(dissenting).
I agree with the majority that Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), and particularly the fourth criteria of the Dutton test is the controlling law in this case; but at that point they and I part company.
A recent Eighth Circuit Court of Appeals case, Olson v. Green, 668 F.2d 421 (8th Cir.1982), goes to the heart of the issue before us, the admissibility of an accomplice’s custodial statement. In that case, the Minnesota Supreme Court did exactly what the State wants us to do here, to determine that such a statement was admissible solely for the reason that it was against declarant’s penal interest under identical statutory language to SDCL 19-16-32.
The Eighth Circuit panel quoted Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), for the rule that an unavailable witness’
statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
668 F.2d at 427 (citation omitted). The court went on next to consider whether a custodial statement falls within a firmly rooted hearsay exception and found to the contrary. After giving due deference to the Minnesota Supreme Court’s interpretation of the statement as having qualified under Minnesota’s penal interest exception to the hearsay rule, the Eighth Circuit Court stated: “[T]his alone does not guarantee a sufficient degree of reliability for confrontation clause purposes.” 668 F.2d at 428 (emphasis added). The panel cited the recent case of United States v. Love, 592 F.2d 1022 (8th Cir.1979), wherein they noted the inherent unreliability of custodial statements implicating a third person with the observation that “ ‘a strong incentive to speak, whether it be truthfully or falsely ... does not indicate sufficient reliability to bring the statement within the [penal interest] exception to the hearsay rule.’ ” 668 F.2d at 428 quoting from Love, 592 F.2d at 1026.
The Olson court also cited the Advisory Committee Notes to the Federal Rules of Evidence 804(b)(3) which cautioned against admissibility of such custodial statements for the reason that “a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest.” 668 F.2d at 428.
Since Dutton was written, there have been several cases elaborating upon the application of the four criteria of Dutton. I believe these are noteworthy. Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713, 723 (1979); Ohio v. Roberts, 448 U.S. 56, 65 n. 7, 100 S.Ct. 2531, 2538 n. 7, 65 L.Ed.2d 597, 605 n. 7 (1980); United States v. Barlow, 693 F.2d 954, 963-65 (6th Cir.1982); United States v. Fleishman, 684 F.2d 1329, 1338-40 (9th Cir.1982); United States v. Perez, 658 F.2d 654, 660-62 (9th Cir.1981).
Applying these decisions to the case before us, I arrive at a different conclusion than the author. I agree with the trial judge. The record in this case consists primarily of the written statement at issue and the transcript of the suppression hearing in State v. Holy Rock (Crim. No. 81-40) (1st Cir.S.D.) wherein Holy Rock sought to suppress the written statement as a confession. In addition, there is a modicum of testimony at the hearing in this case. At the close of the hearing below, the trial court entered findings of fact and conclusions of law. Some of these key findings are summarized as follows: The trial court found that the deputy had “advised Holy Rock that he was in trouble and had better start digging his way out”; that “[he] could dig his way out of trouble by cooperating with the law officer”; and, that “[he] (the officer) thought the marijuana belonged to Mike Abourezk and that he didn’t think that Holy Rock was the type to be raising that stuff.” The State does not dispute any of these findings although it does dispute a *785subsequent finding that “the officer insinuated that Holy Rock was merely a tool being used by others, including Mike Abour-ezk.” In this same regard, the trial court specifically found “the statements of the questioning officer may have influenced Holy Rock relative to the contents and signing of Exhibit 1.”
More importantly, a key finding which the majority would sweep under the rug is: Holy Rock told the officer that the marijuana was not Mike Abourezk’s and that Mike had “nothing to do with it.” This is supported by Holy Rock’s testimony at the suppression hearing. It stands undenied on this record. Even at the hearing below where the deputy sheriff testified, the state’s attorney made no attempt to dispute that statement. A reading of the transcript in the hearing below clearly shows that the trial court below was greatly troubled by that statement.
Since the record below clearly supports these findings by the trial court, I cannot conclude that they are “clearly erroneous.” I would affirm.