(dissenting).
This is the first time within my recollection that this court has permitted the admission into evidence of an unsworn statement of a so-called accomplice in an effort to convict a defendant. This is particularly distasteful when the “accomplice” is a young Indian lad who has been scared half to death by the police officers in an effort to find some evidence against Abourezk. Holy Rock’s fear is shown by his testimony that the deputy told him he was up to his neck in trouble and had better start digging his way out. Of even more importance is Holy Rock’s statement at the suppression hearing that “he’s [Abourezk] got nothing to do with it.” Since even the majority opinion recognizes that Holy Rock was “an individual committed to telling the truth,” Holy Rock’s statement at the hearing, which contradicts the written statement, should cause the reliability of the unsworn written statement to be seriously questioned.
A trip to the Indian reservation would produce Holy Rock. Instead, armed with this unsworn statement implicating the defendant, the law officers brand the lad as a “fugitive from justice” without any real effort to locate him. While a few calls may have been made, the State has not instituted any formal legal proceedings with the Oglala Tribe or its courts to apprehend, locate, or extradite Holy Rock. The State has not had any agent contact Holy Rock’s parents or relatives or sent any agent onto the reservation to locate him. No national alert has been issued to arrest or locate Holy Rock. (Testimony of sheriff -at hearing on motion to declare witness unavailable.)
This lack of effort forecloses any confrontation between the defendant and Holy Rock and any cross-examination on the self-serving declarations in his unsworn statement. Without this statement, the only evidence available is the fact that Abourezk and Holy Rock were seen driving in the general area of the marijuana patch in two trucks owned by Abourezk.
The majority opinion is filled with suppositions about how “improbable” it would be for this boy to “make false statements to implicate his own sister.” This is the first time I have heard of any charge against the sister. Then there is the statement that there is “no doubt that appellee Abourezk arranged to have this counselor contact and represent Holy Rock forthwith.” These strong declarations would be more meaningful if they were substantiated by some facts.
Without cross-examination we have no idea what the relationship between Abour-ezk and Holy Rock might be. It certainly would not be the first time that brothers-in-law had less than great love for one another — if such is the case, and we will never know without a cross-examination of Holy Rock.
At two different places in the majority opinion, the author states that this marijuana patch was growing “near” or at the situs of our State University. What does this have to do with suppressing the unsworn statement of a witness? Does this make the unsworn statement more accurate, or is it just an improper jury argument to try and inject some prejudice against this defendant?
I certainly do not think that this court should give any deference to the fact that this defendant is a young law student, but by the same token, we should not lean over backwards to convict him on evidence that would ordinarily be suppressed against the “slimiest” of drug traffickers.
I would suppress the unsworn statement and force the authorities to bring Holy Rock into court to testify.