We review de novo Mitchell's constitutionally based objection. United States v. Brun, 416 F.3d 703, 706 (8th Cir. 2005) (standard of review). The Confrontation Clause prohibits the "admission of testimonial hearsay unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination."

We have held that 911 calls are admissible as nontestimonial statements when they are "excited utterances." See United States v. Brun , 416 F.3d 703, 707 (8th Cir. 2005) ; United States v. Phelps , 168 F.3d 1048, 1054-55 (8th Cir. 1999). An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

The Eighth Circuit has broadly held, for example, that statements that qualify as excited utterances are not "testimonial" under Crawford. See United States v. Brun, 416 F.3d 703, 707-08 (8th Cir. 2005). The statements at issue in Brun were made during 911 calls from the home of defendant Donald James Brun and his girlfriend, Nicole Oakgrove, and then upon the arrival of the police in response to the 911 calls.

Their rationale is that, by definition, an excited utterance is made under the influence of a startling event and, thus, the declarant acts in response to that event rather than in response to interrogation or in anticipation of bearing witness. See, e.g., United States v. Brun, 416 F.3d 703, 707 (8th Cir. 2005) (holding that excited utterances are not testimonial in nature because they are "emotional and spontaneous rather than deliberate and calculated"); People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875, 880 (2004) (holding that an excited utterance is a cry for help and, therefore, not functionally equivalent to "a formal pretrial examination"). In each of these cases, the court upheld the admission of an "excited" 911 call in a criminal trial notwithstanding the declarant's unavailability.

In part, the distinctive standards of review for hearsay objections. and Confrontation Clause objections to the admission of excited utterances arise because the hearsay exception depends largely upon the subjective state of mind of the declarant at the time of the statement, whereas the issue of whether an out-of-court statement (excited or otherwise) is "testimonial" under Crawford depends upon the perceptions of an objectively reasonable declarant.See, e.g., Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (when reviewing the admissibility of out-of-court statements over a Confrontation Clause objection, courts should independently review whether the evidence satisfies the demands of the Constitution); United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005) (asserted Crawford constitutional error is reviewed under de novo standard); United States v. Cervantes-Flores, 421 F.3d 825, 831 (9th Cir. 2005) (same); United States v. Brun, 416 F.3d 703, 706 (8th Cir. 2005) (same); United States v. Summers, 414 F.3d 1287, 1298 (10th Cir. 2005) (same); United States v. Delgado, 401 F.3d 290, 299 (5th Cir. 2005) (same); Lagunas v. State, 187 S.W.3d 503, 513-14, 2005 WL 2043678, at *8, 2005 Tex.App. LEXIS 6957, *26 (Tex.App.-Austin 2005, no. pet. h.) (same); Davis v. State, 169 S.W.3d 660, 665 (Tex.App.-Austin 2005, no. pet. h.) (same).See Crawford, 541 U.S. at 52, 124 S.Ct. 1354 (setting out one definition of "testimonial" statements as those "`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'") (citation omitted); United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004) (stating that the decisive inquiry under Confrontation Clause objection to hearsay is "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime").

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. 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, 122 Cal. App.4th 461, 18 Cal.Rptr.3d 770, 776 (2004); Pitts v. State, 272 Ga.App. 182, 612 S.E.2d 1, 5 (2005); West, 291 Ill.Dec. 72, 823 N.E.2d at 92-93 (Ill.Ct.App. 2005); Marquardt v. State, 164 Md.App. 95, 882 A.2d 900, 916 (Ct.Spec.App. 2005); State v. Wright, 701 N.W.2d 802, 811 (Minn. 2005); People v. Coleman, 16 A.D.3d 254, 791 N.Y.S.2d 112, 113 (N.Y.App.Div. 2005); People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875, 876 (N.Y.City Crim.Ct. 2004).

¶ 20 A declarant who is alerting law enforcement of imminent and immediate danger has much less of an expectation that the state will seek to make prosecutorial use of her statements at trial. United States v. Brun (8th Cir. 2005), 416 F.3d 703 (911 call from adolescent boy regarding an argument escalating into an assault); see People v. Moscat (N.Y. Crim. Ct. 2004), 3 Misc.3d 739, 746 (deciding that a 911 call "is the electronically augmented equivalent of a loud cry for help"); Leavitt v. Arave (9th Cir. 2004), 383 F.3d 809, 830 n. 22 (determining that statements to police by a victim of an attempted break-in identifying the perpetrator are nontestimonial because they were volunteered in order to end "a frightening intrusion into her home"); People v. Coleman (N.Y.App.Div. 2005), 16 A.D.3d 254, 255 ("[t]he information conveyed by the 911 caller was for the purpose of urgently seeking police intervention"; "we note that the caller repeatedly emphasized that one or both of the victims was 'bleeding real bad.' This indicates that his primary motivation was to call for urgent assistance, and not to phone in an anonymous accusation").

Following this plain differentiation, the federal Courts of Appeals considering the issue have held that Crawford did not overrule Roberts' reliability requirement as applied to nontestimonial evidence. See United States v. Brun, 416 F.3d 703, 707 (8th Cir. 2005) (explaining that "` Crawford raises some doubt whether the Roberts reliability analysis remains good law when applying the Confrontation Clause to nontestimonial hearsay,'" but finding the First Circuit's application of Roberts to nontestimonial excited utterances persuasive) (citations omitted); United States v. Gibson, 409 F.3d 325, 338 (6th Cir. 2005) (" Crawford dealt only with testimonial statements and did not disturb the rule that nontestimonial statements are constitutionally admissible if they bear independent guarantees of trustworthiness."); United States v. Holmes, 406 F.3d 337, 348 (5th Cir. 2005) ("With respect to nontestimonial statements, however, Crawford leaves in place the Roberts approach to determining admissibility."); United States v. Hendricks, 395 F.3d 173, 179 (3d Cir. 2005) ("[U]nless a particular hearsay statement qualifies as `testimonial,' Crawford is inapplicable and Roberts still controls."); Parle v. Runnels, 387 F.3d 1030, 1037-38 (9th Cir. 2004) (app

We consider this constitutional issue de novo . United States v. Brun , 416 F.3d 703, 706 (8th Cir. 2005).

We review a district court's rulings regarding the admission of hearsay evidence for an abuse of discretion. United States v. Brun, 416 F.3d 703, 706 (8th Cir. 2005). i.