dissenting. I respectfully dissent.
The majority correctly recognizes that the Confrontation Clause bars the admission of some evidence that would otherwise be admissible as a hearsay exception. The majority also correctly states the Roberts test that the declarant must be available for cross-examination and the declarant’s statement must bear adequate “indicia of reliability.” Finally, the majority correctly states that the reliability standard can be satisfied where the evidence falls within a firmly rooted hearsay exception or is supported by a showing of “particularized guarantees of trustworthiness.” Unfortunately, after stating the law correctly to this point in its analysis, the majority misunderstands what constitutes a firmly rooted hearsay exception and a showing of particularized guarantees of trustworthiness.
The majority finds that the Roberts reliability standard is met in both ways: Moore’s statement falls under an established hearsay exception as a statement against interest pursuant to Evid.R. 804(B)(3) and the statement is supported by particularized guarantees of trustworthiness. The majority finds the statement is an established hearsay exception as a statement against interest because Moore’s statement “tended to subject the declarant, Moore, to criminal liability.” What the majority ignores, but the court of appeals recognized, is that the United States Supreme Court has specifically rejected justifying the admission of co-defendants’ statements on this basis. The court stated:
“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 meaningful Confrontation Clause analysis. We decide this case as involving a confession by an accomplice which incriminates a criminal defendant.” Lee v. Illinois (1986), 476 U.S. 530, 544, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514, 528, fn. 5.
Since Moore’s statement cannot be admitted against Gilliam as a firmly rooted hearsay exception, it must be supported by a showing of particularized guarantees of trustworthiness to be admissible. The majority makes two errors in concluding Moore’s statement meets this test. First, the majority looks beyond the circumstances surrounding the making of the statement to other evidence admitted at trial. Second, the majority concludes that Moore’s statement is reliable, since Moore implicated himself in criminal activity. Again, the United States Supreme Court has specifically rejected both aspects of the majority’s approach.
Ironically, the majority cites the very page of the opinion in Idaho v. Wright (1990), 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638, which repudiates its position. The United States Supreme Court noted that the state of Idaho argued that “a finding of ‘particularized guarantees of trustworthiness’ should instead be based on the consideration of the totality of the circumstances including not only the circumstances surrounding the making of the statement, but also other *23evidence 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 thát render the declarant particularly worthy of belief.” (Emphasis added.) Id. at 819, 110 S.Ct. at 3148, 111 L.Ed.2d at 654-655.
The court further stated that “[i]n 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.” The court gave the “excited utterance” and “dying declaration” hearsay exceptions as examples where “the circumstances surrounding the making of the statement provides sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous.” Id. at 820, 110 S.Ct. at 3149, 111 L.Ed.2d at 655. Thus, the majority impermissibly looked to other evidence beyond the circumstances surrounding the making of Moore’s statement to justify its conclusion that Moore’s statement was reliable.
The majority also incorrectly concludes that the fact Moore implicated himself in criminal activity makes his statement reliable. To justify this conclusion, the majority states that “the reliability of Moore’s confession was not as inherently suspect as the typical co-defendant’s confession referred to in the United States Supreme Court case, Lee v. Illinois * * *. Moore’s statement did not attempt to exonerate Moore and shift the blame to another co-defendant.” (Citation omitted.)
Again, the majority gives the impression that Supreme Court precedent justifies its position. However, the majority does not discuss the facts of Lee v. Illinois (1986), 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514. Those facts make it apparent that Lee is not distinguishable from the present case. The co-defendant in Lee did not try to “exonerate” himself or “shift” the blame to the other co-defendant. What he did was make a statement which inculpated both defendants. Co-defendants Lee and Thomas were charged with murder. Lee gave a statement to the police indicating the murders occurred without premeditation. Thomas gave a statement to the police indicating that he and Lee had discussed the murders in advance. Despite the fact Thomas inculpated himself in the murder, the Supreme Court ruled that Thomas’s statement could not be admitted against Lee because to do so violated the Confrontation Clause of the Sixth Amendment.
The majority’s conclusion that Moore did not attempt to exonerate himself or shift blame to the other co-defendants also is not supported by the statement itself. What were the circumstances surrounding the making of Moore’s statement? Moore’s vehicle was identified by a witness as the vehicle involved in the *24robbery. The police took Moore into custody to interrogate him. Listening to Moore’s statement it is apparent he was trying to minimize his involvement and maximize the involvement of Gilliam and Treadwell. Moore initially claimed that he just gave Gilliam and Treadwell a ride but did not know what they planned to do. Moore said they merely told him they wanted to “check something out.” Moore continued to deny any prior knowledge about the robbery. Finally under persistent questioning by police, Moore stated he “guessed” you could say that he knew they were going to the Rite Nau to rob it.
Neither the circumstances surrounding the making of Moore’s statement nor the statement itself overcomes the presumption of unreliability accorded to a co-defendant’s statements. As the Supreme Court has said, “[o]ur cases recognize that this truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice’s confession is sought to be introduced against a criminal defendant without the benefit of cross-examination. As has been noted, such a confession ‘is hearsay, subject to all the dangers of inaccuracy which characterize hearsay generally. * * * More than this, however, the arrest statements of a co-defendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.’ * * *
G tj: * *
“ * * * The true danger inherent in this type of hearsay is, in fact, its selective reliability. As we have consistently recognized, a codefendant’s confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another.” Lee v. Illinois, at 541, 545, 106 S.Ct. at 2062, 2064, 90 L.Ed.2d at 526, 529.
The admission of Moore’s statement into evidence against Gilliam violated Gilliam’s Sixth Amendment right to confront witnesses. For that reason, I would reverse the court of appeals.
A.W. Sweeney, J., concurs in the foregoing dissenting opinion.