This opinion will be unpublished and may
not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Arron Scott King,

Filed January 18, 2000
Lansing, Judge
Dissenting, Shumaker, Judge

Washington County District Court
File No. K9983722

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Doug Johnson, Washington County Attorney, Christopher Wachtler, Assistant County Attorney, 14949 62nd Street North, Stillwater, MN 55082-0006 (for respondent)

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from conviction for aiding and abetting first-degree burglary, Arron King contends that the district court’s erroneous admission of a partial transcript from an accomplice’s plea hearing compels a new trial. We conclude that, on these facts, the district court’s ruling was within its discretion and did not violate the Confrontation Clause of the United States Constitution. We therefore affirm.


A jury convicted Arron King of aiding and abetting the burglary of a house in Grant, Minnesota. The state’s principal witness, the basement tenant, was at home during the burglary. The tenant first heard persistent knocking on the upstairs door and then a loud bang. When he went to investigate, he saw that the front door had been kicked down. He also saw an unfamiliar car in the driveway with the engine running. The tenant got into the car, drove to a neighbor’s house, and asked them to summon the police.

When the tenant drove back to the house, he saw a man, whom he later identified as King, run toward the car from out of the bushes at the top of the driveway. The tenant backed down the driveway, and, after King gave up chasing the car, King and another man ran into a horse pasture adjoining the road. Following a several-hour search, police found King and Arron Weatherspoon hiding in brush in the vicinity of the house and arrested them.

Police determined that about $8,000 in jewelry had been taken from the house, drawers had been rummaged throughout the house, and electronics had been disconnected and set out for removal. Seventy-five one-dollar bills were missing from the tenant’s apartment. Police also found several socks that had been discarded in the yard.

When police apprehended Weatherspoon and King, Weatherspoon had 57 one-dollar bills on his person. Weatherspoon pleaded guilty to aiding and abetting first-degree burglary. Under a plea agreement, Weatherspoon was to receive 37 months in prison and was to be released pending sentencing. The agreed-on sentence was at the low end of the presumptive range. At the plea hearing, under oath, Weatherspoon provided an account of the burglary that inculpated himself as well as King. Weatherspoon identified King as the person with him on the day of the burglary and then described how they burglarized the house.

King pleaded not guilty to the burglary charge. At King’s trial, the state produced the testimony of the tenant and two police officers, and Spreigl evidence of King’s previous conviction for burglary using a similar approach. The state also produced portions of Weatherspoon’s plea-hearing testimony, after submitting evidence of their inability to locate Weatherspoon for service of a subpoena. The court found Weatherspoon unavailable and allowed into evidence portions of the plea-hearing transcript.

King appeals his conviction, arguing that admission of the Weatherspoon plea hearing testimony constitutes reversible evidentiary error and violates the Confrontation Clause of the U.S. Constitution.


Evidentiary rulings generally rest within the trial court’s discretion and will be upheld absent a clear abuse of discretion. State v. Greenleaf, 591 N.W.2d 488, 504 (Minn. 1999), cert. denied, 120 S. Ct. 156 (1999). This clear-abuse-of-discretion standard applies even when a defendant asserts a violation of his constitutional rights. State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999) (citing State v. Gustafson, 379 N.W.2d 81, 84 (Minn. 1985)), cert. denied, 120 S. Ct. 153 (1999); accord State v. Aubid, 591 N.W.2d 472, 478 (Minn. 1999) (applying abuse-of-discretion standard to evidentiary challenge involving Confrontation Clause). King alleges reversible error under both the Minnesota Rules of Evidence and the Confrontation Clause of the federal constitution. Because the legal test for constitutional error differs from the test for evidentiary error, we analyze the claims separately.


The Minnesota Rules of Evidence recognize the statement-against-interest exception to the hearsay rule. Minn. R. Evid. 804(b)(3). To invoke the rule, a proponent must show that the declarant is unavailable and that the statement, at the time it was made, "so far tended to subject the declarant to civil or criminal liability" that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. Id.

A declarant is unavailable under the rule if the declarant is absent from the hearing and the proponent of the statement is unable to procure the declarant’s attendance by process or other reasonable means. Minn. R. Evid. 804(a)(5). A declarant is not unavailable, however, if the absence is due to the procurement or wrongdoing of the statement’s proponent. Minn. R. Evid. 804(a). The state unsuccessfully attempted to subpoena Weatherspoon at his mother’s home, his last known address, for each of the three trial dates. Weatherspoon’s mother denied knowing how to contact him, and Weatherspoon’s probation officer, contacted on the day the statement was offered, was also unable to locate him. The district court thus did not err in ruling that Weatherspoon was unavailable within the meaning of the statements-against-interest exception.

Whether the plea-hearing testimony was against Weatherspoon’s penal interest is less straightforward. Minnesota has adopted the analysis used by the Supreme Court in Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431 (1994), to determine whether a statement is admissible as against penal interest. State v. Keeton, 589 N.W.2d 85, 89 (Minn. 1998). Under Williamson’s analysis, each "single declaration or remark" must be against penal interest to be admissible. 512 U.S. at 599-601, 114 S. Ct. at 2434-35. Thus, a co-defendant’s statement must be parsed out to separate the inculpatory portions from the noninculpatory portions. Keeton, 589 N.W.2d at 89. Accordingly, the district court asked counsel to submit those parts of the transcript that met the inculpatory standard.

King argues that Weatherspoon’s statements describing the burglary were not against penal interest, first, because he had negotiated a plea with the state and, second, because they shifted blame to King.

First, under Minnesota law, a redacted version of an accomplice’s plea transcript, including an accomplice’s plea bargain, may be admitted under the statement-against-interest exception to the hearsay rule. State v. Dukes, 544 N.W.2d 13 (Minn. 1996). Thus, the fact that Weatherspoon had negotiated a plea and obtained both a sentence at the low end of the range for his offense and the privilege of being released pending sentencing does not, as a matter of law, render Weatherspoon’s statements inadmissible under Minn. R. Evid. 804(b)(3).

Second, although, admittedly, Weatherspoon’s statements inculpated King, they also inclupated Weatherspoon and were, therefore, against his penal interest within the meaning of rule 804(b)(3). See United States v. Keltner, 147 F.3d 662, 670 (8th Cir. 1998) (finding statement against penal interest when declarant’s statements inculpated the defendants as well as himself), cert denied by Nabors v. United States, 119 S. Ct. 574 (1998); United States v. Moses, 148 F.3d 277, 280 (3rd Cir. 1998) (same), cert. denied, 118 S. Ct. 614 (1997); United States v. Barone, 114 F.3d 1284, 1297 (1st Cir. 1997) (same). The confessions of arrested accomplices may be admissible "if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor." Williamson, 512 U.S. at 603, 114 S. Ct. at 2436. Weatherspoon’s plea-hearing testimony was truly self-inculpatory. Weatherspoon admitted his guilt, and his statements subjected him to prison time. In addition, his statements were given under oath and were consistent with other admissible evidence. See Dukes, 544 N.W.2d at 19 (holding plea-hearing testimony admissible when declarant faced prison time, statement was taken in court under oath, and story was consistent with other admissible evidence).

Weatherspoon’s use of the term "we" throughout the plea hearing was not merely an attempt to shift blame or curry favor because his use of the term "we" did not minimize his culpability or criminal exposure. A declarant’s statement "is not magically transformed from a statement against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible codefendant." Williamson, 512 U.S. at 606, 114 S. Ct. at 2438 (Scalia, J., concurring). Weatherspoon’s statement that "we did say [King] was going to kick the door down," taken in the context of the other admissible statements, fully inculpated Weatherspoon as a willing participant in the burglary, whether or not he personally kicked the door down. The statement so strongly tended to subject Weatherspoon to criminal liability as an accomplice that a reasonable person would not have made it without believing it to be true. As such, it was truly self-inculpatory. The district court did not therefore abuse its discretion by allowing it into evidence.

We are less certain that Weatherspoon’s statement identifying King as the person with him on the day of the burglary, taken in isolation, was against Weatherspoon’s penal interest. But we note that the attorneys apparently reached some agreement on what would be submitted, and even if they had not, King did not dispute that he was with Weatherspoon on the day of the burglary, the two were arrested together near the scene, and an eyewitness placed King at the scene of the burglary. Any error in admitting the statement of identification, therefore, is harmless beyond a reasonable doubt. See State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996) (new trial not required when the state can show error was harmless beyond a reasonable doubt).


The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant "the right to be confronted with the witnesses against him." U.S. Const. amend. VI; see also Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1067 (1965) (the Sixth Amendment is incorporated into the Bill of Rights and thus binding on the states). Admission of hearsay implicates the Confrontation Clause because the defendant does not have an opportunity to cross-examine the declarant. Aubid, 591 N.W.2d at 478. The Supreme Court has rejected a strictly literal application of the Confrontation Clause, holding that it prohibits the admission of some, but not all, hearsay against a criminal defendant. See id. (citing Idaho v. Wright, 497 U.S. 805, 813-14, 110 S. Ct. 3139, 3145 (1990)).

Hearsay evidence may be admitted if it meets the two-part determination of "necessary and reliable" enunciated in Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S. Ct. 2531, 2538-39 (1980). A hearsay statement is necessary if the declarant is unavailable to testify at trial. Id. at 65, 100 S. Ct. at 2538. The evidence is reliable if it is either (1) within a "‘firmly rooted hearsay exception,’" or (2) supported by "‘particularized guarantees of trustworthiness’ such that adversarial testing would be expected to add little, if anything, to the statements’ reliability." Lilly v. Virginia, 527 U.S. 116, ___, 119 S. Ct. 1887, 1894 (1999) (citation omitted).

The state bears the burden of demonstrating that a declarant is unavailable to testify at trial. Roberts, 448 U.S. at 65, 100 S. Ct. at 2538. The state must demonstrate that it made a good-faith effort to obtain the declarant’s presence. Id. at 74, 100 S. Ct. at 2543. The court should assess whether the state’s efforts to obtain the presence of the witness were reasonable. Id.

King asserts the state’s efforts to obtain Weatherspoon’s presence at trial were insufficient to satisfy the state’s burden. But the facts in Roberts are closely aligned with the evidence of the state’s attempt to subpoena Weatherspoon. In Roberts, the state made five separate attempts over several months to serve a subpoena on a witness at her parents’ home, and the declarant’s mother stated that she had no knowledge of her daughter’s whereabouts. Id. at 75, 100 S. Ct. at 2544. The Court found these efforts were sufficient to meet the state’s burden. In this case, the state made three separate attempts to serve Weatherspoon at his last known address, his mother’s home. Weatherspoon’s mother said she had no knowledge of his whereabouts. The district court did not err in concluding that, applying constitutional standards, the state made reasonable attempts to locate Weatherspoon.

The reliability prong necessary for admission of hearsay evidence may be demonstrated by showing either that the hearsay exception is firmly rooted or that the proposed evidence has particularized guarantees of trustworthiness. A plurality of the U.S. Supreme Court recently indicated that the statements-against-interest exception to the hearsay rule is not "firmly rooted" for purposes of Confrontation Clause analysis. Lilly, 527 U.S. at ___, 119 S. Ct. at 1895 (plurality opinion). Thus, we turn our analysis to whether the Weatherspoon plea-hearing testimony is supported by "particularized guarantees of trustworthiness." See id. at 1894 (citation omitted).

Admission under the "trustworthiness" test is appropriate if "a court can be confident * * * that ‘the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility.’" Id. at 1900 (plurality opinion) (citation omitted). The particularized guarantees of trustworthiness must be shown by the totality of the circumstances surrounding the making of the statement. Idaho v. Wright, 497 U.S. 805, 819, 110 S. Ct. 3139, 3148 (1990). The hearsay evidence must "possess indicia of reliability by virtue of its inherent trustworthiness," but "not by reference to other evidence at trial." Id. at 822, 110 S. Ct. at 3150. The U.S. Supreme Court has emphasized that there is no "mechanical test" for determining particularized guarantees of trustworthiness, but the unifying principle is whether the declarant was particularly likely to be telling the truth when the statement was made. Id. The Minnesota Supreme Court has recognized that it is relevant, but not determinative, that a statement was made under oath and subject to cross-examination. Aubid, 591 N.W.2d at 479.

King urges that Weatherspoon’s testimony did not demonstrate particularized guarantees of trustworthiness because Weatherspoon had a motive to preserve his negotiated plea arrangement by telling the state what it wanted to hear, and he was answering mainly leading questions at the plea hearing. But the district court identified other factors that demonstrated reliability or trustworthiness. Weatherspoon was under oath, the statements he made inculpating King also inculpated him, and the statements resulted in Weatherspoon serving a 37-month sentence. The federal courts have recognized these factors as weighty in determining whether statements are trustworthy. See Williamson, 512 U.S. at 605, 114 S. Ct. at 2437 (noting that the very fact that a statement is genuinely self-inculpatory is itself one of the particularized guarantees of trustworthiness); Earnest v. Dorsey, 87 F.3d 1123, 1134 (10th Cir. 1996) (finding statement that equally inculpated declarant and others to be reliable for purposes of Confrontation Clause analysis), cert. denied, 519 U.S. 1016 (1996). Because of the inculpatory nature of Weatherspoon’s testimony, the district court did not err in finding the testimony trustworthy.

We recognize, as we did earlier, that Weatherspoon’s statement identifying King as the person with him on the day of the burglary may fail to demonstrate particularized guarantees of trustworthiness because it did not specifically inculpate Weatherspoon or relate to his sentence. But any error in admitting this statement was harmless because King did not dispute that he was with Weatherspoon at the house. See Chapman v. California, 386 U.S. 18, 22-24, 87 S. Ct. 824, 827-28 (1967) (constitutional violation that is harmless beyond a reasonable doubt does not require new trial). We note further that even an erroneous admission of the other portions of the plea agreement would withstand a harmless-error analysis. King did not deny that he drove his car to the house with Weatherspoon or that Weatherspoon entered the house, King ran from the burglary location with Weatherspoon and evaded police for several hours, in a statement to a police officer King referred to the burglarized house as "that guy’s house we were in," King had recently been involved in another burglary that involved theft of jewelry and electronics in which police similarly found discarded socks that had been used to prevent fingerprints, King made inconsistent statements to the police about what he was doing when Weatherspoon was in the house, the amount of damage in the short amount of time strongly suggested the involvement of more than one person, and the tenant testified that the amount of noise in the upstairs area suggested two people were involved.


King, relying on Ohio v. Roberts, alleges, as a further violation of his rights under the Confrontation Clause, the trial court’s refusal to explain to the jury why Weatherspoon was unavailable. The court instead told the jury that he had found Weatherspoon unavailable as a matter of law. Nothing in the Supreme Court’s Confrontation Clause decisions suggests that once a declarant is properly found unavailable, the court must explain that unavailability to the jury.

In Minnesota, the trial courts generally have broad discretion in choosing the language of jury instructions. State v. Hare, 575 N.W.2d 828, 833 (Minn. 1998). The only requirement is that the instructions, viewed in their entirety, "fairly and adequately explain the law of the case." State v. Jones, 347 N.W.2d 796, 801 (Minn. 1984). The court’s failure to tell the jury why Weatherspoon was unavailable is within the court’s broad discretion. The jury was told about Weatherspoon’s prior criminal record and the terms of his plea agreement. These facts were sufficient to allow the jury to weigh the credibility of Weatherspoon’s testimony. See Roberts, 448 U.S. at 73, 100 S. Ct. at 2543 (trier of fact must be afforded satisfactory basis for evaluating truth of prior statement).



SHUMAKER, Judge (dissenting)

I respectfully dissent. Although the majority discusses controlling law in determining that Weatherspoon's statements about King fit the Rule 804(b)(3) hearsay exception, I believe the majority's analysis is faulty.

Minn. R. Evid. 804(b)(3) provides in part that a statement against interest is:

[a] statement which was at the time of its making * * * so far tended to subject the declarant to * * * criminal liability * * * that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

(Emphasis added) "Statement" is to be interpreted narrowly as "a single declaration or remark" rather than broadly as "a report or narrative." Williamson v. United States, 512 U.S. 594, 599, 114 S. Ct. 2431, 2434-35 (1994) (citations omitted). Thus, the correct analysis requires a statement-by-statement review to determine which statements are self-inculpatory and which are not. State v. Keeton, 589 N.W.2d 85, 89 (Minn. 1998) (trial court must analyze multiple statements to determine which are against interest and which are not).

The United States Supreme Court in Williamson said:

In our view, the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.

Williamson, 512 U.S. at 600-601, 114 S. Ct. at 2435. Minnesota has expressly adopted the Williamson reasoning as to Rule 804(b)(3). State v. Jones, 556 N.W.2d 903, 908-09 (Minn. 1996); State v. Ford, 539 N.W.2d 214, 227 (Minn. 1995).

Non-self-inculpatory statements, that is, statements that do not tend to subject the declarant to criminal liability, are not against the declarant's interest and are not admissible under Rule 804(b)(3).

Here the trial court allowed the prosecutor to read into evidence and to the jury Weatherspoon's statement that specifically identified King as his accomplice:

Q. Mr. Weatherspoon, on July 15th, 1998, is it true that you were in the City of Grant in Washington County?

A. I believe that's was, yeah.

Q. You were with another fellow named Arron King, is that right?

A. Yes.

Q. The two of you came to Grant Township from St. Paul, is that right?

A. Yes.

Q. And when you got to the City of Grant you went north on Manning Avenue and ended up at a residence located at 9850 65th Street, is that right?

A Yes.

Q. When you arrived at the residence with Mr. King, the two of you got out of the car, is that right?

A. Yes.

Q. Did he get out first? You got out first?

A. I got out first, he got out second.

Q. Okay. And you went up to the door, knocked on the door, and eventually broke the door down, is that correct?

A. Yes.

Q. And as it turned out there was somebody home in this residence at that time, right?

A. As it turned out, yes.

Q. And your intent when you knocked down the door of this residence was to go in and take something, is that right?

A. Yes.

* * * *

Q. Was there some discussion as to the fact that you were going to go in and take something from this residence?

A. Well, yeah. Yeah.

Q. What was that discussion?

A. Well, we didn't talk about going in the house, but we did say he was going to kick down the door. We did it, went in.

Q. Your intent on going into that residence was to take an item or items that were in there, is that correct?

A. Yes. We went in there, yes. We were going to take something.

Q. And in fact you did come out of that residence with various items?

A. Yes.

Q. And that included some cash, some jewelry, things like that?

A. Yes.

Q. And you had no one's consent to enter the residence, is that right?

A. No, we didn't have it.

Q. At what point did you become aware that somebody was in the residence?

A. When I came out and there was a guy driving backwards in the car down the driveway, that's when I knew something had to have been—we had to come from the house. I didn't know if he was there beforehand or nothing like that.

Q. And again, all this occurred in Washington County in the City of Grant, is that right?

A. Yes.

There is nothing inadmissible about Weatherspoon's description of his own participation in the crime. Clearly his admissions expose him to criminal liability and, therefore, are against his interest. Because Weatherspoon was charged with aiding and abetting a crime, there is nothing wrong with use of the pronoun "we" to describe the criminal activity, and there is nothing wrong with a description of the role the other person played in the crime. The infirmity arises when Weatherspoon names the other person. Weatherspoon's exposure to criminal liability is neither diminished nor expanded by his naming of his accomplice. Upon his admissions, he is culpable for the burglary whether he identifies King or not. Thus, the statements identifying King simply are not against Weatherspoon's penal interest.

The majority seems to suggest that because Weatherspoon did not try to shift the blame to King, the statements inculpating King are in effect self-inculpatory and admissible. The majority cites Wiliamson and other federal cases for that proposition.

Williamson does not support the majority's proposition. In that case, a deputy sheriff arrested Harris after finding 19 kilograms of cocaine in the trunk of Harris's rental car. Williamson, 512 U.S. at 596, 114 S. Ct. at 2433. A federal DEA agent later interviewed Harris who said that he was transporting the cocaine for Williamson. Id. at 597, 114 S. Ct. at 2433. Harris said he was afraid of Williamson and implied that he was involved in the criminal enterprise because of his fear. Id. at 597, 114 S. Ct. at 2434. At Williamson's trial, Harris refused to testify despite the fact that the government granted him use immunity. Id. The trial court then allowed the DEA agent to testify about Harris's statements inculpating Williamson. Id. at 597-98, 114 S. Ct. at 2434. The trial court admitted the statements under Rule 804(b)(3). Id.

The United States Supreme Court reversed, holding that Harris's statements about Williamson were non-self-inculpatory, even though they tended to shift the blame to Williamson. Id. at 604, 114 S. Ct. at 2437. What the supreme court required under Rule 804(b)(3) was a statement-by-statement determination of what was and what was not against the declarant's interest:

In this case, however, we cannot conclude that all that Harris said was properly admitted. Some of Harris' confession would clearly have been admissible under Rule 804(b)(3); for instance, when he said he knew there was cocaine in the suitcase, he essentially forfeited his only possible defense to a charge of cocaine possession, lack of knowledge. But other parts of his confession, especially the parts that implicated Williamson, did little to subject Harris himself to criminal liability.

Id. (Emphasis added). The "blame-shifting" that some courts have noted in criminals' statements and confessions is not an exception to the self-inculpation requirement of Rule 804(b)(3). Rather, it is merely an explanation of why criminals might implicate accomplices. See Lee v. Illinois, 476 U.S. 530, 541, 106 S. Ct. 2056, 2062, (1986) (because of strong motivation to exonerate themselves, codefendants' arrest statements implicating others "have traditionally been viewed with special suspicion.").

By allowing into evidence the inadmissible hearsay statement of an unavailable declarant, the trial court erred. The error was not only of evidentiary significance, but also resulted in the denial of King's constitutional right of confrontation. Nor was the error harmless. "Evidence admitted in violation of the confrontation clause is not harmless unless the evidence in other respects is overwhelming." State v. Hansen, 312 N.W.2d 96, 105 (Minn. 1981).

Here, there is evidence that King and Weatherspoon were together in King's car and were in the vicinity of the burglarized house. King claimed that he drove Weatherspoon to the house because Weatherspoon needed to pick up some money from the occupant. King claimed he never entered the house and had no knowledge that Weatherspoon engaged in a burglary. Other than Weatherspoon's statement, there is no evidence that could sustain a conviction of King for burglary. The error in admitting Weatherspoon's statement identifying King was not harmless. I would reverse.