STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Javier Lopez Moreno,
Filed January 11, 2000
Kandiyohi County District Court
File No. K997993
Boyd Beccue, Kandiyohi County Attorney, 316 S.W. Fourth Street, Willmar, MN 56201 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Davies, Judge.
Finding no error in the trial court's decision to admit hearsay evidence that appellant was involved in selling drugs, we affirm.
Shortly before appellant's trial and after his own conviction and sentencing, appellant's brother recanted his statements to police. But the trial court permitted introduction of the statements as substantive evidence at appellant's trial, concluding that they were admissible under the catchall exception to the hearsay rule. In his testimony at trial, appellant's brother claimed that his statements to police were untrue and were prompted by his fear, use of drugs, and fatigue.
Appellant was convicted of first and second-degree controlled substance crimes, as well as three lesser-included offenses, and was sentenced to 110 months in prison.
Under the rules of evidence, even if the declarant is available as a witness, an out-of-court statement on a material fact may be admitted if this best serves the interests of justice and the general purposes of the rules of evidence, provided also that the statement has circumstantial guarantees of trustworthiness equivalent to those in the established hearsay exceptions and is more probative on the point for which it is offered than any other evidence that the proponent could obtain through reasonable efforts. Minn. R. Evid. 803(24). We are to follow the "totality of the circumstances" approach for determining whether a statement had sufficient circumstantial guarantees of trustworthiness to be admissible despite the hearsay rule. State v. Keeton, 589 N.W.2d 85, 90 (Minn. 1998). The court should consider whether the statement was made under oath, whether the declarant was subject to cross-examination, whether the statement reflects the declarant's personal knowledge, whether the declarant ever recanted the statement, whether there is any corroborating evidence, the declarant's relationship to the parties and any motivation to lie, and the declarant's character for truthfulness and honesty. Id.
As appellant asserts, there are important considerations in this case that would support a decision to exclude evidence of his brother's earlier statements. The statements were not under oath and were subsequently recanted. See State v. Greenleaf, 591 N.W.2d 488, 503 (Minn. 1999) (noting unsworn, ex parte statements made during police questioning traditionally considered untrustworthy), cert. denied, 120 S. Ct. 156 (1999); see also State v. Hansen, 312 N.W.2d 96, 102 (Minn. 1981) (considering that statements were not made under oath when evaluating trustworthiness). The statements were responses to leading questions in a police interview. See Keeton, 589 N.W.2d at 90 (whether statements were merely affirmative responses to leading questions significant in evaluating trustworthiness). There is evidence his brother's condition was impaired. See State v. Schilling, 474 N.W.2d 203, 205 (Minn. App. 1991) (in evaluating trustworthiness, noting declarant had been drinking).
Notwithstanding these considerations, the trial court did not abuse its discretion in concluding that the trustworthiness of the statements was established by numerous additional considerations. Appellant's brother spoke from his personal knowledge, and his comments were essentially contemporaneous with the discovery of drugs in his possession. See Keeton, 589 N.W.2d at 90 (listing personal knowledge of declarant as a factor to consider in determining the trustworthiness of the statement); see also Hansen, 312 N.W.2d at 102 (concluding declaration was not reliable, in part because it was made some time after the incident). While statements that shift blame to another defendant lack reliability, see Lilly v. Virginia, 119 S. Ct. 1887, 1898 (1999), appellant's brother did not shift blame to appellant but rather admitted his own fault in using and selling the drugs. Because the brother testified, the case involves no problem regarding the right of confrontation and rests solely on the trustworthiness issue under the rules of evidence.
Finally, the trial court properly considered corroborating evidence available at the time appellant's brother made his statements. See Greenleaf, 591 N.W.2d at 503 (particularized guarantees of trustworthiness must be determined from totality of the circumstances surrounding the making of the statement). During the search, appellant twice stated that the drugs involved himself and not his girlfriend. Appellant was carrying $2000 in cash. The amount of cocaine in appellant's home indicated it was being sold rather than merely possessed for personal use. These facts, available to police at the time they questioned appellant's brother, corroborated his statements that appellant was helping him sell the cocaine.
 We accept the Minnesota Supreme Court's recent affirmation of the abuse of discretion standard of review for evaluating a trial court's decision on hearsay evidence. See State v. Aubid, 591 N.W.2d 472, 477-78 (Minn. 1999) (applying abuse of discretion standard to evaluation of trial court's decision on hearsay evidence, in a pretrial appeal by the state); see also Byers, 570 N.W.2d at 491-92 (applying abuse of discretion standard to evaluation of trial court's decision on hearsay evidence); State v. Glaze, 452 N.W.2d 655, 660-61 (Minn. 1990) (applying abuse of discretion standard to trial court's decision on hearsay evidence). These decisions do not comment on the conflict with other decisions of the court considering the evaluation of hearsay evidence to be a question of law. See State v. Salazar, 504 N.W.2d 774, 776-77 (Minn. 1993) (stating whether statements showed particular guarantees of trustworthiness was a legal question); see also State v. Dana, 422 N.W.2d 246, 249 (Minn. 1988) (stating whether hearsay evidence is unreliable is a legal determination). The result of our analysis would be the same whether the trial court's decision is reviewed as an exercise of discretion or as a question of law.