However, a number of courts have concluded statements are not testimonial solely because they are made to police. In People v. Mackey, 785 N.Y.S.2d 870 (N.Y. Crim. Ct. 2004), eight on-duty police officers were patrolling in a marked van when the victim waved to them, requesting assistance. The victim was crying, and her face was red and swollen. One of the officers, Officer Melenciano, asked her what was wrong and she stated that her boyfriend had punched her in the face and pushed her down and then tried to take her children. Id. at 871.

The Mackey court began by recognizing that

courts in New York and throughout the country have held that responses to police officers during a preliminary field investigation are not barred as testimonial statements under Crawford if the statements and the circumstances in which the statements were made lack the requisite formality to constitute a police interrogation. See People v. Newland, 6 A.D.3d 330, 775 N.Y.S.2d 308 (1st Dept. 2004) (concluding that a brief, informal remark to an officer conducting a field investigation which was not made in response to structured police questioning should not be considered a testimonial statement); State v. Forrest, 164 N.C. App. 272, 596 S.E.2d 22 (Court of Appeals of North Carolina, 2004) (holding statements initiated by complaining witness to police immediately after rescue were non-testimonial in nature). But cf. Moody v. State, 277 Ga. 676, 594 S.E.2d 350 (Ga. 2004) (finding statements of deceased victim to a police officer during a field investigation of a previous, separate incident two years prior involving defendant were testimonial and admission of this testimony was error).

Id. at 872-73.

The court engaged in a fact-specific analysis of the particular nature and circumstances of the statements that considered

the extent of a formalized setting in which the statements were made, if and how the statements were recorded, the declarants primary purpose in making the statements, whether an objective declarant would believe those statements would be used to initiate prosecutorial action and later at trial, and specifically with cases involving statements to law enforcement, the existence of any structured questioning and whether the declarant initiated the contact.

Id. at 873-74. Under the facts of Mackey, the victims statements were nontestimonial and their admission did not violate the Confrontation Clause.

Hammon v. State, 809 N.E.2d 945 (Ind. Ct. App. 2004), involved a conviction for domestic battery. Officer Mooney was dispatched to a residence occupied by Hammon and A.H., the victim. Officer Mooney separated Hammon from A.H., and A.H. told the officer that Hammon had thrown her down into shattered glass and punched her twice in the chest. A.H. did not testify at trial. Instead, the court allowed Officer Mooney to relate A.H.s statements to the jury.

The Hammon court held:

the statement A.H. gave to Officer Mooney was not a testimonial statement. It appears to us that the common denominator underlying the Supreme Courts discussion of what constitutes a testimonial statement is the official and formal quality of such a statement. A.H.s oral statement was not given in a formal setting even remotely resembling an inquiry before King James Is Privy Council; it was not given during any type of pre-trial hearing or deposition; it was not contained within a formalized document of any kind.

Id. at 952 (footnote omitted).

Further, the court addressed the closer question whether A.H.s statement was the product of a police interrogation:

[W]e observe that the Supreme Court chose not to say that any police questioning of a witness would make any statement given in response thereto testimonial; rather, it expressly limited its holding to police interrogation. We conclude this choice of words clearly indicates that police interrogation is not the same as, and is much narrower than, police questioning.

Id.

Thus, the court reached the conclusion that when police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not testimonial. Id.

Additionally, A.H. completed a battery affidavit that was admitted at trial. The Hammon court noted that the battery affidavit would probably qualify as a testimonial statement, id. at 952 n.5, but found admission of the affidavit harmless because it was cumulative of Officer Mooneys properly admitted testimony regarding A.H.s statements. Id. at 948 n.1 (citation omitted). See also Fowler v. State, 809 N.E.2d 960, 968 (Ind. Ct. App. 2004), transfer granted (Dec. 9, 2004) (An unrehearsed statement made without reflection or deliberation, as required to be an excited utterance, is not testimonial in that such a statement, by definition, has not been made in contemplation of its use in a future trial.) (citations omitted).

In State v. Barnes, 854 A.2d 208 (Me. 2004), Barnes was convicted of murdering his mother. The testimony at trial included that of an officer who asseverated that prior to the murder, Barness mother drove herself to the police station . . . . and said that her son had assaulted her and had threatened to kill her more than once during the day. Id. at 209. The Barnes court found the statements nontestimonial because: (1) the police did not seek out Barness mother; (2) her statements were made while she was still under the stress of the attack; and (3) she was not responding to tactically structured police questioning as in Crawford, but was instead seeking safety and aid. Id. at 211.

In Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004), after concluding that Elgs statements to the 911 dispatcher were nontestimonial, see supra, the Ninth Circuit Court of Appeals turned to Elgs statements made to the police who responded to the 911 call. The court found that Elg

was in no way being interrogated by [police] but instead sought their help in ending a frightening intrusion into her home. Thus, we do not believe that the admission of her hearsay statements against Leavitt implicate the principal evil at which the Confrontation Clause was directed . . . .

Id. at 830 n.22 (internal quotation marks and citation omitted).

After determining that statements to the 911 operator were not testimonial, the court in State v. Wright, 686 N.W.2d 295 (Minn. Ct. App. 2004), review granted (Nov. 23, 2004), declined to answer the closer question whether statements made to police were testimonial. The Wright court found that any error in admission would be harmless. However, the court did state, in dictum, We are not convinced that a police response to an incident when the victims are in distress and primarily concerned with ensuring that their assailant has been apprehended satisfies any of the formulations or examples of testimonial hearsay provided by the Supreme Court. Id. at 305.

c. Statements by Children

A third category of cases exploring the definition of testimonial is that of statements by children. This category may be bifurcated into statements made to government personnel and statements made to parents or other persons not employed by the government. The cases often, though not always, arise where the child declarant has been sexually abused. Most courts have found that a childs statement to a government figure is testimonial. However, they do not always follow a consistent rationale.

In Snowden v. State, 846 A.2d 36 (Md. Ct. Spec. App. 2004), shortly after the Supreme Court issued the Crawford opinion, the Court of Special Appeals of Maryland addressed Crawfords applicability to statements by children in the context of child abuse. Snowden was convicted of seven counts of child abuse and related offenses. The convictions arose from alleged sexual contact with three different minor females, two of whom were ten years old and one of whom was eight. The children did not testify at trial; instead, a social worker was allowed to relate their testimony pursuant to a Maryland statute. See id. at 39 (quoting Md. Code Ann., Crim. Proc. 11-304 (2002)). The social worker based her testimony on one unrecorded interview with each of the children, in which she used non-leading and general questions to elicit details of the abuse.

The Snowden court was persuaded the childrens statements, testified to by the social worker, were testimonial:

As the trial court stated: The children were interviewed for the expressed purpose of developing their testimony by [the social worker], under the relevant Maryland statute that provides for the testimony of certain persons in lieu of a child, in a child sexual abuse case . . . . In light of Crawford, appellant is entitled to a new trial at which the State will be prohibited from introducing any testimonial hearsay declarations of a person who (1) is available to testify, or (2) made the testimonial hearsay statements on an occasion at which the defendant did not have an opportunity for cross-examination.

Id. at 47 (footnotes omitted).

In People v. Sisavath, 13 Cal.Rptr.3d 753 (Cal. Ct. App. 2004), Sisavath was accused of sexually abusing two children whom the court referred to as Victim 1 and Victim 2. The evidence at trial included two hearsay statements of Victim 2: the first a statement to a police officer and the second a videotaped interview with a trained interviewer at Fresno Countys Multidisciplinary Interview Center (MDIC). Id. at 756. The trial court admitted both statements, but the California Court of Appeal reversed.

First, the court found it clear that Victim 2s statement to Officer Vincent was testimonial under Crawford. Id. at 757. This statement was knowingly given in response to structured police questioning. The People concede this. Id.

Second, the court addressed the videotaped interview, which took place after the original complaint had been filed and a preliminary hearing had been held. The deputy district attorney who prosecuted the case was present in the interview, along with an investigator from the district attorneys office. The interview was conducted by a forensic interview specialist. Id. Therefore, the court concluded: Under these circumstances, there is no serious question but that Victim 2s 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. Id. at 757-58 (internal quotation marks and citation omitted).

Thus, the Sisavath court adopted the third and most expansive Crawford formulation of testimonial, and concluded that the Supreme Courts reference to objective witness meant an objective observer, not an objective witness in the same category of persons as the actual witnesshere, an objective four-year-old. Id. at 758 n.3.

People v. Vigil, 104 P.3d 258 (Colo. Ct. App. 2004), cert. granted (Dec. 20, 2004), reached a similar result as Sisavath, but with a potentially significant difference in reasoning. The defendant in Vigil was convicted for sexually assaulting a seven-year-old boy. At trial, the State showed portions of a videotaped police interview of the child. The boy did not testify at trial, and the defendant argued that admission of the videotape violated his rights under the Confrontation Clause.

In finding the videotape was testimonial, the Vigil court rejected the Peoples argument that the statement was not testimonial because it was not made during the course of a police interrogation and because a seven-year-old child would not reasonably expect his statements to be used prosecutorially. Id. at 262. The court explained that [a]lthough the interview in this case was conducted in a relaxed atmosphere, with open-ended, nonleading questions, and although no oath was administered at the outset, it nevertheless amounted to interrogation under Crawford. Id. The court noted that the interviewing officer told [the child] he needed to tell the truth, and when officer asked the child what should happen to the defendant, the child replied that defendant should go to jail. Id. Therefore, while the Vigil court did not expressly state the objective witness test should consider the age of the actual witness, the court did apply such a test under the facts before it.

In People ex rel. R.A.S., ___ P.3d ___, 2004 WL 1351383 (Colo. Ct. App. 2004), the defendant, a juvenile, allegedly touched the genitals of a four-year-old boy (the victim) and persuaded the victim to perform oral sex upon him. Id. at ___, 2004 WL 1351383 at * 1. The victim did not testify. Instead, a police investigator, who conducted a videotaped forensic interview of the victim, testified. The videotaped interview was introduced as well.

The court noted that the statement was taken by an investigating officer in a question and answer format appropriate to a child. Id. at ___, 2004 WL 1351383 at *4. The court then announced its holding: The statement was testimonial within even the narrowest formulation of the Courts definition of that term. We thus conclude that the statement was not admissible at trial. Id. (citations omitted).

State v. Courtney, 682 N.W.2d 185 (Minn. Ct. App. 2004), differs from Snowden, Sisavath, Vigil, and R.A.S. in that the child in Courtney was not sexually abused, but was a witness in a domestic assault action. However, the rationale behind finding the minor childs statement testimonial is similar to the child abuse cases.

Courtney was tried and convicted for assaulting the mother of the child declarant. The child made statements during a videotaped interview that on the night in question, she heard things breaking, heard her mother crying, and witnessed Courtney threatening her mother with two guns. The State offered the videotaped interview at trial, and on appeal the court held:

[The childs] statement is testimonial. A child-protection worker, along with a law enforcement officer, interviewed [the child] for the purpose of developing a case against Courtney. . . . At one point, the interview was stopped by the police officer when he directed the child-protection worker to ask [the child] to draw the guns she saw Courtney allegedly use to threaten [the victim]. The circumstances under which the interview was conducted show it was made in preparation for the case against Courtney.

Id. at 196.

The Michigan Court of Appeals, has found, in dictum, that a childs statements to an interviewer are not testimonial. In People v. Geno, 683 N.W.2d 687 (Mich. Ct. App. 2004), the court found the defendant had not properly preserved and presented a Crawford claim, but that even if he had, the childs statement did not constitute testimonial evidence under Crawford, and therefore was not barred by the Confrontation Clause. Id. at 692. There, the defendant allegedly sexually assaulted his girlfriends two-year-old daughter. The contested hearsay statement was uttered during an interview by the Childrens Assessment Center. The interviewer noticed blood in the childs pull-up underpants and asked the child if she had an owie? The child answered, yes, Dale [defendant] hurts me here, pointing to her vaginal area. Id. at 689.

In ruling the hearsay nontestimonial, the court explicated:

The childs statement was made to the executive director of the Childrens Assessment Center, not to a government employee, and the childs answer to the question whether she had an owie was not a statement in the nature of ex parte in-court testimony or its functional equivalent.

Id. at 692 (internal quotation marks and citation omitted).

At least two cases have held a childs statement to a parent is nontestimonial. In Herrera-Vega v. State, 888 So.2d 66 (Fla. Dist. Ct. App. 2004), the court found that testimonial evidence does not appear to include the spontaneous statements made by D.H. to her mother while being dressed, nor does it include D.H.s statements to her father. Id. at 69. Similarly, the court in Somervell v. State, 883 So.2d 836 (Fla. Dist. Ct. App. 2004) held: It seems to us that statements that a mother hears from her autistic child does not fit within the umbra or penumbra of any of the categories of testimonial set forth by the Crawford Court. Id. at 838.

d. Statements Made to Family, Friends, or Acquaintances

Finally, numerous opinions from around the country have determined that statements made to friends, family, or acquaintances do not constitute testimonial hearsay.

In United States v. Hendricks, 395 F.3d 173 (3rd Cir. 2005), a grand jury indicted Hendricks and several other defendants for conspiracy, narcotics possession and distribution, and money laundering. At issue was the admissibility of surveillance tapes obtained pursuant to a court order under 18 U.S.C. 2510 et seq. The Hendricks court found the taped statements were not the type of statements Crawford meant to affect:

First and foremost, the recorded conversations here at issue neither fall within nor are analogous to any of the specific examples of testimonial statements mentioned by the Court. Crawford, 541 U.S. at ___, 124 S.Ct. at 1374 (listing prior testimony [given] at a preliminary hearing, before a grand jury, or at a former trial[,] and . . . police interrogations as examples of obviously testimonial statements). Second, the recorded conversations do not qualify as testimonial under any of the three definitions mentioned by the Court. They are not ex parte in-court testimony or its functional equivalent, nor are they extrajudicial statements . . . contained in formalized . . . materials, such as affidavits, depositions, prior testimony, or confessions. 541 U.S. at ___, 124 S.Ct. at 1364 (internal citations and quotations omitted). Each of the examples referred to by the Court or the definitions it considered entails a formality to the statement absent from the recorded statements at issue here. Even considered in perspective of the broad definition offered by the NACDL, the Title III recordings cannot be deemed testimonial as the speakers certainly did not make the statements thinking that they would be available for use at a later trial. Crawford, 541 U.S. at ___, 124 S.Ct. at 1364 (quoting Brief of NACDL). Rather, the very purpose of Title III intercepts is to capture conversations that the participants believe are not being heard by the authorities and will not be available for use in a prosecution.

A witness who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. Crawford, 541 U.S. at ___, 124 S.Ct. at 1364. The Title III recordings here at issue are much more similar to the latter than the former. Therefore, as recognized by other courts that have addressed similar issues, we find that the surreptitiously monitored conversations and statements contained in the Title III recordings are not testimonial for purposes of Crawford.

395 F.3d at 181.

In Ramirez v. Dretke, ___ F.3d ___, 2005 WL 174643 (5th Cir. 2005), Ramirez was convicted of murdering his ex-wifes boyfriend. Ramirez hired Bell to assist him with the murder. Prior to the killing, Bell told Hoogstra that Ramirez had hired Bell to kill a fireman, and after the murder, Bell described the killing to Hoogstra. Both Ramirez and the State maintained that Bells out-of-court statements [were] not testimonial evidence as that term is used in Crawford. Id. at *3 n.3. The court agreed, noting there is nothing in Crawford to suggest that testimonial evidence includes spontaneous out-of-court statements made outside any arguably judicial or investigatory context. Id.

Evans was convicted of murdering his estranged wife. At issue in Evans v. Luebbers, 371 F.3d 438 (8th Cir. 2004), were a number of statements the wife made before her death, including that she was afraid of Evans, that Ill be like another Nicole Simpson, that she was abused by Evans, and that she was planning to divorce him. Id. at 444. The court, with little explanation, found Crawford inapplicable because the hearsay statements of Evanss wife did not fit within prior testimony at a preliminary hearing, before a grand jury, or at a former trial; [or] to police interrogations. Id. at 445 (internal quotation marks and citation omitted). See also United States v. Manfre, 368 F.3d 832, 838 n.1 (8th Cir. 2004) (finding hearsay statements made to loved ones or acquaintances . . . are not the kind of memorialized, judicial-process-created evidence of which Crawford speaks.).

In People v. Butler, ___ Cal.Rptr.3d ___, 2005 WL 428210 (2005), a homicide witness made spontaneous statements to co-workers regarding a murder. The court rejected appellants argument that an objective observer would reasonably foresee that the statements could be used in a prosecution. In the courts view, this argument was contrary to Crawfords focus on statements given in lieu of oral testimony, such as an affidavit, or given to a government official in a formal statement. Id. at *6.

People v. Cervantes, 12 Cal.Rptr.3d 774 (Cal. Ct. App. 2004), involved a statement made to an acquaintance who rendered medical aid following a murder. A neighbor of Morales, one of three defendants, was a surgical medical assistant who had known Morales for approximately twelve years. The court found that Moraless statement to his neighbor was not similar to grand jury testimony or a statement taken by an officer during an investigation. The statement was testimonial, if at all, only under the definition quoted from the amici brief . . . which asserted testimonial statements include those 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 782 (internal quotation marks and citation omitted). The court rejected the argument that Morales made the statement knowing his neighbor would repeat it to police. Instead, the court found:

. . . Morales sought medical assistance from a friend of long standing who had come to visit his home. Moraless statement appears to have been made without any reasonable expectation it would be used at a later trial. Rather, it seems far more likely Morales expected Ojeda would not repeat anything he told her to the police. Indeed, Ojeda admitted she knew appellants were gang members and indicated she was afraid to testify in this case.

Id. at 783.

In State v. Rivera, 844 A.2d 191 (Conn. 2004), the defendant and Michael Glanville allegedly murdered Audrey Lover and set fire to her house. The Rivera court found that incriminating statements Glanville made to his nephew during a car ride did not fall within any of the formulations of the core class of testimonial statements discussed in Crawford. Id. at 202.

In Demons v. State, 595 S.E.2d 76 (Ga. 2004), the victim confided in Bohr, a coworker, several days before the victim was murdered. Bohr testified that the victim was distressed and had bruises on his upper arms and chest, that he began crying and told her where the bruises came from, that she had never seen anybody so afraid of anyone else, and that he said that Demons was going to kill him. Id. at 79. The statements were declared nontestimonial because they were not remotely similar to such prior testimony or police interrogation, as they were made in a conversation with a friend, before the commission of any crime, and without any reasonable expectation that they would be used at a later trial. Id. at 80 (citation omitted).

People v. Shepherd, 689 N.W.2d 721 (Mich. Ct. App. 2004), found statements the defendants boyfriend, Bobby Butters, made to relatives visiting him in jail, which jail guards overheard, were clearly not testimonial. Id. at 729. Butters was speaking to relatives, not to the guards, and made spontaneous, unprompted comments regarding his role in the fleeing and eluding and assault. Id. Thus, [e]ven under the broadest definition of testimonial, it is unlikely that Mr. Butters would have reasonably believed that the statements would be available for use at a later trial. Id.

In State v. Blackstock, 598 S.E.2d 412 (N.C. Ct. App. 2004), Weeks was shot while working at a convenience store he owned and operated. He died five days later, but before his death, and while he was in the hospital, Weeks made several statements to his wife and daughter. The trial court allowed these statements over the defendants objection. The Court of Appeals of North Carolina concluded the statements made by Weeks to his wife and daughter were essentially nontestimonial in nature. Id. at 420. The statements were personal conversations that took place over a series of several days, made at a time when Weeks physical condition was improving. Id. Thus, the court found it unlikely that Weeks made the statements under the reasonable belief that they would be used prosecutorially.

Woods v. State, 152 S.W.3d 105 (Tex. Crim. App. 2004), found incriminating statements made by a co-defendant to acquaintances at a coffee shop were nontestimonial. The statements were casual remarks . . . made to acquaintances. Id. at 114 (footnote omitted).

In State v. Orndorff, 95 P.3d 406 (Wash. Ct. App. 2004), two masked men forced their way into Nordbys house. Nordby, who was upstairs at the time with Lorina Coble and several others, heard his minor son screaming and went downstairs to investigate. Norby engaged in a struggle with the two men, both of whom were armed. The intruders eventually subdued Nordby, but they fled after a 911 dispatch operator returned Cobles call which had been aborted. Coble did not testify at trial, but the trial court allowed Nordby to testify that Coble told him she saw a man with a pistol downstairs, saw both men leave, she tried to call 911, and was panic-stricken. Id. at 408. The court found Cobles statement nontestimonial: It was not a declaration or affirmation made to establish or prove some fact; it was not prior testimony or a statement given in response to police questioning; and coble had no reason to expect that her statement would be used prosecutorially. Id.

4. Application to the Case Sub Judice

Hills statements to Hicks were nontestimonial. First, the utterances do not fit within those examples that Crawford says clearly are testimoniali.e., they were not testimony at a preliminary hearing, before a grand jury, or at a former trial; or statements made to police during an investigation. See Crawford, 541 U.S. at ___, 124 S.Ct. at 1374.

Next, we turn to the trilogy of formulations mentioned by the Crawford opinion. Id. at ___, 124 S.Ct. at 1364. We need not adopt any of the three formulations because, in this case, the hearsay declarations are nontestimonial under each test. Hills statements were not ex parte in-court testimony or its functional equivalent, and they were not extrajudicial statements contained in formalized materials; to the contrary, Hills remarks were totally devoid of any formality or governmental involvement. As to the third formulation, we find no evidence that a reasonable speaker in Hills position would believe the statements made would be available for use at a later trial. Hills statements were made to warn an acquaintance not to purchase a gun that had just been used in a murder. Furthermore, the statements could incriminate Hill. Therefore, we are unconvinced that Hill, or a person in his position, would have uttered the statements with the reasonable belief they later would be used prosecutorially.

Hills declarations are much more akin to casual remarks to an acquaintance than formal statements to government officers. See Crawford at ___, 124 S.Ct. at 1364 (observing an accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.). Moreover, they bear no resemblance to the sort of examinations by justices of the peace which the Crawford Court stressed were the real impetus behind the Confrontation Clause. We hold that Hills statements to Hicks were nontestimonial; therefore, Crawford does not mandate that Davis be afforded the opportunity to test Hills statement through cross-examination.

However, our analysis does not end here. Under Crawford, [w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay lawas does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. 541 U.S. at ___, 124 S.Ct. at 1374. Accordingly, we turn to analyze whether Hills hearsay statements fall under a firmly rooted hearsay exception or else bear particularized guarantees of trustworthiness. Roberts, 448 U.S. at 66.

1. The Rule Against Hearsay

Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 801(c), SCRE. Hearsay statements are not admissible unless otherwise provided by the South Carolina Rules of Evidence or by other rules prescribed by the South Carolina Supreme Court or by statute. Rule 802, SCRE.

The trial judge admitted Hills declarations as statements made in furtherance of a conspiracy, see Rule 801(d)(2)(E), SCRE, and ruled that the utterances were not admissible as present sense impressions. Neither Hill nor Davis was charged with conspiracy and no evidence of a conspiracy exists. On appeal, the State concedes that admitting the declarations as statements by a coconspirator was erroneous. However, the State argues that admission of the statements should be upheld under the excited utterance exception found in Rule 803(2), SCRE. We address this exception pursuant to Rule 220(C), SCACR (The appellate court may affirm any ruling, order, or judgment upon any ground(s) appearing in the Record on Appeal.). See also IOn, L.L.C. v. Town of Mount Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000).

2. Excited Utterance Exception

Pursuant to Rule 803(2), 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 is not excluded by the hearsay rule, regardless whether the declarant is available as a witness. Rule 803(2), SCRE; see also State v. Sims, 348 S.C. 16, 20, 558 S.E.2d 518, 520 (2002) (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.).

Both the United States Supreme Court and the South Carolina Supreme Court have declared that excited utterance is a firmly rooted hearsay exception. White v. Illinios, 502 U.S. 346, 355 n.8 (There can be no doubt that the two exceptions we consider in this case are firmly rooted. The exception for spontaneous declarations is at least two centuries old . . . . It is currently recognized under Federal Rule of Evidence 803(2), and in nearly four-fifths of the States.); State v. Burdette, 335 S.C. 34, 45, 515 S.E.2d 525, 531 (1999) (We . . . find that the excited utterance exception is firmly rooted in South Carolina law and satisfies the requirements of the Confrontation Clause.); accord State v. Dennis 337 S.C. 275, 523 S.E.2d 173 (1999). Accordingly, we must determine whether Hills statements qualify under the excited utterance exception to the hearsay rule. If so, they were properly admitted.

Three elements must be met to show a statement is an excited utterance: (1) the statement must relate to a startling event or condition; (2) the statement must have been made while the declarant was under the stress of the excitement; and (3) the stress must have been caused by the startling event or condition. Sims, 348 S.C. at 21, 558 S.E.2d at 521. The court must consider the totality of the circumstances in determining whether a statement falls within the excited utterance exception. State v. LaCoste, 347 S.C. 153, 160, 553 S.E.2d 464, 468 (Ct. App. 2001); State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (2001). The rationale behind the excited utterance exception is that the startling event suspends the declarants process of reflective thought, reducing the likelihood of fabrication. LaCoste at 160, 553 S.E.2d at 468 (quoting State v. Dennis, 337 S.C. 275, 284, 523 S.E.2d 173, 177 (1999)).

Time is a factor in the excited utterance analysis, and our courts have allowed intervals in excess of an hour, even up to eleven hours, between the startling event and the statement. See State v. Blackburn, 271 S.C. 324, 328, 247 S.E.2d 334, 336 (1978). Courts have disallowed use of the excited utterance exception when an unusually long time period passed before the statement was made and the declarant had time to compose himself or herself or had other opportunities to speak. See State v. Whisonant, 335 S.C. 148, 515 S.E.2d 768 (Ct. App. 1999) (rejecting use of the exception based on ten-hour interval and two intervening opportunities to speak in which the declarant said nothing); Burroughs, 328 S.C. at 500-01, 492 S.E.2d at 413-14 (finding no excited utterance when there was a ten-hour interval and the declarant said she used the time to compose herself). The Burroughs court noted a useful rule of thumb that when enough time has elapsed between the event and the statement to permit reflective thought, the statement should be excluded. Id. at 500, 492 S.E.2d at 413. Use of the exception has been overturned when the interval cannot be determined from the record. State v. Garcia, 334 S.C. 71, 77, 512 S.E.2d 507, 510 (1999); State v. Hill, 331 S.C. 94, 501 S.E.2d 122 (1998).

However, the stress of the eventnot the time between the event and the statementis the linchpin of the excited utterance exception. See State v. Quillien, 263 S.C. 87, 97, 207 S.E.2d 814, 817 (1974). There are no hard and fast rules as to when res gestae ends. State v. Harrison, 298 S.C. 333, 336, 380 S.E.2d 818, 820 (1989), superseded by rule as stated in Hill, 331 S.C. at 99, 501 S.E.2d at 125.[1] Time is one factor to consider; [o]ther factors useful in determining whether a statement qualifies as an excited utterance include the declarants demeanor, the declarants age, and the severity of the startling event. Sims, 348 S.C. at 22, 558 S.E.2d at 521.

Additionally, the statement must be based on firsthand information, such as statements of an actual witness to an event. Hill, 331 S.C. at 99, 501 S.E.2d at 125; LaCoste, 347 S.C. at 161, 553 S.E.2d at 468. Firsthand knowledge may be established by information conveyed in the statement itself. Id. at 161, 553 S.E.2d at 469.

3. Application of Excited Utterance Exception to Hills Statement

Hills statement that the shotgun was used to kill Davis relates to a murder, and murder is certainly a startling event. See State v. Dennis, 337 S.C. 275, 284, 523 S.E.2d 173, 177 (1999) (rejecting appellants argument that the State failed to show a statement was an excited utterance where declarant had just seen his brother shoot an unarmed man, abruptly ending a fistfight). The closer issue is whether Hill was under the stress of the startling event when he made the controverted statements.

Considering the factors of severity of the stress of the event, time between the event and the utterance, and surrounding indicia of stress, we find sufficient evidence that Hill was under the stress of the murder when he made the declarations to Hicks. The statements relate to a highly stressful event. The time between the event and the statements was well within the time frame courts have allowed for excited utterances. See, e.g., Burdette, 335 S.C. 34, 515 S.E.2d 525 (allowing statements made less than one hour after event). Here, Hill encountered Hicks just ten to thirty minutes after Stevens and the two unidentified individuals fled from the murder scene. Furthermore, surrounding circumstances point to a conclusion that the stress of the event had not abated. Both Davis and Stevens bought an unusually large amount of drugs; Davis was willing to exchange an entire bag full of coins for drugs without counting it; and Stevens gave away drugs in an unusually generous gesture.

Furthermore, we find the record strongly supports Hills statements were based on firsthand information. Hill established that [s]tatements which are not based on firsthand information, as where the declarant was not an actual witness to the event, are not admissible under the exited utterance . . . exception to the hearsay rule. 331 S.C. at 99, 501 S.E.2d at 125 (citing 23 C.J.S. Crim. Law 876 (1989)). In Hill, the defendant shot a police officer in a car wash parking lot. Kenneth Grant arrived at the car wash fifteen minutes after the shooting, and testified in camera that some fifteen to twenty minutes after arriving he heard an unidentifiable person in the crowd say there were two suspects. The supreme court agreed with the trial court that the hearsay was inadmissible. Among other reasons for the ruling, there was no evidence the unidentified declarant witnessed the shooting. Id. at 100, 501 S.E.2d at 125. Subsequently, LaCoste amplified Hill by holding that firsthand knowledge of unknown declarants may be established by the declaration itself. 347 S.C. at 161, 553 S.E.2d at 469.

Here, there is sufficient evidence that Hills declarations to Hicks were based on personal knowledge. Unlike State v. Hill, the declarant in this case was known. Immediately before the shooting, Steven and Davis were heard arguing with the victim. Just after the shooting three individuals, one of whom was Stevens, were seen fleeing the scene. Minutes later Hill appeared with Stevens and Davis. We find this evidence supports the inference that Hill was one of the three individuals fleeing the scene; that he was, therefore, present at the murder scene; and that he had firsthand knowledge that the shotgun had been used to kill Williams.

Bolstering this conclusion is a jailhouse confession, signed by Davis, indicating that Davis shot the victim. When Davis was arrested, he was jailed and placed in a cell directly across from Hicks, who was incarcerated on an unrelated offense. According to Hicks, he and Davis would communicate with each other by placing a letter in a book and sliding the book from cell to cell. Hicks stated that he slid the following letter, which was admitted into evidence, to Davis:

Hey Chris the night that yall came and tried to sell me the shotgun was yall coming from Pauls house then what I need to know from you who was the trigger man and I know it wasnt Greg from what he told me that night so it had to be [illegible] you or Reggie cause you had the gun and Greg told me you and Reggie the who [sic] went in the house so who pulled the trigger if Reggie did it just write Reggies name or if you did just sign your name at the bottom and I will help you out by writing that letter just write what you want me to tell them.

The letter is signed Christopher Davis and dated 3-15-01. A handwriting expert testified that the signature was Daviss. Hicks acknowledged that he observed Davis sign the letter, and Davis admitting signing a piece of paper for Hicks, although he contended it was blank when he signed it. Davis does not appeal the trial judges admission of this confession. Therefore, its stands on its own and was independent evidence for the jurys consideration. The confession indicates that Hicks knew from Hill that either Stevens or Davis shot the victim. Thus, the confession, coupled with the strong inference that Hill was present at the crime scene, constitutes sufficient evidence that Hill had personal knowledge of the contents of his declarations.

Based on the totality of the circumstance, we find the record supports (1) Hills statement was related to a startling event; (2) it was made while Hill was under the stress of the event; (3) the stress resulted from the startling event; and (4) the statement was based on firsthand information. We therefore find Hills statement admissible under Rule 803(2), a firmly rooted hearsay exception.

II. Harmless Error

Finally, the State contends any error in admission of Hills hearsay declarations would be harmless. We agree.

A violation of the defendants Sixth Amendment right to confront the witness is not per se reversible error if the error was harmless beyond a reasonable doubt. State v. Gillian, 360 S.C. 433, 454, 602 S.E.2d 62, 73 (Ct. App. 2004) (internal quotation marks omitted) (quoting State v. Mizzell, 349 S.C. 326, 333, 563 S.E.2d 315, 318 (2002)); see also Delaware v. Van Arsdall, 475 U.S. 673 (1986) (finding Confrontation Clause violations are subject to harmless error analysis); Bockting v. Bayer, ___ F.3d ___, 2005 WL 406284 *8 (9th Cir. 2005) (Confrontation Clause violations are subject to harmless error analysis and thus may be excused depending on the state of the evidence at trial.); United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004) (Confrontation Clause violations are subject to harmless error analysis, because the Constitution entitles a criminal defendant to a fair trial, not a perfect one.) (internal quotation marks and citation omitted); Smith v. State, ___ So.2d ___, 2004 WL 921748 (Ala. Crim. App. 2004) (noting Confrontation Clause violations are subject to harmless error analysis); State v. Cotto, 865 A.2d 660 (N.J. 2005) (holding statements which did not fall under excited utterance exception were erroneously admitted but that the error was harmless); State v. Graham, 314 S.C. 383, 386, 444 S.E.2d 525, 527 (1994) (A violation of the defendants Sixth Amendment right to confront the witness is not per se reversible error. This Court must determine whether the error was harmless beyond a reasonable doubt.) (internal quotation marks and citation omitted); State v. Portnoy, 718 P.2d 805 (Wash. Ct. App. 1986) (finding Confrontation Clause violations are subject to harmless error analysis); cf. Neder v. United States, 527 U.S. 1 (1999) (noting the erroneous admission of evidence in violation of the Fifth Amendments guarantee against self-incrimination, and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment are both subject to harmless error analysis).

Courts around the nation have found that Crawford violations are no exception to this rule. United States v. Rodriguez-Marrero, 390 F.3d 1 (1st Cir. 2004) (finding signed confession testimonial under Crawford and engaging in a sua sponte harmless error analysis, but concluding admission of the statements was not harmless); United States v. McClain, 377 F.3d 219 (2nd Cir. 2004) (It is well established that violations of the Confrontation Clause, if preserved for appellate review, are subject to harmless error review . . . and Crawford does not suggest otherwise.) (citations omitted); United States v. Rashid, 383 F.3d 769 (8th Cir. 2004) (noting statements taken by FBI agent during course of interrogation were testimonial for purposes of Crawford, but admission was harmless error because other evidence of guilt was overwhelming); Stancil v. United States, ___ A.2d ___, ___, 2005 WL 195547 at *13 (D.C. Cir. 2005) (observing that the harmless error analysis applies to Crawford violations but finding the government had not made a sufficient showing the error was harmless); People v. Song, 22 Cal.Rptr.3d 118 (Cal. App. 2004) (employing harmless error analysis to Crawford violation and finding admission of the testimonial evidence was not harmless error); People v. Edwards, 101 P.3d 1118 (Colo. App. 2004) ([V]iolations of the rule announced in Crawford constitute errors in the trial process and are subject to either plain or harmless error review.); Bell v. State, 597 S.E.2d 350 (Ga. 2004) (finding statements victim made to police officer were testimonial and inadmissible under Crawford, but that the error was harmless); People v. Patterson, 808 N.E.2d 1159 (2004) (applying harmless error analysis to alleged Crawford violation); Hammon v. State, 809 N.E.2d 945 (Ind. App. 2004) (opining that even if battery affidavit were testimonial and improperly admitted, any error was harmless because its content was cumulative of other evidence); State v. Wright, 686 N.W.2d 295 (Minn. App. 2004) (declining to rule whether a 911 call was testimonial because even if it were, admission of the call would constitute harmless error).

Whether an error is harmless depends on the circumstances of the particular case. In re Harvey, 355 S.C. 53, 584 S.E.2d 893 (2003); State v. Taylor, 333 S.C. 159, 508 S.E.2d 870 (1998); State v. Thompson, 352 S.C. 552, 575 S.E.2d 77 (Ct. App. 2003). No definite rule of law governs this finding. State v. Pagan, 357 S.C. 132, 591 S.E.2d 646 (Ct. App. 2004). Rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case. State v. Mitchell, 286 S.C. 572, 336 S.E.2d 150 (1985).

Error is harmless where it could not reasonably have affected the result of the trial. In re Harvey, 355 S.C. at 63, 584 S.E.2d at 897; Mitchell, 286 S.C. at 573, 336 S.E.2d at 151; State v. Burton, 326 S.C. 605, 486 S.E.2d 762 (Ct. App. 1997). Where a review of the entire record establishes the error is harmless beyond a reasonable doubt, the conviction should not be reversed. State v. Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996); Thompson, 352 S.C. at 562, 575 S.E.2d at 83; State v. King, 349 S.C. 142, 561 S.E.2d 640 (Ct. App. 2002). Error is harmless beyond a reasonable doubt where it did not contribute to the verdict obtained. Arnold v. State, 309 S.C. 157, 420 S.E.2d 834 (1992).

Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result. State v. Sherard, 303 S.C. 172, 399 S.E.2d 595 (1991); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003). Thus, an insubstantial error not affecting the result of the trial is harmless where guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached. State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989); Adams, 354 S.C. at 381, 580 S.E.2d at 795; see also State v. Kelley, 319 S.C. 173, 460 S.E.2d 368 (1995) (noting that when guilt is conclusively proven by competent evidence, such that no other rational conclusion could be reached, this Court will not set aside the conviction for insubstantial errors not affecting result).

The admission of improper evidence is harmless where the evidence is merely cumulative to other evidence. State v. Haselden, 353 S.C. 190, 577 S.E.2d 445 (2003); State v. Braxton, 343 S.C. 629, 541 S.E.2d 833 (2001); State v. Blackburn, 271 S.C. 324, 247 S.E.2d 334 (1978); State v. Weaverling, 337 S.C. 460, 523 S.E.2d 787 (Ct. App. 1999); see also State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996) (instructing that error in admission of evidence is harmless where it is cumulative to other evidence which was properly admitted); State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993) (explicating that any error in admission of evidence cumulative to other unobjected-to evidence is harmless).

Hills statements, as related by Hicks, were (1) Davis and Stevens went into the victims house, and (2) the shotgun that Davis was trying to sell was used to murder the victim. Considering the other evidence before the jury, we harbor no reasonable doubts that any error in admitting Hills statement would have been harmless.

Foremost, Daviss confession, the admission of which is not at issue, contains the substance of Hills statements as testified to by Hicks. The confession establishes that Hicks knew from what Greg [Hill] told me that night . . . [the trigger man] had to be . . . you or Reggie [Stevens] cause you had the gun and Greg told me you and Reggie the who [sic] went in the house . . . . Thus, the substance of Hills declarations were properly before the jury. Consequently, Hickss testimony as to Hills hearsay was merely cumulative of other evidence, and its admissioneven if erroneouswas harmless.

Additionally, two witnesses, Hicks and his brother, Raymond, heard Davis, Stevens, and the victim arguing just before the gunshot. Following the gunshot, Hicks, Raymond, and a third witness, Calvin Patten, observed three individuals running from the victims back yard. Hicks and Patten both identified Stevens as one of the fleeing men, and police matched Stevenss shoeprint with one found at the crime scene.

Between ten and thirty minutes after the gunshot, Hill, Stevens, and Davis were seen together. According to Hicks, Davis had the shotgun, and Stevens purchased over $100 worth of crack cocaine, an unusually large purchase for Stevens. Calvin Patten testified that Stevens gave him some drugs in an uncharacteristically generous gesture. Lorenzo White averred that late one night Davis came to his house with the shotgun, wiped it down with Clorox to remove finger prints, and hid the gun somewhere in Whites house.

Thus, excluding Hickss testimony regarding Hills hearsay statements, the jury heard evidence that several witnesses overheard Stevens, Davis, and Williams arguing; thereafter a gun was fired; Stevens and two other individuals were seen fleeing the crime scene; Stevenss footprint was found at the crime scene; Stevens and Hill emerged and made a large drug purchase; Stevens gave away some crack cocaine in an unusually generous gesture; minutes later, Stevens and Hill returned with Davis, who was trying to sell a shotgun; Davis took the shotgun to a friends house, where he wiped down the gun with Clorox and hid it; Hicks wrote that he knew Davis and Stevens entered the house, and that one of them shot the victim; and Davis confessed to the murder. Under these facts, even were we to conclude Hills statements were improperly admitted, they were cumulative of statements in the confession, and the other evidence against Davis was so substantial that the hearsay utterances were neither material nor prejudicial. Therefore, any error in admitting the statements would be harmless.

Hills hearsay statements to Hicks were properly admitted. The utterances were nontestimonial; therefore, Crawford v. Washington does not bar the admission of these statements, even though Hill was unavailable at trial and Davis did not have a prior opportunity to cross-examine him. Hills statements were admissible under the excited utterance exception, Rule 803(2), SCRE, which is recognized as a firmly rooted hearsay exception. Accordingly, the Confrontation Clause does not require that Davis have the opportunity to cross-examine Hill regarding the nontestimonial excited utterance. Regardless, any error in admitting the statements would have been harmless. Daviss convictions are

AFFIRMED.

BEATTY and SHORT, JJ., concur.

[1] Although Harrison, Blackburn, and Quillien predate the South Carolina Rule of Evidence, their reasoning is still efficacious. Those cases were decided under the res gestae doctrine, and Rules 803(1) & (2) codify res gestae. See State v. Burdette, 335 S.C. 34, 43, 515 S.E.2d 525, 530 (1999); State v. Burroughs, 328 S.C. 489, 498-99, 492 S.E.2d 408, 412-14 (Ct. App. 1997).