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State v. Torres12/3/1998
ying that Defendant Torres fired the nine millimeter, relying on the higher probability that a nine-millimeter bullet killed Bonilla. The trial court concluded that Barnett was unavailable, see Rule 11-804(A)(3) (defining "unavailability" as including situations in which the declarant "testifies to a lack of memory of the subject matter of the declarant's statement"), and, relying on ), that admission of the recorded statement did not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. As the sole ground of his appeal, Defendant Torres attacks this ruling of the trial court on both evidentiary and constitutional grounds.
II. Statements Against Penal Interests
{9} Torres contends that the trial court erroneously admitted Barnett's statement under Rule 11-804(B)(3). Specifically, he argues that Barnett's statement was not genuinely against his penal interest because it shifted blame from Barnett to Torres. We disagree.
{10} Rule 11-804(B)(3) provides that a statement is not excluded by the hearsay rule
"if the declarant is unavailable as a witness . . . [and the] statement . . . was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."
Torres urges this Court to follow the United States Supreme Court's analysis of Rule 804(b)(3) of the Federal Rules of Evidence in Williamson v. United States, 512 U.S. 594 (1994).
{11} In Williamson, the Court reviewed the admissibility of a statement by a participant in a crime, made while in the custody of law enforcement officials following the declarant's arrest, which described the participant's and the defendant's respective involvement in the crime. 512 U.S. at 596-97.
{12} The Court first determined that the word "statement" in federal Rule 804(b)(3) did not mean an extended narrative but, instead, a single declaration. Williamson, 512 U.S. at 599. Further, the Court determined that the rule "does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory." Id. at 600-01. The Court reached this decision based on the fact that " ne of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature." Id. at 599-600. The Court emphasized that " elf-exculpatory statements are exactly the ones which people are most likely to make even when they are false" and that even collateral statements that are non-self-exculpatory lack sufficient reliability to warrant exception from the hearsay rule. Id. at 600. As a result, the Court concluded that there must be a statement-by-statement inquiry to determine, utilizing the text of the rule, whether "`a reasonable person in the declarant's position would not have made the statement unless believing it to be true.'" Id. at 603-04 (quoting Fed. R. Evid. 804(b)(3)).
{12} Of course, we are not bound in our interpretation of our Rules of Evidence by the United States Supreme Court's interpretation of analogous provisions in the Federal Rules of Evidence. At least three states have chosen to interpret their respective rules of evidence providing for the admission of out-of-court statements against penal interests differently than the Supreme Court in Williamson. See People v. Newton, No. 97SC85, 1998 WL 643619, at *13-14 (Colo. Sept. 14, 1998); St
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