CA1: excited anonymous 911 calls are non-testimonial

US v. Brito, No. 04-1755, concludes that admission of a recording of anonymous 911 call doesn’t violate Crawford, because 1) it is nontestimonial; 2) it is was excited utterance.  Rejecting some other courts approaches to getting around Crawford (which is, let's face, it what Selya is trying to do here):

Ordinarily, statements made to police while the declarant or others are still in personal danger cannot be said to have been made with consideration of their legal ramifications. Such a declarant usually speaks out of urgency and a desire to obtain a prompt response. It follows, therefore, that such statements will not normally be deemed testimonial. ... Once the immediate danger has subsided, however, a person who speaks while still under the stress of a startling event is more likely able to comprehend the larger significance of her words. If the record fairly supports a finding of comprehension, the fact that the statement also qualifies as an excited utterance will not alter its testimonial nature.

Finally, the court concludes that evidence of some prior convictions was admissible, but he waived his argument, and denies him a Booker remand because he didn’t show that he could do any better.