dissenting.
Respectfully, I dissent.
When all is said and done, Harrison was convicted by inadmissible, impermissible hearsay: the unsworn, verbal, pre-trial statements his codefendant, Stepp, reportedly made to Sheriff Riley, who then testified at Harrison’s trial that Stepp admitted to three burglaries and implicated Harrison as his accomplice. Stepp denied making these statements at a pre-trial suppression hearing and refused to testify at Harrison’s trial. Through alibi witnesses, Harrison claimed he was elsewhere when the burglaries occurred.
Sheriff Riley of Hickman County, Kentucky, testified he interviewed a reluctant Stepp at the Weakley County, Tennessee jail, and while Stepp was negotiating with the Sheriff over whether to make a formal statement at a later date, the Sheriff took some preliminary notes which he later organized into a written statement, from which he then testified at Harrison’s trial.
Sheriff Riley’s testimony against Harrison defied the rules of evidence and denied the accused’s basic constitutional right to confront Stepp, who was his accuser according to Sheriff Riley. Harrison was convicted on hearsay, and therefore his *178conviction should be reversed, but the Majority Opinion escapes this syllogism by using a confused, imprecise version of the facts and then stretching the hearsay exception for declarations against penal interest to fit the situation. Preserving the integrity of the law of evidence and the vitality of the Confrontation Clause is more important than affirming Harrison’s conviction.
At the pre-trial suppression hearing to adjudicate the admissibility of the testimony of Sheriff Riley about Stepp’s incriminating statements, the Commonwealth freely stated that, if the court ruled the testimony from Sheriff Riley admissible, the Commonwealth wanted to sever the Stepp trial from the Harrison trial so that Stepp’s statements could be used against Harrison as well as Stepp, to avoid the decision of the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). As we stated in Cosby v. Commonwealth, Ky., 776 S.W.2d 367, 370 (1989):
“The fundamental premise in Bruton v. United States, supra, is that the confession of a codefendant when utilized as evidence in a joint trial is prejudicial hearsay as to the nonconfessing defendant to the extent that it incriminates him, and cannot be used unless the name of the nonconfessing defendant can be so redacted or deleted that its use is harmless beyond a reasonable doubt. Otherwise, it violates the accused’s fundamental right, guaranteed by the Sixth Amendment, to be confronted by the witnesses against him.”
The Commonwealth Attorney, the trial court, and now this Court, have circumvented the constitutional premise expressed in Bruton and followed in Cosby. The principle involved, the right guaranteed to the criminally accused by the Sixth Amendment “to be confronted with the witnesses against him,” and by our Kentucky Constitution in Section 11 “to meet the witnesses face to face,” cannot be evaded by the purely technical and meaningless device of severing the trial of codefend-ants. This fundamental constitutional premise so important to our liberty is being denigrated to an empty phrase. Severing trials of codefendants is used when necessary to protect the rights of a defendant against the use of evidence admissible only against a codefendant; it was never intended as a method to render admissible evidence otherwise inadmissible. It should be obvious that any evidence inadmissible against a particular defendant at a joint trial is likewise inadmissible at a separate trial.
The case before us is not complicated. At Harrison’s trial, the Commonwealth called Stepp as a witness, and Stepp refused to testify. Stepp’s attorney had told the court at the pre-trial suppression hearing that “at trial we are going to invoke the Fifth and not testify.” Severing the trials changed nothing; no one suggests Stepp had lost the privilege against self-incrimination when asked to take the stand at Harrison’s trial.
At Harrison’s trial Stepp refused to be sworn, stating “I don’t want to testify”; he refused to answer any questions; indeed, he even refused to sit in the witness chair. The court reporter recorded his refusal to testify by noting after each question:
“A. (No audible response.)”
Stepp refused to testify in every sense of the word. The Commonwealth argues the record is not entirely clear on this point, but this is the only possible good faith interpretation of the record before us.
The situation is no different than in Commonwealth v. Brown, Ky., 619 S.W.2d 699, 701 (1981), where “[a]t a pre-trial hearing, Owens and Furman [Brown’s code-fendants] indicated that they would refuse to testify on the grounds of their Fifth Amendment and Ky. Const. Sec. 11 privileges against self-incrimination.” The Commonwealth then proposed to sever the cases and then call them as witnesses against Brown at his trial, and to use their statements if they refused to testify. The trial court properly rejected this procedure. When the Commonwealth sought a certification of law, Justice Lukowsky, speaking for this Court on a better day, stated:
“The trial court properly ruled that the statements of Owens and Furman would be inadmissible if they refused to testify at Brown’s trial....
*179The Commonwealth asserts that, as soon as the accomplices take the stand and refuse to testify, the prosecutor may proceed to impeach their silence by introducing their confessions as prior inconsistent statements under the doctrine established in Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969). The Commonwealth not only misconstrues Jett, but fails to grasp the rationale behind its requirements.
Jett establishes that the effect of prior inconsistent statements once admitted into evidence, is not limited to impeaching the credibility of witnesses. It allows such statements to be considered as substantive evidence when a witness is available and subject to cross-examination. Jett, supra at 792. If a witness remains silent he makes no statement. Consequently, there is nothing with which the prior statement can be incon-sistent_ the probative effect of the prior statement never ripens into an issue.” Id. at 703-04. [Emphasis added.] Speaking to the hearsay exception for
statements against penal interest, the device used here to circumvent the hearsay rule, Justice Lukowsky’s Opinion cites Crawley v. Commonwealth, Ky., 568 S.W.2d 927 (1978), as authority that the untried codefendant is “unavailable as a witness for the purpose of invoking Jett," and then concludes:
“The basis for the requirement of availability for cross-examination is self-evident. A criminal defendant’s inability to cross-examine a witness regarding extrajudicial statements denies him the right of confrontation secured by Section 11 of our Constitution and the Sixth Amendment to the federal Constitution. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Such statements are consequently inadmissible. Owsley v. Commonwealth, Ky., 458 S.W.2d 457 (1970).
To hold otherwise would be patently unfair to the defendant. The witness is effectively not there. The defendant is in an unduly disadvantageous position to counter either the making or the truth of his statements. It is reasonable to infer that the introduction of a statement could easily lead to the jury’s believing that the witness made it, and his refusal to testify could result in their improperly inferring that it was true. Douglas, supra 380 U.S. at 419, 85 S.Ct. at 1077.” Brown, supra at 704.
This case is another move backward down the slippery slope begun in Taylor v. Commonwealth, Ky., 821 S.W.2d 72 (1992). The Taylor Majority upheld a similar procedure, permitting the Commonwealth to evade the constitutional principles enunciated by the United States Supreme Court in Bruton, and by our Court in Cosby, by utilizing a purely technical device, severing the trial of codefendants. There is no way that this device can render inadmissible hearsay admissible, or cross the still higher threshold represented by the accused’s constitutional right to confront the witnesses against him.
Taylor involved two vicious, inexcusable, shocking murders. It proves the old adage: hard cases make bad law. Taylor held that a statement by Wade, a codefend-ant, fingering Taylor as the triggerman while painting Wade as a reluctant accomplice, was admissible under the exception to the hearsay rule that pertains to statements against penal interest made by a declarant now unavailable. Taylor then went still another step, declaring such statements do no violence to the accused’s constitutional right to confront the witnesses against him, thus disregarding the longstanding mandate of Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), the more recent reaffirmation of the Douglas principle involved in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), and the footnote in Lee v. Illinois, 476 U.S. 530, 544, n. 5, 106 S.Ct. 2056, 2064, n. 5, 90 L.Ed.2d 514, 528, n. 5 (1986):
“We reject respondent’s categorization of the hearsay involved in this case as a simple ‘declaration against penal interest.’ That concept defines too large a class for a meaningful Confrontation Clause analysis.” Id.
These United States Supreme Court cases hold that hearsay is permissible as an exception to the Confrontation Clause only in limited circumstances “where the evi*180dence falls within a firmly rooted hearsay exception.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Statements against penal interest are a relatively new expansion of the common law exception for a declarant’s pre-trial statement where, when at the time it was made, it was against his pecuniary or proprietary interest, and the declarant is unavailable as a witness at trial. Its use is narrowly circumscribed.
Assuming for argument’s sake that a statement against penal interest now qualifies as a “firmly rooted hearsay exception,” there is no way that the statements attributed to Stepp by Sheriff Riley, implicating Harrison as well as himself in the burglaries under investigation, meet the standard that applies to admitting evidence of this nature.
“United States Supreme Court decisions as well as decisions from the courts of appeals indicate that custodial statements implicating a third person do not fall within a firmly rooted hearsay exception.” Olson v. Green, 668 F.2d 421, 427-28 (CCA 8, 1982), summarizing cases cited therein.
The rule requires fact-finding. As stated in KRE 804(b)(3):
“A statement tending to expose the de-clarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
In Idaho v. Wright, supra, 497 U.S. at 819-20, 110 S.Ct. at 3148-49, the United States Supreme Court explains what is meant by “corroborating circumstances” in these words:
“The State responds that a finding of ‘particularized guarantees of trustworthiness’ should instead be based on a consideration of the totality of the circumstances, including not only the circumstances surrounding the making of the statement, but also other evidence at trial that corroborates the truth of the statement. We agree that ‘particularized guarantees of trustworthiness’ must be shown from the totality of the circumstances, but we think the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief....
In other words, if the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial.”
To review the “relevant circumstances ... that surround the making of [Stepp’s] statement”:
Stepp was being interviewed about a Kentucky crime in a Tennessee jail. He was trying to evade making a statement while, at the same time, ingratiating himself with the Kentucky Sheriff, by suggesting that while not prepared to give a statement, he would probably make one later. At the suppression hearing Stepp vehemently denied making any of the statements to Sheriff Riley that the Sheriff reported. The Sheriff does not claim he reduced Stepp’s statements to writing as they were being made, claiming instead that he took some notes which he later developed into a statement. The statement as written up is not in Stepp’s words, but in the Sheriff’s: “Stepp said” thusly; or “Stepp advised” thusly; or “Stepp remembered” thusly.
It is quite clear the statement was not written up until some time after the interview took place because the interview was in Weakley County, Tennessee, before Stepp was arrested, but the statement refers to his later arrest, and to Stepp’s failure to contact Sheriff Riley later, as he promised to do in his statement:
“Stepp was arrested by Graves Co. Sheriff Dept. He was to contact us next day and give a better statement. He did not contact us.”
The standards set for judging the admissibility of a declaration against interest relate only to the circumstances surrounding the “making of the statement.” The Majority Opinion disregards these circumstances and looks instead to corroborating circumstances unrelated to the making of the statement to make it admissible. The Majority Opinion relies on evidence that the burglaries occurred, evidence that a car *181similar in color to Harrison’s car was seen near one of the burglaries, and evidence that stolen property was found in a vacant house near where Harrison lives, as the kind of “relevant circumstances” justifying admitting Sheriff Riley’s testimony as to what Stepp said about Harrison’s participation in the burglaries. This kind of corroborating evidence has nothing whatsoever to do with the kind of relevant circumstances surrounding the taking of a statement referred to in the hearsay exception for declarations against penal interest. This case has none of the kind of relevant circumstances surrounding the making of the statement which would justify Sheriff Riley testifying about what Stepp said about Harrison’s involvement in these burglaries.
Before we reversed direction in Taylor v. Commonwealth, supra, we had a well-established line of cases holding evidence of this nature inadmissible, and reversing where it was admitted. In addition to Commonwealth v. Brown, supra, and Crawley v. Commonwealth, supra, these cases included: Owsley v. Commonwealth, Ky., 458 S.W.2d 457 (1970); Higgs v. Commonwealth, Ky., 554 S.W.2d 74 (1977); and, more recently, Dodson v. Commonwealth, Ky., 753 S.W.2d 548 (1988). We have disregarded such authorities without overruling them. We have invented a way around the law of hearsay and the confrontation clauses in our federal and state constitutions.
What is wrong with this case? Reduced to its ABC’s, Harrison was convicted on second-hand information: the truth of Stepp’s accusations against him, as reported by Sheriff Riley. Riley could be cross-examined about whether Stepp imparted this information, but Stepp could not be cross-examined about the truth of the matters asserted. This second-hand information from Riley is called “hearsay” at common law. Hearsay is unreliable; it is untrustworthy regardless of how judges may view it in any particular case. Blackstone referred to cross-examination as the great engine of the common law. The confrontation clauses in our federal and state constitutions are designed to protect that engine. We have shut off the engine.
As I stated in my Dissent in Taylor v. Commonwealth, 821 S.W.2d at 81:
“If we judges decide to admit such statements on an ad hoc basis whenever we deem them sufficiently trustworthy because of other evidence, the system will soon fall apart.”
As I wrote in conclusion in Taylor:
“We are judges charged with the duty to reverse and remand when confronted with prejudicial error. Recognizing my responsibility under the law, I dissent.”
COMBS, J., joins this dissent.