specially concurring.
I am in accord with the result which is reached by the majority opinion in this case. I have some concern, however, that language from the majority opinion might be perceived by Munson as suggesting a viable basis upon which he could invoke postconviction relief. The majority notes that we have not been presented with an ineffectiveness of counsel or plain error argument for reversal. This statement is made in the context of the utilization of a statement by Perkins in connection with his pre-sentence investigation and Perkins’ testimony under oath to establish the factual basis of his own plea of guilty as evidence of Munson’s identity. Munson might hope that, had an objection been made, the evidence would not have been admissible.
I perceive that these statements are examples of an appropriate exception to the hearsay rule when the declarant is unavailable pursuant to Rule 804, W.R.E. That rule states in pertinent part:
“(a) Definition of unavailability.— ‘Unavailability as a witness’ includes situations in which the declarant:
* * * * * *
“(3) Testifies to a lack of memory of the subject matter of his statement; * * * ******
“(b) Hearsay exceptions. — The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
******
“(3) Statement Against Interest. — 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 him to civil or criminal liability, * * * that a reasonable man in his position would not have made the statement unless he believed it to be true.”
The statement to the probation officer and the testimony under oath to provide a factual basis for Perkins’ plea of guilty satisfy the requirements of this rule. Consequently, the district judge would have admitted them into evidence even though an objection had been lodged on the ground that the statements were hearsay.
It also seems to me that in the context of this appeal, the information set forth in footnote 3 is superfluous. With these additional comments, I concur in the disposition of the case in accordance with the majority opinion.