(dissenting) — I dissent for two reasons. First, as I read the record, the trial court erred in admitting the hearsay statement of George Anthony Wilson against Cecil Davis under the “excited utterance” exception to hearsay. Second, jury instruction 13, defining aggravators to first *889degree murder, incorrectly allowed the jury to convict Davis of aggravated first degree murder absent unanimity as to what aggravating factor Davis committed. Because these two errors go to the heart of Davis’s conviction, I would reverse both his conviction and death sentence and remand for a new trial.
I. HEARSAY
Davis claims the testimony of prosecution witness Keith Burks, in which Burks related statements made by codefendant George Wilson, are hearsay and should not have been admitted at trial under the “excited utterance” exception, ER 803(a)(2). In my view the majority errs both in its standard of review as well as its application of the law to the facts.
A. Standard of Review
The majority claims, “A determination by the trial court that a hearsay statement falls within the excited utterance exception under ER 803(a)(2) will not be disturbed on appeal absent an abuse of discretion.” Majority at 841 (citing State v. Strauss, 119 Wn.2d 401, 417, 832 P.2d 78 (1992)). Developments since Strauss have made it less clear whether the standard of review for excited utterances is de novo or abuse of discretion.
In State v. Brown, 127 Wn.2d 749, 758, 903 P.2d 459 (1995), we noted: *890(quoting State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992) (quoting 6 John Henry Wigmore, Evidence in Trials at Common Law § 1747, at 195 (James H. Chadbourn ed. 1976))).
*889While we are sympathetic to the Court of Appeals’ desire to defer to the trial court’s evaluation of the complaining witness’ credibility and hence ultimately of the tape’s reliability, this approach has no place in the excited utterance rule. The excited utterance exception is based on the idea that:
‘under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control.’ The utterance of a person in such a state is believed to be ‘a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock,’ rather than an expression based on reflection or self-interest.
*890Taking its cue from Brown, Division Three of the Court of Appeals explicitly found the standard of review of an excited utterance was de novo. In State v. Sharp, 80 Wn. App. 457, 909 P.2d 1333 (1996), the Court of Appeals reasoned, “The events surrounding the utterance here occurred two months before the trial. The trial court, accordingly, is in no better position than we are to evaluate the circumstances surrounding [the declarant’s] utterance.” Id. at 461.
Division Three has recently retreated from Sharp, stating “[t]he standard of review is again abuse of discretion. Unfortunately, application of this standard to the excited utterance exception has become a bit clouded by two recent decisions, one by the Supreme Court, State v. Brown, and one from this Division, State v. Sharp.” State v. Williamson, 100 Wn. App. 248, 255-56, 996 P.2d 1097 (2000) (footnotes omitted). However Division Three’s retreat from Sharp is inexplicable — strictly speaking the court did not persuasively explain its retreat — in light of the undeniable truth of its statement in Sharp that, “The trial court... is in no better position than we are to evaluate the circumstances surrounding [an excited] utterance.” Sharp, 80 Wn. App. at 461. That statement is more consistent with our approach to standard of review in Brown than the more deferential standard the majority gives to the trial court’s determination. I would review the record de novo. Moreover, I do not believe Burks’s relation of Wilson’s statement qualifies as an “excited utterance” under even a lesser standard.
B. The Purported Excited Utterance
At issue is the following testimony from prosecution witness Burks, who was told the following by codefendant Wilson approximately five or six minutes after Davis began to perpetrate the crime: “[Davis] went over there to rip the *891lady off, but [he] just kicked in the door and started beating on her and rubbing [her] all over.” Report of Proceedings (RP) (Jan. 27, 1998) at 1508-09. Furthermore Wilson told Burks the victim was coming down the stairs, and that Davis rubbed her breasts. He identified the victim to Burks as “the old woman across the street,” RP at 1508, and told Burks that as soon as he realized what Davis was doing to the woman he left the Couch residence. These statements formed the centerpiece of the state’s case against Davis because they provided an eyewitness account of him inside the Couch residence attacking the victim.
The defense moved to exclude these statements as hearsay, but the trial court allowed them as excited utterance exceptions to hearsay. The three elements of the excited utterance exception are (1) a startling event or condition, (2) the declarant is under the stress of the startling event or condition, and (3) the declaration is related to the startling event or condition. ER 803(a)(2); Chapin, 118 Wn.2d at 686. Spontaneity is crucial to the determination. Williamson, 100 Wn. App. at 258. The passage of time between event and utterance is relevant but not dispositive. Strauss, 119 Wn.2d at 416-17. Other considerations include the declarant’s emotional state and whether the declarant had an opportunity to reflect on the event and fabricate a story. State v. Briscoeray, 95 Wn. App. 167, 173-74, 974 P.2d 912, review denied, 139 Wn.2d 1011, 994 P.2d 848 (1999). “[T]he ‘key determination is “whether the statement was made while the declarant was still under the influence of the event to the extent that [the] statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.” ’ ” Brown, 127 Wn.2d at 759 (second alteration in original) (quoting Strauss, 119 Wn.2d at 416 (quoting Johnston v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969))).
In this case, five to six minutes passed between Wilson’s witness of Davis’s alleged attack on the victim and speaking to Burks about it. It apparently took Wilson five to six minutes to cross the street, as we know the house Burks *892occupied was across the street from the Couch home. Five minutes’ time is ample and sufficient time to reflect and develop a self-serving story. See 5B Karl B. Tegland, Washington Practice: Evidence Law and Practice § 803.6, at 419-20 (4th ed. 1999) (“Although the statement need not be contemporaneous with the startling event, a number of decisions have excluded statements offered as excited utterances on the basis that the passage of time allowed the declarant to reflect.” (footnote omitted)).
In fact later events further demonstrate Wilson’s self-serving story was unreliable. Two days after speaking to Burks, Wilson spoke with another prosecution witness, Davis’s 16-year-old nephew Asil Hubley. Wilson told Hubley three different versions of his involvement in the crime. First Wilson told Hubley he had been inside the upstairs bathroom of the Couch residence (where the victim’s body was found). After that Wilson changed his story to say he stayed on the couch in the Couch home and heard noises coming from the bedroom upstairs. Thereafter Wilson changed his story still again to say he did not go into the Couch home at all. Wilson’s latest admission is inconsistent with his putative excited utterance that Davis entered the home and began to assault the victim. Wilson thus fabricated at some point in the development of his story, which casts further doubt on the reliability of his original, self-serving, utterance. While “[t]he fact that a statement is self-serving does not make the statement inadmissible,” nevertheless “the self-serving nature of a statement may be an important factor in judging spontaneity in particular instances.” 5B Tegland, supra, § 803.6, at 423-24 (footnote omitted). Looking at the length of time between Wilson’s going from the victim’s home to Burks’ house, the fact his story is inconsistent with later statements, and the fact it was self-serving demonstrate the statements lacked the suddenness, spontaneity, and other indicia of reliability necessary to justify admission of hearsay as exceptions to the rule. The majority’s conclusory assertions to the contrary (“The opportunity for [Wilson] to reflect on the state*893ment was minimal and the evidence supports a conclusion he was under stress when he spoke to Mr. Burks”; “[T]he time between the event and the statement was sufficiently slight to ensure that when he made the statement to Mr. Burks, Mr. Wilson was still under the stress of witnessing Appellant’s attack upon Ms. Couch.” Majority at 844-45) are conclusions not in tune with the facts.
C. Constitutional Right to Confront Accusing Witness
Davis claims the trial court’s decision to admit Wilson’s hearsay statements violated his right under the Sixth Amendment to the United States Constitution to confront accusing witnesses. At the heart of the Sixth Amendment’s confrontation clause is the reliability of evidence against an accused at trial. Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999) (“ ‘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.’ ” (quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990))). A hearsay statement must be reliable in order for its admission not to violate the confrontation clause. Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
Of course, hearsay statements are by definition unreliable, and hearsay statements from accomplices (we must recall Wilson was a codefendant of Davis) which implicate a criminal defendant are “inherently unreliable.” Lilly, 527 U.S. at 131. Nevertheless the Supreme Court has applied the “adequate ‘indicia of reliability’ ” requirement, stating that reliability can be inferred when a hearsay statement (1) “falls within a firmly rooted hearsay exception” or (2) contains “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66.
The majority claims, “The Supreme Court has stated that the excited utterance exception to the hearsay rule is a ‘firmly rooted hearsay exception’ that carries sufficient indicia of reliability to satisfy the reliability requirements *894of the confrontation clause.” Majority at 846 (citing White v. Illinois, 502 U.S. 346, 356 n.8, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992)). In fact, the Court in White u. Illinois says nothing of the sort. However in all fairness, in Idaho v. Wright, 497 U.S. 805, 827, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), the Court implied the “excited utterance” exception is “firmly rooted”:
[T]he statement [at issue] was not made under circumstances of reliability comparable to those required, for example, for the admission of excited utterances or statements made for purposes of medical diagnosis or treatment. Given the presumption of inadmissibility accorded accusatory hearsay statements not admitted pursuant to a firmly rooted hearsay exception . . . we agree with the court below that the State has failed to show . . . incriminating statements . . . possessed sufficient “particularized guarantees of trustworthiness” under the Confrontation Clause to overcome that presumption.
(Citation omitted.) So assuming arguendo the “excited utterance” exception is firmly rooted, it apparently falls within the Roberts rule.
Notwithstanding, the reasoning necessary to achieve the majority’s conclusion is circular: “In this case, Codefendant Wilson’s statement to Mr. Burks is reliable because it falls within a ‘firmly rooted’ hearsay exception, the excited utterance exception under ER 803(a)(2), and does not offend Appellant’s rights under the confrontation clause.” Majority at 847. As noted above, the excited utterance exception to hearsay is based solely upon the presumption that statements made while the declarant is under the stress of a startling event (and thus unable to reflect, fabricate, etc.) are reliable. Strauss, 119 Wn.2d at 415-16. For confrontation clause purposes, a hearsay statement is presumed reliable if it falls under a firmly rooted exception. Yet it falls under the exception in the first place only if it is presumed reliable. This bizarre chain of reasoning makes no sense.
Even if it did make sense, my conclusion would be no different because I do not believe Wilson’s statement to Burks constituted an excited utterance. Therefore I agree *895with Davis that the trial court erred in admitting the statements and that their admission violated his Sixth Amendment rights.
II. JURY INSTRUCTION 13
Jury instruction 13 is inconsistent with State v. Brett, 126 Wn.2d 136, 892 P.2d 29 (1995) and State v. Lord, 117 Wn.2d 829, 878, 822 P.2d 177 (1991) because it does not require unanimity as to a particular aggravating circumstance. It is particularly troubling in this capital context that the majority is willing to obviate numerous well-settled maxims of state and federal constitutional law in order to affirm a jury instruction which allows a nonunanimous conviction of our state’s most serious crime and sentence. I need not rehash, but will set forth for the record, my agreement with the searching criticism of nonunanimous aggravating circumstances instructions Justice Utter set forth in In re Personal Restraint of Jeffries, 110 Wn.2d 326, 349-55, 752 P.2d 1338 (1988) (Utter, J., dissenting). Developments in the case law since In re Personal Restraint of Jeffries confirm Justice Utter’s criticism.
In this case, jury instruction 13 reads:
If you find defendant Cecil Davis guilty of Premeditated Murder in the First Degree as defined in Instruction 9, you must then determine whether the following aggravating circumstance exists:
The murder was committed in the course of, in furtherance of, or in immediate flight from a Robbery in the First or Second Degree, a Rape in the First or Second Degree, or a Burglary in the First or Second Degree.
The State has the burden of proving the existence of an aggravating circumstance beyond a reasonable doubt. In order for you to find that there is an aggravating circumstance in this case, you must unanimously agree that the aggravating circumstance has been proved beyond a reasonable doubt. You need not be unanimous as to any one of the crimes listed within the aggravating circumstance.
Clerk’s Papers (CP) at 859.
*896In Brett we upheld an instruction on the issue of jury unanimity because it separated out the separate aggravating circumstances in RCW 10.95.020(9) and explicitly required unanimity as to each alternative on which the jury found Brett guilty. Brett, 126 Wn.2d at 174 (“The second to the last paragraph [of the challenged jury instruction] clearly informs the jury that if a unanimous decision on each element of an alternative cannot be reached then it is not to ‘fill in the blank for that alternative.’ ”).
In Lord, we found “incomplete” a jury instruction that allowed the jury to find rape or kidnapping was the underlying crime, and the jury was not required to unanimously agree as to which underlying crime — rape, or kidnapping, or both — was committed:
Each of the alternatives set out in both instruction 13 and Special Verdict Form A-l allowed the jury to find that either rape or kidnapping was the underlying crime. Because neither required the jury to unanimously agree as to which underlying crime — rape, or kidnapping, or both — was committed, the instruction was incomplete.
Lord, 117 Wn.2d at 878. The Lord instruction was “incomplete” in the sense it was similar to this instruction which lumped all aggravators together in the second paragraph, with the last sentence of the instruction excusing the jury from reaching a unanimous verdict on which aggravating factor, if any, applies.
Although the majority has apparently let the state draft this portion of its opinion,458 it does not disclose that the *897state concedes individualized interrogatories for each aggravator are at least preferable. Second Corrected Br. of Resp’t at 94 (“[T]he State suggests that in future cases the submission of interrogatories on the issue of which crimes the jury found applicable might be preferable.”). Unlike the state, I would argue unanimous agreement as to aggravators is required for Davis’s conviction to meet the minimum guaranteed standards of due process and trial by jury, U.S. Const. amend. V; Const. art. I, § 21, and to allow a meaningful opportunity to review Davis’s death sentence as required by statute, RCW 10.95.100. See also In re Personal Restraint of Jeffries, 110 Wn.2d at 354-55 (Utter, J., dissenting) (“[T]he fact that the jury was not required to unanimously agree on the different alternatives within the proposed aggravating circumstances makes meaningful review impossible. We are unable to carry out our statutory mandate to review this sentence of death because we cannot know what aggravating circumstance the jury had in mind when it endeavored to determine if leniency was appropriate.” (citing RCW 10.95.020)).
Following the state’s lead, the majority claims Davis seeks the “means within a means” approach to jury instructions this court rejected in In re Personal Restraint of Jeffries, 110 Wn.2d at 339-40. However, here we deal with aggravating circumstances in a significantly different way than was instructed in Jeffries. Jeffries was convicted of aggravated first degree murder where the aggravating circumstances were commission of the murder in order to conceal the commission of the crime or the identity of the defendant and multiple victims in a common scheme or plan. In re Personal Restraint of Jeffries, 110 Wn.2d at 338-39; RCW 10.95.020(7), (8). We observed:
The trial court instructed the jury that each element of the crime of aggravated murder in the first degree must be proved beyond a reasonable doubt, and that if either of the aggravating circumstances was proved beyond a reasonable doubt, the *898jury had a duty to return a verdict of guilty. In the same “to convict” instructions, the trial court also instructed the jury that the aggravating circumstances were alternatives, that only one need be proved, and that the jury must unanimously agree whether either had been proved.
Id. at 339. Furthermore the instruction separated out the two aggravating circumstances into two interrogatories rather than lumping them together. Id. The structure of the instructions in In re Personal Restraint of Jeffries was such that the jury “had to unanimously agree as to at least one of the alternative aggravating circumstances charged,” id., and do so by separate interrogatory. But the instructions here were significantly different.
Here the state alleged as aggravating factors that Davis committed the murder in the course of, in furtherance of, or in immediate flight from first or second degree robbery, first or second degree rape, or first or second degree burglary. CP at 859 (jury instruction 13); RCW 10.95.020(ll)(a)-(c). The instruction commingled three of the disparate aggravating crimes set forth in RCW 10.95.020(11) without requiring the jury to manifest unanimous agreement, by separate interrogatory, as to any aggravating crime Davis committed. Therefore less than a unanimous jury could have believed any particular aggravating crime existed — in fact less than even a bare majority of the jury — in order to unanimously find some aggravating crime had been committed.
Such an instruction offends well-settled constitutional principles. It is axiomatic that a criminal defendant can be convicted only on a unanimous verdict. State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994) (citing Wash. Const. art. I, § 21). An essential aspect of a unanimous jury trial is express juror unanimity on the means by which the defendant is found to have committed the crime. Ortega-Martinez, 124 Wn.2d at 707; accord State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980); State v. Whitney, 108 Wn.2d 506, 739 P.2d 1150 (1987); State v. Franco, 96 Wn.2d 816, 639 P.2d 1320 (1982). This instructional error demands *899reversal even if there was substantial evidence to indicate each of the alternative aggravators had been established; however, the evidence of each is problematic as well.
If alternative means of committing the crime are submitted to the jury, due process demands each alternative means charged must be supported by sufficient evidence. Franco, 96 Wn.2d at 823; Green, 94 Wn.2d at 232. The test for sufficient evidence is whether the evidence would justify a rational trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). This rule follows from the Winship doctrine that due process requires the government prove every element of a crime upon which a defendant is convicted beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
Here, Davis raises serious doubt as to the sufficiency of the evidence supporting either the robbery or rape aggravator. With respect to the robbery, the jury was instructed that a person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he inflicts bodily injury, RCW 9A.56.200, and is guilty of robbery in the second degree when he commits robbery. RCW 9A.56.210; CP at 863 (jury instruction 17). With respect to rape, for our purposes, a person is guilty of first degree rape when he engages in sexual intercourse with another person by forcible compulsion and inflicts serious physical injury on the victim or feloniously enters the building where the victim is situated, RCW 9A.44.040(l)(c)-(d), and a person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, he engages in sexual intercourse with another person by forcible compulsion. RCW 9A.44.050; CP at 865 (jury instruction 18).
A careful reading of the record in this case casts serious doubt on the sufficiency of the evidence supporting either the robbery or rape aggravators. First, the majority simply does not — because it cannot on this record — link the theft of certain items — cigarettes, food, beer, jewelry, etc., found on *900the defendant after the crime — with the underlying death of the victim. As Davis persuasively argues, Ms. Couch could have been dead well before an intent formed to steal any items from her home. As the majority frames the record, Ms. Couch was apparently killed sometime shortly after 2:30 a.m. on January 25,1997, but was not discovered dead until approximately 11:00 a.m. the following day. Majority at 809-12 (citing RP (Jan. 27,1998) at 1500-05; RP (Jan. 27,1998) at 1260-61). Accordingly there is reasonable doubt any bodily injury was inflicted in the course of or in immediate flight from the robbery. RCW 9A.56.200, .210. Furthermore there is reasonable doubt whether the murder was committed in the course of, in furtherance of, or in immediate flight from the robbery. RCW 10.95.020(ll)(a).
Secondly, the most convincing evidence to implicate Davis as the rapist as opposed to his codefendant George Wilson is Wilson’s self-serving hearsay statements to Keith Burks admitted at trial over the objection of defense counsel, and discussed above. This is not a record where DNA (deoxyribonucleic acid) evidence links Davis to the rape. Rather it is a record of circumstantial evidence bolstered by a hearsay account which, in my view, should not have been admitted at trial.
Failing sufficient evidence to convict on the alternative means of committing aggravated first degree murder, we are left with the scenario of Green, in which a conviction must be reversed because:
In the instant case, the jury instructions and verdict form did not require the jury to unanimously find appellant committed or attempted to commit either first degree kidnapping or rape or both. As instructed, it was possible for the jury to have convicted Green with six jurors resting their belief of guilt upon kidnapping and the other six resting their belief upon rape. Thus, it is impossible to know whether the jury unanimously decided that the element of rape had been established beyond a reasonable doubt.
Green, 94 Wn.2d at 233. Likewise here we do not know whether the jury unanimously decided whether the rape, *901robbery, or burglary with which Davis was charged as an aggravator was established beyond a reasonable doubt.
Based on the jury instructions we reviewed in Brett and Lord, after In re Personal Restraint of Jeffries, we affirmed the necessity of unanimous jury verdicts as to each alternative aggravator, the lack of which renders, in Lord, the aggravating crimes instruction “incomplete.” This “incompleteness” is repugnant here because it leaves us in the constitutionally intolerable position of reviewing Davis’s death sentence on a conviction of aggravated first degree murder without having the slightest idea what aggravating circumstance, if any at all, the jury unanimously agreed existed.
I dissent.
Compare Majority at 867 (“Appellant’s argument merely reiterates the ‘means within a means’ argument rejected by this Court in In re Personal Restraint Petition of Jeffries . . . .”) with Second Corrected Br. of Resp’t at 92 (“Defendant’s argument merely reiterates the ‘means within a means’ argument rejected by this Court in Personal Restraint Petition of Jeffries.” (citation omitted)); Majority at 867 (“[T]his Court held that a jury instruction similar to jury instruction number 13 was incomplete because it and the special verdict form allowed the jury to find that either rape or kidnapping was the underlying crime.”) with Second Corrected Br. of Resp’t at 94 (“This Court held that the instruction was incomplete because the instruction (as well as the special verdict form) allowed the jury to find that either rape or kidnapping was the underlying crime.”); Majority at 868 (“There is no merit to Appellant’s argument there was not sufficient evidence to support the various crimes against him ....”) with *897Second Corrected Br. of Resp’t at 95 (“[Tjhere is no merit to defendant’s argument that there was insufficient evidence to support the various crimes . .. .”).