(dissenting) — I disagree with the majority's disposition of appellant Mak's claims concerning admission of certain evidence during both the guilt and sentencing phases of the trial which connected a third party to the crimes at the Wah Mee Club. My more fundamental concerns with the constitutional objections to the death penalty statute have already been discussed, see State v. Campbell, 103 Wn.2d 1, 41, 691 P.2d 929 (1984) (Utter, J., concurring in part, dissenting in part), cert. denied, 105 S. Ct. 2169 (1985). These address many of the other issues raised by the defendant and I refer the court to them.
There would seem to be little that could be said that might convince a jury that one who participated in the killing of 13 people should have his life spared. And yet, under the bizarre facts of this case, two of the three participants in this crime have been spared the death penalty. One, Tony Ng, because he escaped to Canada, could not be charged with a capital offense and be successfully extradited to the United States. The other participant, who fired most of the shots, did not receive the death penalty. Only one actor in this most brutal of all killings committed within this state received the death penalty. The appellant here was characterized by the State as the planner, the one who orchestrated the whole event, and on this basis the State argued, as one of its two distinct grounds, that he deserved the death penalty when the other two participants in this crime did not.
The defendant attempted to introduce evidence from *764which he could argue someone else in fact orchestrated the crime and, in particular, that Benjamin Ng's role, as the one firing most of the shots, was more central than the prosecution had maintained. To fail to allow this evidence before the jury is something I cannot reconcile with either our statutory procedures or constitutional due process. The evidence should have been admitted in at least the penalty phase of the trial under RCW 10.95.060. It also was properly offered in the guilt phase of the trial and admissible under ER 401.
I
The rule for the admission of mitigating evidence at the sentencing phase of capital cases was stated in Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978):
the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.
(Footnote omitted.) 438 U.S. at 604, cited with approval in State v. Bartholomew, 101 Wn.2d 631, 645-46, 683 P.2d 1079 (1984). This rule recognizes that corrective mechanisms are not available in capital cases. 438 U.S. at 605. See also Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982).
In the present case, of course, the relevant Washington statute permits the defendant to present any relevant evidence, regardless of its admissibility under the rules of evidence. RCW 10.95.060. See also State v. Bartholomew, 101 Wn.2d at 642; State v. Rupe, 101 Wn.2d 664, 701, 683 P.2d 571 (1984). Despite this, in sentencing appellant, the trial judge refused to allow the jury to consider evidence that, if taken as true, may well have influenced the jury to impose a lesser sentence. The majority only concludes, without discussion, that this evidence was neither relevant nor probative.
Washington Rule of Evidence 401 defines "relevant evi*765dence" as follows:
evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
See also Black's Law Dictionary 1160 (5th rev. ed. 1979). Furthermore, this court has declared the test of relevancy to be "whether the evidence has a "'tendency to make the existence" of the fact to be proved "more probable or less probable than it would be without the evidence'." State v. Renfro, 96 Wn.2d 902, 906, 639 P.2d 737 (1982), cert. denied, 459 U.S. 842, 74 L. Ed. 2d 86, 103 S. Ct. 94 (1983). In State v. Rupe, supra at 686-89, we concluded that evidence that tended to increase the probability of defendant's guilt was relevant. Likewise, evidence that tends to decrease the probability of a defendant's guilt is relevant.
The majority's classification of the proffered evidence as neither relevant nor probative is not warranted. Appellant Mak's offer of proof consisted of the following evidence: (1) a third party planned to control gambling in the International District; (2) the third party contacted Benjamin Ng on the day of the Wah Mee killings; (3) the party was a "banker" for an International District gambling club that had just closed down; (4) an informant told the police that this person directed young gang members; (5) Benjamin Ng's car had been seen at the person's restaurant an hour before the crime; and (6) the person offered to sell Benjamin Ng a bulletproof vest a week before the Wah Mee incident.
Without this evidence, the jury was unaware of a possible third party connection, a connection about which appellant Mak claims he was ignorant. Because the evidence, if believed, tended to decrease appellant Mak's guilt, it was relevant under the definition outlined in Renfro and ER 401.
However, even if the evidence was not admissible under the definition outlined in ER 401, that definition is not controlling. RCW 10.95.060. Less restrictive standards for *766relevance and probative value are applied to evidence of mitigating circumstances at the sentencing phase of trial. State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984). This is because "when a jury is faced with the question whether or not the defendant should be put to death, the defendant should be allowed to submit any evidence of . . . the circumstances of the offense ..." (Italics mine.) 101 Wn.2d at 646 (citing Lockett v. Ohio, 438 U.S. at 604). Evidence of the involvement of a third party is clearly relevant to the jury's decision to sentence Mak and directly relevant to answer the State's claim that the defendant alone in this case deserved to die. See Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (1983).
Where, as here, appellant has presented evidence regarding the involvement of a third party, such evidence should be received during the sentencing phase of the trial. Such evidence assures that the appellant is judged as an individual. See Lockett v. Ohio, supra. Since, under ER 401 and RCW 10.95.060 the evidence was relevant, the trial court erred in refusing to receive this evidence during the sentencing phase of trial.
II
Additionally, the majority concludes that the statement by the third party to Benjamin Ng, which would have established the necessary foundation for appellant Mak's offer of proof, is hearsay. Although hearsay, the statement was admissible under ER 804(b)(3).
ER 804(b)(3) provides:
(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, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement *767tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Although the offer to sell a bulletproof vest to Benjamin Ng 1 week before the Wah Mee murders is not a direct statement against the third party's interest, that fact is not controlling. The statement "need not have been a clear and unequivocal admission of criminal conduct." State v. Parris, 98 Wn.2d 140, 149, 654 P.2d 77 (1982). All that is required is that the declaration would tend to subject him to criminal liability. United States v. Barrett, 539 F.2d 244 (1st Cir. 1976), cited with approval in State v. Parris, supra.
In Barrett, the defendant offered witness testimony which tended to exculpate him as a participant in the theft and sale of a stamp collection. The Court of Appeals for the First Circuit held that the remarks tended to subject the declarant, Tilley, to criminal liability because they strongly implied his participation in the stamp crimes. Barrett, at 251.
Other jurisdictions have also followed the rule that a declaration against interest is not confined to "clear confessions." In United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978), the court held that statements made for the purpose of setting up a drug transaction were against declarant's penal interest. See also United States v. Bagley, 537 F.2d 162 (5th Cir. 1976); United States v. Benveniste, 564 F.2d 335 (9th Cir. 1977).
Here, declarant offered to sell a bulletproof vest to Benjamin Ng. Although this statement does not clearly and unequivocally amount to an admission of criminal conduct, it does imply that the declarant was involved in the Wah Mee murders. Thus, the statement was made in furtherance of a criminal act and qualifies as an admission against penal interest within the holding set by Barrett and cited with approval in Parris.
The statement also satisfies the other two prerequisites *768of ER 804(b)(3). First, the declarant must be unavailable despite good faith efforts to locate him. State v. Valladares, 99 Wn.2d 663, 668, 664 P.2d 508 (1983). In this case, appellant offered to call the declarant as a witness himself, but was refused. Thus, appellant made a good faith effort to avail the declarant to the court within the prerequisites of ER 804(b)(3).
Secondly, the statement was accompanied by corroborating circumstances indicating its trustworthiness. Valladares, 99 Wn.2d at 668. Among other factors in evaluating the trustworthiness of extrajudicial statements, consideration should be given to the close proximity of the declaration to the crime, whether the statements were spontaneous and against declarant's penal interest, and whether there was apparent reason for declarant to lie. State v. Dictado, 102 Wn.2d 277, 288, 687 P.2d 172 (1984) (citing State v. Boast, 87 Wn.2d 447, 553 P.2d 1322 (1976)).
Here, the statement was made only 1 week before the murders. Secondly, as discussed above, the statement was against the declarant's penal interest, and finally, the statement was inculpatory rather than exculpatory, implicating only the declarant. Thus, it was not in declarant's interest to lie. See State v. Parris, 98 Wn.2d 140, 154, 654 P.2d 77 (1982) (Williams, J., dissenting).
Because I believe that the statement should have been admitted, I further conclude that appellant's offer of proof satisfied the test stated in State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932) (majority, at 716). The trial court erred in refusing the appellant's offer of proof.
Ill
The trial court's refusal to admit the evidence raises, in turn, a proportionality issue, which the majority does not discuss. For the same crimes, Benjamin Ng received a life sentence, while appellant Mak must die. The State justifies this result on two grounds: (1) Mak is characterized as the one who orchestrated the crime, Ng's role being similar only in that he also participated in the crime, Brief of *769Respondent, at 88; (2) personal differences between Ng and Mak justify the different results.
My quarrel is with the first of these two bases. Had the contested evidence been admitted, it could have raised doubts about Mak's alleged autonomy and control in the crime. Because the issue of Mak's control was so central to the penalty proceedings, the evidence of a third party's involvement in the crime was relevant both to the issue of control and the issue of premeditation. The jury itself should have been allowed to weigh that evidence in determining whether Mak should die while his accomplices live. This seems especially true when the State has conceded that it believes Ng, not Mak, killed most of the victims. Brief of Respondent, at 15, 88. Presented with evidence rebutting Mak's control, as well as State concessions that Ng fired most of the shots, a jury might well have been reluctant to sentence Mak to death, knowing that Ng would be spared. Neither we, nor Mak, will ever know. Mak, however, has less time to speculate about the possibility.
As I have indicated elsewhere, see Campbell, 103 Wn.2d at 41 (Utter, J., concurring in part, dissenting in part), I do not believe that our death penalty statute meets constitutional standards. Nevertheless, even conceding that issue, I would hold, for the above reasons, that the trial court erred in refusing to admit the evidence and would remand so that the jury might consider all relevant evidence before it decided that Mak should die while his coconspirators live.
Pearson, J., concurs with Utter, J.Reconsideration denied August 19, 1986.