(dissenting) — I dissent from the majority opinion on the issues of (1) the admissibility of Timothy Cronin’s hearsay statement; and (2) the jury instruction regarding aggravating factors. As a result, I would affirm the conviction and sentence of Michael Kelly Roberts for first degree aggravated murder.
1. Admissibility of Cronin’s Statement
Roberts sought admission of his codefendant’s tape-recorded statement to the police under the statement against interest exception to the hearsay rule. In the statement, Cronin denied committing the murder or being present when it occurred.
The statement against interest hearsay exception provides:
A statement which 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 the person believed *535it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
ER 804(b)(3) (emphasis added).
In determining the reliability or trustworthiness of out-of-court declarations, the court considers the following factors:
(1) [Wlhether the declarant had an apparent motive to lie; (2) whether the general character of the declarant suggests trustworthiness; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; ... (5) whether the timing of the statements and the relationship between the declarant and the witness suggest trustworthiness [;) ... [6] whether the statements contained express assertions of past fact; [7] whether cross examination could not help to show the declarant’s lack of knowledge; [8] whether the possibility of the declarant’s recollection being faulty is remote; and [9] whether the circumstances surrounding the statements give no reason to suppose that the declarant misrepresented the defendant’s involvement.
State v. Anderson, 107 Wn.2d 745, 750, 733 P.2d 517 (1987) (citations omitted).
The trial court considered these factors and concluded that Roberts did not establish that the hearsay statement was trustworthy. The trial judge ruled as follows:
The statements to Detectives Peters and Hatch are also made in a context in which the declarant, Mr. Cronin, is serving what are perceived as beneficial motivations to himself rather than confessing to a crime to expiate the soul or intentionally expose himself to liability.
The thrust of the statement is, as would be seen by an individual in Mr. Cronin’s circumstances, exculpatory to the extent that he is denying any role whatsoever in the causing of Mr. Cantu’s death. It is certainly necessary for him in that context to admit limited responsibility in various crimes along the way, some of which he was videotaped committing, others of which he was in possession of stolen property evidencing. It *536would be absolutely necessary in that context for him to retain any credibility in the assertions of innocence as to the most serious charge of causing the death of Mr. Cantu. So the circumstances are not such as would permit the court to find sufficient trustworthiness to those aspects of the statement in which the defense would be most interested.
4 Verbatim Report of Proceedings (RP) at 290-91.
The majority takes issue with the trial court’s ruling: “The trial court, therefore, unnecessarily took an all or nothing approach to what constituted Cronin’s statement, thereby saddling itself with the almost impossible task of determining whether the entirety of a 45-page confession was either inculpatory or exculpatory.” Majority at 495. The majority proposes adoption of the Williamson rule (Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994)) which “requires the federal courts to examine a proffered hearsay narrative, separate the inculpatory portions from those that are self-serving, and redact the narrative to exclude the self-serving statements.” Majority at 492.
The State argues the wisdom of adopting the Williamson rule as a general rule of evidence because the issue in that case was whether an entire narrative was properly admitted, not whether portions of a statement were properly excluded. However, the majority claims the definition of “statement” should not change depending on which party offers a statement. While strictly speaking this may be true, the context in which the evidence is offered and who is the proponent does make a difference to admissibility. The majority also states that Cronin’s confession was improperly excluded on reliability grounds because the same trial judge admitted the confession at Cronin’s separate trial. This ignores the fact that reliability is not at issue when the State offers a statement against a party opponent, as in Cronin’s trial. ER 801(d)(2). However, the context shifts to a hearsay analysis when the statement of an unavailable witness (Cronin) is offered by a codefendant (Roberts), and a reliability finding is then required.
*537While the wisdom of adopting Williamson might be further debated, it is entirely unnecessary in this case because the judge did not make a particularized examination of the statement in its parts as well as its whole. The majority entirely overlooks the following discussion by the trial judge:
The question of admissibility of a statement against penal interest, particularly when offered by the defense, is, but really in all circumstances, is really one of the most fact-based of any evidentiary ruling that the court is asked to make. There needs to be an absolute focus upon the context in which the statement is made by the out-of-court declarant in order to determine whether or not there is sufficient trustworthiness to allow its admission in the courtroom without the opposing party having the opportunity to confront or cross-examine that declarant.
The question then is whether or not the offered statement is a clear assertion of past fact made under circumstances where there is not a motivation to lie. The court is absolutely unable to find anything in the circumstances regarding these proffered statements that would put them into or even close to being in that category. . . . The statements made to the detectives were similarly guided by self-serving motivations. He [Cronin] was charged or was implicated in this homicide and had a strong motivation to distance himself from the actual causing of Mr. Cantu’s death.
In Mr. Holt’s opening statement on behalf of Mr. Roberts, he asserted before the jury that while Mr. Roberts was present at the scene beforehand, the stabbing and strangling of Mr. Cantu were done by a single person. That person was Timothy Cronin. That was an argument advanced by counsel on behalf of Mr. Roberts that was very much in Mr. Robert’s [sic] interests.
That’s what Mr. Cronin said to Detectives Peters and Hatch back in 1994: While I was present shortly beforehand, there was a single person who stabbed and strangled Eli Cantu; that person was Michael Roberts. There is nothing in the statement, the overall context of the making of the statement to the detectives that would be deemed so far contrary to the interests of Mr. Cronin that it would be admissible in evidence, whether the state were offering it in its case for those aspects of it, which implicated the tandem of Mr. Cronin and Mr. Roberts in the *538commission of this crime, or whether selected portions of it were isolated out and offered on behalf of the defense.
It simply would not be appropriate evidence to put before a jury without the person making such statement being available for cross examination. Cross examination is our traditional means in the court of finding out whether a person is telling the truth or not. It’s only in limited circumstances where a statement may come before the jury without the opportunity to cross-examine. This is not such a circumstance.
Again, as I said before, the rules of evidence are not applicable in a penalty phase should there be a penalty phase. Certainly, the defense would be allowed to present these statements in a penalty phase in any one of a number of different forms.
In the guilt phase, where the rules of evidence apply, those rules clearly prohibit the admission of this evidence, so I would adhere to the court’s prior ruling.
20 RP at 2676-79 (emphasis added).
In order to find error, we would have to find that the trial court abused its discretion. State v. Ng, 104 Wn.2d 763, 773, 713 P.2d 63 (1985). “An abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court.” State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). This court may not simply substitute its judgment for the trial court’s. The trial court acted within its discretion to find that Cronin’s hearsay statement was not trustworthy. The court then properly excluded the statement in accordance with ER 804(b)(3).
2. Jury Instruction Regarding Aggravating Factors
Roberts argues that a defendant cannot be held liable as an accomplice for the aggravating factors in a charge of first degree aggravated murder. He asserts that the language of the jury instructions in his case erroneously applied the law of accomplice liability to the specific aggravating factors of the charge against him.
Under Washington’s statutes, the death penalty may be imposed when a person “[w]ith a premeditated intent to cause the death of another person,. . . causes the death of *539such person or of a third person,” and one or more aggravating circumstances are found by the jury to exist beyond a reasonable doubt. RCW 9A.32.030(l)(a), 10.95.020, and 10.95.060(4). In the case before us, the jury found the defendant guilty of premeditated murder in the first degree.
After finding the defendant guilty of premeditated murder in the first degree, the jury completed the Special Verdict Form by answering questions submitted by the court as follows:
(1) Was the murder committed by the defendant and his accomplice to conceal the commission of a crime or to protect or conceal the identity of a person committing a crime?
ANSWER: Yes
(2) Was the murder committed in the course of, in furtherance of, or in immediate flight from a robbery in the first or second degree or a kidnapping in the first degree?
ANSWER: Yes
SPECIAL INTERROGATORY
(1) Did the defendant Michael Kelly Roberts personally act with a premeditated intent to cause the death of Elijio Cantu?
ANSWER: Yes
Clerk’s Papers (CP) at 2728, 2730-31.
The majority raises several questions regarding the propriety of imposing the death penalty on a defendant convicted as an accomplice to first degree aggravated murder. The majority, in fact, answers the questions itself, but chooses to ignore the answers. Instead, the majority reverses the aggravated murder conviction on grounds which might present themselves in some other hypothetical case, but which are not present here.
First, the majority questions “whether the aggravated murder statute as worded even allows for the execution of a defendant convicted as an accomplice to first degree murder.” Majority at 501. The majority quickly answers its own legislative intent question by noting, among other things, that the statute provides for a mitigating circumstance *540where an accomplice’s “ ‘participation in the murder was relatively minor....’” Majority at 502 (citing RCW 10.95.070(4)).
Next, the majority questions the constitutionality of imposition of the death penalty on an accomplice. “The imposition of a capital sentence is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments if it is imposed without an individualized determination that the punishment is appropriate.” Majority at 502. Under the case of Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), a defendant who drove a getaway car “could not be sentenced to death because he did not take life, attempt to take life, or intend for the death to occur.” Majority at 503. The Enmund case is easily distinguished. In the case before us, the jury found by special interrogatory that Roberts did “personally act with a premeditated intent to cause the death of Elijio Cantu.” Where the jury finds that the defendant intended for the death to occur, Enmund has no applicability.
The majority also cites the compelling case of Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987). In that case, the United States Supreme Court found that two defendants who aided their father in his escape from prison, but who did not actually commit an act of murder, could nonetheless be sentenced to death for the brutal murders committed by their father during his escape. The majority notes that Arizona law allows the death penalty for first degree felony murder (whereas Washington does not). The Supreme Court found “ ‘major participation in the felony committed, combined with reckless indifference to human life’ ” sufficient to support a sentence of death. Majority at 503 (quoting Tison, 481 U.S. 158). The majority comments on the holding of Tison as follows: “Therefore, Tison also suggested an actus reus requirement along with a mens rea requirement before the death penalty can be imposed. That requirement is at least ‘major participation’ in the crime if the mens rea is less than intent.” Majority at 503. Once again, the majority has *541answered the question it raised. Because the jury found that Roberts personally acted with a premeditated intent to cause the death of Elijio Cantu, the constitutional question facing the Supreme Court in Tison is not present here. Cruel and unusual punishment is implicated, under the majority’s own analysis, only if the mens rea is less than intent. The jury found that Roberts personally acted with premeditated intent.
The majority then claims that the jury instruction allowed Roberts to be convicted of premeditated murder in the first degree as an accomplice. However, as acknowledged by the majority, the aggravating factors instruction and special interrogatory prevented the jury from convicting him of aggravated murder unless the State proved beyond a reasonable doubt that Roberts personally acted with a premeditated intent to cause the death of the victim. Jury instruction 9 provided in pertinent part:
You will also be asked on the special verdict form whether or not it has been proved that the defendant Michael Kelly Roberts personally acted with a premeditated intent to cause the death of Elijio Cantu. In order to answer “yes” to this question, all twelve of you must agree that this proposition has been proved beyond a reasonable doubt.
CP at 2656.
The majority questions our holding in State v. Kwan Fai Mak, 105 Wn.2d 692, 718 P.2d 407 (1986) because it was decided before Tison. However, as the majority notes, in Mak the jury found the defendant did have a premeditated intent to kill. The same is true of Roberts. Neither Mak nor the case before us is impacted by the decision in Tison. Unquestionably, Mak remains good law whenever the jury makes a finding of a premeditated intent to kill.
I agree with the majority that the accomplice liability instruction, jury instruction 7, should have stated “the crime charged” rather than “a crime.” However, because the jury was instructed in the aggravation instruction that it had to find that Roberts acted personally and with intent to *542cause death, such error is harmless in this case. When an instruction is clearly erroneous, prejudice is presumed. State v. Britton, 27 Wn.2d 336, 341, 178 P.2d 341 (1947), cited with approval in State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977). However, it is the duty of the court to scrutinize the record to determine whether such error was harmless or prejudicial. “A prejudicial error is an error which affected the final result of the case .. . .” Britton, 27 Wn.2d at 341. The jury was instructed what it had to find beyond a reasonable doubt concerning Roberts’ personal act and intent to kill, and the jury did so find, by special interrogatory.
Jury instructions are to be read as a whole. State v. Schulze, 116 Wn.2d 154, 167, 804 P.2d 566 (1991) (“Jury instructions must be considered in their entirety to determine if there is reversible error in a specific instruction.”).
There is no question here that Roberts is being sentenced to death for anything other than what he did—“personally act with a premeditated intent to cause the death of Elijio Cantu.”
In summary, the aggravated murder statutes allow for the execution of an accomplice, and the instructions given in this case are valid under this Court’s holding in State v. Kwan Fai Mak. By special verdict, the jury found beyond a reasonable doubt that Roberts personally acted with the premeditated intent to cause the death of Eli Cantu. Therefore, I would affirm Roberts’ conviction and sentence for the crime of aggravated murder in the first degree.
Talmadge and Bridge, JJ., concur with Ireland, J.
Reconsideration denied March 2, 2001.