This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.  480A.08, subd. 3 (1994).


State of Minnesota,


Douglas Eric Towle,

Filed August 13, 1996
Short, Judge

 St. Louis County District Court
File No. K694600475

Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, 
Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, 
St. Paul, MN  55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue 
West, #501, Duluth, MN  55802 (for Respondent)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit 
Avenue, LEC 304, St. Paul, MN  55105 (for Appellant)

	Considered and decided by Parker, Presiding Judge, Short, 
Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

SHORT, Judge
	A jury convicted Douglas Eric Towle of three counts of aiding 
and abetting first-degree manslaughter in violation of Minn. Stat.  
609.05, subd. 2 (aiding and abetting), 609.20(1) (first-degree 
manslaughter, heat of passion).  On appeal, Towle argues the trial 
court abused its discretion by:  (1) not permitting him to introduce 
hearsay statements of his codefendant; and (2) rejecting his proposed 
jury instructions.  We affirm.

	D E C I S I O N

	A trial court has discretion to allow the introduction of hearsay 
statements made against the declarant's interest if the declarant is 
unavailable as a witness.  See Minn. R. Evid. 804(b)(3) (excepting 
statements made against the declarant's interest from the hearsay rule); 
State v. Glaze, 452 N.W.2d 655, 660-61 (Minn. 1990) (reviewing the 
denial of a request to introduce statements under this rule for an abuse 
of discretion).  Towle argues the trial court abused its discretion by 
declining to permit the admission of his codefendant's statements, in 
which the codefendant:  (1) described his perceptions of events leading 
up to the shootings; (2) indicated no one knew he had a gun; and (3) 
admitted to shooting the three victims.  Despite the codefendant's 
unavailability, we disagree.  
	First, the statements describing events prior to the shootings 
and those discussing knowledge of the gun did not tend to subject the 
declarant to criminal liability or to inculpate him at the time he uttered 
them.  See Minn. R. Evid. 804(b)(3) (using this standard as one 
indication of a statement against interest); see also Williamson v. 
United States, 114 S. Ct. 2431, 2435 (1994) (holding the identical Fed. 
R. Evid. 804(b)(3) does not allow the admission of non-self-
inculpatory statements even when made within a broader, and 
generally self-inculpatory, narrative).  And second, although the 
codefendant's statements admitting he shot the three victims are 
inculpatory, they are not sufficiently trustworthy so as to require their 
admission.  See State v. Watts, 452 N.W.2d 728, 731 (Minn. App. 
1990) (finding a statement that lessened the declarant's involvement in 
the criminal activity still established criminal liability); see also Minn. 
R. Evid. 804(b)(3) (requiring corroborating circumstances clearly 
indicating the trustworthiness of statements against penal interest that 
are offered to exculpate the defendant).  While the codefendant's three 
first-degree murder convictions tend to corroborate these statements, a 
consideration of other factors does not clearly establish the statements' 
trustworthiness.  Relevant factors include:
(1) whether there is any apparent motive for the out-of-court 
declarant to misrepresent the matter, (2) the general character 
of the speaker, (3) whether other people heard the out-of-court 
statement, (4) whether the statement was made spontaneously, 
(5) the timing of the declaration and the relationship between 
the speaker and the witness.

Unites States v. Bobo, 994 F.2d 524, 528 (8th Cir.) (quoting United 
States v. Rasmussen, 790 F.2d 55, 56 (8th Cir. 1986)), cert. denied, 
114 S. Ct. 250 (1993).  The record shows:  (1) the codefendant made 
the statements while in custody and despite his belief that his 
conversations may have been recorded; (2) the statements tend to 
suggest he did not premeditate the killings; (3) Towle is the brother of 
the codefendant's girlfriend, the rape of whom allegedly led to the 
shootings; (4) the statements were not heard by anyone else; (5) they 
were not spontaneous; and (6) the codefendant did not make the 
inculpatory statements until at least several days after the shootings.  
See State v. Hansen, 312 N.W.2d 96, 101 (Minn. 1981) (quoting Fed. 
R. Evid. 804(b)(3) advisory comm. note, and acknowledging that 
certain in-custody statements may be motivated by a desire to curry 
favor with the police, and finding a statement made after assurance of 
lenient treatment was not against the declarant's interest); State v. 
Thompson, 413 N.W.2d 889, 892 (Minn. App. 1987) (finding a 
statement inadmissible as a statement against interest and noting it was 
offered as an attempt to mitigate the offense); see also State v. 
Higginbotham, 298 Minn. 1, 5, 212 N.W.2d 881, 883 (1973) (noting a 
close friend might fabricate a confession in order to absolve the 
defendant).  Furthermore, even the witness to whom the codefendant 
made the statements believed the codefendant was covering for Towle. 
 Under these circumstances, the trial court did not abuse its discretion 
by prohibiting the use of the codefendant's statements.
	A trial court also has discretion to reject a requested jury 
instruction and error results only from an abuse of that discretion.  
State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989).  When reviewing 
jury instructions, we consider the instructions as a whole to determine 
whether they fairly and adequately explained the law.  State v. Flores, 
418 N.W.2d 150, 155 (Minn. 1988).
	The trial court instructed the jury that Towle was guilty of 
aiding and abetting his codefendant if the state proved beyond a 
reasonable doubt that he intended to assist the codefendant in 
committing the charged crimes or their lesser-included offenses.  See 
Minn. Stat.  609.05, subd. 1 (1994) (setting forth this standard for 
aiding and abetting).  In addition, the court gave instructions 
paralleling Minn. Stat.  609.05, subd. 2 (1994), which allows aiding 
and abetting convictions for unintended crimes when "committed in 
pursuance of the intended crime if reasonably foreseeable * * * as a 
probable consequence of committing * * * the crime intended."  See 
also 10 Minnesota Practice, CRIMJIG 4.01 (1990) (outlining the 
corresponding jury instruction).  Towle argues this instruction tended 
to mislead and confuse the jury by suggesting the jury could convict 
him based solely on reasonable foreseeability, and without a finding of 
intent to commit any of the crimes.  See Minn. Stat.  609.05, subd. 1 
(requiring proof of intent to aid and abet).  However, Towle was 
charged with three crimes of intentionally aiding and abetting.  If the 
jury found Towle intended to aid and abet at least one of the killings, 
the statute allows the jury to convict him for the other crimes based on 
the intent involved in this original crime.  Cf. State v. Peirce, 364 
N.W.2d 801, 809-10 (Minn. 1985) (rejecting another claim that an 
instruction given pursuant to Minn. Stat.  609.05, subd. 2 diluted the 
burden of proof).  Under these circumstances, we cannot say the trial 
court abused its discretion by including this instruction.

     * Retired judge of the Minnesota Court of Appeals, 
serving by appointment pursuant to Minn. Const. art. VI,  10.