(dissenting).
I respectfully dissent. Rodriguez’s defense in this case was an ever-changing, evolving theory that began as a nonspecific allegation that Santiago was the shooter and culminated in Rodriguez’s closing-argument admission to being the shooter. As such, the district court cannot be faulted for finding an absence of antagonism between the defense theories of Rodriguez and Santiago. It is only through the use of hindsight, relying on what Rodriguez’s defense evolved into rather than what it was when the district court ruled on the severance motions, that this court can conclude that the district court erred in failing to sever trials in this case. In addition, even after defense theories became absolute during closing arguments, because jurors could rationally believe both defense theories, they were not so antagonistic that severance was required.
I agree with the court that the joinder standards in subdivision 2(1) may also be considered to apply to pretrial motions to sever. Minn. R.Crim. P. 17.03, subd. 2(1) permits the court to join defendants for trial upon the consideration of four factors: the nature of the offense charged, the impact on the victim, the potential prejudice, and the interests of justice. While Santiago and the court focus on whether there was potential prejudice, no one factor is determinative, and therefore our inquiry should include all of the considerations the district court had before it.
Before trial began Santiago argued that his defense and the defense of Rodriguez were mutually antagonistic because each defendant sought to blame the other for the shootings. Santiago contended that in a psychiatric evaluation ordered pursuant to Minn. R.Crim. P. 20.01 and 20.02, Rodriguez made a statement denying that he shot the victims and accusing Santiago of starting the argument and shooting the victims. Counsel for Santiago also asserted by affidavit that security concerns had been raised by threats directed against family members Santiago intended to produce as witnesses to testify that the murder weapon belonged to Rodriguez.
The pretrial court addressed the security concerns first, concluding that the sheriffs department could deal with the security issue. The court then concluded that because the defendants were not committed to any particular defense theory, the severance motion should at that time be denied.
I would hold that, while we make an independent inquiry whether severance was necessary under Rule 17.03,1 the par-*453tieular finding of the district court that the parties had not committed to any specific defense theory is worth our deference. The district court is in a much better position than an appellate court to have a sense of the expected testimony, its significance, and the defense strategy at any given point in time. Indeed, in its analysis the majority ignores that a district court must examine a pretrial motion to sever based on the defense theories articulated at that point in time — pretrial. The district court could not have known pretrial that Rodriguez would ultimately admit, to being the shooter and that his defense theory would dovetail with the state’s theory. Instead, assessing the theories at the time the pretrial severance motion was made, the district court concluded that because the defendants were not committed to a defense theory, pretrial severance was not warranted.
Moreover, the record fully supports the district court’s conclusion on pretrial severance. Several, witnesses testified the two defendants acted in close consort with one another. Because the codefendants were cousins, family members found it difficult to testify. Testifying and hearing testimony about the shootings was very difficult for witnesses and the victims, and some witnesses appeared to the district court to be afraid or reluctant to testify. Therefore, the nature of the offense and the impact on the victims weighed against pretrial severance. See Minn. R.Crim. P. 17.03, subd. 2(1). In addition, given the security concerns of witnesses at the trial, the interests of justice weighed against severance. See id.
Further, at a pretrial hearing Rodriguez’s attorney represented to the court that his defense would be that Santiago was the shooter and that the shooting was gang-related. Because the court ruled that evidence of gang affiliations was not admissible, however, it was not clear that Rodriguez would pursue this theory. Nonetheless, the majority asserts that Rodriguez’s theory of defense for all pretrial severance motions was the same-that Santiago was the shooter. Based on the record before the district court and the changing nature of Rodriguez’s defense, I believe the court properly determined that any potential prejudice from joinder remained unclear before trial.
I therefore conclude that of the four factors to be considered for pretrial severance under Rule 17.03, subd. 2(1), three weighed against severance and the fourth, potential prejudice, was simply too uncertain given the lack of clarity of Rodriguez’s defense theory.
With respect to mid-trial severance, even after opening statements it remained unclear what Rodriguez’s defense would be, making it impossible for the district court to conclude that severance was necessary for a fair determination of guilt or innocence under Minn. R.Crim. P. 17.03, subd. 3(3). In his opening statement, Rodriguez’s attorney stated very little: that Rodriguez was 19 years old, had no criminal record, and was “as dumb as they come.” Although counsel argued that the “power structure” between the codefendants would become clear to the jury, Rodriguez did not admit at that time to being the shooter or claim that Santiago egged him on. The state then presented evidence indicating that Santiago gave Rodriguez the gun and told him to shoot. Santiago sought to prove through cross-examination and his own witnesses that Rodriguez acted alone. It was only at closing argument however that Rodriguez admitted, through counsel, to being the shooter. Rodriguez’s counsel argued that Santiago, gave Rodriguez the gun. His counsel then argued, not that Rodriguez was not the shooter, but rather that he *454did not have the intent necessary for a second-degree murder conviction and that he should be convicted of heat of passion manslaughter or third-degree murder (eminently dangerous act evincing a depraved mind). He referred extensively to the testimony of witnesses who described Rodriguez as “askew,” “out of it,” “gone,” or “not focusing” to attempt to persuade the jury that even though Rodriguez was the shooter, he was not guilty of intentional second-degree murder. Thus, Rodriguez’s trial theory evolved from a pretrial representation that Santiago was the shooter, to an uncertain position in his opening statement, to admitting he was the shooter at closing argument but claiming that his mental state was “out of it.” Given the lack of clarity of Rodriguez’s defense, it is difficult to assess, much less conclude, that the two defense theories prevented a fair determination of guilt.
Santiago claims a fair determination of guilt was not possible because he and Rodriguez blamed each other for the shooting. It is not necessarily the case, however, that blame shifting between codefendants prevents a fair determination of guilt or innocence. Several federal decisions address the considerations attendant to blame shifting. Although these decisions apply the federal rule for severance,2 which favors joint trials, the analysis is helpful to the extent it bears upon whether the defendant can receive a fair determination of guilt or innocence.
In Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), the defendant claimed he was entitled to a separate trial under Fed.R.Crim.P. 14 because his and his codefendant’s defenses were “mutually antagonistic.” The Supreme Court explicitly declined to adopt a bright-line test mandating severance whenever codefendants present mutually antagonistic defenses stating:
Mutually antagonistic defenses are not prejudicial per se. * * * We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent- the jury from making a reliable judgment about guilt or innocence.
Zafiro, 506 U.S. at 538-39, 113 S.Ct. 933.3 This two-part analytic framework for determining what constitutes substantial prejudice requiring severance broadly takes into account the right of a defendant to advance his trial rights without compromise because of joinder, and where trials have been joined, to consider the burden on the jury in arriving at a reliable judgment of guilt of innocence. I would add however, that where the theories of defense of each of the accused are so totally irreconcilable that the codefendant becomes a “second prosecutor,” where proof *455of guilt beyond a reasonable doubt may be compromised by the inability of the jury to compartmentalize the evidence as to each defendant, or where the verdict is based upon the comparative culpability of each defendant rather than the guilt of each beyond a reasonable doubt, then a trial right of the defendant might well have been denied by failure to sever.4 But these factors are not present here.
In this case the record demonstrates that while the defenses advanced by Santiago and Rodriguez were somewhat antagonistic, they were not so antagonistic that the jury could not make a fair determination of guilt or innocence. In moving to sever, Santiago alleged that Rodriguez would claim, as he did in a Rule 20 evaluation, that Santiago was the shooter. Despite the ever-changing defense theories, in the end it was possible for the jury to believe both Rodriguez and Santiago. Specifically, the jury could have believed Santiago’s theory that he was not the shooter, did not egg Rodriguez on, and did not provide Rodriguez the gun.5 At the same time, the jury could also have believed that Rodriguez was the shooter but was “out of it,” and therefore lacked the mental state to be guilty of second-degree murder. Or the jury could do just what it did — disbelieve Santiago and Rodriguez and convict both of second-degree murder. Thus, when the evidence clearly showed that Rodriguez was the shooter, and he admitted as much, his conviction of either second-degree murder or manslaughter was a foregone conclusion — regardless of whether the jury believed or did not believe Santiago. Under these circumstances the defense theories of Santiago and Rodriguez were not so antagonistic that a fair determination of guilt or innocence was not possible and any prejudice to Santiago was not significant.
Moreover, the trial process itself did not pit Santiago against Rodriguez. The defendants frequently joined each other in opposition to the state and were not consistently at odds with each other’s trial tactics. For example, the defendants jointly moved to strike the entire jury pool and to compel discovery of a witness’s involvement as a witness in a concurrent action. For different reasons, each objected to the prosecution’s voir dire of the jury pool. While they sparred over the admission of evidence of Santiago’s prior convictions and connections to gang activity, the trial court denied, all motions to introduce the evidence. Further, neither defendant *456consistently joined or opposed the. other’s motions.6
As to the ability of the jury to compartmentalize the evidence relating to each defendant, I agree with the postconviction court when it noted that the facts were simple and a joint trial provided the fairest assessment of what happened. There was virtually no evidence presented that was not relevant to the guilt or innocence of both parties, and it clearly appears that if a separate trial were ordered for Santiago, the evidence presented by the state and the defense would be no different. Any potential confusion was sufficiently .cured by the trial court’s admonition to the jury to keep the evidence separate as to each defendant.7 ■_
Santiago also'contends that he suffered prejudice because he was precluded from introducing exculpatory evidence from Blanchard Griffin who was sitting in Webster’s van during the shootings and allegedly would have testified that Rodriguez did the shooting and that prior to the shooting Griffin did not see the transfer of anything from Santiago to Rodriguez. While the inability to present exculpatory evidence could deny a defendant the constitutional right to make a complete defense, State v. Voorhees, 596 N.W.2d 241, 249 (Minn.1999),8 that did not happen here. Rodriguez objected to Griffin’s testimony. as to the identification of photographs of both defendants, arguing that Griffin’s identifications were tainted because a police officer made suggestive comments during the photographic identification. The state conceded the point and the evidence was not admitted. The court’s decision to exclude Griffin’s photographic identification however, did not preclude Santiago from calling Griffin as a witness to testify as to what he saw that day at Hampton Place Apartments. Santiago declined to take the opportunity to put Griffin on the witness stand, so the record hardly presents a circumstance of the suppression of “essential exculpatory evidence” referenced in Zafiro.
Based upon the record before us, I cannot conclude that Santiago demonstrated that the antagonistic defenses precluded a fair determination of guilt or innocence under Rule 17.03, subdivision 3(3), or that, without the aid of hindsight, pretrial severance was required under the four factors *457in Rule 17.03, subdivision 2(1). I would affirm Santiago’s conviction.
RUSSELL A. ANDERSON, Justice (dissenting).I join in the dissent of Justice Stringer.
LANCASTER, Justice (dissenting).I join in the dissent of Justice Stringer.
. Fed.R.Crim.P. 8 allows joinder when two or more defendants are alleged to have participated in the same act or transaction. Fed. R.Crim.P. 14 provides simply, "If it appears that a defendant ⅜ * ⅜ is prejudiced by a joinder of offenses or of defendants * ⅞ * for trial together, the court may order an election or separate trials of counts [or] grant a severance of defendants * *
. Justice Stevens concurred, noting that he did not share his colleagues’ enthusiasm for joinder because in joint trials where the code-fendants present truly irreconcilable or mutu- ■ ally exclusive defenses, the burden on the prosecutor may be reduced in at least two ways — a codefendant may in effect become a second prosecutor, or the jury, confronted with two defendants, one of whom is almost certainly guilty, may convict the one more culpable even though guilt is not proven beyond a reasonable doubt. Zafiro, 506 U.S. at 543-44, 113 S.Ct. 933 (Stevens, J., concurring).
. The response of the federal circuit courts to Zafiro has been mixed. Before Zafiro, the federal circuit courts consistently required irreconcilable or mutually exclusive defenses before antagonism between codefendants would warrant severance. See generally, United States v. Zafiro, 945 F.2d 881, 885 (7th Cir.1991) (explaining that the formulation that mutually exclusive and irreconcilable defenses warrant severance, but mere finger pointing does not, "has become canonical.”). After Zafiro, some circuit courts have suggested that the rule of mutually exclusive and irreconcilable defenses may constitute insufficient antagonism under Zafiro, see United States v. Balter, 91 F.3d 427, 433 (3d Cir. 1996); United States v. Breinig, 70 F.3d 850, 853 (6th Cir. 1995); United States v. Harwood, 998 F.2d 91, 95 (2d Cir. 1993), while other circuit courts, including the Eighth and Ninth, have concluded that the "irreconcilable” rule comports with Zafiro as part of determining whether joinder might impair a jury’s capacity to make a reasonable determination of guilt or innocence in a joint trial, see United States v. Mayfield, 189 F.3d 895, 899-900 (9th Cir. 1999); United States v. Shivers, 66 F.3d 938, 940 (8th Cir. 1995).
. The postconviction court noted, "Rodriguez's theory did not address whether Petitioner gave him the gun or whether he carried it all along.”
. For example, at one point Santiago raised sixteen pretrial motions on the admissibility of evidence and of those Rodriguez appears to have opposed six, joined three and remained neutral on four. On the same day Rodriguez raised nine motions and of those Santiago objected to four.
. The jury was instructed:
A separate crime is alleged against each defendant in each count of the complaint. Each alleged offense and any evidence pertaining to it should be considered separately by the jury. You must separate-you must give separate and individual consideration to each charge against each defendant. It is your duty to give separate and personal consideration to the case of each individual defendant.
When you do so, you should analyze what the evidence in the case shows with respect to that individual defendant leaving out of consideration entirely any evidence admitted solely against the other defendant.
Each defendant is entitled to have his case determined from evidence as to his own acts, statements and conduct and apy other evidence in the case which may be applicable to him.
The fact that you return a verdict of guilty or not guilty to one defendant should not in any way affect your verdict regarding any other defendant. Unless specifically directed otherwise, you must consider each in- ■ struction given to apply separately and individually to each defendant on trial in this case.
.See also Zafiro, 506 U.S. at 539, 113 S.Ct. 933 (“[A] defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial.”) (emphasis added).