(concurring/dissenting) — I write separately to express my disagreement with the majority’s conclusion that Edward Rembert’s hearsay statement was properly admitted as an excited utterance. The statement does not qualify as an excited utterance, and its admission violated Coveil Thomas’s confrontation clause rights as well as ER 802.
ANALYSIS
The hearsay rule, ER 802, generally excludes hearsay from being introduced as evidence because cross-examination is the best vehicle for determining whether a witness is providing trustworthy testimony. State v. Chapin, 118 Wn.2d 681, 685, 826 P.2d 194 (1992). Reliability may otherwise be established as demonstrated by the numerous exceptions to the rule. Id. One exception to the hearsay rule is the excited utterance, which 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.” ER 803(a)(2). The 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.’ ” Chapin, 118 Wn.2d at 686 (quoting 6 John Henry Wigmore, Evidence in Trials at Common Law § 1747, at 195 (James H. Chadbourn rev. ed. 1976)). The utterance is believed to be a “ ‘response to the actual sensations and perceptions already produced by the external shock’ ” rather than based on reflection or self-interest. Id.
The excited utterance is a firmly rooted hearsay exception, considered to be so trustworthy that cross-examination is expected to add little to its reliability. Chapin, 118 Wn.2d at 685-86 (citing White v. Illinois, 502 U.S. 346, 357, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992)); State v. Woods, 143 *878Wn.2d 561, 595, 23 P.3d 1046 (2001). If a statement is admissible as an excited utterance, it bears adequate in-dicia of reliability such that its admission does not violate the confrontation clause. White, 502 U.S. at 356 n.8; State v. Davis, 141 Wn.2d 798, 846, 10 P.3d 977 (2000); State v. Palomo, 113 Wn.2d 789, 797, 783 P.2d 575 (1989); see Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
Three conditions must be satisfied for a statement to fall within the excited utterance exception to the hearsay rule: (1) A startling event or condition must have occurred, (2) the statement must have been made while the speaker was under the stress of the excitement caused by the startling event or condition, and (3) the utterance must relate to the startling event or condition. Woods, 143 Wn.2d at 597; Chapin, 118 Wn.2d at 686-88.
Here, as they drove away after the van was set on fire, Rembert said to his girl friend Desiree Azevedo that Thomas shot Richard Geist: “Des, he shot him. He shot him. He shot him in his head.” Verbatim Report of Proceedings at 4868. At the time, according to Ms. Azevedo’s testimony, Rembert appeared scared and was shaking, his leg was cold to the touch, and a tear fell down his face. She had never seen him like this. This evidence establishes that Rembert was upset when he made the statement.
However, according to the State’s evidence and theory of the case, this statement was made only after the shooting, after Rembert helped Thomas remove Mr. Geist’s body from the van, after they returned to Geist’s residence, after they illegally entered and ransacked Geist’s home in a search for money — during which Rembert waited quietly when a friend of Geist’s, Mr. Walker, knocked on the door and then waited until Walker left, after Rembert received money from Thomas for his participation, after they met up with Ms. Azevedo and Thomas’s girl friend Lynette Ducharme and talked, after following the women from Tacoma to a place in Gig Harbor, and after the van was destroyed to hide incriminating evidence. Some one and one-half to two hours *879had passed from the time of the murder to the time the statements were made, with Rembert engaged in considerable criminal activity during that time that required thought and reflection, some of which was designed to prevent the police from discovering his identity.
Under these circumstances, the second requirement for an excited utterance is lacking. This requirement is that “ ‘ “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.” ’ ” State v. Brown, 127 Wn.2d 749, 758-59, 903 P.2d 459 (1995) (alteration in original) (quoting State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992) (quoting Johnston v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969))). “The second element ‘constitutes the essence of the rule’ and ‘[t]he key to the second element is spontaneity.’ ” State v. Lawrence, 108 Wn. App. 226, 234, 31 P.3d 1198 (2001) (quoting Chapin, 118 Wn.2d at 687-88), review denied, 145 Wn.2d 1037, 43 P.3d 21 (2002). Simply because Rembert appeared upset at the time the statements were made does not mean they come within the excited utterance exception. For example, in Brown, the victim was a prostitute who was allegedly raped by several men after she voluntarily went to an apartment to engage in sexual activity with one man. Prior to calling 911, she fabricated part of her story to appear more sympathetic to police, saying that she had been abducted and taken to the apartment. This court held that her statements to 911 did not qualify as an excited utterance. Not only did she have the time to fabricate, she actually did so in part.
Here, as in Brown, there was considerable opportunity and motive for Rembert’s statement to be fabricated or made in the exercise of choice and judgment. He had ample time to reflect on all the events of the night, at the least during the drive from Tacoma to Gig Harbor. There is no evidence he ever sought to disassociate himself from the night’s activities, and no indication he was other than a *880willing participant in the subsequent burglary of Geist’s residence. He had strong motivation to distance himself from the shooting as much as possible and place as much blame on Thomas as possible. He also could have wanted his girl friend to believe that Thomas, not he, actually shot Geist.
The point here is not whether Rembert was upset or distressed when he made the statement. It is, in the ultimate sense, whether the statement he made, in light of all the surrounding events and circumstances, may be said to be so inherently reliable and trustworthy as to be admissible without the benefit of the opportunity for cross-examination. This is, as noted, the foundation for the excited utterance exception. Here, there is too great a passage of time, too many intervening events, too much evidence that Rembert was a willing participant who consciously sought to conceal his participation, and too strong a motive to fabricate or alter the story for a court to accept that Rembert’s statements were sufficiently spontaneous to constitute an excited utterance. Accordingly, it cannot be said to be inherently reliable and trustworthy.
I would hold that the trial court abused its discretion in admitting the statement as an excited utterance, and would hold that as a result, Thomas’s right to confront the witnesses against him was violated, as well as ER 802.
Johnson and Sanders, JJ., concur with Madsen, J.