1992). However, the issue of whether the admission of hearsay statements violated
a defendant’s rights under the Confrontation Clause is purely a question of law. Lilly v. Virginia,
527 U.S. 116, 125 (1999); see also Abdur’Rahman v. Bredesen, __ S.W.3d __ (Tenn. 2005) (stating
that “[a] constitutional claim that is resolved after an evidentiary hearing generally presents a mixed
question of law and fact”). The application of the law to the facts found by the trial court is a
question of law that this Court reviews de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.
1997); Beare Co. v. Tenn. Dep’t of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993). In this case, there
being no dispute about the facts, but only about whether the admission of the absent witnesses’
testimony violated the Confrontation Clause, our review is de novo.

                                      B. Summary of the Issues

        The primary issue to be addressed by this Court in these consolidated cases is whether the
admission of the respective hearsay statements violated the defendants’ right to confront the
witnesses against them. Under the Sixth Amendment analysis of Crawford v. Washington, this
requires a determination, first, of whether the statements were “testimonial” in nature. If so, a
showing of unavailability of the witnesses and a prior opportunity for cross-examination would
be required. 541 U.S. at 68. Second, if not testimonial, the Court must determine whether such
hearsay statements were admissible under Ohio v. Roberts, 448 U.S. 56 (1980),—either because
they fell within a firmly rooted exception to the hearsay rule or because they otherwise bore a
particularized guarantee of trustworthiness. Crawford, 541 U.S. at 68.

                              C. The Federal and State Constitutional
                                      Rights to Confrontation

        The Sixth Amendment to the United States Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
This constitutional guarantee is applicable to the states through the Fourteenth Amendment. Pointer
v. Texas, 380 U.S. 400, 403 (1965). In addition, Article I, Section 9 of our own Tennessee
Constitution guarantees the accused the right “to meet the witnesses face to face.” Although the two
provisions are not identically worded, this Court has largely adopted the standards used by the United
States Supreme Court under the Sixth Amendment in determining whether the Tennessee
constitutional right has been violated. State v. Bush, 942 S.W.2d 489, 511 n.2 (Tenn. 1997); State
v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992); State v. Causby, 706 S.W.2d 628, 631 (Tenn.
1986); State v. Armes, 607 S.W.2d 234, 236-37 (Tenn. 1980).


                                                  -6-
         The Confrontation Clause provides two types of protection for criminal defendants: (1) the
right to physically face the witnesses who testify against them and (2) the right to cross-examine the
witnesses. State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996) (citing Pennsylvania v. Ritchie,
480 U.S. 39, 51 (1987), and Middlebrooks, 840 S.W.2d at 332). “The central concern of the
Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”
Maryland v. Craig, 497 U.S. 836, 845 (1990); see also California v. Green, 399 U.S. 149, 157-58
(1970). With respect to the right to physically confront one’s accusers, this Court has observed that
“[t]he ‘face to face’ language found in the Tennessee Constitution has been held to impose a higher
right than that found in the federal constitution.” State v. Deuter, 839 S.W.2d 391, 395 (Tenn.
1992). A defendant exercises his right of confrontation through the legal procedure of cross-
examination, described as the “‘greatest legal engine ever invented for the discovery of truth.’”
Green, 399 U.S. at 158 (quoting 5 Wigmore § 1367).

       For almost twenty-five years, the question of whether the prior statement of an unavailable
witness could be admitted into evidence against a criminal defendant at trial was governed by Ohio
v. Roberts, 448 U.S. 56 (1980). That case established the rule that

       when a hearsay declarant is not present for cross-examination at trial, the
       Confrontation Clause normally requires a showing that he is unavailable. Even then,
       his statement is admissible only if it bears adequate “indicia of reliability.”
       Reliability can be inferred without more in a case where the evidence falls within a
       firmly rooted hearsay exception. In other cases, the evidence must be excluded, at
       least absent a showing of particularized guarantees of trustworthiness.

Id. at 66. Thus, under Roberts, an out-of-court statement by an unavailable witness is admissible if
it (1) falls within a firmly rooted exception to the hearsay rule or (2) contains such particularized
guarantees of trustworthiness that adversarial testing of the statement through cross-examination
would add little to the assessment of whether the evidence is reliable.


                                    D. Crawford v. Washington

        In March 2004, the United States Supreme Court changed Confrontation Clause analysis by
overruling Roberts, at least insofar as testimonial out-of-court statements are concerned. In
Crawford v. Washington, the Court concluded that the rationale of Roberts strayed too far from the
original intent of the Framers:

       Where testimonial statements are involved, we do not think the Framers meant to
       leave the Sixth Amendment’s protection to the vagaries of the rules of evidence,
       much less to amorphous notions of “reliability.” . . . Admitting statements deemed
       reliable by a judge is fundamentally at odds with the right of confrontation. To be
       sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a


                                                 -7-
       procedural rather than a substantive guarantee. It commands, not that evidence be
       reliable, but that reliability be assessed in a particular manner: by testing in the
       crucible of cross-examination.

541 U.S. at 61. The Court noted that the principal evil that the Confrontation Clause was intended
to deter was “the civil-law mode of criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused.” Id. at 50. The Court rejected the view that
regulation of out-of-court statements could be accomplished solely by the rules of evidence. Id. at
50-51. Thus, with respect to “testimonial” hearsay, the Supreme Court overruled Roberts because
of the tendency under the Roberts test “to admit core testimonial statements that the Confrontation
Clause plainly meant to exclude.” Id. at 63.

        The Court announced a new test to determine the admissibility under the Confrontation
Clause of hearsay offered against an accused. Testimonial statements may not be offered into
evidence unless two requirements are satisfied: (1) the declarant/witness must be unavailable and
(2) the defendant must have had a prior opportunity to cross-examine the declarant/witness. Id. at
68. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 68-69.

         The Court clarified that the Confrontation Clause “applies to ‘witnesses’ against the
accused—in other words, those who ‘bear testimony.’” Id. at 51 (quoting 1 N. Webster, An
American Dictionary of the English Language (1828)). The Court defined “testimony” as typically
a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’”
Id. (citing Webster). The Court declined to give a comprehensive definition of what it meant by
“testimonial” statements. Id. at 68. It did, however, describe three formulations of testimonial
statements:

       Various formulations of this core class of “testimonial” statements exist: [1] “ex
       parte in-court testimony or its functional equivalent—that is, material such as
       affidavits, custodial examinations, prior testimony that the defendant was unable to
       cross-examine, or similar pretrial statements that declarants would reasonably expect
       to be used prosecutorially”; [2] “extrajudicial statements . . . contained in formalized
       testimonial materials, such as affidavits, depositions, prior testimony, or
       confessions”; [3] “statements that 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.”

Id. at 51-52 (citations omitted). Although the Court declined to settle on a single formulation, it did
note that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are
the modern practices with closest kinship to the abuses at which the Confrontation Clause was
directed.” Id. at 68. It also stated that “[s]tatements taken by police officers in the course of
interrogations are also testimonial under even a narrow standard.” Id. at 52.


                                                 -8-
                                       E. Testimonial vs. Nontestimonial

        After Crawford, the threshold question in any Confrontation Clause case is whether a
challenged statement is testimonial or nontestimonial.7 If it is testimonial, the statement is
inadmissible unless (1) the declarant is unavailable and (2) the accused had a prior opportunity to
cross-examine the declarant. Id. If it is not testimonial, then the states are free to apply their own
hearsay law to determine the statement’s admissibility.8 Id. Courts across the country are grappling
with the distinction between “testimonial” and “nontestimonial” hearsay and coming to different,
often conflicting, results. This is our first opportunity to address the issue.9

        In defining “testimonial,” the common nucleus of the various pronouncements enunciated
by the United States Supreme Court seems to be that testimony involves a formal or official
statement made or elicited with a purpose of being introduced at a criminal trial. The Sixth
Amendment grants the accused in a criminal trial the right “to be confronted with the witnesses
against him.” The term “witnesses,” the Court held, embraces all those who “bear testimony,”
whether at trial or outside the courtroom. Id. at 51. “‘Testimony,’ in turn, is typically ‘[a] solemn
declaration or affirmation made for the purpose of establishing or proving some fact.’” Id. In
contrast, the Court noted, casual statements to an acquaintance, business records, or statements in
furtherance of a conspiracy are not testimonial. Id. at 51, 56.

         Furthermore, the Court clarified that its use of the term “interrogation” was not meant in a
technical legal sense, but rather colloquially or generally. Id. at 53 n.4. “Just as various definitions
of ‘testimonial’ exist, one can imagine various definitions of ‘interrogation,’ and we need not select
among them. . . .” Id. Interrogation need not be “sworn testimony”: the Court found that the absence
of an oath was not dispositive, since the police officers of today have the same investigative and
prosecutorial function that the justices of the peace had under the old English Marian statutes. The
implication is that statements made to police while they are performing an “investigative and
prosecutorial function” are testimony.

       Since Crawford, courts across the nation have been asked to determine whether particular
statements are testimonial or nontestimonial under divergent factual scenarios. The statements in

         7
          See United States v. Hinton, 423 F.3d 355, 358 (3rd Cir. 2005) (stating that “[t]he threshold question in any
Confrontation Clause analysis . . . is whether the statement is testimonial.”)

         8
           One commentator suggests that for statements determined to be nontestimonial, it is still prudent to apply the
Ohio v. Roberts analysis when determining admissibility. Richard D. Friedman, Adjusting to Crawford: High Court
Decision Restores Confrontation Clause Protection, 19-SUM Crim. Just. 4 (2004). Friedman, who is a law professor
at the University of Michigan School of Law, submitted an amicus brief in Crawford and was second chair to the
petitioner’s counsel at the argument in the Supreme Court.

         9
           The United States Supreme Court has granted certiorari in two cases, presumably to clarify what was meant
by the term “testimonial.” See Hammon v. Indiana, 829 N.E.2d 444 (Ind. 2005), cert. granted, 126 S. Ct. 552 (U.S. Oct.
31, 2005); W ashington v. Davis, 111 P.3d 844 (Wash. 2005), cert. granted, 126 S. Ct. 547 (U.S. Oct. 31, 2005).

                                                          -9-
question seem to fall within one of several categories: statements made to 911 dispatchers;10
statements made to police during initial field investigations;11 statements made by children to
authorities or parents;12 and statements made to family, friends, or acquaintances.13 The courts have
employed divergent tests and rationales to reach varying—sometimes conflicting—conclusions.
Because the issue in both cases currently before the Court involves statements made to police during
the early stages of investigation, we will review the authorities in that category particularly.

       To determine whether statements made to police are testimonial, courts have adopted
divergent approaches: (1) a per se approach and (2) a case-by-case approach. A minority of courts
have ruled—sometimes implicitly, but sometimes expressly—that all statements made to police,
regardless of the context in which they are made, are testimonial. For example, in Lopez v. State,
888 So.2d 693 (Fla. Dist. Ct. App. 2004), the Florida Court of Appeals concluded that a kidnaping

         10
            Courts in the following cases held that the 911 calls made were not testimonial for various reasons, including
that they were (1) initiated by the victim, (2) made for the purpose of seeking police protection or intervention, (3) made
informally, or (4) made for the purpose of stopping crime: United States v. Hinton, 423 F.3d 355, 362 (3rd Cir. 2005);
United States v. Brun, 416 F.3d 703, 707 (8th Cir. 2005); Leavitt v. Arave, 383 F.3d 809, 830 n.22 (9th Cir. 2004);
People v. Corella, 18 Cal. Rptr.3d 770, 776 (Cal. Ct. App. 2004); Pitts v. State, 612 S.E.2d 1, 5 (Ga. Ct. App. 2005);
W est, 823 N.E.2d at 92-93 (Ill. Ct. App. 2005); Marquardt v. State, 882 A.2d 900, 916 (M d. Ct. Spec. App. 2005); State
v. W right, 701 N.W .2d 802, 811 (Minn. 2005); People v. Coleman, 791 N.Y.S.2d 112, 113 (N.Y. App. Div. 2005);
People v. Moscat, 777 N.Y.S.2d 875, 876 (N.Y. City Crim. Ct. 2004).

          Compare the following cases, in which the respective courts held that the 911 calls made were testimonial for
various reasons, including that they were (1) made for the purpose of invoking police action and initiating prosecution
and (2) that under the factual circumstances of the respective cases, an “objective witness” would reasonably believe that
the statements would be available for use at a later trial: People v. W est, 823 N.E.2d at 92-93; People v. Dobbin, 791
N.Y.S.2d 897, 900-01 (N.Y. Sup. Ct. 2004); People v. Cortes, 781 N.Y.S.2d 401, 407 (N.Y. Sup. Ct. 2004).

         11
              Since this is the precise issue in this case, these cases will be noted in the body of the opinion.

         12
            See the following cases involving statements of child witnesses. In general, child witness statements made
to government officials or representatives have been characterized as testimonial, while statements made to relatives or
friends have been characterized as nontestimonial. See People v. Sisavath, 13 Cal. Rptr.3d 753, 757-58 (Cal. Ct. App.
2004); People v. Vigil, 104 P.3d 258, 262 (Colo. Ct. App. 2004), cert. granted, (Colo., Dec. 20, 2004); State v. Snowden,
867 A.2d 314, 325-26 (Md. 2005); Flores v. State, 120 P.3d 1170, 1178-79 (Nev. 2005); but see People v. Geno, 683
N.W .2d 687, 692 (Mich. Ct. App. 2004) (statement implicating the defendant, which was given by a two-year-old to a
Children’s Assessment Center interviewer after the interviewer noticed blood in the child’s pants, was not testimonial);
see also Herrera-Vega v. State, 888 So.2d 66, 69 (Fla. Dist. Ct. App. 2004) (spontaneous statements made by child to
her mother while being dressed, and later repeated to her father, were not testimonial).

         13
            Numerous courts have determined that statements made to friends, family, or acquaintances, as opposed to
a government representative, do not constitute testimonial hearsay. See, e.g., Ramirez v. Dretke, 398 F.3d 691, 695 n.3
(5th Cir. 2005), cert. denied, 126 S. Ct. 51 (2005); United States v. Manfre, 368 F.3d 832, 838 n. 1 (8th Cir. 2004);
People v. Butler, 25 Cal. Rptr.3d 154, 161-62 (Cal. App. 2005); People v. Cervantes, 12 Cal. Rptr.3d 774, 783 (Cal. Ct.
App. 2004); Compan v. People, 121 P.3d. 876, 880-81 (Colo. 2005); State v. Rivera, 844 A.2d 191, 201 (Conn. 2004);
Demons v. State, 595 S.E.2d 76, 80 (Ga. 2004); Bray v. Kentucky, __ S.W .3d __ (Ky. 2005) ; State v. Blackstock, 598
S.E.2d 412, 420 (N.C. Ct. App. 2004); W oods v. State, 152 S.W .3d 105, 114 (Tex. Crim. App. 2004), cert. denied, 125
S. Ct. 2295 (2005); State v. Orndorff, 95 P.3d 406, 408 (W ash. Ct. App. 2004); State v. Ferguson, 607 S.E.2d 526, 529
(W . Va. 2004), cert. denied, 126 S. Ct. 332 (2005).

                                                            -10-
victim’s statements to police were testimonial under the last Crawford formulation.14 The court
concluded that

           a startled person who identifies a suspect in a statement made to a police officer at
           the scene of a crime surely knows that the statement is a form of accusation that will
           be used against the suspect. In this situation, the statement does not lose its character
           as a testimonial statement merely because the declarant was excited. . . . Even in his
           excitement, [the victim] knew that he was making a formal report of the incident and
           that his report would be used against the defendant.

Lopez, 888 So.2d at 699-700. Georgia courts also have adopted a broad interpretation of the term
“interrogation” that leads to a similar result, generally with a finding that any statements to police
are testimonial. See, e.g., Moody v. State, 594 S.E.2d 350 (Ga. 2004); Bell v. State, 597 S.E.2d 350
(Ga. 2004); Jenkins v. State, 604 S.E.2d 789, 795 (Ga. 2004); Pitts v. State, 612 S.E.2d 1, 5 (Ga.
App. 2005), cert. granted, (Ga. Sept 19, 2005). The Supreme Judicial Court of Massachusetts has
adopted a similarly broad definition of the term “interrogation.” See, e.g., Commonwealth v.
Gonsalves, 833 N.E.2d 549 (Mass. 2005)15 (holding that the term interrogation “must be understood
expansively to mean all law enforcement questioning related to the investigation or prosecution of
a crime” because “if testimonial statements were limited to formal, solemnized, recorded accounts,
Crawford would be a recipe to circumvent the confrontation clause by encouraging law enforcement
personnel to take elaborate statements informally. . . .”).

        To be sure, this “per se testimonial” approach has some appeal. It is certainly easy to apply.
Put simply, if a witness makes an accusatorial statement to a police officer during the course of an
investigation, preliminary or otherwise, then it is deemed “testimonial.”

        Most courts, however, use a case-by-case approach, evaluating the factual circumstances of
each case. These courts generally have held that interrogation was not involved and, thus, that the
statements are not testimonial. See, e.g., Hammon v. State, 829 N.E.2d 444, 456 (Ind. 2005)
(holding that “a ‘testimonial’ statement is one given or taken . . . [chiefly for the purpose of]
preserving it for potential future use in legal proceedings”);16 State v. Warsame, 701 N.W.2d 30,
311-12 (Minn. Ct. App. 2005) (concluding that statements are not “testimonial” simply because they
are given in response to police questioning and holding that the critical determination is whether an
objective witness would believe that the statements would be preserved for use at a later trial); State
v. Hembertt, 696 N.W.2d 473, 482 (Neb. 2005) (noting that the term “police interrogation,” as used


           14
            That is, the “statements . . . 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.” Crawford, 541 U.S. at 52.

           15
                A petition for certiorari was filed in this case with the U.S. Supreme Court on November 23, 2005 (U.S. No.
05-674).

           16
           Since the United States Supreme Court has granted certiorari in Hammon, it is unclear which portions of the
Indiana Supreme Court’s analysis, if any, will survive.

                                                             -11-
in Crawford, required “some kind of structured police questioning, intended to elicit information for
use in a contemplated prosecution” and applying a subjective standard focused on whether the
declarant intended to bear testimony against the accused to be used later), petition for cert. filed,
(U.S. Aug. 19, 2005) (pending Jan. 6, 2006, cert. conference, no. 05-5981); People v. Mackey, 785
N.Y.S.2d 870 (N.Y. Crim. Ct. 2004) (considering such factors as (1) the formality of the setting in
which the statements were made, (2) whether the statements were recorded, (3) the declarant’s
primary purpose in making the statements, (4) whether an objective declarant would believe those
statements would be used to initiate prosecutorial action and be placed into evidence at trial, (5) the
use of structured questioning, and (6) whether the declarant initiated the contact); State v. Davis, 111
P.3d 844 (Wash. 2005) (focusing on the declarant’s subjective intent and concluding that there was
no evidence that the declarant intended to bear witness in contemplation of later legal proceedings).17

          Although the case-by-case approach requires more analysis on the part of reviewing courts,
we think it is the more reasonable one in terms of fulfilling the function of the Confrontation Clause,
i.e., to provide “the right . . . to be confronted with the witnesses against him.” U.S. Const. amend.
VI. It seems to us that the common denominator in the cases seeking to determine whether a
particular statement to a police officer is “testimonial” is whether the declarant was acting in the role
of a “witness” at the time the statement was made.18

        Although some jurisdictions have applied a subjective standard to decide whether a particular
witness’s statements were testimonial,19 we believe the language of Crawford points to an objective
standard—that is, whether the statement was made “under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a later trial.”
Crawford, 541 U.S. at 52.

        Using this standard as the overarching consideration, we believe it appropriate to consider
the following factors in deciding whether a particular statement is “testimonial”: (1) whether the
declarant was a victim or an observer; (2) whether contact was initiated by the declarant or by law-
enforcement officials; (3) the degree of formality attending the circumstances in which the statement
was made; (4) whether the statement was given in response to questioning, whether the questioning
was structured, and the scope of such questioning; (5) whether the statement was recorded (either
in writing or by electronic means); (6) the declarant’s purpose in making the statements; (7) the
officer’s purpose in speaking with the declarant; and (8) whether an objective declarant under the

         17
            Again, since the United States Supreme Court has granted certiorari in Davis, it is unclear which portions
of the W ashington Supreme Court’s analysis will survive.

         18
            In certain categories of cases— for instance, where information is provided to law enforcement authorities
by confidential informants— it seems obvious that statements made to authorities describing criminal activity should be
deemed “testimonial.” See United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004) (statements of a confidential
informant made to authorities for the purpose of investigating and prosecuting a crime are testimonial); United States
v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (statements to authorities by a confidential informant are testimonial in
nature).

         19
              See, e.g., Hammon, 829 N.E.2d at 456; Hembertt, 696 N.W .2d at 482-83; Davis, 111 P.3d at 851.

                                                         -12-
circumstances would believe that the statements would be used at a trial. This list is not exhaustive;
other considerations may also be meaningful depending on the particular facts of the case.


                                F. Is an Excited Utterance “Testimonial”?

        The next issue presented in both cases is whether the statements, alleged by the State to be
“excited utterances,” can be classified as “testimonial.” The State argues that an excited utterance
can never constitute testimonial hearsay because it is made spontaneously in reaction to a startling
event; thus, the declarant speaks in response to that event rather than in anticipation of bearing
witness. Various jurisdictions disagree on this issue. Some agree that an excited utterance cannot
constitute testimonial hearsay. See United States v. Brun, 416 F.3d 703, 707 (8th Cir. 2005);
Anderson v. State, 111 P.3d 350, 354-55 (Alaska Ct. App. 2005); People v. Corella, 18 Cal. Rptr.3d
770, 776 (Cal. Ct. App. 2004); People v. Moscat, 777 N.Y.S.2d 775, 880 (N.Y. Crim. Ct. App.
2004); Key v. State, 173 S.W.3d 72, 76 (Tex. Ct. App. 2005). However, Crawford seems to reject
this notion. Referencing the facts of White v. Illinois, 502 U.S. 346 (1992), wherein a child victim
made “spontaneous declarations” to an investigating police officer, the Crawford Court characterized
those statements as “testimonial,” implicitly rejecting the notion that excited utterances are
nontestimonial. Crawford, 541 U.S. at 58 n.8.

        A second group of cases holds that the excited nature of the utterance has no bearing on
whether a particular statement is testimonial. Instead, the focus is entirely on the declarant’s
objectively reasonable expectations. See State v. Parks, 116 P.3d 631, 639 (Ariz. Ct. App. 2005)
(commenting that “[w]hile a declarant’s emotional state may ‘still’ reflection, . . . such a declarant
may nevertheless reasonably appreciate or expect that his statement will have an impact on whether
an arrest is made, charges are brought or guilt is attributed”), review granted, (Ariz., Nov. 29, 2005);
Lopez, 888 So.2d at 699-700 (stating that “ a startled person who identifies a suspect in a statement
made to a police officer at the scene of a crime surely knows that the statement is a form of
accusation that will be used against the suspect”); Commonwealth v. Williams, 836 N.E.2d 335, 338
(Mass. App. Ct. 2005) (assault victim’s statements to police made while she was still “shaken, . . .
very upset, . . . crying, teary eyed, red eyed” were nevertheless testimonial).20

        A third group of courts—the majority—considers the totality of the circumstances under
which the excited utterances were made to decide whether they are “testimonial.” These
jurisdictions consider the testimonial hearsay analysis and the excited utterance analysis to be
interdependent. In some cases, because the excited utterance is made to police in response to
questioning, the court looks to whether the police action amounted to “interrogation,” which would
make the statement testimonial under Crawford. See, e.g., Drayton v. United States, 877 A.2d 145,
150 (D.C. 2005) (distinguishing between initial on-the-scene questioning done for the purpose of


        20
           The Massachusetts Appeals Court based its holding on a definition of “police interrogation” that includes
preliminary fact gathering and assessment of whether a crime has taken place. W illiams, 836 N.E.2d at 338 (citing
Commonwealth v. Gonsalves, 833 N.E.2d 549 (Mass. 2005)).

                                                       -13-
securing the scene [nontestimonial] and questioning done for the purpose of investigation and fact-
gathering [testimonial]); Hammon, 829 N.E.2d at 446 (holding that “statements to . . . officers in
response to general initial inquiries are nontestimonial but statements made for purposes [of either
the declarant or the questioner] of preserving the accounts of potential witnesses are testimonial”);
State v. Wright, 701 N.W.2d 802, 811-14 (Minn. 2005) (holding that statements made for the
purpose of seeking police intervention nontestimonial; victims, not police, initiated the encounter,
and the victims remained emotionally distraught throughout the entire conversation); Hembertt, 696
N.W.2d at 482 (noting that some excited utterances are testimonial and others are not—the pertinent
inquiry is whether the declarant was aware or expecting that his or her statements might later be used
at a trial); People v. Coleman, 791 N.Y.S.2d 112, 114 (N.Y. App. Div. 2005) (holding that
statements made were nontestimonial because the primary motivation of the declarant was to call
for assistance).

        In some cases, the courts have recognized that the startling event giving rise to an excited
utterance may be of such a nature that it dissipates the very qualities that otherwise might render the
statement testimonial. See, e.g., People v. King, 121 P.3d 234, 240 (Colo. Ct. App. 2005) (holding
that where the statements were made to police in a non-custodial setting, without indicia of
formality, and while the victim was under considerable pain and distress, the statements could not
be viewed by any reasonable person as being made with the expectation that they would be used
prosecutorially and thus were nontestimonial); State v. Lewis, 619 S.E.2d 830, 842 (N.C. 2005)
(concluding that the victim’s excited utterances at the scene were non-testimonial because (1) the
statements were given during the preliminary stages of the investigation, (2) police questioning was
unstructured, and (3) the victim would not have reasonably expected that her excited statements
would be used at trial, but also holding that the victim’s later off-the-scene identification of the
defendant was testimonial, stating that “structured police questioning is a key consideration in
determining whether a statement is or is not testimonial”).

        We reject both per se approaches—the one that automatically exempts all excited utterances
from classification as testimonial hearsay and the one that effectively disregards the excited nature
of the utterance. We favor an approach that considers both the testimonial hearsay analysis and the
excited utterance analysis and that considers the totality of the circumstances in order to determine
whether a particular excited utterance should be deemed testimonial. The primary consideration
under such an approach remains whether the declarant was acting as a “witness”—that is, “bearing
testimony” against the accused. To this end, we adopt the definition of “testimony” referenced by
the Supreme Court in Crawford: “‘[a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact.’” Crawford, 541 U.S. at 51 (quoting Webster). We also note that
Crawford emphasized that the types of statements the Court considered “testimonial” were those
formal types of statements—including those made in a police interrogation—that a reasonable
declarant would expect to be used prosecutorially or at trial. Id. at 51-52.




                                                 -14-
                                             G. Application of the Law

         When the prosecution seeks to introduce a declarant’s out-of-court statement, and a defendant
raises a Confrontation Clause objection, the initial determination under Crawford is whether the
statement is testimonial or nontestimonial. Crawford, 541 U.S. at 68. If the statement is testimonial,
then the trial court must determine whether the declarant is available or unavailable to testify. If the
declarant is available, then there is no confrontation problem: “[t]he Clause does not bar admission
of a statement so long as the declarant is present at trial to defend or explain it.” Id. at 59 n.9 (citing
California v. Green, 399 U.S. 149, 162 (1970)). If the declarant is unavailable, the trial court must
determine whether the accused had a prior opportunity to cross-examine the declarant about the
substance of this statement. Id. at 68. If the accused had such an opportunity, the statement may be
admissible if it is not otherwise excludable hearsay. If the accused did not have this opportunity,
then the statement must be excluded.

        If the statement is nontestimonial, the Confrontation Clause analysis does not end. Instead,
consistent with Ohio v. Roberts, 448 U.S. 56, the court must determine whether the out-of-court
statement bears adequate indicia of reliability—specifically, whether it falls within a “firmly rooted
hearsay exception” or bears “particularized guarantees of trustworthiness.” See Crawford, 541 U.S.
at 68 (stating that “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the
Framer’s design to afford the States flexibility in their development of hearsay law—as does [Ohio
v.] Roberts”).


                                                  H. State v. Maclin

                                      1. Crawford v. Washington Analysis

        Maclin’s case involves a common scenario—charges arising from a domestic violence
incident, and the victim does not appear to testify. It has been estimated that between eighty and
ninety percent of domestic violence complainants recant their accusations or refuse to cooperate with
prosecutors. See Tom Lininger, Evidentiary Issues in Federal Prosecution of Violence Against
Women, 36 Ind. L. Rev. 687, 709 n.76 (2003).21 Thus, before Crawford, prosecutors tried many
domestic violence cases without the complainant’s testimony, relying upon hearsay testimony
coming in under an excited utterance or other hearsay exception. See, e.g., Moscat, 777 N.Y.S.2d
at 878. It is conceivable that Crawford will have a great effect upon trials of this kind.

        In this case, police were summoned to the scene by the victim. When police arrived, in
response to the officers’ general question of whether everything was okay, the victim launched into
a detailed narrative of the defendant’s assault on her. We cannot characterize the general inquiry as


         21
             Admittedly, this case is somewhat different from most cases in that the victim is deceased from causes
unrelated to the assault in question. In many of these cases, the victim fails to appear because the parties have reconciled
or because of fear of retribution from the assailant.

                                                           -15-
“police interrogation” in the sense of formalized, structured questioning. However, considering that
the victim initiated the contact with police by her 911 call, that any immediate danger subsided upon
police arrival, and the extraordinary detail recited in the victim’s statements to police—evidencing
a comprehension of the significance of her words—these statements are such that the “declarant[]
would reasonably [have] expect[ed] [them] to be used prosecutorially.” Crawford, 541 U.S. at 51.
Further, under these circumstances “an objective witness reasonably [would have] believe[d] that
the statement[s] would be available for use at a later trial.” Id. at 52. We conclude that, by making
these statements to police, the victim was acting as a “witness” giving “testimony” and, thus, that
the statements were testimonial. Cf. United States v. Brito, 427 F.3d 53, 62 (1st Cir. 2005)
(reasoning that once the immediate danger has subsided, a person who speaks, even if still under the
stress of a startling event, is more likely able to comprehend the larger significance of her words;
“[i]f the record fairly supports a finding of comprehension, the fact that the statement also qualifies
as an excited utterance will not alter its testimonial nature.”).

         Although the deceased victim is unavailable, there is no evidence and no claim by the State
that the defendant previously had an opportunity to cross-examine the victim about these statements.
Accordingly, the admission of these statements violated the defendant’s Confrontation Clause rights
under Crawford. While both the United States Supreme Court and this Court have held that
violations of the Confrontation Clause are subject to harmless error review,22 since the only evidence
linking the defendant to the victim’s assault was the victim’s statements, the error was not harmless.
Accordingly, the defendant’s conviction for reckless aggravated assault is reversed and dismissed.
In light of this disposition, it is unnecessary to reach the lesser-included-offense issue.


                                              I. State v. Anderson

                                    1. Crawford v. Washington Analysis

         The issue is much easier to resolve in Anderson’s case. A police officer tracking down the
source of an audible burglar alarm was flagged down by teenagers who, in response to the question,
“What’s going on?,” pointed to the building from which the alarm was sounding and told the officer
that a “large black man with a bald head” had kicked in the door and was still inside. Clearly the
officer was on the scene as a result of the burglar alarm and acting in a preliminary investigational
mode, trying to ascertain the source of the alarm and what had caused it. Considering the informal
nature of the “flag-down” by bystander witnesses and the general nature of the question, “What’s
going on?,” this can hardly be characterized as an interrogation. Furthermore, the nature of the
statement was not accusatory or even directed specifically at the defendant; it was merely intended
to direct police intervention to a crime in progress. It is unlikely that the declarants anticipated that
their statements would be used prosecutorially or that an objective witness reasonably would have
believed that the statements would be available for use at a later trial. Likewise, the officers’
purpose in speaking with the witnesses was not to develop evidence for prosecution or trial, but


        22
             Coy v. Iowa, 487 U.S. 1012, 1021 (1988); State v. Gomez, 163 S.W .3d 632, 647 (Tenn. 2005).

                                                       -16-
merely to determine what was happening and what type of police intervention was needed. The
totality of these circumstances leads us to the conclusion that the declarants were not acting as
“witnesses” giving “testimony” and, thus, that their statements were nontestimonial. Cf. United
States v. Luciano, 414 F.3d 174, 180 n.3 (1st Cir. 2005) (teen witness who saw a man pointing a gun
at a woman flagged down a passing police cruiser and reported what he had seen; the court held that
the statement was an excited utterance made for the sole purpose of securing assistance for the
woman in danger and, thus, was not testimonial). Accordingly, the admissibility of the statements
at issue is governed by Ohio v. Roberts.

                                    2. Ohio v. Roberts Analysis

        Under Ohio v. Roberts, an out-of-court statement is admissible if it falls within a “firmly
rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” Roberts, 448 U.S.
66. We note that both the United States Supreme Court and this Court have held that the excited
utterance exception is firmly rooted. See White, 502 U.S. at 355 n.8; State v. Taylor, 771 S.W.2d
387, 393-94 (Tenn. 1989). Accordingly, the question is whether the statements of the juvenile
eyewitnesses were exited utterances under Tennessee Rule of Evidence 803(2).

                                  3. Excited Utterance Analysis

         As noted above, the excited utterance exception requires that (1) there be a startling event
or condition; (2) the statement relate to the startling event or condition; and (3) the statement be
made while the declarant was still under the stress or excitement of the event or condition. Tenn.
R. Evid. 803(2); State v. Stout, 46 S.W.3d 689, 699-700 (Tenn. 2001). We agree with the State that
personally observing the inception of a burglary in progress is a startling event. Further, the
declarants’ statements in this case clearly relate to their observations of the origin of the burglar
alarm. Finally, from the short time that passed from Officer Smith’s first hearing the burglar alarm
to his contact with the declarants, and from the declarants’ demeanor, which Officer Smith described
as “excited” and “speaking at once,” it is clear that they were still under the stress and excitement
of the startling event. Accordingly, we hold that the trial court did not abuse its discretion in
concluding that the declarants’ statements qualified as “excited utterances” and were admissible.


                                          CONCLUSION

        We adopt a case-by-case approach to decide whether a proffered hearsay statement is
“testimonial,” with the primary consideration being whether the declarant was acting in the role of
a “witness” at the time the statement was made. Furthermore, we follow the lead of the United
States Supreme Court, whose language in Crawford appears to favor application of an objective
standard in deciding whether a particular statement is “testimonial”—that is, whether the statement
was made “under circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52. The same
objective standard applies when the statement is an “excited utterance.” Thus, depending on the


                                                -17-
facts of a particular case, an excited utterance can (or cannot) be “testimonial” in nature. If the
excited utterance is determined to be “testimonial,” then under the Sixth Amendment analysis used
in Crawford v. Washington, 541 U.S. 36 (2004), and under our own Tennessee Constitution Article
I, Section 9 right to “meet the witnesses face to face,” the statement is inadmissible unless the
witness was unavailable and the defendant had a prior opportunity for cross-examination. If the
excited utterance is not testimonial, then admissibility is governed by Ohio v. Roberts, 448 U.S. 56
(1980). Accordingly, the opinions of the Court of Criminal Appeals are modified follows: for
defendant Larrie Maclin, the conviction for reckless aggravated assault is reversed and the charges
dismissed; for defendant Michael Lebron Anderson, the conviction for burglary is affirmed.

        The costs of the appeal in the matter against defendant Larrie Maclin are taxed to the State
of Tennessee. It appearing that the defendant Michael Anderson is indigent, the costs of his appeal
are taxed to the State of Tennessee.




                                              ___________________________________
                                              WILLIAM M. BARKER
                                              Chief Justice




                                               -18-
