*1 State Nebraska, appellee, C. Sheets, Jeremy appellant.
McCormack, Miller-Lerman, J. Connolly, Sheets, The appellant, C. Jeremy was convicted on one count of murder in the first and one degree count of a knife to using commit a felony, and was sentenced to death on the murder charge. case, The crucial of the portion State’s which was admit- evidence, ted into was Barnett, the confession of taped Adam an alleged to the accomplice crime. The confession was made pur- suant to a plea while agreement Barnett was in custody. Statements in the confession Sheets in implicated the crimes. Barnett was not available to as he testify, committed suicide before trial. Sheets appealed, that the contending district court erred in admitting Barnett’s taped confession. While this case was Court, pending the U.S. appeal, Supreme June decided Lilly Virginia, S. Ct. 144 L. Ed. 2d 117 We then sustained the State’s motion to sub- mit briefs to supplemental discuss the Lilly. These impact briefs were filed at the end of 1999. July in Barnett’s confession made that statements
We determine or possess hearsay exception fall within a do not make which would of trustworthiness particularized Thus, we conclude marginal utility. cross-examination confession vio- taped into evidence of Barnett’s admission to confrontation. Because lated Sheets’ constitutional right evidence Sheets at against confession was taped primary trial, we conclude that error was not harmless. Accordingly, reverse, we and remand a new trial.
BACKGROUND 23, 1992, Bush, On senior September Kenyatta 17-year-old Nebraska, Omaha, at North School from High disappeared the school found 10 later in Bush’s was campus. body days ditch in A Washington County, Nebraska. deter- pathologist mined that Bush had three four stab suffered wounds her neck, throat and that she died of the her incised lacerations to trachea, which severed and all blood vessels. larynx, major Bruises found on body her were consistent with sexual assault. officers determined Investigating that the murder had been com- mitted at another location and that Bush’s had body been moved where it was place found. when,
The murder was under still on investigation September 17, 1996, Omaha received a from Olson Barb report son-in-law, LaNoue, had Barnett told her Jason that Barnett and Sheets were involved in the murder. police then obtained Olson; LaNoue; statements from her Richelle daughter, Jason LaNoue. As part investigation, Richelle LaNoue to wear a agreed concealed radio inwire order to secretly tape conversation between herself and Barnett the murder. regarding
During conversation between Richelle LaNoue and Barnett, Barnett Sheets in implicated the murder. Barnett stated that he had not actively crime, in the participated but had just driven the car. When Richelle asked LaNoue how Barnett could Sheets, remain friends with Barnett stated that “its even not you know, (unclear) *4 friendship He’s had anymore. sex with oldmy I and don’t lady know ...” “Yeah, Richelle then replied, that,” girl told stated, me [Barnett’s about and friend] Barnett “It’s not even really it’s friendship sort of really, like (sighs).” 27,1996. Barnett was taken into on custody September Upon arrest, Barnett was taken to and in an police headquarters placed interview room. Two officers informed Barnett of his police Miranda and Barnett rights, with the officers. agreed speak Barnett with the officers for about 1 hour. this spoke During time, he denied involvement in Bush’s murder any and stated that Sheets had killed Bush. The interview terminated when Barnett asked to with an speak attorney.
A presiding an who judge appointed consulted with attorney, Barnett for several hours before Barnett was booked on formally charge homicide. On Barnett made September an early to detention morning request that he be personnel allowed to contact his attorney. Barnett’s arrived at attorney the police noon, station around after which he consulted with Barnett for several hours. Barnett’s then contacted attorney detec- police tives and informed them that Barnett wished to make a state- ment his regarding involvement the murder. this second
During statement to Barnett police, maintained that on the Bush day she disappeared, willingly entered the car to drive agreed around and smoke marijuana with Sheets and Barnett. Barnett stated that when the three arrived at Dodge Park, Barnett to urinate and stopped was from separated Sheets and Bush. Barnett stated them, that when he rejoined Sheets had Bush to pinned the ground and was her. stabbing after Shortly information, providing with this Barnett began cry, his attorney terminated the interview. interview, the second
Following Barnett’s attorney negoti- ated a plea with agreement the county on attorney Barnett’s behalf. to a letter According out the terms setting agreement:
Mr. Barnett agreed to the terms following conditions:
1. To make a full and truthful statement to law enforce- ment regarding events and participation of individuals involved in Bush; the homicide of Kenyatta
2. To with cooperate reasonable requests law enforce- ment, to include a tour of the various crime scenes and to make a call telephone to Mr. Jeremy Sheets Maine for and, law enforcement purposes; *5 Sheets Mr. trial involving at truthfully any 3. To testify this matter. in con- of the above for his
In consideration performance with ditions, Barnett personally, it was stated to Mr. present, attorney] Bill Jadlowski and Detective [Barnett’s to the Attorney] agree[d] County Douglas [the following: to to the reduced
1. Mr. will be allowed plead Barnett in the Degree; of Murder Second charge arrange- 2. would make Attorney] Douglas County [The the time ments for safety well-being during [Barnett’s] to of his in the of incarceration case prior disposition Court, a District and would make recommendation in of Corrections to benefit Mr. Barnett terms Department his his after sen- placement safety well-being in his tencing case.
It was also that a use of a not be agreed weapon charge would trial, filed At Barnett. Barnett’s testified that the against attorney sentence Barnett would receive for second murder had degree However, never been discussed. really Barnett’s also attorney that a stated minimum sentence was that could be something for. Barnett’s also hoped testified he had been told attorney prior making agreement that Barnett was to be going with first murder. charged degree After Barnett’s con- attorney sulted with Barnett about the plea agreement, deputy county and an Omaha attorney detective advised Barnett of the plea and what was of him in agreement return. At around expected 28,1996, 10:40 on p.m. Barnett September gave tape-recorded confession The statement in police. provided part: wereWe around Omaha. It was ear- cruising [Barnett]: in lier We had been morning. acid all up tripping night, Um, them. we piggybacking decided to go out and find a that we could have girl sex with. We drove through up North High about o’clock in the There she morning. there, was out there, there was else out nobody it was the middle one, of school. Jeremy said ‘There’s the we can her’. So we grab the car over and pulled we got both out of the car and we I grabbed her.... was driving, was Jeremy her, in the back with handkerchief, seat he had he stuck mouth, back and he held her. We pro- it her he sat there leave the school and we went down to Dodge ceeded to I Park. We where told before. you parked, right don’t describe that location me Why you [Officer]: best can will you? again you We location detail sighs]. [Barnett]: [Describes car, her we a half mile up out of the walked about got her we there. right trail and we decided were going rape he to have sex proceeded And we took off her clothes and And he started for like ten minutes. then beating her [with] - hand, her, it was just he his in his wasn’t open had knife *6 - his was it sort like to make hand Using it folded shut. a rock know. more like you (affirmative). Uh huh
[Officer]: and And I was her down he holding (Sighs) [Barnett]: her, he her. beating Finally was he didn’t beating stop, kept (Lets out I about three back. a I stood and took steps up - when he took the breath) he took out that’s That’s when out, her in the torso. of the knife stabbed upper blade open The reason I didn’t do there and did nothing. I stood just If breath) she was black. it (lets out a is ‘cause nothing is I would have probably would have been a white girl him, of other but I didn’t. I seen faces people stopped just - Then went after it was I deserved it. we she thought car, we we got garbage bag, to the the over we went back her, head, I he the picked it over her picked up top put car back the of her and we took her bottom up then we drove out Dodge we her in the trunk and put drove, Park, we not sure how far I’m right, exactly took (lets out a even two minutes I drove not all know [we] - here, is the we breath). right this this Jeremy place said car, we looked here. We out of right her got can dump and when was other cars coming, see if there any around to car, we took her we the trunk of up there wasn’t opened woods, how far we went I’m sure exactly not off into into woods or how (pause) relax, if not doing you’re You’re fine. Just
[Officer]: sure, take a breath and not sure. Just exactly you’re exactly relax. I’m not sure how far. We exactly her dropped [Barnett]: - We took
body. off her we bag went back to the car. We house, back to got we cleaned out the trunk my the best we could, burned the burned the bag, clothes had on. Jeremy We sat down and we talked (pause) about what we had just done and how that we’d never talk about it and we again haven’t. interview,
At other in the when points asked specifically clothes, about the removal of Bush’s Barnett stated that Sheets Sheets, Barnett, removed them. Barnett also stated that and not beaten, had confession, raped, stabbed Bush. In the taped Barnett provided statements that the murder was moti- racially vated and concern about expressed his safety when prison inmates found out he did not Sheets from stop Bush killing because she was black. One of the interviewing officers testified that Barnett had similar concerns expressed prior start of the interview and that Barnett had stated he did not want to go to the Douglas Correctional Center. County
After his statements to the making Barnett was police, placed in the 31, 1996, Washington Around County jail. October he made statements to other inmates at the jail that he indicating was concerned about his potential sentencing. record also contains evidence that while in Barnett recanted jail, his state- ments on member, several occasions to friend, his family girl cellmate, and Sheets’ wife. Pursuant to the plea agreement, Sheets, Barnett made a call to telephone which the record indi- *7 cates did not produce any clearly statements from incriminating Sheets. Barnett refused to accompany to the crime scene. The record is not clear if this was because Barnett was seeking a new or because he was not attorney to intending with comply the agreement. 13, 1996,
On November Barnett committed suicide in his jail 25, 1997, cell. On February a was held in hearing Douglas District County Court on the State’s notice of intent to offer statements of unavailable witness at trial. the Following hearing, the district court issued an order that the State had determining met its burden of to demonstrate that proof Barnett’s statements were the trustworthy, statements admissible finding under either 27-804(2)(c) (Reissue Neb. Rev. Stat. 1995), the hearsay § interest, or exception against penal 27-804(2)(e), Section exception. the residual § 27-804(2) provides: 27-403, to of section the following
Subject provisions if not excluded rule the declarant by are unavailable as a witness: at time of its so
(c) A statement which was making to the declarant’s or proprietary far contrary pecuniary interest, him to civil or criminal or far tended to subject so another, him or render invalid a claim by against to liability man in his would not have made that a reasonable position be A unless believed it to true. statement the statement he criminal liability the declarant to tending expose not admissible unless the accused is offered exculpate indicate the trustwor- circumstances clearly corroborating thiness of the statement. trial, Barnett’s confession in
At was allowed hear jury Clause and hearsay over Sheets’ Confrontation its entirety, adduced at trial concerning Other evidence was objections. at the Sheets and Barnett time between friendship nature that the two made. evidence indicated the confession was Some indicated that the relation- were close as ever. Other evidence Evidence was also about the provided become strained. had ship friend and and Barnett’s girl sexual encounter between Sheets neither nor which he stated that he later recantations in Barnett’s he made in the crime and that had up Sheets was involved at a story impress people party. and use of knife of first murder degree was convicted
Sheets 27, 1997, was conducted hearing On June to commit felony. to determine whether sentencing panel a three-judge before death. After life or would be sentenced to imprisonment Sheets circumstances mitigating the aggravating consideration of 1995) (Reissue and the Rev. Stat. 29-2523 set forth Neb. § Sheets, the offered circumstances mitigating nonstatutory to Neb. Rev. review pursuant a comparative conducted panel the three ulti- 1995). Two of 29-2522(3) (Reissue judges Stat. § be imposed. should penalty determined that the death mately however, dissented, his upon finding based The third judge, *8 the State had not proved beyond reasonable doubt that the heinous, murder atrocious, cruel,” was “especially within [or] of meaning 29-2523(l)(d). That same member § of the panel therefore concluded that the proper should be a life punishment sentence, rather than the of a sentence of imposition death. A death sentence was on the of imposed murder in the first charge degree based the 2-to-l vote of the upon sentencing panel. Sheets’ direct mandatory was docketed in appeal this court pur- suant to (Reissue Neb. Rev. Stat. 1995). 29-2525 §
ASSIGNMENTS OF ERROR Sheets Rephrased, the district assigns (1) court erred in of admitting Barnett’s tapes confession in violation of Neb. (Reissue 27-804, Rev. Stat. 1995), 27-802 § Sheets’ § right Const, him, to confront witnesses against pursuant Neb. art. I, 11, and the 6th and 14th § Amendments to the U.S. Constitution; (2) admitting memorandum Sheets’ regarding service in the (3) U.S. Navy; not him to treat allowing Officer Bill Jadlowski as a hostile witness. Sheets assigns erred in its sentencing panel of application aggravating circumstances, mitigating in the of its performance comparative review, and in the of the death imposition on a vote penalty 2 to 1.
STANDARD OF REVIEW Whether statements fall within a exception Confrontation Clause is a purposes question law. Lilly Virginia, 144 L. Ed. (1999). law, On a an question court appellate is obli gated reach a conclusion independent determination reached the court below. State v. Bottolfson, 259 Neb. N.W.2d 378
When whether determining admission of a declarant’s out-of-court statements violates the Confrontation Clause, an court appellate independently reviews whether the government’s proffered guarantees trustworthiness satisfy Castelan, demands of the clause. Lilly, supra; U.S. v. 219 F.3d (7th Historical facts are reviewed for clear error. Lilly, supra.
ANALYSIS
issue in this
primary
case whether the admission
*9
confession,
into evidence of Barnett’s
of
consisting
made
authorities
investigating
to a
pursuant
plea
agreement, violated Sheets’
to confrontation.
right
Although
Sheets also
as error the
assigned
admission into evidence of the
27-804,
hearsay statements under
27-802 and
he does not
§§
this in his brief. Errors
argue
that are
but
assigned
not argued
Dixon,
will not be addressed
an
by
appellate court. State v.
259
976,
Baue,
968,
(2000);
Neb.
The Confrontation U.S. Const. amend. pro vides, “In all criminal the accused shall the prosecutions, enjoy ... to be confronted with the right witnesses him.” against I, Accord Neb. Const. 11. art. § Clause envisions “a examination and cross- personal
[T]he examination witness in which the accused an has not of the opportunity, only recollection and testing sifting witness, the conscience of the but of him to compelling stand face face with in order look jury they may him, at his judge demeanor the stand upon manner which in he his wor- whether he is gives testimony thy belief.” Roberts, 56, 63-64, 2531, v.
Ohio
448 U.S.
100 S. Ct.
65 L. Ed.
2d
(1980).
597
“The Confrontation Clause reflects ‘the ancient
law,
faith of the common
the founders in the
incorporated by
Bill
that live confrontation and
Rights,
cross-examination
witnesses in
is the
the courtroom
truth in a crim
key
finding
”
Flores,
770,
inal trial.’
v.
985
(5th
U.S.
F.2d
780
Thus, the U.S.
Court has
Supreme
stated
the Confrontation
“
cross-examination,
Clause forces all witnesses
‘to
submit
ever
“greatest legal
invented for the
engine
discovery
124,
Green,
truth.’””
Lilly,
U.S. at
v.
quoting California
149,
1930, 26
also,
See,
(1970).
90 S. Ct.
L.
Ed.
810,
v.
State
244 Neb.
“The
Hughes,
A confession Lilly unreliable. v. inherently deemed to be inal defendant is 1887, 2d 117 Ct. 144 L. Ed. 527 U.S. 119 S. Virginia, Illinois, L. Ed. 106 Ct. (1999); S. Lee the U.S. (1986); years, over the Hughes, supra. “ one voice declaring pre Court has with ‘spoken Supreme that incriminate confessions unreliable accomplices’ sumptively Lee, supra. U.S. at Lilly, quoting defendants.’” also, (statements custody made while supra Hughes, are highly suspect and in which another party implicated to over unreliable). The burden is on State presumptively Hughes, See of unreliability. come this strong presumption *10 supra. Roberts, Court determined
In the U.S. supra, Supreme cross-examination, or for his that when a witness is unavailable if bear indicia they adequate her are admissible only statements more, inferred, in a case can be without of reliability. Reliability a rooted firmly in which the evidence falls within cases, excluded, must be absent In other the evidence exception. of trustwor guarantees a the State showing by particularized Id.; the Roberts analysis requires thiness. Hughes, supra. (1) determination of whether a test: a two-part the application rooted exception the fall within a firmly statements not, (2) do have they particularized if whether they we next con Accordingly, of trustworthiness. Hughes, supra. admissible under either was sider whether Barnett’s confession Roberts test. of the part Analysis
Firmly Rooted an alleged accomplice’s is whether The first question fall a criminal defendant that inculpate custodial statements that falls Hearsay hearsay exception. under a rooted firmly reli hearsay exception presumptively rooted within firmly therefore, of such reliability inferring trustworthy; able and will statements not violate a defendant’s confrontation rights. Roberts, Flores, Hughes, supra, citing In supra, supra. 805, 3139, Idaho v. Wright, 497 U.S. 110 Ct. S. 111 L. Ed. 2d (1990), the Court determined that residual iden- exception tical 27-804(2)(e) was not a rooted firmly § exception Confrontation Clause we on purposes. Accordingly, focus only whether statements interest admitted against penal pursuant 27-804(2)(c) fall under § exception. 27-804(2)(c)
We note that
uses the term
“statement”
§
a narrow sense to refer to a
declaration or remark
specific
the
incriminating
not more
to refer to
speaker
broadly
entire narrative
portion
confession.
speaker’s
States,
Williamson v. United
U.S.
S. Ct.
Mendoza,
L. Ed.
476 (1994);
(8th
2d
U.S. v.
ant made statements to the he was police after taken into custody trial, the defendant in the At accom- inculpated crime. invoked his Fifth self- plice Amendment privilege against court incrimination. trial then admitted the accomplice’s All statements nine against interest. Court that the admission into evidence of justices agreed statements violated accomplice’s right the defendant’s confrontation. A of the Court confes- concluded that a plurality *11 sion an which a incriminates criminal defendant accomplice under does not fall a rooted Id. firmly hearsay exception. that the statements in did determining Lilly accomplice’s not fall a under rooted defined a firmly exception, plurality “if, as rooted firmly hearsay exception light ‘longstanding it such judicial legislative experience,’ ... rest[s] [on] [a] solid that admission of evidence virtually any foundatio[n] of the constitutional with the “substance within comports [it] ’ ” 126, and Ohio Wright, supra, at quoting 527 U.S. protection.” 56, 2531, Roberts, L. S. Ed. 2d 597 v. 448 U.S. Ct. (1980). introduction of state- to allow the
This standard designed condi- a whose hearsay ments within category falling “to all temptation have over time remove proved tions falsehood, as strict an adherence the truth and to enforce of an oath” and cross-examination obligation as would at a trial. The noted the Court’s prior U.S. at 126.
Lilly,
plurality
label,
scope
that “due to the sweeping
determination
‘“
‘declaration against
of a statement
a
categorization
simple
meaningful
too
a class for
large
interest’ ”...
defines
penal
”
127,
at
527 U.S.
analysis.’ Lilly,
quoting
Confrontation Clause
Illinois,
Ed. 2d
Ct.
L.
v.
476 U.S.
106 S.
Lee
also,
810, 510
See,
(1986).
244 Neb.
N.W.2d
State v.Hughes,
(1993).
admitting
determined that
practice
plurality
incriminate a criminal defend
an
that
statements of
accomplice
such state
are
recent
Most
vintage.
importantly,
ant
of quite
an
Following
to be
unreliable.
inherently
ments are deemed
issue,
affecting
plurality
decisions
analysis
previous
crim
confessions that
inculpate
concluded
“accomplices’
not within a
rooted
exception
inal defendant are
defined in our
rule as that
has been
concept
U.S. at 134.
Lilly, 527
jurisprudence.”
Confrontation Clause
possibility
reserved the
concurring justices Lilly
Three
statement that also
“a
self-inculpatory
inculpates
genuinely
nevertheless
satisfy firmly
codefendant” might
C.J., concurring).
at 146 (Rehnquist,
527 U.S.
exception.
However,
between such a
the concurring justices distinguished
of a custodial confes-
given
statement and statements
as “part
suspi-
viewed with ‘special
sion of the
that this Court has
sort
”
Gomez,
(10th
339
and, thus, fell under a
self-inculpatory
See,
Bowersox,
(8th
v.
e.g., Richardson
Other
have
courts
addressed the
specifically
difference
between statements made outside of
and state
police custody
ments made while in
custody,
that
latter is
noting
presumed
See,
Moses,
to be
(3d
unreliable.
v.
e.g., U.S.
Courts that have considered the issue after
v.
Lilly Virginia,
116,
1887,
144
(1999),
L. Ed. 2d 117
have
found that
overwhelmingly
confessions of an
accomplice
a criminal
inculpate
defendant are
not within
firmly rooted
when such
exception, especially
statements are made to
See,
law
Robbins,
enforcement authorities.
U.S. v.
197
e.g.,
F.3d
Gomez,
(7th
829
1999);
v.
U.S.
supra; U.S. v.
Lopez-Caceres, 89
(D.
F.
Supp.
1999);
Puerto Rico
Gibson,
v.
84 F.
(S.D.W.
2d
2000);
784
Va.
Supp.
U.S. v.
Valenzuela, 53 F.
(N.D.
2d
1999);
992
Ill.
Supp.
State v.
378,
87 Ohio St.
Madrigal,
(2000),
3d
Applying interest held that statements against we have Lilly, previously rooted fall under a 27-804(2)(c) firmly do not pursuant § we stated: hearsay exception. particular, declarant is in custody made while the police [Statements another are in which the declarant implicates party and unreliable. . . . and presumptively highly suspect of surrounding making the circumstances Generally, necessitate an of the these statements exploration said, mind. It cannot be without a declarant’s state of spe- trustworthiness, cific that such a statement showing without an for should be admitted opportunity cross-examination. 810, 817, 33, (1993),
State v.
Hughes,
Neb.
510 N.W.2d
Illinois,
530,
2056,
Lee v.
106 S. Ct.
L. Ed.
citing
Green,
(1986),
(8th
1982).
and Olson v.
We conclude that to the extent 27-804(2)(c) encom § statements, passes inherently unreliable it is not rooted firmly of Confrontation Clause hearsay exception purposes analysis. case, In this in the statements Barnett’s confession inculpating were was in custody.
Sheets
made while Barnett
Such
statements are
unreliable.
the statements did
presumptively
fall
Lilly
not
within
hearsay exception.
144 L. Ed.
Virginia,
Gomez,
Flores,
(1999);
(10th
1999);
U.S. v.
Sheets contends that the State did not meet its burden to prove that Barnett’s statements had particularized guarantees trust- worthiness. Sheets to the fact that Barnett’s points were he given while was in to a custody pursuant plea agree- ment. The confession Sheets the crime and inculpated por- beat, Sheets as the trayed person who physically raped, killed Bush. Sheets further notes that Barnett made previous inconsistent statements about the crime that Barnett later recanted State, however, his own and Sheets’ involvement. The argues statements Barnett’s confession were not made in *14 to response leading and that the did questions not provide Barnett with details of the crime. The State contends that because Barnett was counseled an attorney, incriminated himself in crime, substantially commission of the truthful, to promised be of presumption has unreliability been rebutted.
We review the independently State’s of proffered guarantees trustworthiness. The Court stated in Lilly: however,
Nothing our prior opinions, that suggests courts should to appellate defer lower courts’ determina- tions regarding whether a hearsay statement has particular- ized guarantees of trustworthiness. To the those contrary, assumed, indicate opinions that we have as with other fact- intensive, law, mixed questions constitutional review is “[independent ... necessary ... maintain con- of, trol clarify, legal principles” governing factual circumstances ....
342 States, U.S. 517 136, v. United Ornelas at quoting 527 U.S. Lilly, or (1996). The 1657, presence L. Ed. 911 690, S. Ct. Id. error. for clear reviewed facts are of historical absence inter penal a statement against whether determine To test, a court must of the Roberts the second prong ests meets the mak surrounding circumstances the totality examine has statement par whether the to determine the statement ing adversarial such that trustworthiness guarantees ticularized little, to its relia if anything, to add be expected would testing 810, (1993), cit 510 N.W.2d 244 Neb. State v.Hughes, bility. 3139, 805, 111 L. Ed. 110 S. Ct. Idaho v. Wright, ing 193, Palser, See, also, Neb. v. State (1990). under admitted (1991). N.W.2d 753 that cross-exami trustworthy Clause must be so Confrontation utility. Wright, would be of marginal nation of the declarant no mechanical test for deter There is Hughes, supra. See supra. bears whether a statement mining particularized However, we the clause. Wright, supra. trustworthiness under relevant to the determination stated in Hughes particularly whether the declarant was in police custody of trustworthiness is made, had motive when the statement was whether the declarant his or her own criminal and whether the liability, to mitigate to leading questions. declarant made the statement response See, also, Illinois, 106 S. Ct. L. Lee v. 476 U.S. Ed. 2d 514
When a court examines the
of the circum
totality
stances,
note that evidence
corrobo
it
important
tending
rate the
of a
content
statement cannot
support
finding
that the statement bears
of trustwor
particularized guarantees
thiness.
Lilly Virginia,
144 L.
Flores,
(1999);
(5th
1993);
Ed. 2d 117
U.S. v.
343 case, in Barnett’s confession are of the kind In this The state- that have caused the concern. historically greatest were made while Barnett was in and the confes- custody, ments made Sheets in the crime. In statements sion acted inculpate commis- law-enforcement after the nonundercover personnel offense, “there exists the strong possibility sion always blame, to shift or curry that the declarant has ‘desire spread ” Flores, favor, himself, divert attention to another.’ or avenge F.2d at 780. 116, 137, S. Ct. Lilly Virginia, (1999), Ed. 2d the Court stated: L. that
It that the unreliability is highly unlikely presumptive that or attaches to confessions shift spread accomplices’ when the statements are blame can be rebutted effectively the core concerns of under conditions that implicate given is, when the gov- the old ex affidavit parte practice—that in the statements’ ernment is involved production, and have not when describe events the statements past to adversarial testing. been subjected Flores, See, also, The Seventh Circuit Court supra. Appeals stated: recently decided, if— no circuit has determined Lilly yet
Since was custodial and under what circumstances —an accomplice’s defendant can ever be deemed to confession implicating sat- sufficient inherent indicia of trustworthiness to possess Thus, the full of Lilly the Confrontation Clause. isfy scope remains undefined. At least one treatise has explained indicated, Court “all nine Lilly justices Supreme the admission of custodial more or less explicitly; statements to law enforcement personnel against penal confession, that . . . whether or not constituting interest the confrontation incriminate another violates person other in a crim- clause when admitted such against person inal case.” Castelan, (7th 2000), F.3d quoting
U.S. v. Graham, (2d and Procedure 6742 Michael H. Federal Practice § ed. with had a motive to favor curry that Barnett suggestion Of most
authorities is in this case. especially strong importance, *16 a bargain, thereby to plea made his statements pursuant Barnett the maxi- murder. Although of first degree a avoiding charge for either first or have received Barnett might mum sentence he was 17 because was a life sentence murder second degree committed, the minimum was time the crime at the age years statutes, the relevant Under be different. dramatically would sentence minimum to a subject 10-year would have been Barnett Neb. Rev. Stat. murder. See for second degree of imprisonment Further, the 1995). as (Reissue part and 28-105 28-304 §§ a weapons charge not to bring the State agreed agreement, would have been for such a charge Barnett. The sentence against fine, both, $25,000 or maximum of 20 years’ imprisonment, See been 1 year’s imprisonment. minimum would have and the 1995). The sen- (Reissue 28-1205 and 28-105 Neb. Rev. Stat. §§ See to the murder sentence. consecutively would have run tence matter the although testified that Barnett’s attorney 28-1205. § discussed, the minimum to serve one could hope was not really was consid- for behavior good when time off amount of time ered, be 5 years’ imprisonment. in this case would which officers to investigating that Barnett stated
The record shows he was impli- in because he would be harmed jail his fear that animus. due to racial of a black woman cated in the killing the on the part included promises bargain specifically the plea his confes- Following for Barnett’s protection. State to provide instead sion, in the Washington County jail was housed Barnett motive strong This indicates a County jail. of in the Douglas See U.S. with the authorities. favor Barnett to seek curry Barnett Flores, (5th Additionally, F.2d 770 he might spend of time length concerns about expressed in the Washington others asking bargain, under plea jail receive he might what sentence they thought about County jail actually time he might murder and how much degree for second serve. maxi- regarding agreement absence of any specific Barnett was not lessen possibility
mum sentence does State, Garrison v. generally, treatment. favorable seeking was never 1998) declarant (Miss. (although 726 So. treatment, be receive, it could offered, per- he favorable nor did mind, engender might guilty plea in declarant’s ceived when declarant held out for alternative favorable treatment hope minor). As the 10th Circuit Court of has Appeals sentencing stated: even after the defend- presence plea agreement,
[T]he
convicted,
indicia
ant
been
also would not serve as an
has
would have a
of trustworthiness because the declarant
with the
and divert
desire to
favor
strong
curry
government
will
that the
attention to another
the “hopes
government
make favorable recommendations to the sentencing judge.”
Even after
these motives
exist because
may
...
sentencing,
“the
still
influence regarding
government
possesses
where the
level and location of
security
prison
is to be incarcerated.”
[declarant]
*17
Gomez-Lemos,
Flores,
n.25,
U.S. v.
939
primary
Meanwhile,
tes-
for Barnett’s
exchange
accomplice.
culpable
Sheets,
in which he
he
arranged
bargain
timony against
plea
not to file a weapons
a reduced
an
charge,
agreement
received
while incarcerated.
for his safety
and a commitment
charge,
A
to that agreement.
Barnett then made his statements pursuant
her
a declarant admits his or
presence
circumstance which
crime,
another was the
in a
but indicates that
and participation
actor,
common fact
or
is one of the more
“mastermind”
primary
statements incul-
in which courts hold that a declarant’s
patterns
Lilly
not be admitted at trial.
e.g.,
the defendant may
pating
1887,
116,
Ed. 2d 117
S.
144 L.
v.
527 U.S.
119 Ct.
Virginia,
U.S.,
Ct.
(1999);
v.
512 U.S.
114 S.
Williamson
Hazelett,
J.,
supra;
(1994)
concurring);
(Ginsberg,
2d 476
L. Ed.
1990); U.S. v.
(9th
F.2d 401
U.S. v. Magana-Olvera,
See, also,
Valenzuela,
State
(N.D. Ill.
F.
Supp.
Kimble,
that state
(La.
1996) (finding
App.
v.
688 So.
circumstances);
under these
not truly self-inculpatory
ment was
Farrell,
2000) (declarant
(Colo. App.
Also encounter of the sexual Sheets because revenge against to seek Barnett’s friend. girl Sheets and between that occurred (1) that Sheets different conclusions: two record could support at the time and were close very were best friends and Barnett (2) that the friend- or his statements Barnett made theWith and had become strained. no close longer very was ship of trustworthi- on the State prove burden placed record, that Sheets and ness, the possibility, supported Barnett had the conclusion that out leads to Barnett had a falling to Sheets and to focus or blame motive to shift spread a potential Given favor with authorities. to curry Sheets in attempting on Sheets, cross- blame to motive to shift or spread this potential have been would certainly on this issue examination of Barnett Wright, See Idaho more than marginal utility. Ed. 2d 638 Ct. 111 L. 110 S. have particular- that Barnett’s statements
The State contends
First, the
for several reasons.
of trustworthiness
ized guarantees
little
significance
is of
bargain
that the plea
State contends
Barnett, in his
the fact that
of trustworthiness
as a guarantee
offers
confession,
his criminal lia-
himself or mitigate
did not exonerate
However,
Sheets as the per-
Barnett’s confession inculpated
bility.
*18
Barnett,
According
out the crimes.
who
carried
son
physically
her,
clothes, Sheets who raped
removed Bush’s
it was Sheets who
her,
killed her.
who stabbed and
beat
and Sheets
Sheets who
self-inculpatory
Barnett made a broadly
The fact that
the confession’s non-
more reliable
does not make
confession
Gomez,
v.
(10th
Cir.
191 F.3d
self-inculpatory parts.
Farrell,
Williamson,
See, Lilly, supra;
supra.
1999),
citing
Flores,
(5th See, also,
F.2d 770
U.S. v.
supra.
with
mix falsehood
to lie is to
effective ways
the most
“One of
because
truth,
persuasive
that seems particularly
truth
especially
Williamson,
of its
nature.”
it nois
clear whether
to which
longer
considering
degree
a statement is
interest is even
against
this
penal
permissible:
factor
restates the fact that
“merely
of his state-
portions
ments were
interest.” . . .
technically against penal
“[S]uch
statements [against
are
insofar as
penal
suspect
they
interest]
other
inculpate
persons.
person making
‘[T]hat
broadly
confession does not make more
self-inculpatory
”
credible the confession’s non-self-inculpatory parts.’
Gomez,
1223,
Williamson,
Accord,
191 F.3d at
quoting
supra.
116,
1887,
v.
Lilly Virginia, 527 U.S.
S. Ct.
L. Ed. 2d
Farrell,
(1999);
See, also, Flores,
supra.
supra
(noting
declarant must make
statement in order
incriminating
to fit
addition,
within
in first
exception
a clear
place).
distinction
cannot be drawn between cases in which a declarant shifts the
entire blame to the defendant and
those which the declarant
the blame both to
spreads
himself or herself and to the defend
ant.
it has been held that a statement does not have suffi
cient indicia of
even when
reliability
the declarant
placed large
of the blame on
portion
himself or herself but also inculpated
State,
others.
v.
Crespin
(10th
F.3d 641
Cir. 1998), cert.
denied 525 U.S.
119 S. Ct.
indicates Further, after he retained and consulted at with his attor- length Barnett made two different and ney, statements to conflicting authorities. The of an did not Barnett presence attorney prevent and, thus, from authorities with inconsistent less trust- providing statements. we find the worthy Accordingly, of an presence under the circumstances of this case to be attorney irrelevant as a factor showing Barnett’s statements had particularized of guarantees trustworthiness.
The State also to the fact that points Barnett’s statements were not made as the result of coercion and that Barnett to agreed be truthful when his giving statements. Court has said that
Supreme whether a statement is voluntary Fifth Amendment does not bear on purposes of question whether desire, motive, the confession was also free from any or of the impulse declarant to his or her own mitigate culpability by Lee, or spreading See, blame to the shifting defendant. supra. also, Valenzuela, U.S. v. 53 F. (N.D. Supp. 1999). Ill. Thus, a lack of coercion is irrelevant.
That Barnett
to be
promised
truthful as
part
plea agree-
ment is also of little
Before
help.
making
agreement, Barnett
was
a
already
of
facing charge
first degree murder. He
a
gained
reduced charge by
into the
entering
plea agreement and agree-
ing make statements to the police and to testify against
Sheets. Had he not carried
with the
through
terms of the agree-
ment, Barnett would have been no worse off than he was origi-
when
nally
he was
facing
charge
first degree murder.
Barnett had
to lose and
nothing
everything
gain by
making
confession in which
See,
he inculpated
Mendoza,
Sheets.
U.S. v.
85 F.3d
(8th
1996);
Hazelett,
Cir.
U.S. v.
32 F.3d
(8th
1994)
Cir.
that for
(stating
all practical purposes,
declarant’s conviction was assured and that “she had
nothing
lose by confessing, and she
had
certainly
nothing
lose by
another
implicating
person, particularly someone more culpa-
ble”);
Costa,
U.S. v.
(11th
F.3d 1073
1994).
Cir.
As the U.S.
stated,
Court
Supreme
has
reality
the criminal process is
that “once
partners
a crime recognize that the
‘jig up,’ they
tend to lose any
identity
interest and
become
immediately
antagonists, rather
Lee,
than accomplices.”
The State
Barnett’s
points
in
to
We stated in State v.
leading
response
questions.
Hughes,
810,
(1993),
244 Neb.
N.W.2d 33
that whether a
statement
in
was made
to
was one of the fac
questions
response
leading
tors
relevant to the determination of trustworthiness.
particularly
The State also
of detail
level
Barnett
points
provided by
argues
that the
did
him with
provide
not
information
or details about the crime.
we
that these
Although
agree
factors
trustworthiness,
do
some basis for
we con
provide
determining
clude
such factors cannot overcome the strong presumption
of
in a case such
unreliability
as this where Barnett
present
the
made
statements while in
and where a
police custody
motive
favor
the
curry
with
authorities existed.
theAs
Fifth Circuit
Flores,
of
Court
in
stated
“While
Appeals
presence
[vari
factors . . . doubtless renders a given confession more reli
ous]
be,
able than it would otherwise
we are not
it
persuaded that
eliminates
substantially
any reasonable
that the third
possibility
party
of a confession
law
inculpatory
portions
enforcement
are
personnel
unreliable." 985
at
F.2d
782. See United States v.
Sarmiento-Perez,
(5th
See,
against a defendant of a codefendant’s hearsay inculpatory
authorities,
law
statements to
enforcement
has
although it
suggested that
such
could
theoretically
be admit-
ted
circumstances. . . . But
appropriate
that suggestion
should not drive us to allow a codefendant’s confession to
law enforcement
authorities
be admitted
against
merely
defendant
because the district court is able to fairly
recite a
of factors
litany
and conclude that the particular
confession has “sufficient indicia of reliability.”
In order
satisfy principles
that cross-
indication of
and trustworthiness
reliability
be enough
Idaho v.
Wright,
examination would be of marginal utility.
805, 110
See Hughes,
(1990).
L. Ed. 2d 638
U.S.
S. Ct.
“ ‘The
“trustworthiness” test
supra.
[particularized
of]
credits the axiom that a
of the
rigid application
[Confrontation]
in the
case
admissibility
Clause’s standard
might
exceptional
exclude a statement of an unavailable witness that is incontestably
reliable,
nonetheless outside of
probative, competent,
yet
any
”
Castelan,
U.S. v.
F.3d
exception.’
(7th
Lilly v.
2000),
Cir.
Virginia,
quoting
This, however,
The circumstances surrounding of the making statements in this case three suggest possibilities: (1) It is possible that the described; murder was committed (2) it is possible that Barnett reversed the himself; roles between Sheets and (3) it is that possible Sheets had no involvement in the murder what- soever. Given the circumstances surrounding making death, statements and Barnett’s we subsequent cannot that say cross-examination would be of marginal utility. mere It is a
The Confrontation Clause is not a
technicality.
of citizens which
right
provides protection
“responds
human nature
face-to-face
‘“something
regards
deep
as ‘essential to a fair
confrontation between accused
accuser
” ’ ” Flores,
trial in a criminal
The admission into evidence of statements in viola tion of the Confrontation Clause is to a harmless error subject See An erroneous admission of evi analysis. Hughes, supra. dence is considered to a criminal defendant unless prejudicial the State demonstrates that the error was harmless a rea beyond sonable doubt. Id. An error is harmless when the improper admission did not influence the to reach a verdict materially jury adverse to the substantial In rights defendant. Id. this case, Barnett’s were evidence taped primary Sheets. against the admission into evidence of Accordingly, those statements was not harmless a reasonable beyond doubt. error, determine found we now whether
Having the evi dence the State was presented by sufficient to sustain the con viction before the cause is remanded for new trial. Lockhart Nelson, 33, 109 285, 102 v. (1988), S. Ct. L. Ed. 2d 265 the Court held that the Double Clause does not Jeopardy forbid retrial so as the sum of the evidence long offered the State by court, not, and admitted the trial whether or erroneously would have been sufficient to sustain a verdict. guilty See State Anderson, 258 Neb. 124 (2000). N.W.2d we have concluded that although Barnett’s confession was erro admitted, we include such evidence in our neously analysis *22 Lockhart, of the evidence. See We conclude sufficiency supra. that Barnett’s confession was sufficient to sustain Sheets’ con victions. Because admitted confession was not erroneously harmless, reverse, and remand for a new we trial.
CONCLUSION 27-804(2)(c) encompasses determine that the extent We § statements, it not a unreliable inherently We Clause analysis. of Confrontation exception purposes did meet its burden to further determine that the State not prove had particular- in Barnett’s confession taped ized of trustworthiness to overcome guarantees necessary Sheets’ to confrontation. we conclude that the Finally, right into evidence of the statements was not harmless. admission reverse, we for new and remand a trial. Because Accordingly, we reverse on the basis that Sheets’ confrontation were rights violated, we do not reach other of error. assignments his Reversed and remanded for a new trial. J.,
Wright, concurring, I in the I write join majority but because opinion, separately I would also consider the fact that Barnett recanted his statement.
We must evaluate whether Barnett’s statement contains par ticularized of trustworthiness such that adversarial testing would be to add little if expected to its relia anything See Wright, Idaho v. bility.
L. Ed. 2d 638 In Wright, the Court declined to endorse a mechanical test determining of particularized guarantees trustworthiness but did state that evidence corroborating truth statement cannot be used to support finding that the statement bears the requisite particularized guarantees of trustworthiness. proponent statement’s reli is not ability permitted to bootstrap statement’s admissibil use ity corroborating evidence. presence cor “[T]he roborating evidence more indicates appropriately error any admitting statement be might harmless....” Wright, U.S. at 823.
While it is clear that
evidence
corroborating
cannot be used
statement,
to enhance the
reliability
it is not clear whether
such a rule prevents consideration of a recantation of the state-
ment by the declarant. In my opinion, courts can and should
consider whether the declarant has recanted a statement. The
right
cross-examine is abrogated only when adversarial test-
would be
ing
expected
add little if
anything
its reliability.
*23
the fact that the
be of
than
significance
What would
greater
the
The Confrontation Clause
declarant had recanted
statement?
when the evidence is so sufficiently
should be abrogated only
the
that it obviates the need to explore
reliable and trustworthy
Illinois,
declarant. White v.
state of mind of the
(1992);
State v.
Hughes,
116 L. Ed.
Neb.
Barnett recanted the statement at least four times. He told his murdered, mother that he was not when Bush was that present he would tell the truth at Sheets’ that he preliminary hearing, murder, and Sheets were not involved in and he the could drunken, not “send else down for some he anybody thing” stupid had started and could not out of. Barnett was to an get referring where he was with Jason LaNoue and talked episode drinking about the killing.
Barnett’s friend with Barnett while he was in girl spoke jail. She testified that Barnett said he and Sheets had not killed Bush. When she asked Barnett he had not told the that it why police lie, was all a he stated that he had tried to tell the “it was police bull, a bunch of just drunken and wouldn’t believe him.” He they trial, told her that when he to “he was to tell the truth got going didn’t do it.” they A cellmate of Barnett’s in the testi- Washington County jail fied that Barnett told him that neither Barnett nor Sheets had any involvement in the murder of Bush. The cellmate stated that Barnett had made the some up story at a impress people party.
Sheets’ wife testified that she had received a call telephone from Barnett while he was in the Washington County jail that Barnett told her he had been just “bullshitting” nothing he had said was true. Barnett’s recantation is of my opinion, enormous signifi-
cance in our evaluation of the statement’s trustworthiness. The fact that Barnett made inconsistent prior statements and subse- recanted quently confession his heart goes very of Sheets’ right cross-examine his accuser. State,
This issue was addressed in Ryan v.
two had interviewed victim. of a officer who denied that interview victim by police, the first During men who had assaulted had been with two socializing she the men had stolen her vehicle and driven her. She claimed that She and that her uncle had driven her a cabin left. away cabin, men, drunk, then entered the and the who be appeared to take her her. ordered her off clothes and assaulted statement, next a second victim altered her day, how account of she had arrived at the cabin and how previous had *24 assault occurred. She admitted with socializing Ryan cabin, and and to the the of Trigg where three them con- driving hand, tinued to drink. At some out of and she point, things got was assaulted by both men. trial,
Before the Ryan Trigg challenged of admissibility statements, the victim’s but the trial that court found the state- ments to were admissible under Alaska Evid. R. 804(b)(5), one of Alaska’s two residual The hearsay exceptions. court concluded the that residual hearsay were not exceptions and, therefore, firmly rooted examined exceptions the state- ments for particularized guarantees trustworthiness. reversed, court appellate that its task was to stating deter- mine whether the statements were so inherently trustworthy, so doubt, free from that possible cross-examination of the victim would yield negligible benefit to Ryan as stood Trigg they trial for sexual assault. The state claimed that Idaho v. Wright, 805, 3139, 110 S. Ct. 111 Ed. (1990), L. pro- hibited consideration the fact that the victim had made incon- sistent statements in the evaluating trustworthiness of the hearsay statement. The court concluded:
The State’s argument, while perhaps ingenious, inconsistent both with the law and common sense. In judg- the ing reliability assertion, an absent person’s reason- know, able would people want to and would take into account, the fact that the same had made person an incon- sistent on assertion another occasion. The case law recog- nizes and this employs rule of common sense. P.2d Ryan, 899 at 1377 n.3.
I Barnett’s conclude that recantation is circumstance be considered. should J., concurring.
Miller-Lerman,
INTRODUCTION however, I concur in result reached I do majority; so based on different With reasoning. respect majority’s 28, conclusion that the Barnett custodial statement September because not fall should be excluded it does within a firmly I agree. With exception, respect majority’s should be excluded as inadmissible the statement analysis it lacks of trustwor- particularized guarantees because under of the test as articulated in Ohio thiness the second prong Roberts, 100 S. 65 L. U.S. Ct. Ed. Clause, (1980), I conclude that the Confrontation rather than rule the admission of the exclu- against hearsay, requires general constitutional, an statement rather than sion custodial evidential, matter. Constitution, a Amendment to the U.S.
Under Sixth has the “to be con right in a criminal prosecution defendant also, Neb. Const. with the witnesses him.” against fronted I, has directed that for 11. The U.S. Court Supreme art. § the Confrontation evidence admitted under “hearsay [to be] that cross-examination of the trustworthy Clause be so [it must] Idaho v. Wright, declarant would be of marginal utility,” 805, 823, (1990), Ed. 2d 638 111 L. of the Confrontation has further stated that prohibitions *25 with rule prohibiting do not . . . the general Clause “equate statements,” case, at 814. In this of 497 U.S. admission Barnett would be of cross-examination of I conclude that the would and that adversarial utility testing than marginal greater and, statement’s reliability, an of the custodial add to assessment statement, therefore, which Barnett admission was Clause. Such admission violated the Confrontation hearsay, case, of fact that light not harmless in this particularly I, therefore, crimes. tied the defendant to the Barnett’s statement that the admission by in the result reached the majority concur was error and that the cause the custodial statement reversible of a new trial. be remanded for should
ANALYSIS Roberts in Development Wright Lilly. of Court the U.S. Supreme initially As stated by majority, test for the admissibility developed two-part Roberts, held that The Court supra. unavailable witnesses at when a declarant is not for cross-examination present unavailable, that the declarant is trial and it is determined Clause allows admission of the declarant’s state- Confrontation “ ‘indicia ment if the statement is shown to bear adequate only ” Roberts, at 66. Such must be reliability 448 U.S. reliability.’ within a (1) the statement falls by showing demonstrated (2) or if the statement does rooted “firmly hearsay exception” it contains not fall within a rooted firmly hearsay exception, of trustworthiness.” Id. guarantees “particularized func- of the Roberts test were intended to be The two parts The Court has stated: tional equivalents. Roberts, we that even if certain hearsay recognized “a rooted hearsay
evidence does not fall within
firmly
and inad-
and is thus
unreliable
exception”
presumptively
Clause
it may
missible for Confrontation
purposes,
meet Confrontation Clause
stan-
reliability
nonetheless
if it is
“showing
particularized
dards
supported
However,
of trustworthiness.” . . .
we also
“
its
underlying
emphasized
[reflecting
purpose
in the
by ensuring
augment accuracy
factfinding process
evidence,
an effective means to test adverse
the defendant
the Clause countenances
marked with such
only hearsay
that ‘there is no material
from
departure
trustworthiness
”
rule.’
the reason of
general
Illinois,
530, 543,
(Citations omitted.) Lee v.
106 S. Ct.
Roberts,
(1986)
supra).
L. Ed. 2d 514
(quoting
of trustworthi
Evidence
“particularized guarantees
possessing
reliable as evidence admitted
ness” must therefore be at least as
Roberts,
under a
rooted
Ohio
hearsay exception.
firmly
See, also,
56, 66, 100
(1980).
S. Ct.
357
Roberts,
U.S. at
within a firmly
out more.”
66. Statements
are
admissible without an
hearsay
rooted
therefore
exception
analysis.
additional
Confrontation Clause
explicit
in
The U.S.
Court
Roberts test
Supreme
developed
in
that
evi-
Wright
The Court
stated
Wright, supra.
“[b]ecause
dence
trustworthiness’
possessing ‘particularized
least
as
admitted under a firmly
must be at
as reliable
evidence
evidence admitted under the second
hearsay
rooted
exception,”
be
adversarial
trustworthy
of the Roberts test must
“so
that
part
at 821. The
would add little to its
reliability.”
testing
evidence admitted
further stated that
Wright
“hearsay
Court
be so
that
trustworthy
the Confrontation Clause
under
[must]
be of
utility.”
of the declarant would
marginal
cross-examination
also,
(“declarant’s
U.S. at
Wright,
U.S. at 823.
circumstances that
is so
from the surrounding
truthfulness
clear
of marginal utility”).
of cross-examination would be
the test
noted
the Confrontation Clause
The Court in
that
Wright
would
be
some evidence that
otherwise
“bars admission of
rule.”
U.S. at
hearsay
under an
exception
admissible
However,
“statements admit-
also
the Court
recognized
814.
are so trustworthy
hearsay exception
ted under a
rooted’
‘firmly
to their reliability.”
would add little
that adversarial testing
the development
In Lilly statement, the custodial which involved a (1999), case states that the Court Court’s plurality opinion U.S. Supreme Clause framework for Confrontation adhering general However, the in Roberts. set forth analysis test of the Roberts recites second opinion part Lilly plurality admissible, the statement must contain to be requiring “ of trustworthiness’ such that adver- ‘particularized guarantees *27 little, sarial would be to add testing expected anything, if statements’ 527 U.S. at reliability.” Lilly, (Emphasis supplied.) 125. the text of refers to Roberts as the source of Although Lilly statement, Roberts that the statement foregoing only says must have of trustworthiness.” 448 “particularized guarantees U.S. at 66. The remainder of the test as recited in is a Lilly para- of the of the Roberts test. Wright development phrase Roberts Test as Developed by Wright and as to Custodial Statement. Applied Lilly above, the cases recited I
Synthesizing respectfully suggest that the test and method in the admissi- analyzing practice of a custodial statement which a crim- bility inculpates inal defendant are not clear. I believe that the entirely two-part Roberts test has been and by Wright Lilly. Following developed Roberts, and if a custodial statement falls within a Wright, Lilly, rooted the statement continues to be hearsay exception, If, admissible without further Confrontation Clause analysis. however, the custodial not fall within statement does a firmly test, I view the second of the as a exception, part matter, first, as now two an evi- practical requiring inquiries: dential whether the as to custodial statement hearsay inquiry and, of contains trustworthiness sec- particularized guarantees ond, a constitutional driven the Confrontation Clause inquiry as to whether the custodial statement is so that trustworthy adversarial would add little to its and cross- testing reliability, examination would be of marginal utility.
I believe these two are and distinct. I inquiries separate do not believe that the second to adversarial inquiry pertaining and the of cross-examination is testing utility merely descrip- tor of the conclusion reached as a result of the first inquiry per- to the examination for of trust- taining guarantees particularized worthiness. I believe a constitutional is inquiry qualitatively different from other I also do not view the con- inquiries. another item of to be evalu- reliability stitutional inquiry just other indicia of reliabil- ated with equally along garden-variety a conclusion as to whether a statement bears ity reaching of trustworthiness. particularized Idaho Following Wright, (1990), notwithstanding
111 L. Ed. 2d Lilly, supra, the fact that the Court has not tied the with the inquiries together “and,” view the word I two second respectfully inquiries if Roberts test as prong developed being conjunctive, a custodial statement fails either its admission is barred. inquiry, if, basis, I would conclude that on an objective particular, adversarial would add to an assessment of the custodial testing statement’s and cross-examination would be reliability than marginal custodial statement’s admission greater utility, under barred as a constitutional matter the Confrontation Clause, of the outcome of the first under the regardless inquiry second Roberts test. prong developed Roberts Application Developed Test Instant Case. case, In the I with instant conclusion agree majority’s the statement does not fall within a firmly rooted hearsay excep- *28 Therefore, I am tion. the custodial required analyze statement under the second of the test as prong by Roberts developed Wright, supra, and Lilly Virginia, S. Ct. Because, below, 144 L. Ed. I discussed conclude that adversarial would add to testing an assessment of the custodial statement’s and that reliability cross-examination would be of than I greater marginal also conclude utility, that the statement, Confrontation Clause bars admission of the custodial and I need not address the first under the second inquiry prong Roberts test at developed by evaluating length purported trustworthiness. the evidence instant case is such that there are numer- ous matters for which adversarial be testing would useful for the custodial assessing statement’s and cross- reliability, examination be would of more than marginal in the utility jury’s assessment of Barnett’s credibility. the matters Among which to be objectively the ought subject cross-examination for Confrontation (1) Clause are the purposes nature Barnett’s bargain and plea at consequent exposure (2) sentencing; Barnett’s motives to favor with the curry authorities and to exag- the defendant’s gerate involvement in the crimes while mini- role; (3) his mizing own the nature of the between relationship relation- their sexual due to separate Barnett and the defendant motive to and Barnett’s possible friend girl with Barnett’s ships nature, motive, defendant; (4) and the against seek revenge to the authorities Barnett gave substance of the two statements statement, 28, 1996, which prior giving September prior at issue in differed from the statement considerably case; nature, motive, of several (5) the and substance this and his recanting statements Barnett made to various persons involvement in the crimes after the statement of making 28. September
Each of the above would have made cross-examina- matters tion of Barnett of more than and adversarial marginal utility, cross-examination on these matters would have added testing by assessment of Barnett’s significantly jury’s credibility of Barnett’s custodial statement in which the reliability defendant is The defendant’s of confrontation inculpated. right was in the instant particularly case the fact that implicated crimes, Barnett’s custodial statement tied the defendant to the was, therefore, and it vital that the particularly defendant have such evidence opportunity subject to adversarial testing. Admission of the Barnett statement violated the defendant’s confrontation, therefore, right the admission of the error, Barnett custodial statement was reversible without regard to an assessment of the factors the State in its proffered by sup- 27,1999, brief filed plemental on July as evincing guarantees of trustworthiness, and the cause should be remanded for a new trial. Between
Relationship Hearsay Clause. Confrontation conclusion, reaching I am foregoing aware that jurists and scholars have expressed their unease with the jurisprudence surrounding between the rule relationship against hearsay *29 and the Confrontation Clause as it relates to the of admissibility out-of-court statements unavailable by declarants that inculpate J., defendant. e.g., Lilly, supra (Breyer, concurring); Illinois, 346, 112 White v. 736, 116 S. Ct. L. Ed. 2d 848 J., (1992) (Thomas, in concurring part, concurring judg ment; Scalia, J., Amar, joins); Akhil Reed Clause Confrontation First Friedman, A Principles: Reply 86 Geo. L.J. Professor
361 (1998); A. The Berger, Margaret Deconstitutionalization A a Clause: Prosecutorial Proposal of Confrontation for Model, (1992); Joshua C. Restraint 76 Minn. L. Rev. 557 Dickinson, Hearsay The and the Rule: Clause Confrontation Quick State in Need Marriage The Current Failed Divorce, (2000); L. Rev. Richard D. Creighton Friedman, Principles, Search Basic Confrontation: for (1998); Geo. L.J. E. The Future Benjamin Rosenberg, (2000); 30 Seton Hall L. Rev. 516 Confessions, Codefendant The Court, Cases: I. Supreme Leading Term — Law, Procedure, Constitutional B. Criminal Law and 1. “Firmly Hearsay Exceptions, Rooted” Confrontation Clause — L. Harv. Rev. 233 Much of the is ded commentary icated to the Roberts doctrine and its subsequent development by the Court. above, Roberts,
As outlined initially under it appeared which fell under a hearsay rooted firmly exception hearsay which was found to bear of trustwor- particularized guarantees thiness were functional for of admissibil- equivalents purposes However, ity. case law to Roberts subsequent subjected non- rooted firmly Confrontation Clause explicit scrutiny by whether asking cross-examination of the of a declarant cus- todial statement would be of and whether adver- marginal utility little, sarial testing would add while rooted firmly remained exception admissible and free of explicit Confrontation Clause have analysis. commented on Observers this discordance between once admissible statements equally which, currently, admitted under are hearsay exception not subject explicit Confrontation review, Clause whereas custodial statements to be sought admit- ted as bearing particularized guarantees of trustworthiness are nevertheless subject Confrontation Clause explicit scrutiny.
I am aware judicial discussion scholarly regarding and, of the Confrontation purposes Clause in general par- ticular, whether the of the Confrontation purpose Clause is to trustworthiness, confrontation, ensure or both. For purposes concurrence, this I note that Barnett was unavailable. I conclude that the Barnett statement was offered as “witness” testimony against defendant Confrontation Clause purposes, White
362
346,
736,
Illinois,
v. 112 S. Ct. 502 U.S. J., (1992) in in (Thomas, concurring judg- concurring part, ment; Scalia, J., and I understand that the trustworthiness joins), of the statement focus of the admissibility analysis is the that the at issue was I further note Barnett statement majority. custodial and that a different analysis might statement apply noncustodial statements. above,
As
if a
within a
noted
statement fits
rooted
firmly
rule,
inferred,”
its
can be
“[Reliability
exception
56,
Roberts,
66,
2531,
Ohio v.
448 U.S.
100 S. Ct.
65 L.
2d
Ed.
(1980),
597
and it is admitted without further constitutional
analysis under the Confrontation Clause. Id. The Court
held
has
rooted
firmly
include
excited
exceptions
following:
utterances and statements made for
of medical
purposes
diagno
treatment,
Illinois,
346, 112
736,
sis and
White v.
502 U.S.
S. Ct.
statements,
116 L. Ed. 2d
(1992);
848
coconspirators’
Bourjaily
States,
171, 107
2775,
v. United
S. Ct.
Thus, for where a example, defend- coconspirator inculpates statement, ant in an out-of-court without to whether the regard statement was elicited with the aid of undercover law enforce- ment, the criminal defendant has no absolute to cross- right *31 examine the declarant of such rooted notwith- firmly hearsay, standard, an adversarial would objective testing standing by add to the fact finder’s assessment of the statement’s trustwor- thiness and that cross-examination of the declarant would be of than See greater marginal Bourjaily, supra. utility. above,
As further noted if a custodial statement does not fit within a rooted to the rule but it does firmly exception hearsay trustworthiness, it is neverthe- bear particularized guarantees of whether less to the additional constitutional subject inquiry declarant would be of than greater cross-examination the and whether adversarial would add its testing marginal utility to be admitted as bear- such statements sought reliability. are of trustworthiness required ing particularized guarantees The con- as well as evidential analysis. constitutional undergo adversarial and whether testing frontation regarding inquiry would be of than marginal utility, cross-examination greater dimension, determinative. is outcome of a constitutional being unlike the evidential inquiry is qualitatively Such inquiry which of trustworthiness the guarantees regarding particularized of the factual matters the surrounding making considers discrete statement, declarant was intoxi- such as whether the custodial cated, was asked leading questions, whether the declarant cetera, which, counsel, et in the had whether the declarant to a conclusion trustworthiness. regarding lead aggregate, nature of the constitutional the controlling Given of the under the second prong Clause inquiry Confrontation statement, in my to a custodial Roberts test as applied developed view, than marginal would be of greater if cross-examination declarant and adversar- the of the credibility in assessing utility benefit, be of the statement would ial testing regarding state- exclusion of the custodial Confrontation Clause requires ment, sur- of the other factors of the assessment regardless the extent To of the custodial statement. the making rounding is to determine the Confrontation Clause that the purpose “trustworthiness,” is neither Clause inquiry the Confrontation of the result nor a descriptor inquiry another trustworthiness just to the Confrontation if the answer the trustworthiness inquiry; of benefit to would be testing is that adversarial Clause inquiry and cross- of the custodial statement the reliability assess the state- marginal utility, be of than greater examination would must be excluded. ment rooted firmly exception which fit a
Whether statements Confrontation Clause subject explicit rule should be or, do not fit a whether which conversely, analysis rule but do bear particu- exception be freed of should explicit of trustworthiness larized guarantees treat- of scholarly Clause is analysis subject Confrontation however, ment; not within of these questions, the resolution Rather, because of this concurrence. authority or scope Clause analysis a Confrontation current jurisprudence requires which was proffered Barnett custodial statement of trustworthiness as bearing State particularized Barnett would be that cross-examination of because I conclude Barnett’s credibil- than marginal utility evaluating of greater fact finder’s *32 would add to the and that adversarial testing ity conclude, statement, a the I as of the of reliability assessment matter, the Barnett statement that admission of constitutional Sixth under the the defendant’s to confrontation right violated Const, also, I, art. 11. Amendment. Neb. §
CONCLUSION test, to custodial as it applies I conclude that the Roberts of the of statements admissibility for determining witnesses, Idaho v. Wright, has been developed by unavailable 805, 3139, (1990), and L. Ed. 2d 638 S. Ct. Ct. 144 L. Ed. 119 S. Lilly Virginia, the first does not fall within (1999). If a custodial statement rooted hearsay exception, test as being of such prong the second prong par- be examined under the statement must the With to trustworthiness. respect of ticularized guarantees matter, two con- believe, there are I as practical second prong, first, an evidential hearsay inquiry junctive inquiries: whether the custodial statement contains guaran- particularized second, and, tees of constitutional inquiry trustworthiness as whether the driven the Confrontation Clause custodial add testing statement so that adversarial would trustworthy of little to and cross-examination would be reliability its marginal utility. case, the
In the of fact present particularly light ties the Barnett’s statement of September custodial crimes, conclude, I without to an evalu- regard defendant to the trustworthiness, adver- features of its ation purported of its reliability would add to the assessment sarial testing marginal utility. be of than greater that cross-examination would to be the subject the which objectively ought matters Among (1) are the for Confrontation Clause cross-examination purposes at sen- and consequent exposure nature of Barnett’s plea bargain with the authorities (2) motives to favor curry Barnett’s tencing; in the crimes the involvement and to defendant’s exaggerate role; (3) of the relationship own the nature while his minimizing due sexual to their separate Barnett and defendant between Barnett’s friend and possible with Barnett’s girl relationships nature, defendant; (4) the revenge against motive seek motive, Barnett gave of the two statements and substance statement, which giving September authorities prior the statement at from considerably statements differed prior nature, motive, case; (5) substance issue this his recanting made to various persons statements Barnett several the statement making the crimes after involvement in 28. September sum, constitutional that the defendant’s I conclude because violated, con- was I with agree majority’s right
confrontation was statement Barnett the admission clusion that new remanded for a cause should be and that the reversible error trial. J., concurrence. in this joins
McCormack,