Langley v. State

*581ELDRIDGE, J., dissenting, in which BELL, C.J., and GREENE, J., join.

I dissent. The United States Supreme Court, in overturning Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and establishing new guidelines for the admission of out-of-court statements, set forth in its opinions several criteria to be used to determine whether the primary purpose of those statements is testimonial or not. The majority opinion ignores most of these criteria and focuses almost exclusively on the single issue of whether the telephone call was made during an ongoing emergency. Because the shooter in this case had left the scene of the crime, and no longer posed an immediate threat to individuals in the vicinity or to police, there was not an ongoing emergency at the time the 911 call was made. Moreover, even if there was an ongoing emergency, the majority opinion fails to properly apply all of the criteria explained in the Supreme Court’s evolving line of cases regarding testimonial statements. A correct analysis of all the criteria shows that the caller’s statements in this case were clearly testimonial and should not have been admitted into evidence without allowing the defense to cross-examine the caller.

I.

The main issue of contention in this case arose when the State sought to introduce into evidence a recorded 911 call that had been the subject of a pre-trial motion in limine by defense counsel. Defense counsel argued that admitting the 911 recording violated the Confrontation Clauses of the Sixth Amendment and Article 21 of the Maryland Declaration of Rights because the caller was not present at the trial. As the caller’s identity was unknown, defense counsel contended that the tape of the 911 call “places [the defense] in an awkward position simply because [the caller] is not subject to any cross-examination.” The State countered defense arguments by pointing out that

*582“[T]he Confrontation Clause says that the defense should have an opportunity ... to cross-examine those who bear witness against them.... [T]he purpose of making a 911 call is not to bear witness, but to provide information ... through the excited utterance exception to the hearsay rule....”

Over defense counsel objections, the 911 tape was held to be admissible. The trial judge decided that admitting the 911 recording did not trigger the protections of the Confrontation Clause because the call

“was simply an ordinary citizen giving information as to the suspect or suspects, or possible suspects, during a startling event and ... I find that the information was non-testimonial hearsay.”

The information on the tape was used to link the license plate number of the getaway car to a vehicle driven by the defendant on the day of the shooting.

Langley was convicted of murder in the first degree, use of a handgun in the commission of a felony, and wearing or carrying a handgun. He appealed to the Court of Special Appeals, arguing, inter alia, that his Sixth Amendment and Article 21 rights of confrontation had been violated by the admission of the recorded 911 call. The Court of Special Appeals, in an unreported opinion, affirmed, holding that the 911 recording was non-testimonial and was not subject to the restrictions of the Confrontation Clauses. Citing the United States Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the intermediate appellate court decided that the statements made on the 911 recording were not “ ‘designed primarily to establish or prove some past fact,’ ” but, instead, that the call had been made “ ‘to resolve the present emergency5 by catching the fleeing felon.” Alternatively, the Court of Special Appeals held that, “if, arguendo, the admission of the 911 tape were in error,” the “error was harmless.” The appellate court vacated the defendant’s conviction for wearing or carrying a *583handgun, holding that it merged into the greater handgun offense.

Langley filed in this Court a petition for a writ of certiorari which was granted. In his petition, Langley did not contest the ruling by the trial court and the Court of Special Appeals that the caller’s statements in the 911 call constituted an “excited utterance” and are therefore admissible under Maryland Rule 5—803(b) (2).1 Rather, Langley limited his question before this Court to whether the admission of the 911 call violated the Confrontation Clauses of the State and Federal Constitutions. He also challenged the Court of Special Appeals’ ruling on harmless error.

II.

The Sixth Amendment to the United States Constitution, applicable to state proceedings by virtue of the Fourteenth Amendment, guarantees that, “In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.... ” Similarly, Article 21 of the Maryland Declaration of Rights mandates “[t]hat in all criminal prosecutions, every man hath a right to ... be confronted with the witnesses against him; [and] ... to examine the witnesses for and against him on oath.... ” Langley contended that the admission of the recorded 911 call, without subjecting the caller to cross-examination, violated his rights to confront a witness.

As briefly explained in the majority opinion, the United States Supreme Court considered the permissibility of “[testimonial statements of witnesses absent from trial” in Crawford *584v. Washington, supra, 541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed.2d at 197. The Supreme Court traced the right to confront one’s accusers back to Roman times and examined how that right had been shaped by English common law and practices in the early American Colonies. This historical review led to the following conclusion (541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed.2d at 197):

“Our cases have ... remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”

The Crawford Court, however, distinguished between “testimonial” statements, which are subject to the requirements of the Confrontation Clause, and “nontestimonial” statements, which may be admitted into evidence if they fall within one of the hearsay exceptions. The Court later explained that “the testimonial character of the statement ... separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, supra, 547 U.S. at 821, 126 S.Ct. at 2273, 165 L.Ed.2d at 237.

The Court declined to define comprehensively “testimonial” statements, but explained that “[a]n 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.” Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192. The Court offered a representative list of statements that exemplified the “testimonial” class, stating (541 U.S. at 50-51, 124 S.Ct. at 1364, 158 L.Ed.2d at 193, internal quotation marks omitted):

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, ... [as well as] extrajudicial statements ... contained *585in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions ... [and] 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.... These formulations all share a common nucleus and then define the [Confrontation] Clause’s coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition—for example, ex parte testimony at a preliminary hearing.”

The Court in Crawford reviewed a recording of police officials interrogating a defendant’s wife. The wife did not testify at her husband’s trial due to the marital privilege, so the prosecution sought to introduce the tape of her interrogation instead. The Court held that the recording constituted a “testimonial” statement and, therefore, could not be admitted into evidence without subjecting the wife to cross-examination. As this Court observed in State v. Snowden, 385 Md. 64, 78, 867 A.2d 314, 322 (2005), the Crawford opinion “fundamentally altered ... Confrontation Clause jurisprudence.” The Crawford opinion commenced the Supreme Court’s foray into distinguishing between testimonial and non-testimonial statements, but the case left many questions unanswered regarding the criteria used to determine if a statement is “testimonial.”

The Supreme Court next addressed this distinction in Davis v. Washington, supra, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224. The Supreme Court in Davis reviewed two trials where witnesses’ out-of-court statements were admitted. One of those trials involved a recorded 911 call, and the Court considered whether the statements contained in the 911 recording qualified as nontestimonial statements that could be admitted without subjecting the caller to defense questioning. The Supreme Court examined the content of the call to determine its admissibility. The 911 call in Davis commenced with a woman telling the operator that she is being attacked by her boyfriend and that “ ‘[h]e’s here jumpin’ on me again’ ” and “ ‘usin’ his fists.’ ” After giving the 911 operator her attacker’s name and answering a few questions, the caller *586stated that “ ‘[h]e’s runnin’ now1 ” and explained that her attacker had “ ‘just r[un] out the door’ ” and was leaving in a car with someone else. The police arrived “within four minutes of the 911 call” and noted the “ ‘fresh injuries on her forearm and her face’ ” and her “ ‘frantic efforts’ ” to leave the residence. Davis v. Washington, supra, 547 U.S. at 817-818, 126 S.Ct. at 2271, 165 L.Ed.2d at 234-235.

The Supreme Court in Davis held that the statements contained in the 911 recording were “nontestimonial” and therefore properly admitted as evidence, explaining (547 U.S. at 822, 126 S.Ct. at 2273-2274, 165 L.Ed.2d at 237):

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

The Court acknowledged that the “inquiries of a police operator in the course of a 911 call are an interrogation in one sense,” but clarified that the interrogation aspect of the inquiries alone was not enough to mandate that all 911 recordings are testimonial. Davis, 547 U.S. at 823, 126 S.Ct. at 2274, 165 L.Ed.2d at 238. The Court distinguished 911 calls from other sorts of interrogation because 911 calls are “ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” Davis, 547 U.S. at 827, 126 S.Ct. at 2276, 165 L.Ed.2d at 240.

To demonstrate the difference between testimonial and nontestimonial statements, the Davis opinion contrasted the police interrogation recording at issue in Crawford with the 911 call in Davis, explaining which aspects made the Crawford recording testimonial and the Davis 911 call nontestimonial. The Court stated that, in Davis, the caller was “speaking *587about events as they were actually happening, rather than ‘describing] past events.’ ” Davis, 547 U.S. at 827, 126 S.Ct. at 2276, 165 L.Ed.2d at 240 (emphasis in original). The testimonial statements in Crawford took place “hours after” the criminal incident as compared to the 911 call, which dealt with an “ongoing emergency.” The Court pointed out that the 911 call in Davis was “a call for help against a bona fide physical threat” rather than a “narrative report of a crime absent any imminent danger.” Ibid. Moreover, the 911 operator’s questions sought “to resolve the present emergency, rather than to learn (as in Crawford) what had happened in the past.” Ibid. Finally, the Court compared the “level of formality” between the two recordings, noting that the wife in Crawford calmly answered the police questions, while the 911 caller in Davis gave “frantic answers” from a setting that was “not tranquil, or even (as far as any reasonable 911 operator could make out) safe.” 547 U.S. at 827, 126 S.Ct. at 2277, 165 L.Ed.2d at 240. As indicated in Davis, and as later summarized by this Court in State v. Lucas, 407 Md. 307, 323, 965 A.2d 75, 85 (2009), formality may also include details such as the interview’s location, the declarant’s spatial distance from the defendant, the police official’s use of the declarant’s replies, and whether the statements are deliberately recounted in response to interrogation. The Supreme Court captured the essence of these guidelines by noting: “No ‘witness’ goes into court to proclaim an emergency and seek help.” 547 U.S. at 828, 126 S.Ct. at 2277, 165 L.Ed.2d at 241.

The Davis Court highlighted four factors in determining whether a statement is testimonial or nontestimonial. First, the timing of the statement in relation to the incident is important. Nontestimonial statements are made while events are actually happening, while testimonial statements occur after the incident. Nontestimonial statements relate to an ongoing emergency and are not a simple reporting of past incidents. Additionally, a nontestimonial statement seeks help to resolve a present crisis while a testimonial statement recounts or explains a past event or gives details regarding a crime that has occurred. The formality of the statement is also a factor in determining whether a statement is testimonial *588or not. A nontestimonial statement is often made in a frantic state lacking tranquility, while calm answers are more a hallmark of testimonial statements. Despite describing these criteria in great detail, the Davis Court asserted that it was not “attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or non-testimonial.” Davis, supra, 547 U.S. at 822, 126 S.Ct. at 2273, 165 L.Ed.2d at 237.2

The Supreme Court, in Michigan v. Bryant, 562 U.S. -, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), recently clarified some of the criteria discussed in the Davis case. Bryant involved statements made by a fatally wounded gunshot victim in response to police questioning that occurred when the police first arrived at the scene of the crime. The Court held that the statements were nontestimonial. The Supreme Court in Bryant cautioned that courts should be careful not to construe Davis as having “decided more than it did” and thus should be wary of “employing] an unduly narrow understanding of ‘ongoing emergency’ that Davis does not require.” Bryant, 562 U.S. -, 131 S.Ct. at 1158, 179 L.Ed.2d at 110. The Bryant Court observed that, “whether an emergency exists and is ongoing is a highly context-dependent inquiry.” Ibid. Furthermore, a court’s inquiry should be objective. The Bryant opinion explained that (562 U.S. -, 131 S.Ct. at 1156, 179 L.Ed.2d at 109)

“the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.”

The Bryant Court repeated the holding of Davis that “the ultimate inquiry is whether the ‘primary purpose of the inter*589rogation [was] to enable police assistance to meet [the] ongoing emergency.’ ” Bryant, 562 U.S. -, 131 S.Ct. at 1165, 179 L.Ed.2d at 117, quoting Davis, supra, 547 U.S. at 822, 126 S.Ct. at 2266, 165 L.Ed.2d at 224.3

The principal question before this Court is not, as the majority opinion portrays it, whether the statements made in the 911 call occurred during an ongoing emergency. If that were the test, recordings of all 911 calls would be admissible, as 911 is for emergencies only. Rather, the question is whether those statements are testimonial or not. Applying the factors utilized by the Supreme Court, I believe that the recording in the present case consisted of testimonial statements and, as such, should not have been admitted without making the caller available for questioning by the defense.

This Court should first examine the amount of time between the reported incident and the recorded statements. The timing of the 911 call in the present case strongly suggests that the statements are testimonial. Although the record does not show the amount of time lapsed between the 911 call and the shooting, the caller begins by telling the 911 operator that she wants “to give some information on a shooting that just occurred.” In short, the caller is giving information about a past event. The caller urges the operator to “[h]urry up” because the incident is “just happening.” The caller’s urgency, however, does not relate to stopping the shooting or *590getting medical assistance, but instead relates to the fact that the caller has seen the apparent shooter get into his car and objectively believes that the perpetrator may successfully escape. The timing in Davis contrasts sharply with the present case. In Davis, the caller tells the operator that she is being beaten, her attacker is still in the home, and only after ten responses does she report that her attacker is leaving. It is clear that the caller in the case at bar is not describing the shooting as it is actually happening, and she is not facing the same immediacy of events faced by the speakers in Davis and Bryant The caller was describing past events.

The existence of an “ongoing emergency” is closely related to the timing of the statements. The Supreme Court in Bryant explained that “whether an emergency exists and is ongoing is a highly context-dependent inquiry.” Bryant, 562 U.S. -, 131 S.Ct at 1158, 179 L.Ed.2d at 110. In Bryant, the statements were made by the victim while the victim was suffering from a gunshot wound. In Davis, the attacker was still in the home with the caller when she dialed 911 and reported that he was beating her. In the present case, the caller, notably not a victim of the shooting, called after the attack had occurred and reported that she had seen the apparent shooter get into a car. The alleged perpetrator had already fled the scene of the shooting, the police were on their way, and the caller contacted 911 only to report information about the flight of the apparent shooter. At the time of her 911 call, the emergency was not ongoing; it had concluded.

The majority opinion, dramatically and without reason, expands the holding of Bryant to conclude that “except in domestic disputes” with facts similar to Davis, “a court may not hold that an emergency is no longer ongoing” because the alleged perpetrator has fled. No such language is found in Bryant The Bryant opinion does not limit the holding of Davis to domestic disputes and, in fact, declares that an emergency is not ongoing when, as in the present case, a perpetrator “flees with little prospect of posing a threat to the public.” Bryant, 562 U.S. -, 131 S.Ct. at 1159, 179 L.Ed.2d *591at 112. Although the majority opinion attempts to portray the facts in this case as similar to Bryant, where the police did not know if the shooter remained in the area or continue to pose a threat, the police in this case knew that the shooter had left the scene and was no longer a threat to the police or the public at the scene.

Moreover, the majority opinion argues on the one hand that there is an ongoing emergency any time a shooter is at large, but, on the other hand, concedes in footnote 8 that an emergency is not ongoing simply because a suspect has not yet been caught. According to the majority’s reasoning, a witness could see a suspect the following day, call 911 “seeking police assistance to help capture the fleeing suspect,” and such a call would qualify as an “ongoing emergency.”

Another element of a nontestimonial statement is that such statements seek help to resolve a present crisis. The caller in the present case did not call 911 to request police or any other assistance. The caller did not tell the operator any information concerning the shooting, such as the specific shop in which the shooting took place, how many people, if any, were shot, if there were any injuries, or what instigated the shooting. The only information the caller relates concerns the identification of the alleged shooter—his car tag number and his physical appearance. All of this information is typically testimonial and is not associated with a call seeking police assistance. A starkly different situation was presented in Bryant where the police encountered a wounded victim in a parking lot and asked him “ “what had happened, who had shot him, and where the shooting occured.’ ” Bryant, 562 U.S. -, 131 S.Ct. at 1166, 179 L.Ed.2d at 118. Not only were these questions not asked by the 911 operator in the present case, but the information relayed by the caller barely touches on these topics and certainly does not hold the same importance in resolving an ongoing emergency. The majority opinion asserts that, in the present case, the caller said nothing to indicate that the “ ‘threat from the shooter had ended.’ ” I find it impossible to assume anything less from the caller’s statements that she had seen the shooter get into a car and flee the *592scene. The operator did not even ask if medical assistance was required and merely asked questions later used to identify the shooter.

When asked by the operator where the police should be sent, the caller replies that police are not needed and redirects the questioning by telling the operator that she is calling to report details of the getaway vehicle, stating:

“I don’t want [the police] sent nowhere. They already going out to the store. But the guy, I seen him get in the car. Tag number MRG 908.”

A hallmark of a testimonial statement is the declarant’s desire to give details regarding a crime that has occurred in the past. Where statements are “ ‘neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation’... they [are] testimonial.” Bryant, 562 U.S. -, 131 S.Ct. at 1155, 179 L.Ed.2d at 107. The caller in the present case continued to give a detailed description of the car that the apparent shooter left in, repeating three times the tag number she had noticed. The purpose of her 911 call was emphasized throughout the recording; she was calling to give information to assist the police in apprehending the suspect, not to request assistance.

The formality and tone of the call may denote whether the caller’s intent is testimonial or not. The Supreme Court noted that the answers to the questions posed in Crawford were calmly given, but the tenor of the 911 call in Davis was “frantic,” and the caller was in an environment that was “not tranquil” and not even safe. In Bryant, nontestimonial statements were made by a victim suffering a mortal injury “in an exposed, public area, before emergency medical services arrived, and in a disorganized fashion.” Bryant, 562 U.S. -, 131 S.Ct. at 1148, 179 L.Ed.2d at 100. While the transcript in the present case does not reveal the location of the caller, there is no evidence that she was present in the Carry-Out store at the time of the shooting or ever in an unsafe environment.

Naturally, there is an excited tone to the 911 call in the case at bar, but objectively that excited tone is not as “frantic” as a *593woman calling 911 to request help because she is being attacked or a wounded victim telling police who shot him while waiting for medical assistance in a parking lot. The Court of Special Appeals attributed the caller’s anxiety to the hope that the police would be able to catch a fleeing felon, and this is an appropriate assumption. The caller was not a victim of the shooting, did not request police assistance, and there are no objective indications that she was ever in danger.

Finally, the Supreme Court stated in Bryant (562 U.S. -, 181 S.Ct. at 1159, 179 L.Ed.2d at 111):

“The medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one.”

The nontestimonial statements in both Davis and Bryant were made by victims of an ongoing crime, while the statements in this case were made by a spectator, seemingly uninvolved with the crime except for her description of the vehicle used by the apparent shooter to leave the scene. This is not to say that only victims may make nontestimonial statements, but a review of those cases where 911 calls have been determined to be nontestimonial shows that many of them are calls made by the victims themselves, or at least individuals in some way seriously involved in the criminal incident. See, e.g., United States v. Arnold, 486 F.3d 177 (6th Cir.2007); Smith v. United States, 947 A.2d 1131 (D.C.2008); Commonwealth v. Galicia, 447 Mass. 737, 857 N.E.2d 463 (2006); State v. Kemp, 212 S.W.3d 135 (Mo.2007); State v. Camarena, 344 Or. 28, 176 P.3d 380 (2008).

Recently, this Court employed criteria similar to the Davis factors in determining whether statements made to the police were testimonial or not. In State v. Lucas, supra, 407 Md. 307, 965 A.2d 75, the Court considered statements made by a domestic violence victim when police officers encountered her at the entrance to her apartment. The Court determined that the “emergency had ended” by the time the police met the *594victim at the door of her apartment and that “[a] reasonable listener would recognize that the [victim’s] emergency had ceased.” 407 Md. at 324, 965 A.2d at 85-86. The Court also took into consideration the fact that the victim “spoke of past events” and she was “no longer under any apparent imminent danger when she spoke” to the police. 407 Md. at 324, 965 A.2d at 85-86. As such, the victim’s responses to the police officers were testimonial and could not be admitted without making her available for cross-examination. Despite the fact that the victim was “visibly upset and exhibited injuries,” this Court noted that the police officers did not call for emergency medical assistance. The Court concluded that the “circumstances of [the police officer’s] interrogation objectively indicate a primary purpose to ‘establish or prove past events potentially relevant to later criminal prosecution’ and not to ‘enable police assistance to meet an ongoing emergency.’ ” State v. Lucas, 407 Md. at 325, 323-324, 965 A.2d at 86, 85. The same is true in the present case.

When the criteria applied in Davis, Bryant, and Lucas are applied to the case at bar, it is clear that the 911 recording played to the jury at Langley’s trial was testimonial. Unlike the 911 call the Supreme Court deemed nontestimonial in Davis, where the “primary purpose was to enable police assistance to meet an ongoing emergency,” the 911 recording in the instant case served only to provide a “ “weaker substitute for live testimony’ at trial.” 547 U.S. at 828, 126 S.Ct. at 2277, 165 L.Ed.2d at 240-241. The State in this case virtually admitted as much, stating in pre-trial argument, against the defense’s motion in limine, as follows:

“The only reason the State would want to use it is to get in the license place number that someone who witnesses the shooting calls and gives to the Police as the event is taking place, as the Defendant is getting in his car and as he is leaving.”

The call was not eliciting help, but rather was used by the State in place of live testimony.

Moreover, the 911 caller’s statements in the present case were intended to be a “ ‘solemn declaration or affirmation *595made for the purpose of establishing or proving some fact’ ” rather than a call for immediate assistance to the scene of a crime. Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192 (internal quotation marks omitted). The caller herself evinced the knowledge that her statements would be used as an affirmation of fact in subsequent investigations, telling the operator, when she was unsure of her answer, “don’t quote me ...” on certain parts of her identification information. Objectively viewed, the primary purpose of the exchange between the caller and the 911 operator in the present case was not to enable police assistance in the midst of an ongoing emergency. The caller was simply a witness calling after the crime occurred to provide information for use in the shooter’s apprehension and eventual trial. Her statements were therefore testimonial.

This Court should reverse the judgment of the Court of Special Appeals and direct that court to remand the case for a new trial.

Chief Judge BELL and Judge GREENE join in this dissent.

. Maryland Rule 5-803(b)(2) states that:

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(b) Other exceptions.
(2) Excited utterance. 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.”

. For a comprehensive review of the Crawford and Davis decisions, see Judge Adkins’s opinion for this Court in State v. Lucas, 407 Md. 307, 965 A.2d 75 (2009).

. Reading the majority opinion could lead one to believe that the Court, in Bryant, moved away from the “primary purpose” test. The majority states that “[ajfter Bryant, it is of little matter that the purpose of the call was not to stop the immediate shooting or get medical assistance. ...” The majority opinion overlooks the simple fact that, as the name of the test suggests, the purpose of the 911 call is the primary concern and “ultimate inquiry” of courts in determining whether the statements are testimonial or not. Bryant, 562 U.S. -, 131 S.Ct. at 1160, 179 L.Ed.2d at 112 (“whether an ongoing emergency exists is simply one factor”). The Bryant Court explicitly followed the “primary purpose” test and explained that its opinion sought only to "provide additional clarification with regard to what Davis meant by 'the primary purpose ...’ ” test. Bryant, 562 U.S. -, 131 S.Ct. at 1156, 179 L.Ed.2d at 108, quoting Davis, supra, 547 U.S. at 822, 126 S.Ct. at 2266, 165 L.Ed.2d at 224.