Hubert H. Humphrey III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Marvin E. Ketola, Carlton County Attorney, Thomas H. Pertler, Assistant County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718-0300 (for appellant)

Gary R. Bryant-Wolf, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Holtan, Judge.*

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

Respondent John Steven Martin is charged by indictment with two counts of first-degree murder. See Minn. Stat. § 609.185(1), (3) (1996) (premeditated murder and murder in the course of kidnapping). Appellant State of Minnesota challenges several pretrial orders and respondent cross-appeals. We reverse the district court's: (1) exclusion of the trial testimony of co-defendants; and (2) ruling that respondent may not present evidence supporting a defense of mental illness. We affirm the district court's: (1) exclusion of co-defendants' statements to police; and (2) order allowing expert testimony on respondent's "susceptibility to coercion." We deny appellant's motion to strike a portion of respondent's brief.

Respondent John Steven Martin is charged with first-degree murder for the August 1996 death of Paul Antonich, whose body was found in the trunk of his parents' car in a ditch along a rural Carlton County road. The grand jury also indicted Andrew DeVerney, Lester Greenleaf, Jamie Aubid, and John Alexander "Mike" Martin on various counts of murder for Antonich's death.

Mike Martin, Greenleaf, and DeVerney gave statements to police describing a series of events that began in Duluth when Antonich accidentally rear-ended the car in which the five co-defendants were riding. Respondent also gave a statement admitting he was driving his father's car when it was rear-ended, that some of the others jumped out and struck Antonich while he was still in his car, that they seized control of the Antonich car with Antonich still inside, drove him to a location where they beat him, and ended up on Ditchbank Road in Carlton County, where Antonich was shot.

Mike Martin reached a plea agreement with the state calling for him to testify against his co-defendants. In a joint trial, Greenleaf and DeVerney were found guilty of aiding and abetting first-degree murder. Each has stated he will refuse to testify against respondent.

In a series of pretrial orders, the district court granted a defense motion to exclude the out-of-court statements of Greenleaf and DeVerney (both their statements to police and their trial testimony), granted a defense motion to present in connection with his confession to police, expert testimony on respondent's "susceptibility to coercion," and ruled that respondent may not present evidence supporting a defense of mental illness. The state filed this pretrial appeal, and respondent filed a cross-appeal seeking review of the district court's exclusion of respondent's mental illness defense.

A hearsay statement may be admitted under the residual exception to the hearsay rule

if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reason-able efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Minn. R. Evid. 804(b)(5). In order to be admissible under the residual exception, the hearsay statement must have "circumstantial guarantees of trustworthiness" equivalent to those of the other hearsay exceptions. Id.

Unsworn, ex parte statements made during police questioning traditionally have been considered untrustworthy for purposes of the hearsay exceptions. State v. Hansen, 312 N.W.2d 96, 103 (Minn. 1981). The circumstances of the DeVerney and Greenleaf statements to police reinforce that traditional distrust. DeVerney was questioned beginning at 2:26 a.m., stating from the outset that he would like to be sober before answering questions and would "rather be in my right mind." Although DeVerney claimed he could not remember anything about the previous week because he had been drinking constantly, police pressed him with the fact that because someone had confessed they knew everything.

Greenleaf also was questioned in the early-morning hours. Although the interview ended when Greenleaf demanded a lawyer and he was not re-interviewed until the next evening, Greenleaf's statement to the police does not reflect circumstantial guarantees of trustworthiness equivalent to those of the traditional hearsay exceptions. We conclude the district court did not clearly err by ruling the Greenleaf and DeVerney statements to police were not admissible under the residual exception.

The state further argues that even if parts of the statements to the police are not admissible, the district court clearly erred by excluding the parts of Greenleaf's and DeVerney's statements to police that were against their penal interests. Because, as discussed below, we conclude that the entirety of Greenleaf's and DeVerney's trial testimony should be admitted, we need not address the admissibility of the inculpatory sections of these statements that would be merely cumulative.

The supreme court has followed the Seventh Circuit Court of Appeal's eight-part "totality of the circumstances" test for determining the reliability of former testimony under the hearsay "catchall" exception, which examines

the character of the witness for truthfulness and honesty, and the availability of evidence on the issue; whether the testimony was given voluntarily, under oath, subject to cross-examination and a penalty for perjury; the witness' relationship with both the defendant and the government and his motivation to testify before the grand jury; the extent to which the witness' testimony reflects his personal knowledge; whether the witness ever recanted his testimony; the existence of corroborating evidence; and, the reasons for the witness' unavailability.

State v. Stallings, 478 N.W.2d 491, 495-96 (Minn. 1991) (quoting United States v. Snyder, 872 F.2d 1351, 1355-56 (7th Cir. 1989)).

Here, the testimony of DeVerney and Greenleaf was given voluntarily, under oath, subject both to cross-examination and the risk of a perjury prosecution. The testimony of the two men was based on their personal knowledge, was never recanted, and was consistent with their statements to police. The testimony also was amply corroborated by other evidence, including: (1) the statements of each other and Mike Martin; (2) eyewitness testimony of the rear-end accident; (3) the discovery of the car with the body in the trunk; and (4) the discovery of the gun where DeVerney and Greenleaf independently led police. Neither Greenleaf nor DeVerney reached a plea bargain with the state, or received a monetary reward for their information, or otherwise assisted the prosecution, except by confessing their involvement. Finally, both DeVerney and Greenleaf are unavailable to testify because they have asserted their Fifth Amendment privilege. Thus, admission of the former testimony is supported by almost all the relevant factors on which there is any evidence.

We conclude the district court clearly erred by focusing only on the degree to which the former testimony was against Greenleaf's and DeVerney's penal interests and the extent to which the state's opportunity to cross-examine the two men can compensate for respondent's lack of such an opportunity.

There is no rule in Minnesota law that DeVerney's and Greenleaf's former testimony cannot fit within the residual exception even though it bears some earmarks of statements against penal interest but does not fit within that exception. See generally United States v. Valdez-Soto, 31 F. 3d 1467, 1471 (9th Cir. 1994) (holding that Congress in enacting "catchall" exception indicated intent that courts admit some hearsay statements that did not fit within one of the traditional exceptions). The extent to which Greenleaf and DeVerney testified against their penal interests, although not complete, supports a finding of reliability. Because those statements were also under oath and subject to cross-examination, were based on personal knowledge, never recanted, and substantially corroborated, they are admissible based on the eight-factor Stallings test for the residual exception.

The remaining issue is the admissibility of the trial testimony under the Confrontation Clause. The United States Supreme Court has held that corroborating evidence, as a circumstance external to the making of the statement, is not properly part of the Confrontation Clause analysis. Idaho v. Wright, 497 U.S. 805, 818-19, 110 S. Ct. 3139, 3148 (1990). However, we conclude that even without considering the degree to which Greenleaf and DeVerney corroborated each other, or the extent of other corroborating evidence, because the former testimony passes the test of reliability under the residual exception it possesses the "particularized guarantees of trustworthiness" required by the Confrontation Clause. This conclusion is consistent with this court's holding in a companion case involving the same testimony. State v. Aubid, ___N.W.2d (Minn. App. filed May 19, 1998).

shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was laboring under such a defect of reason, from [mental illness or deficiency], as not to know the nature of the act, or that it was wrong.

The district court, concluding that respondent's claim of severe intoxication and depression could not meet this standard, excluded defense evidence of mental illness or deficiency.

Regardless of the strength of the proffered evidence supporting respondent's proposed mental illness defense, we find no authority for denying a defendant the right to present such a defense, as the district court appears to have done by stating there would be no bifurcated trial. The sole authority cited by the state is a case that arose before trials were bifurcated into guilt-or-innocence and insanity phases. See State v. Clarken, 260 N.W.2d 463 (Minn. 1977). Further, the court in Clarken, sitting without a jury, did consider the defense evidence of insanity and rejected it. Id. at 463. Thus, Clarken does not support the outright denial of a mental illness defense by the court, which amounts to a directed verdict against the defendant on his plea of not guilty by reason of mental illness. See generally State v. Brink, 500 N.W.2d 799, 803 (Minn. App. 1993) (noting defense burden of proof and right to present competent, relevant evidence on mental illness in a bifurcated trial). Finally, we note that our ruling on this issue does not address whether all or any of the evidence respondent has proposed to present would be relevant and admissible in the second phase of a bifurcated trial.

Affirmed in part and reversed in part; motion to strike denied.