¶ 42. (dissenting). In the landmark case of Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court announced that out-of-court statements by witnesses that are testimonial are barred under the Confrontation Clause unless the witnesses are unavailable and the defendants had a prior opportunity to cross-examine them, regardless of whether such statements are deemed reliable by the court. In Crawford, the Court advised that statements that are testimonial include "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52 (citation omitted).
¶ 43. Recently, the Supreme Court again weighed in on the issue in Davis v. Washington, (No. 05-5224), and Hammon v. Indiana, (No. 05-5705), 547 U.S. _, 126 S.Ct. 2266 (2006). In these latest two cases, the Supreme Court refined the definition of what is a "testimonial" statement, and determined in Davis that 911 calls in which a party seeks assistance while the emergency still exists are "nontestimonial." Id. at 2276-77. However, in Hammon, the Court determined that when a police officer, responding to a domestic violence call, encounters two people who are no longer engaged in any disputes, but sees evidence that a fight occurred, and elicits a statement from one that the other person in the home hit her, that statement is testimonial. Id. at 2278-79. It appears that the lynchpin for the different outcomes was the fact that in Davis, the emergency was ongoing, while in Hammon, the emergency had ended. The Supreme Court noted that:
*837The statements in Davis were taken when McCottry was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. McCottry's present-tense statements showed immediacy; Amy's narrative of past events was delivered at some remove in time from the danger she described.
Id. at 2279. Applying these holdings to our facts, I disagree with the majority's conclusion that the victims' two sets of excited utterances occurring on separate days were entirely non-testimonial in nature, and thus admissible at trial when the victims failed to appear.
¶ 44. The initial contact the police had with LaMoore and her daughter fell outside the "911" call exception of Davis because the emergency had ended by the time the police arrived. Rodriguez was not in the home. Thus, the questioning and investigation was testimonial as the victims certainly expected that their later statements would form the basis of a criminal complaint against Rodriquez and "be available for use at a later trial." LaMoore and her daughter's second encounter with police came the next day when the police returned LaMoore's property and dog to her. One of the motives behind the police going to LaMoore's residence and returning LaMoore's property was to locate Rodriquez. The subsequent police interrogation of LaMoore revealed that Rodriquez was hiding in the house. No "emergency response system" prompted the police to return to the home, and LaMoore knew by answering the police questions and acknowledging that Rodriquez was in the home that her statement would be used by police at trial. LaMoore may have been fearful when she found herself confronted by the police while Rodriguez hid in the house, hut the police questioning *838and her responses did not fall within the "emergency response system" exception. She was outside the home when interrogated, protected by the police, while Rodriguez was inside.
¶ 45. The majority bootstraps its decision legitimizing the admission of these statements by noting that excited utterances often have a higher degree of reliability than other statements. However, the Supreme Court's ruling reinvigorated the constitutional right that under our system of justice the accused has the right to confront the accusers. The holding in Crawford specifically abrogated the prior law found in Ohio v. Roberts, 448 U.S. 56 (1980), and said that no matter how reliable a testimonial statement may appear, reliability must be tested by cross-examination. Crawford, 541 U.S. at 61.
¶ 46. I also see a distinction between the Wisconsin cases the majority cited for support and the facts here. In both State v. Hemphill, 2005 WI App 248, 287 Wis. 2d 600, 707 N.W.2d 313, and State v. Searcy, 2006 WI App 8, 288 Wis. 2d 804, 709 N.W.2d 497, citizen witnessesnot victimsvolunteered an isolated bit of information to the police. Citizens who volunteer information of this nature to the police usually do not have an expectation that their statements will require them to testify. This is in contrast to victims who ordinarily would assume that information they give to the police regarding a crime would "be available for use at a later trial."
¶ 47. The end result of the majority's determination is that Rodriquez had no opportunity to confront his accusers and the jury was denied the opportunity to evaluate the accusers' testimony and assess their demeanor, both often key in a search for the truth and in *839rendering a thoughtful decision. Indeed, the State's case concerning the first four counts consisted solely of police officers' testimony.
¶ 48. Finally, other events in this trial raise doubts about its fairness. The exploration of a defense witness's gang affiliation ten years before is questionable. So, too, Rodriguez's defense counsel's failure to object to obviously improper questions by the prosecutor and his cross-examination of a police officer which led to the police vouching for the truthfulness of the victimsa question that the prosecutor would have been prohibited from askingstrongly suggest that defense counsel's trial skills were woefully inadequate and that Rodriguez was prejudiced as a result.
¶ 49. For the aforementioned reasons, I respectfully dissent.