Petition for Writ of Certiorari — Nebraska v. Sheets

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Supreme Court, U.S.

se FILED

00 1302 FEB 13 2001

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

STATE OF NEBRASKA,

Petitioner,

JEREMY SHEETS,

Respondent.

-¢

On Petition For Writ Of Certiorari

To The Nebraska Supreme Court

PETITION FOR WRIT OF CERTIORARI

Don STENBERG

Attorney General

J. Kirk Brown

Counsel of Record

Assistant Attorney General

P.O. Box 98920

Lincoln, Nebraska 68509-8920

Tel: (402) 471-2682

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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— "--

0 9 oN

CAPITAL CASE

QUESTIONS PRESENTED FOR REVIEW

May a statement made to law enforcement (1) with

full benefit of counsel prior to and during the giving of

the statement, (2) which incriminates the declarant in

exactly the same level of crime as the defendant, (3) in

which the police employ no leading questions in taking

the statement, (4) in which there is absolutely no evi-

dence of police intimidation of the declarant, (5) in which

the declarant was provided no information regarding the

crime by police, and (6) in which the declarant clearly

understood that he had something to lose by being

untruthful in his statement, be introduced at trial in

evidence against a criminal defendant without offending

the Confrontation Clause if the declarant died prior to

trial?

If truth is the goal of a criminal trial, then is not the

accuracy of a statement offered in evidence of at least

equal significance to the environment in which it was

obtained? Should not the scope of the information consid-

ered in determining the “indicia of reliability” of a state-

ment be expanded to include evidence which tends to

corroborate the accuracy of the proffered statement,

instead of being limited to evidence of the environment

in which that statement was offered, when resolving the

Confrontation Clause implications of that statement?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...........

TABLE OF CONTENTS... <<... i

TABLE OF AUTHORITIES ..........--.cceceeeeeee. iii

OPINION BRLOW..:...1..). eee 1

STATEMENT OF THE BASIS OF JURISDICTION... 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

STATEMENT OF THE CASE..........--....0ee000- 1

REASONS FOR GRANTING THE WRIT ........... 17

QUESTION #1 .....0c:22: ee 17

I. Rule 10 considerations: This case represents

the exception that proves the rule

announced by the Court in Lilly v. Virginia,

Lee v. Illinois, and Ohio v. Roberts ......... 18

Il. Lilly Gistingwiene 6.65 5:ic cK aeasieuaeeuwe 20

Ill. Lee distinguished .....5.5...4<1458sa ee 25

QUESTION @2 ...<c<05snyei ae 26

I. Indicia of reliability vs. cross-

CXATMINGTION 26 66 ia cee bose sae ee 26

CONCLUSION 6.5.5 sav an ose pee 29

ili

TABLE OF AUTHORITIES

Page

Cases

Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111

SE MY I 6 bob 55 66 cduin dss neesisnccedece%a 27

Lee v. Illinois, 476 U.S. 530 (1986) ............... passim

Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144

Ram EU Es oa ck vacccccsecucciccnccnci.. passim

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65

ET WI Wi dn wu b's s'sce boc sdcacacesscs 19, 20

State of Nebraska v. Sheets, 260 Neb. 325, 618

I I od doo cGy cc oh baba oecccaescaoes 1

STATUTES AND RULES

SIN OP NMED onc wks cin scaedceccceccckcenceecies 1

I I OE A so voc ce cons vacces daw bce cau 25

Cons TITUTIONAL CONSIDERATIONS

Constitution of the United States of America, Art. VI...... 1

OPINION BELOW

The opinion in question is reported as State of

Nebraska v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000).

(App. 1)

The opinion of the state trial court is not reported.

(App. 57)

STATEMENT OF THE BASIS OF JURISDICTION

(i)

On September 15, 2000, the opinion of the Nebraska

Supreme Court was filed. (App. 1)

(ii)

On November 15, 2000, the Nebraska Supreme Court

denied the State of Nebraska’s motion for rehearing.

(App. 55) On that same date, the Nebraska Supreme

Court also stayed its mandate in this matter pending the

State of Nebraska seeking a writ of certiorari from this

Court. (App. 56)

(iii)

The jurisdiction of this Court to review the judgment

in question is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

“In all criminal prosecutions, the accused shall enjoy

the right to . . . be confronted with the witnesses against

him; ...” Constitution of the United States of America, Art.

VI.

STATEMENT OF THE CASE

Because this Court’s opinions in Lilly v. Virginia, 527

U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 233 (1999) and Lee v.

Illinois, 476 U.S. 530, 543 (1986) indicate that the resolu-

tion of the federal constitutional question presented

hinges upon a detailed analysis of the facts of the case,

we offer an extensive rendition of the facts which under-

lie this question, drawn from the state court trial record.

Kenyatta’s disappearance

On September 23, 1992, Kenyatta Bush was seventeen

years of age and had begun her senior year at North High

School, located at 36th and Ames, in Omaha, Douglas

County, Nebraska. (168:19-169:3; 168:21-24) She was an

honor student with a desire to go on to college. (169:4-12)

She was a candidate for homecoming queen. (170:2-10)

She had a part-time job at Skyline Manor Retirement

Home. (171:16-18)

At approximately 8:30 a.m. on September 23, 1992,

Kenyatta Bush was at North High School and visited with

Juanita Hangar-Johnson, the Guidance Director.

(173:1-176:2) They spent five minutes talking about home-

coming and all the events that were coming up. (176:2-6)

Kenyatta didn’t seem to have anything bothering her at

that time. (176:7-9)

Tonja Carter, a classmate of Kenyatta’s, also saw Ken-

yatta at school that morning sometime after 8:30.

(178:2-179:22) Tonja observed Kenyatta by the doors lead-

ing to the parking lot as Tonja was eating. (180:4-181:3)

A short time later, Lori Shea, a North High teacher,

noticed that Kenyatta was not in attendance at Lori

Shea’s 8:40 a.m. marketing class. (182:20-184:2) Ms. Shea

expected to see Kenyatta in class that day because Ken-

yatta was a state officer of the Marketing Club and was

supposed to pick up some letters and other items from

Ms. Shea. (184:3-12) When Kenyatta did not arrive home

that evening, her step-father, Mr. Stennis, checked with

the school and found that Kenyatta had not been in any

of her classes on the 23rd. (172:3-5; 190:2-9) Mr. Stennis

found Kenyatta’s car in the school parking lot, unlocked,

with a parking ticket on it, and Kenyatta’s book bag still

inside the car. (188:12-190:2)

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In the fall of 1992, Officer Ted B. Green was a police

officer for the City of Omaha assigned to the youth ser-

vices unit of the criminal investigations bureau, a unit

that handles crimes involving minors: sexual assaults,

child abuse, child neglect and missing juveniles.

(234:1-235:11) Officer Green became involved with the

investigation of the disappearance of Kenyatta Bush.

(235:12-20) Officer Green noted that Kenyatta’s disap-

pearance did not resemble a runaway. (237:17-21) Officer

Green discovered that the book Kenyatta needed for Lori

Shea’s marketing class was still in her book bag when it

was discovered in Kenyatta’s car. (240:12-18)

The discovery of Kenyatta’s body

Ten days after Kenyatta’s disappearance, on the

morning of October 3, 1992, Gregory Eversoll, a grade

school teacher and bicycling enthusiast, went for his

usual bike ride from his home in Dundee toward the Fort

Calhoun area. (198:4-200:20) While cycling, Mr. Eversoll

turned down road P-51 and the brilliance of the fall colors

caught his eyes and made him slow down. (200:21-203:14)

At that time, Mr. Eversoll looked to the right and

glimpsed something resembling a “stuffed figure” in blue

jeans off to the right side of the road in the woods.

(203:10-204:7) Mr. Eversoll continued for another fifteen

feet before deciding he had to go back and investigate.

(204:8-22) When he returned to the point where he made

his first observation, Mr. Eversoll still could not clearly

identify what it was he had observed from the roadside.

(204:24) He disrrounted his bicycle and crossed the road-

side ditch. Still he could not clearly make out the object.

(205:1) It was a densely forested area. (206:1) Therefore,

Mr. Eversoll walked on into the woods. Not until he was

three to five feet away from the object he had observed

from the road did Mr. Eversoll realize that the object was

a dead body. (205:5-8) Mr. Eversoll immediately went to a

phone and called 911. (206:19-207:7)

Kenyatta’s body was 28 feet from the edge of the

road. (243:18)

On October 3, 1992, Mike Robinson was a patrol

officer with the Washington County Sheriff’s Department

and had been with the department for approximately

eleven years. (212:1-21) On that date he was called

regarding a body that had been discovered in Washington

County, Nebraska. (213:1-4) At that time, he proceeded

four-tenths of a mile north of the intersection of County

Roads P-340 and P-51 and undertook to secure the scene.

(213:5-216:4) Sergeant Robinson secured an area around

the body with crime scene tape and blocked the road

which ran by the scene a half mile in each direction to

control access to the location. (216:5-11) Once secured, no

one could observe the scene from the location of the law

enforcement roadblocks and no media were allowed to

- get in and observe or video the scene. (216:11-217:1)

Sergeant Robinson then waited for the Omaha Police

Department to arrive and take over the investigation.

(225:14-17)

On October 3, 1992, Kevin Willis was a road deputy

with the Washington County Sheriff’s Office. (229:2-7) At

approximately 9:25 a.m. Deputy Willis received a call

regarding a body that had been discovered on North

River Road. (229:4-15) Deputy Willis, with Deputy Rick

Hillman following behind, responded to the call in a

marked patrol car. (229:16-230:5) Deputy Willis assisted in

the securing of the crime scene and of the road leading to

the scene. (231:2-232:4) Nobody would have had the

opportunity to view the crime scene from the road and

there were no unauthorized personnel at the crime scene.

(232:3-14)

The investigation

Officer Green of the Omaha Police Department

_arrived on the crime scene at around eleven.

(240:19-241:17) The crime scene had been secured before

he got there. (241:24-242:1)

- Te Oe.

Because of the nature of Kenyatta’s injuries and the

absence of any indication of large quantities of blood at

that location, Officer Green concluded that Kenyatta’s

body had been placed at that location after she had been

murdered. (245:2-247:11)

There was no evidence of struggle at the location

where the body was discovered. (247:12)

Furthermore, the body was apparently carried to its

resting place as there were no indications, either on the

body or along the path from the road to where the body

was discovered, that Kenyatta’s body had been dragged

from the road to the place where it was found.

(247:16-249:10)

With the discovery of the body, the investigation

turned into a homicide investigation. (261:1-4) When the

body was turned over to the Omaha Police Department,

Officer Kathryn Hearn of the homicide bureau took

charge of the investigation. (262:4-10) X-rays of the body

confirmed it was Kenyatta Bush. (263:1-11) Officer Hearn

also believed, due to the absence of blood at the scene,

that the body was discovered at a secondary crime scene

and the murder occurred at another location.

(264:19-265:2)

Officer Hearn observed that the body of Kenyatta

was clad in blue jeans, blouse, bra, and panties, and

Kenyatta’s jeans had been pulled down below the hips.

(267:13-269:8) Based on the weight of the body and the

distance it was found from the road, Officer Hearn con-

cluded that the body must have been carried from the

road and placed on top of a bag of garbage at the location

where it was found. (270:2-4)

Dr. Blain Roffman was a board certified coroner’s

pathologist in Douglas County for over twenty years.

(305:1-306:25) He had performed over four thousand

autopsies. (307:1-3) On October 3, 1992, Dr. Roffman was

called to the scene where Kenyatta’s body was discovered

to obtain a preliminary idea of what had occurred.

(307:11-16; 308:1) Dr. Roffman arrived at the scene in the

late morning or early afternoon. (307:17-20)

Dr. Roffman observed that the body was lying in a lot

of brush and garbage, on its back, and had suffered

considerable decomposition. (308:4-8)

Dr. Roffman observed a large, gaping wound in the

neck (308:9) and considerable decomposition of the flesh

above that wound to include all of the facial tissue.

(308:20-309:2) Dr. Roffman explained that if a body suf-

fers significant trauma immediately prior to death, the

flesh covering that area of the body traumatized will

decompose at a faster rate than uninjured flesh. (310:7)

Based upon the amount of decomposition which had

occurred, Dr. Roffman estimated that Kenyatta had been

killed less than two weeks before her body was discov-

ered. (310:23-311:2)

Dr. Roffman observed no blood in the area of the

body. (311:11) That fact coupled with the nature of the

wound he observed, which would have produced “a lot

of blood”, Dr. Roffman also concluded that Kenyatta had

not died at the location where her body was found.

(311:14-23)

On October 4, 1992, Dr. Roffman performed an

autopsy on Kenyatta Bush at the Douglas County mor-

gue. (312:3-16) Toxicology testing determined that Ken-

yatta’s muscle tissue had a carbon monoxide level of 20

percent. That carbon monoxide level is not fatal, but does

disclose that at some time near the time of her death

Kenyatta had been exposed to carbon monoxide fumes.

(315:24-317:9)

As Kenyatta’s clothing was observed and removed in

the course of the autopsy, Dr. Roffman observed no dirt

or debris which would have been consistent with Ken-

yatta having been drug along the ground prior to being

left where her body was discovered. (317:25-318:5)

Dr. Roffman noticed that there were “large areas of

bruising and contusions” on the top or forward (anterior)

areas of both of Kenyatta’s thighs which had to have

occurred prior to death, but only a matter of minutes

prior to her death. (318:16-22; 320:5-13; 335:4) The bruises

on Kenyatta’s thighs are consistent with bruising

observed in women who were known to be the victims of

sexual assaults where the rapist rested his weight upon

his victim. (335:9-21)

Kenyatta suffered three to four stab wounds in the

area of her throat. (323:18-324:11; 325:14) Two strokes

which cut Kenyatta’s throat from ear to ear. One stroke

which stabbed into her bronchus and another which com-

pletely severed her bronchus. (323:20) Dr. Roffman noted

that the trachea and larynx - which are often referred to

as the “windpipe” — were absent from the body but there

was an observable knife wound which completely

severed the bronchus which begins immediately below

the trachea and larynx and leads to the lungs. (322:9)

Dr. Roffman believed to a reasonable degree of medi-

cal certainty that Kenyatta Bush died as a result of knife

wounds to Kenyatta’s neck which resulted in the severing

of major blood vessels and arteries, the trachea and lar-

ynx. (333:15-23)

A buck knife of ten inches in length would have been

consistent with the wounds Kenyatta suffered. (325:6-9)

If Kenyatta had been face up on the ground at the

time these wounds were inflicted, the nature of the

wounds would have produced “significant” bleeding,

with the blood from the severed vessels and tissue run-

ning down the victim’s neck onto the ground, and arterial

bleeding shooting forward in the direction of Kenyatta’s

asSailant. (328:3-12) In all likelihood, some of this arterial

bleeding would have struck an assailant lying on top of

Kenyatta. (328:18)

Dr. Reena Roy was a forensic serologist with the

Nebraska State Patrol Criminalistic Laboratory in Lin-

coln, Nebraska. (365:5-24) In November of 1992, Dr. Roy

was given the jeans, blouse, bra, and panties of Kenyatta

Bush as well as an envelope containing pubic hairs and

vaginal swabs. (372:7-20) Dr. Roy examined these items

for semen but did not find any. (378:2-7) Because sperm

or semen would not be able to survive past 72 hours in a

live victim of rape and only twelve hours in a deceased

person, Dr. Roy felt that she could not draw any conclu-

sions whether or not Kenyatta had been sexually

assaulted. (380:11-384:15) Dr. Roy also noted that if a

woman was killed after a rape and kept in a lying posi-

tion, semen would not drain from her vagina into her

panties. (385:16-386:9)

Dr. Roy examined the pubic hair sample that was

sent to her. (380:2-3) However, Dr. Roy further noted that

it is very rare to find foreign hair in a rape victim’s pubic

combings, so it could not be concluded from the want of

such hair that Kenyatta was not sexually assaulted.

(387:15-22)

Dr. Robert Hall, a certified forensic entomologist and

professor at the University of Missouri in Columbia, was

contacted by the Omaha Police Department to aid in the

investigation of Kenyatta Bush. (283:17-288:16) The field

of forensic medical/criminal entomology concerns the

use of insects to give us information about the time of

death and occasionally the site of death. (287:11; 291:1)

Dr. Hall received a very thorough collection of ento-

mological specimens from the crime scene and the body,

and upon examination of those specimens he estimated

that flies had reached Kenyatta’s body and laid eggs on

the body on the afternoon of September 24, 1992. (301:21)

It is not uncommon that flies are not attracted to a human

body for the first 24 hours after death. (303:3)

A citizen contacts police

Officer Michael Butera first became involved with the

investigation of Kenyatta Bush’s murder in September of

1993, one year after Kenyatta’s disappearance. At that

time Officer Butera became the supervisor of a task force

of two Omaha police detectives, a Nebraska State Patrol

investigator, and an FBI agent working on the Kenyatta

Bush case. (454:14-455:3)

On September 17, 1996, Officer Butera was working

as the midnight supervisor in charge of the investigation

bureau when Barb Olson reported to Omaha police that

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;

Adam Barnett had told her son-in-law, Jason, that he and

a friend were responsible for Kenyatta Bush’s murder.

(457:21-458:4) Prior to that report, the names of Adam

Barnett or Jeremy Sheets had never been a part of the

investigation of Kenyatta’s murder. (457:10-12)

Officers Michael Butera, Bill Jadlowski, Kevan Bar-

bour, and Felands Marion were assigned to follow up on

the information that Barb Olson had provided and they

re-interviewed her as well as taking taped statements

from Ms. Olson, her son-in-law, Jason LaNoue, and her

daughter, Richelle LaNoue. (459:12-460:12) Based on the

information received, Officer Butera believed the next

step in the investigation was to attempt to confirm the

statements made by Adam Barnett that he and Jeremy

Sheets were involved in the murder of Kenyatta Bush.

(461:9-13)

Richelle LaNoue agreed to wear a concealed radio

wire and meet again with Adam Barnett. (461:16-462:23)

Based on the confirming information provided by the

wire, Officer Butera set up a surveillance of Adam Bar-

nett, followed him, eventually made contact with him,

and arrested him for outstanding warrants and driving

during suspension. (463:1-464:8)

The process which produced

the Barnett statement

On Friday, September 27, 1996, Barnett was taken to

Central Police Headquarters and placed in an interview

room. (464:9-16) Within five minutes, Officers Butera and

Jadlowski joined Barnett in the interview room, advised

Barnett of his Miranda rights, and began interviewing

him. (464:17-20) Barnett appeared ready to talk. (467:9-12)

These officers did not threaten Barnett, suggest to

Barnett what it was they expected Barnett to tell them or

share with him any details of Kenyatta’s death, the dis-

covery of her body or the condition of her body.

(467:13-469:1; 471:2-13)

In the course of this first interview, Barnett requested

an attorney, the interrogation ended immediately, and

Barnett was provided a private room and a telephone

with which to contact legal counsel. (469:3-9) When Bar-

nett was unsuccessful in obtaining the services of an

attorney through his own efforts, a judge of the Douglas

County Court was contacted and an attorney, Mr. Chris

Kelly, was appointed to represent Barnett. (469:14-470-1;

418:25)

Attorney Kelly arrived and took the opportunity to

speak privately with Barnett for up to two hours.

(422:10-18) Attorney Kelly left Barnett, spoke with prose-

cutors and police, was provided the opportunity to listen

to the audio tape created in the course of Richelle

LaNoue’s earlier conversation with Barnett, and then had

further discussions with his client. (422:24-423:17) After

listening to the tape, Mr. Kelly and Barnett spoke again in

private, and all meetings ceased for the evening. (423:2)

Barnett was held in jail overnight, but police had no

further discussions regarding the case with Barnett on

that date. (470:5-16)

Attorney Kelly had made arrangements with police

that Barnett might phone him on the following morning,

Saturday, September 28, 1996, and that call was made by

Barnett to Attorney Kelly at approximately 10:30 a.m.

(424:3-11) Attorney Kelly then went back to the Omaha

Police Department and again spoke privately with Bar-

nett before noon. (425:8-15; 470:24-471:1) Attorney Kelly

then had additional conversations with prosecutors, and

then again met privately with Barnett. (425:15)

After this series of private meetings between Attor-

ney Kelly and Barnett, at approximately 2:00 p.m. on

Saturday, September 28, 1996, Barnett and Attorney Kelly

met with police to discuss the case further. (425:19-426:6)

Attorney Kelly was present throughout that meeting with

police and characterized it as an interview rather than an

interrogation. (426:7-20) .

In the course of that interview, Barnett was afforded

the opportunity to give a narrative statement to police of

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his knowledge of the matter. During the course of that

interview, Attorney Kelly testified police would only

“occasionally ask a question for clarification purposes.”

(427:5)

After proceeding with his rendition of events for

approximately an hour and a half, Barnett “slid his chair

back and put his head down and began emotionally -

began crying.” (427:13-428:3) Attorney Kelly asked that

the interview cease at that point, and police “imme-

diately” ceased the interview and left Attorney Kelly and

Barnett in private. (428:7-12)

Attorney Kelly was present throughout the interview.

At no point was Adam Barnett threatened, browbeaten,

told that the officers did not accept his story, told that he

would have to do better than this, or told details the

officers expected him to say or fed any information.

(428:13-429:3) Officers never told Barnett the condition of

Kenyatta Bush’s body, the location of the body, the cause

of death, or any information about the homicide investi-

gation. (429:4-17)

From the time that Mr. Kelly became appointed on

the case until September 28th at 10:00 p.m., Officer Butera

was not aware of Omaha Police Officers having any con-

tact with Barnett outside the presence of his attorney.

(470:14-23)

On the evening of September 28, 1996, with Mr.

Kelly’s assistance, Adam Barnett reached a plea agree-

ment with the State. (432:6-435:19) Under the agreement,

Barnett was expected to be truthful and to testify truth-

fully at any subsequent trials. (435:20-436:6) In exchange,

Barnett would be charged with second degree murder

instead of first degree murder. (437:20-438:22) Barnett

was seventeen at the time of the killing and thus his age

made him ineligible for the death penalty. (50:17-51:14)

There were no promises as to what Barnett’s sentence

would be and it potentially ranged from ten years to life

imprisonment. (438:25-440:3)

At that point, Officers Jadlowski and Butera entered

the room, set up a tape machine, and recorded a second

statement from Barnett. (436:8-11; 472:22-473:7)

The Barnett statement

In his taped statement, Barnett gave the following

account of the events surrounding the abduction and

murder of Kenyatta Bush. (E5, 1-38:32,32)

In 1992, Barnett and Jeremy Sheets were the very best

of friends.

[Jeremy Sheets] was everything. | would have

fucking - I would have walked over hot coals

for him, you know. I went to Kearney. I had

nobody else. ** * I cared about my mom but

him, you know, I would have done anything for

him.

(519:3-13)

In the early morning of September 23, 1992, Barnett

and Jeremy Sheets were in Sheets’ car. They were cruising

around Omaha. (480:12-23) The two hatched a plan:

[Sheets] said he wanted to find - basically we

came to the decision that we wanted to find a

black chick. You know, we could rape her and

fuck her, you know, and just make her - you

know, make ourselves feel better, make — just

because she was black. It was all because we

wanted to fuck a black girl.

(485:9)

[W]e hated niggers; how much we'd just like to

get one, you know, just show - show them, you

know, that they shouldn’t be fucking with our

white women. *** At the time, you know, most

of the white girls we knew were going out with

black guys, and it really pissed us off. So, you

know, we thought we could - you know, we

might as well go out and rape a black bitch.

They’re fucking our women, we might as well

fuck their women.

(485:23-456:9)

We drove up to North High *** There she was

out there. There was nobody else out there.

*** Jeremy [Sheets] said there’s the one. We

can grab her.

(481:1)

We pulled up and she was standing on the side-

walk here getting ready to cross the street over

to — from over here to where the cars are parked,

where the cars are parked.

We just pulled up right in front of her and

[Sheets] jumped out of [the passenger side of]

the car. He grabbed her first and I was right - I

was out the driver’s side door.

(487:16) Kenyatta only had time to yell for help once

before she was in the car. (488:21-489:1)

[W]e grabbed her, took - got her into the car. I

was driving. Jeremy was in the back seat with

her.

(481:7)

She was struggling a little bit, man. She’s saying

get off me, get off me, and [Sheets is] saying

shut the fuck up, nigger bitch. Man, I'll stick this

fucking scarf in your mouth. And she’s like -

she’s like why? What did I do? Then he stuck

the scarf in her mouth, put his arm around her -

around her shoulder, and held the scarf in her

mouth.

(489:11) Barnett and Sheets had previously determined to

take their victim, when caught, to Dodge Park. (490:1)

We got her out of the car. We walked about a half a

mile up the trail, and we decided we were going to rape

her right there.

(481:22) Once arrived at a satisfactory location, chosen by

Sheets, Barnett and Sheets “[j]ust threw her down’.

(494:4) Barnett, who weighed over 200 pounds, held Ken-

yatta to the ground by kneeling above Kenyatta’s head,

placing his knees on her shoulders (494:21) and pinning

her arms down with his hands. (495:2) Sheets removed

enough of Kenyatta’s clothing to rape her. (495:5-22)

“[S]heets proceeded to have sex with her for like ten

minutes.” (481:24) “I remember [Sheets] saying you nig-

ger bitch, nigger bitch. We’re gonna hurt you, you nigger

bitch.” (496:12)

And then he started beating her. He had his

knife in his hand. It wasn’t opened, it was just -

it was folded shut, using it sort of like to make

his hand more like a rock, you know. *** And

I was holding her down and he was beating her.

He didn’t stop. He just kept beating her. Finally,

I stood up and I took about three steps back.

(482:1-9)

[Sheets] said I’m gonna kill this nigger bitch.

You got a problem with that?

(498:15)

That’s when [Sheets] took out - thats when

[Sheets] took the open blade of the knife out;

stabbed her in the upper torso. |

(482:10)

Barnett watched as Sheets stabbed Kenyatta “three or

four” times, while Sheets “was still sexually inside her.”

(500:12-23) (504:6)

I just stood there and did nothing, and the rea-

son I didn’t do nothing is — is because she was

black. If it would have been a white girl, I

probably would have stopped him, but I didn’t.

(481:22-482:15)

After stabbing Kenyatta, Sheets continued his

rape of her body. (502:19-503:8)

I was thinking that she deserved everything she

got when she was black, but, it really disgusted’

me when [Sheets] —- when he kept having sex

[after he killed her].

When Sheets finally finished with her, “[Sheets]

just said he didn’t want to leave her right here

where everything had took place.” (505:2)

[Sheets] said we need to get back - go back to

the car, unlock the trunk, get the garbage bag

out so it wouldn’t make a big mess in his car. He

didn’t want to clean up a lot of mess.

(504:19)

As the two walked back to Sheets’ car they

joked about their accomplishment.

[Sheets] was like, God, that was good. That gave

me a fucking boner, man. * * * I just couldn’t

help but laugh at it. No matter what [Sheets]

said, you know, I was laughing.

(505:18)

When they got back to the parking area, and obtained

the garbage bag, Sheets walked to the river and threw in

the knife. (523:10-22) They then walked back to where

Kenyatta’s body had been left, covered Kenyatta’s body

with a garbage bag, carried her body back to Sheets’ car,

placed the body in the trunk, drove to another location

near the park, carried the body into the woods and

dumped it. (482:17-483:10; 509:16)

After cleaning up the trunk of the car and burning

the garbage bag and Sheets’ clothes, they discussed their

| reactions to what they had done. “[Sheets] told me how

good it felt. You know, how it sort of gave him a boner.”

(483:21) “[Sheets] was talking about how great it was;

how good it felt; how he’d like to do it again.” (516:6)

“(Sheets] was happy. It was giggles.” (517:17)

Barnett stated that he now felt remorse for what he

had done. (526:17-19)

Attorney Kelly was present for the entire recorded

statement and at no time did Officers Jadlowski and

Butera ever tell Barnett any details or information of the

Kenyatta Bush homicide or suggest what Barnett should

say. (437:9-15) At no time did Mr. Kelly perceive that the

officers were dissatisfied with what Barnett had told

them. (451:19-452:1) On November 13, 1996, Adam Bar-

nett committed suicide while housed in the Washington

: County Jail and was thus not available to testify at

| Sheets’ trial. (33:7-14)

tggg,gwwNw, TTT __!]_ ==

Other admissions

In addition to his counseled statement to Omaha

Police, Barnett had admitted his involvement in the Ken-

yatta Bush murder to Jason LaNoue (525:22), Richelle

LaNoue (526:2), and Christine “Chrissy” Kelly (526:7).

Barnett later confirmed that he and Sheets were

responsible for Kenyatta’s murder to his uncle, Thomas

Stepanek. (61:1-8) He did state to his uncle that “he didn’t

do it,” but only in the sense that he was not the one who

stabbed her. (63:15-64:2) A distinction also discussed in

his taped statement. (482:10)

Barnett’s cell mate, Mr. Marschinke, also testified that

Barnett told him that Barnett was present when Sheets

killed Kenyatta Bush and he was worried about what was

going to happen to him. (33:11-35:3) Barnett had earlier

indicated that he feared for his safety in prison, if it was

discovered that his motivation for this crime was purely

racial. (519:23-520:4)

Additional corroboration

Officer Butera received employment records from

Kentucky Fried Chicken indicating that Barnett and

Sheets were both employed in the Omaha area at the time

Kenyatta was killed. (537:9-538:16)

The trial court’s ruling

At trial the State sought to offer into evidence the

recording and transcription of Barnett’s statements. A

hearing was conducted regarding the circumstances sur-

rounding the taking of Barnett’s statements. The trial

court reviewed the record of the hearing and among its

findings was the following:

No leading questions, suggesting the answer,

were asked of Barnett. Many of his answers,

especially the most significant, were lengthy

and narrative. No question, either by their

wording or by the tone of the voice, are in any

way coercive in nature.

(App. 63) The state trial court ultimately found: “The

State has met its burden of demonstrating trustworthi-

ness and reliability of both statements.” (App. 64) The

statements were admitted into evidence at Sheets’ trial.

The Nebraska Supreme Court's ruling

On direct appeal the Nebraska Supreme Court con-

cluded: “[T]he presumption of unreliability has not been

rebutted [by the State].” (App. 32) The case was reversed

and remanded for a new trial. (App. 35)

This petition followed.

REASONS FOR GRANTING THE WRIT

QUESTION #1

May a statement made to law enforcement (1) with full

benefit of counsel prior to and during the giving of the

statement, (2) which incriminates the declarant in exactly

the same level of crime as the defendant, (3) in which the

police employ no leading questions in taking the state-

ment, (4) in which there is absolutely no evidence of

police intimidation of the declarant, (5) in which the

declarant was provided no information regarding the

crime by police, and (6) in which the declarant clearly

understood that he had something to lose by being

untruthful in his statement, be introduced at trial in

evidence against a criminal defendant without offending

the Confrontation Clause, if the declarant died prior to

trial?

Rule 10 considerations:

This case represents the exception that proves the rule

announced by the Court in Lilly v. Virginia, Lee v.

Illinois, and Ohio v. Roberts.

This case presents an important question of federal

constitutional law which this court most recently

addressed, but did not resolve, in Lilly v. Virginia, 527

U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 233 (1999). Lilly

concluded with a plurality opinion which indicated that a

set of circumstances could exist which would allow the

statement of an unavailable co-actor to be admitted into

evidence against a criminal defendant without offending

the Confrontation Clause. “The Commonwealth correctly

notes that ‘the presumption of unreliability that attaches

to codefendant’s confessions . . . may be rebutted.’ ” 119

S.Ct. at 1984, citing Lee v. Illinois, 476 U.S. 530, 543, 106

S.Ct. 2096, 90 L.Ed.2d 514 (1986).

We believe the set of circumstances anticipated by

this Court’s opinions in Lilly and Lee are present in this

case. We believe that a rational, pragmatic application of

the truth seeking principals which form the basis of our

historical analysis of the Confrontation Clause should

allow the introduction into evidence of the statement here

in question.

Furthermore, although we are unaware of a split of

authority among the circuit courts upon the standard to be

employed on this question, members of this Court have

previously noted the results of the application of this

standard has produced varying results.

[O]lur precedent does not compel the broad

holding suggested by the plurality today. [cita-

tions omitted] Indeed, several Courts of Appeals

have admitted custodial confessions that equally

inculpate both the declarant and the defendant, and

I see no reason for us to preclude consideration

of these or similar statements . . .

Lilly, 119 S.Ct. at 1904 (Opinion of Rehnquist, C.J.; O’Con-

nor, J., and Kennedy, J. joining in the opinion) (emphasis

added).

That same factual situation is presented here, but the

Nebraska Supreme Court found it to be in violation of the

Confrontation Clause to admit Barnett’s statement into

evidence, relying upon Lilly and the Confrontation

Clause opinions of this Court which preceded Lilly.

The plurality opinion in Lilly relied upon the stan-

dard articulated in this Court’s opinion in Ohio v. Roberts,

448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 594 (1980), framing

the question in these terms: Whether the statement

offered contains “particularized guarantees of trust-

worthiness.” Lilly, 119 S.Ct. at 1984. We believe, as the

state trial court found, that those particularized guaran-

tees of trustworthiness required by the Confrontation

Clause are present here.

Lilly, Lee, and Roberts all indicate that there are cir-

cumstances under which the discernment of the truth

would be enhanced, and the Confrontation Clause not

offended, by the introduction of the statement of an

unavailable co-actor against a criminal defendant. That is

where Lilly leaves us, still wondering what that appropri-

ate set of circumstances would look like. We believe those

circumstances are presented by this case.

We believe Barnett’s statement was appropriately

received into evidence by the-state trial court in full

satisfaction of the legitimate concerns of the Confronta-

tion Clause. For this court to recognize that fact would be

of immeasurable assistance to courts, prosecutors and

defense counsel around this country in distinguishing

those few situations which do satisfy the Confrontation

Clause, from the many situations which obviously do not.

We believe the circumstances of this case represent

the exception which proves the rule announced in Lilly,

Lee, and Roberts that the presumption of unreliability can

be rebutted and that standard is an adequate tool for the

protection and evaluation of the requirements of the Con-

frontation Clause.

On the other Fand, if the actual practice in our Ameri-

can courts is to be otherwise, if there is to be a universal

prohibition against this type of evidence contrary to the

rule articulated by Lilly, Lee, and Roberts, then this Court

should be the body to affirmatively articulate that rule.

That task should not be left to the guess work of the

lower courts.

II.

Lilly distinguished

The facts and concerns which were specifically noted

in Lilly and prompted the Court’s remand are not present

here.

A. A custodial statement, but one given with the full

assistance of counsel.

The lead opinion in Lilly expresses a generic concern

with “custodial” statements, but the lead opinion did not

find that element dispositive of the question. For good or

evil, many of these types of statements will be obtained

in the course of law enforcement personnel’s investiga-

tion of a crime. That fact alone should not be dispositive,

and perhaps not even directly relevant, to the Confronta-

tion Clause inquiry.

Nonetheless, we need to examine with some speci-

ficity the concerns with statements given while the

declarant is in the custody of law enforcement officers

because, when we do, we observe those concerns are not

present in this case.

On Friday, September 27, 1996, Barnett was taken to

Central Police Headquarters and placed in an interview

room. (464:9-16) Within five minutes, Officers Butera and

Jadlowski joined Barnett in the interview room, advised

Barnett of his Miranda rights, and began interviewing

him. (464:17-20) Barnett appeared ready to talk. (467:9-12)

These officers did not threaten Barnett, suggest to

Barnett what it was they expected Barnett to tell them or

share with him any details of Kenyatta’s death, the dis-

covery of her body or the condition of her body.

(467:13-469:1; 471:2-13)

In the course of this first interview, Barnett requested

an attorney, the interrogation ended immediately, and

Barnett was provided a private room and a telephone

with which to contact legal counsel. (469:3-9) When Bar-

nett was unsuccessful in obtaining the services of an

attorney through his own efforts, a judge of the Douglas

County Court was contacted and an attorney, Mr. Chris

Kelly, was appointed to represent Barnett. (469:14-470:1;

418:25)

Attorney Kelly arrived and took the opportunity to

speak privately with Barnett for up to two hours.

(422:10-18) Attorney Kelly left Barnett, spoke with prose-

cutors and police, was provided the opportunity to listen

to the audio tape created in the course of Richelle

LaNoue’s earlier conversation with Barnett, and then had

further discussions with his client. (422:24-423:17) After

listening to the tape, Mr. Kelly and Barnett spoke again in

private, and all meetings ceased for the evening. (423:2)

Barnett was held in jail overnight, but police had no

further discussions regarding the case with Barnett on

that date. (470:5-16)

Attorney Kelly had made arrangements with police

that Barnett might phone him on the following morning,

Saturday, September 28, 1996, and that call was made by

Barnett to Attorney Kelly at approximately 10:30 a.m.

(424:3-11) Attorney Kelly then went back to the Omaha

Police Department and again spoke privately with Bar-

nett before noon. (425:8-15; 470:24-471:1) Attorney Kelly

then had additional conversations with prosecutors, and

then again met privately with Barnett. (425:15)

After this series of private meetings between Attor-

ney Kelly and Barnett, at approximately 2:00 p.m. on

Saturday, September 28, 1996, Barnett and Attorney Kelly

met with police to discuss the case further. (425:19-426:6)

Attorney Kelly was present throughout that meeting with

police and characterized it as an interview rather than an

interrogation. (426:7-20)

In the course of that interview, Barnett was afforded

the opportunity to give a narrative statement to police of

his knowledge of the matter. During the course of that

interview, Attorney Kelly testified police would only

“occasionally ask a question for clarification purposes.”

(427:5)

After proceeding with his rendition of events for

approximately an hour and a half, Barnett “slid His chair

back and put his head down and began emotionally -

began crying.” (427:13-428:3) Attorney Kelly asked that

the interview cease at that point, and police “imme-

diately” ceased the interview and left Attorney Kelly and

Barnett in private. (428:7-12)

Attorney Kelly was present throughout the interview.

At no point was Adam Barnett threatened, browbeaten,

told that the officers did not accept his story, told that he

would have to do better than this, or told details the

officers expected him to say or fed any information.

(428:13-429:3) Officers never told Barnett the condition of

Kenyatta Bush’s body, the location of the body, the cause

of death, or any information about the homicide investi-

gation. (429:4-17) Subsequently, Officers Jadlowski and

Butera entered the room, set up a tape machine, and

recorded a second statement from Barnett. (436:8-11;

472:22-473:7)

From the time that Mr. Kelly was appointed to repre-

sent Barnett until Saturday, September 28th at 10:00 p.m.,

Officer Butera was not aware of Omaha Police Officers

having any contact with Barnett outside the presence of

his attorney. (470:14-23)

In summary, Barnett was taken to a police station,

advised of his rights, he requested counsel, discussions

with law enforcement were immediately terminated upon

that request, counsel was appointed for Barnett, Barnett

had a significant period of time to meet privately with his

counsel, and counsel was physically present during the

discussions between his client and law enforcement

oo a oe

which produced the statement at issue here. One has to

possess an irrationally negative view of government and

the individuals sworn to uphold and enforce its laws to

observe heavy handedness, evil intent or coercion in this

scenario. |

B. No leading questions

The lead opinion noted a specific concern that in the

statement at issue in Lilly the declarant “was primarily

responding to the officer’s leading questions.” 119 S.Ct.

at 1901.

Leading questions played absolutely no role in obtain-

ing Barnett’s statement. The officers did not suggest to

Barnett what it was they expected Barnett to tell them or

share with him any details of Kenyatta’s death, the dis-

covery of her body or the condition of her body.

(467:13-469:1; 471:2-13)

Barnett was afforded the opportunity to give a narra-

tive statement to police of his knowledge of the matter.

During the course of that interview, Attorney Kelly testi-

fied police would only “occasionally ask a question for

clarification purposes.” (427:5)

Attorney Kelly was present throughout the inter-

views. At no point was Adam Barnett threatened, brow-

beaten, told that the officers did not accept his story, told

that he would have to do better than this, or told details

the officers expected him to say or fed any information.

(428:13-429:3) Officers never told Barnett the condition of

Kenyatta Bush’s body, the location of the body, the cause

of death, or any information about the homicide investi-

gation. (429:4-17)

These facts stand in stark contrast to the facts which

prompted the Court’s concerns in Lilly.

C. No attempt by Barnett to mitigate his level of par-

ticipation while shifting blame to Sheets.

Perhaps most important, Barnett’s statement did not

attempt to reduce his responsibility for this crime in the

process of describing Sheets’ involvement. |

The lead opinion in Lilly also noted a specific concern

with the fact that the declarant in Lilly was being investi-

gated for possible involvement in a series of crimes

including the homicide at issue in Lilly. Yet in the Lilly

declarant’s statement, he assumed absolutely no respon-

sibility for the homicide in question, but placed the blame

for the homicide exclusively upon the defendant. “Thus,

[the declarant] has a natural motive to attempt to excul-

pate himself as much as possible.” 119 S.Ct. at 1901.

As Chief Justice Rehnquist pointed out, a strong

argument can be made that the statement at issue in Lilly

does not even qualify for consideration as a statement

against penal interest. “Mark Lilly’s statements inculpat-

ing his brother in the murder of De Filippis are not in the

least against Mark’s penal interest.” 119 S.Ct. at 1904.

That is simply not the case with Barnett’s statement.

There was no attempt on Barnett’s part to exculpate him-

self from any of the crimes involved in the death of

Kenyatta Bush, including her murder. Barnett confessed his

full participation in the planning, abduction, rape and

murder of Kenyatta Bush. All he could have done to

inculpate himself more would have been to have placed

his hands upon those of Sheets as Sheets repeatedly

drove the knife into Kenyatta’s body. In Nebraska, that

sort of teamwork is not necessary for one to be consid-

ered guilty of exactly the same crime of which Sheets was

convicted. Barnett’s statement, given after extensive con-

sultation with his attorney,! described responsibility for

1 There should be no legitimate question that Barnett was

wholly aware of the legal implications of his statement. We hear

no argument that Barnett was confused and thought he was

exactly the same crime of which Sheets now stands con-

victed, Murder in the First Degree. Nes. Rev. Stat.

§ 28-303.

This was not a case of an individual, under pressure

from police, accepting blame for a small offense while

attempting to shift blame for a major offense to another.

Barnett’s statement exposed both of the murderers of

Kenyatta Bush. There is nothing exculpatory in that act.

D. No evidence of drugs or alcohol

The lead opinion notes yet another concern with the

conditions surrounding the giving of the declarant’s

statement in Lilly: “[The declarant] also was obviously

still under the influence of alcohol.” 119 S.Ct. at 1901.

There is absolutely nothing upon this record which

establishes or even hints that Barnett was under the influ-

ence of alcohol, or any other drugs, at the time his state-

ment was made.

This concern of the lead opinion in Lilly is simply not

present in this case.

III.

Lee distinguished

Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2096, 90

L.Ed.2d 514 (1986) also involved a statement by an

unavailable declarant which was offered in evidence

confessing to a lesser degree of offense than that attributed to

Sheets.

2 Prior to giving his statement, Barnett was told his

statement would have to be accurate and truthful. (App. 4) If the

state’s representatives were satisfied the statement was accurate

and truthful, it was agreed that Barnett would be allowed to

plead guilty to the lesser offense of second degree murder.

(App. 5) Thus, Barnett’s statement might well have exposed him

to prosecution for first degree murder, if he were discovered to

have been untruthful.

against a co-actor. In Lee, the following concerns with the

offered statement resulted in the majority’s conclusion

that the presumption of unreliability had not been rebut-

ted. The declarant’s statement was obtained only after

police informed the declarant that a co-actor had confes-

sed and the co-actor had personally implored the declar-

ant to confess. 476 U.S. at 544. The statement was also

“given in response to the questions of police, who, having

already interrogated [the co-actor], no doubt knew what

they were looking for,....” Id.

In contrast to the situation in Lee, Barnett’s statement

was not motivated by the fact that Sheets had already

confessed and incriminated Barnett. Barnett made his

statement at a time when, but for Barnett’s incriminating

statements to friends, police had little or no knowledge of

who was responsible for Kenyatta’s abduction and mur-

der. Furthermore, Barnett’s statement was primarily nar-

rative in nature, not the product of extensive and focused

police questioning.

The facts found relevant in Lee are utterly different

than the facts surrounding the statement here in question.

QUESTION #2

If truth is the goal of a criminal trial, then is not the

accuracy of a statement offered in evidence of at least

equal significance to the environment in which it was

obtained? Should not the scope of the information consid-

ered in determining the “indicia of reliability” of a state-

ment be expanded to include evidence which tends to

corroborate the accuracy of the proffered statement,

instead of being limited to evidence of the environment

in which that statement was offered, when resolving the

Confrontation Clause implications of that statement?

Indicia of reliability vs. cross-examination

The Nebraska Supreme Court proceeded on the

assumption that the “indicia of reliability” cannot include

evidence corroborating the accuracy of the statement, but

must be limited to evidence of the circumstances sur-

rounding the giving of the statement. (App. 21) We

believe that to be an accurate reading of this Court's prior

rulings on the subject. Lilly, 119 S.Ct. at 1900, Idaho v.

Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638

(1990). However, we question whether the needs of the

Confrontation Clause require that standard, or whether a

realistic examination of an America trial, as a whole,

produces another conclusion.

If the truth is our ultimate goal, it is the factual

accuracy of such a statement, not just the environment in

which it is made, that should be the subject of vigorous

testing and argument. Even if allowed into evidence, the

defense has ample opportunity to bring their concerns

with the credibility of the unavailable declarant to the

attention of the defendant’s jury by means other than

cross-examination. We should not ignore that the ques-

tion of an individual’s credibility is merely one, collateral

means of ultimately testing the accuracy of the proffered

statement.

The fact that a plea bargain may have been struck

with the declarant prior to the making of his statement

could easily be placed before the jury. It was in this case.

That leaves the defense free to argue the plea bargain had

a great influence upon the credibility of the declarant and

the accuracy of his statement, and the State with no

declarant to deny it.

The fact that the declarant may be alleged to have

recanted his statement can be placed before a jury. It was

in this case. That leaves the defense free to argue the

validity of the alleged recantations, and the State with no

declarant to deny them.

The fact that the declarant may have expressed con-

cerns about his safety in prison and the fact that the State

had expressed a willingness to obtain protection for the

declarant before the statement was made can be placed

before a jury. It was in this case. That leaves the defense

free to argue that such a promise impacted the credibility

of the declarant and the accuracy of the statement, and

the State with no declarant to deny it.

None of these situations makes the State’s burden

easier. In fact, it makes the State’s burden of convincing a

jury of the defendant’s guilt beyond a reasonable doubt

all the more difficult. That is acceptable. The State should

accept that burden if it elects to offer into evidence a

statement of an unavailable witness, as it presently

accepts the initial burden of convincing the trial court

that the statement has sufficient indicia of reliability

before it may even be accepted into evidence. However,

placing potentially accurate information before a jury is

how we profess to go about getting at the truth in this

country. Denying a jury such information, when other

means of attacking its credibility are readily available to

the defense, does not further the search for truth.

The defense has alternatives available to it by which

the credibility of an unavailable declarant may be called

into question before a jury. Since it is the credibility of the

unavailable declarant that would be tested by cross-

examination, those alternatives should be weighed in the

mix when determining the requirements of the Confron-

tation Clause.

Thus, we suggest that the appropriate focus of atten-

tion in these situations should be upon evidence tending

to establish the probable accuracy of the statement in

question, not whether it is the subject of cross-examina-

tion. That should be the heart of the reliability question

that has troubled us throughout these cases. In that

respect, we believe a re-evaluation of what evidence of

reliability ought to be allowed into the mix in these

situations is appropriate.

For example, Barnett’s statement was chillingly con-

sistent with the independent forensic understanding of

the physical trauma and death suffered by Kenyatta and

other facts surrounding her disappearance and the dis-

covery of her body. There is no rational way Barnett

could have been that accurate, unless he knew what he

was talking about, i.e., unless his statement was factually

“reliable”. Yet such evidence affirmatively was not con-

sidered in the determination of the “reliability” question.

(App. 21)

We request a re-evaluation of the Wright conclusion.

[T]his Court tends to be overly concerned with

theory and pronounced principals for their own

sake, and to disregard the significant realities

that so often characterize a criminal case. There

is a real world as well as a theoretical one.

Lee v. Illinois, 476 U.S. 530, 547-548 (1986) (Justice Black-

mun, dissenting). We believe that in the real world, Bar-

nett’s statement may be introduced into evidence against

Sheets, and the pursuit of truth furthered, without dam-

age to the interests protected by the Confrontation

Clause.

CONCLUSION

The statement given by Barnett was not the subject of

the environmental defects and concerns which have

understandably led to the exclusion of other custodial

statements by unavailable declarants which also incrimi-

nate fellow actors in a crime.

This record also clearly demonstrates that the state-

ment given by Barnett was in all probability accurate in

its rendition of the trauma and death sufferéd by Ken-

yatta Bush, and the events which surrounded those acts.

The question is does the Confrontation Clause pro-

hibit a jury from weighing that statement in its deter-

mination of Sheet’s guilt for this crime? We do not believe

the Confrontation Clause is offended by the introduction

of Barnett’s statement in the context of this trial, and the

search for truth is furthered by its introduction and con-

sideration by a jury.

Respectfully submitted,

Don STENBERG

Attorney General

J. Kirk Brown

Counsel of Record

Assistant Attorney General

P.O. Box 98920

Lincoln, Nebraska 68509-8920

Tel: (402) 471-2682

App. 1

Supreme Court of Nebraska

STATE of Nebraska, appellee,

Jeremy C. SHEETS, appellant.

No. S-97-1069.

Sept. 15, 2000.

J. William Gallup, of Gallup & Schaefer, Omaha, for

appellant.

Don Stenberg, Attorney General, and J. Kirk Brown,

Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD,

STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

The appellant, Jeremy C. Sheets, was convicted on

one count of murder in the first degree and one count of

using a knife to commit a felony, and was sentenced to

death on the murder charge. The crucial portion of the

State’s case, which was admitted into evidence, was the

taped confession of Adam Barnett, an alleged accomplice

to the crime. The confession was made pursuant to a plea

agreement while Barnett was in custody. Statements in

the confession implicated Sheets in the crimes. Barnett

was not available to testify, as he committed suicide

before trial. Sheets appealed, contending that the district

court erred in admitting Barnett’s taped confession.

While this case was pending appeal, the U.S. Supreme

Court, in June 1999, decided Lilly v. Virginia, 527 U.S. 116,

119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). We then sustained

App. 2

the State’s motion to submit supplemental briefs to dis-

cuss the impact of Lilly. These briefs were filed at the end

of July 1999.

We determine that statements made in Barnett’s con-

fession do not fall within a firmly rooted hearsay excep-

tion or possess particularized guarantees of

trustworthiness which would make cross-examination of

marginal utility. Thus, we conclude that the admission

into evidence of Barnett’s taped confession violated

Sheets’ constitutional right to confrontation. Because the

taped confession was the primary evidence against Sheets

at trial, we conclude that the error was not harmless.

Accordingly, we reverse, and remand for a new trial.

BACKGROUND

On September 23, 1992, Kenyatta Bush, a 17-year-old

senior at North High School in Omaha, Nebraska, disap-

peared from the school campus. Bush’s body was found

10 days later in a ditch in Washington County, Nebraska.

A pathologist determined that Bush had suffered three to

four stab wounds to her throat and that she died of the

incised lacerations to her neck, which severed the tra-

chea, larynx, and all major blood vessels. Bruises found

on her body were consistent with sexual assault. Investi-

gating officers determined that the murder had been

committed at another location and that Bush’s body had

been moved to the place where it was found.

The murder was still under investigation when, on

September 17, 1996, Omaha police received a report from

Barb Olson that Barnett had told her son-in-law, Jason

LaNoue, that Barnett and Sheets were involved in the

App. 3

murder. The police then obtained statements from Olson;

her daughter, Richelle LaNoue; and Jason LaNoue. As

part of the investigation, Richelle LaNoue agreed to wear

a concealed radio wire in order to secretly tape a conver-

sation between herself and Barnett regarding the murder.

During the conversation between Richelle LaNoue

and Barnett, Barnett implicated Sheets in the murder.

Barnett stated that he had not actively participated in the

crime, but had just driven the car. When Richelle LaNoue

asked how Barnett could remain friends with Sheets,

Barnett stated that “its not even you know, a (unclear)

friendship anymore. He’s had sex with my old lady and I

don’t know... .” Richelle then replied, “Yeah, [Barnett’s

girl friend] told me about that,” and Barnett stated, “It’s

not even really a friendship really, it’s sort of like

(sighs).”

Barnett was taken into custody on September 27,

1996. Upon arrest, Barnett was taken to police headquar-

ters and placed in an interview room. Two police officers

informed Barnett of his Miranda rights, and Barnett

agreed to speak with the officers. Barnett spoke with the

officers for about 1 hour. During this time, he denied any

involvement in Bush’s murder and stated that Sheets had

killed Bush. The interview terminated when Barnett

asked to speak with an attorney.

A presiding judge appointed an attorney, who con-

sulted with Barnett for several hours before Barnett was

formally booked on a charge of homicide. On September

28, 1996, Barnett made an early morning request to deten-

tion personnel that he be allowed to contact his attorney.

Barnett’s attorney arrived at the police station around

App. 4

noon, after which he consulted with Barnett for several

hours. Barnett’s attorney then contacted police detectives

and informed them that Barnett wished to make a state-

ment regarding his involvement in the murder.

During this second statement to police, Barnett main-

tained that on the day Bush disappeared, she willingly

entered the car and agreed to drive around and smoke

marijuana with Sheets and Barnett. Barnett stated that

when the three arrived at Dodge Park, Barnett stopped to

urinate and was separated from Sheets and Bush. Barnett

stated that when he rejoined them, Sheets had pinned

Bush to the ground and was stabbing her. Shortly after

providing police with this information, Barnett began to

cry, and his attorney terminated the interview.

Following the second interview, Barnett’s attorney

negotiated a plea agreement with the county attorney on

Barnett’s behalf. According to a letter setting out the

terms of the agreement:

Mr. Barnett agreed to the following terms and

conditions:

1. To make a full and truthful statement to law

enforcement regarding the events and participa-

tion of individuals involved in the homicide of

Kenyatta Bush;

2. To cooperate with reasonable requests of

law enforcement, to include a tour of the var-

ious crime scenes and to make a telephone call

to Mr. Jeremy Sheets in Maine for law enforce-

ment purposes; and,

3. To testify truthfully at any trial involving

Mr. Sheets in this matter.

App. 5

In consideration for his performance of the above

conditions, it was stated to Mr. Barnett personally, with

Detective Bill Jadlowski and [Barnett’s attorney] present,

that [the Douglas County Attorney] agree[d] to the fol-

lowing:

1. Mr. Barnett will be allowed to plead to the

reduced charge of Murder in the Second Degree;

2. [The Douglas County Attorney] would make

arrangements for [Barnett’s] safety and well-

being during the time of incarceration prior to

disposition of his case in the District Court, and

would make a recommendation to the Depart-

ment of Corrections to benefit Mr. Barnett in

terms of placement for his safety and well-being

after his sentencing in his case.

It was also agreed that a use of a weapon charge would

not be filed against Barnett. At trial, Barnett’s attorney

testified that the sentence Barnett would receive for sec-

ond degree murder had never really been discussed.

However, Barnett’s attorney also stated that a minimum

sentence was something that could be hoped for. Bar-

nett’s attorney also testified that he had been told prior to

making the agreement that Barnett was going to be

charged with first degree murder. After Barnett’s attorney

consulted with Barnett about the plea agreement, a dep-

uty county attorney and an Omaha police detective

advised Barnett of the plea agreement and what was

expected of him in return. At around 10:40 p.m. on Sep-

tember 28, 1996, Barnett gave a tape-recorded confession

to the police. The statement provided in part:

[Barnett]: We were cruising around Omaha. It

was earlier in the morning. We had been up

App. 6

tripping acid all night, piggybacking them. Um,

we decided to go out and find a girl that we

could have sex with. We drove up through

North High about 10 o’clock in the morning.

There she was out there, there was nobody else

out there, it was the middle of school. Jeremy

said ‘There’s the one, we can grab her’. So we

pulled the car over and we both got out of the

car and we grabbed her. . . . I was driving,

Jeremy was in the back seat with her, he had a

handkerchief, he stuck it in her mouth, he sat

back there and he held her. We proceeded to

leave the school and we went down to Dodge

Park. We parked, right by where I told you

before.

[Officer]: Why don’t you describe that location

to me again as best you can will you?

[Barnett]: [Describes location in detail and

sighs]. We got her out of the car, we walked

about a half mile up the trail and we decided we

were going to rape her right there. And we took

off her clothes and he proceeded to have sex

[with] her for like ten minutes. And then he

started beating her, he had his knife in his hand,

wasn’t open - it was just — it was folded shut.

Using it sort of like to make his hand more like a

rock you know.

[Officer]: Uh huh (affirmative).

[Barnett]: (Sighs) And I was holding her down

and he was beating her, he didn’t stop, he kept

beating her. Finally I stood up and I took about

three steps back. (Lets out a breath) That’s when

he took out — that’s when he took the open blade

of the knife out, stabbed her in the upper torso. I

just stood there and did nothing. The reason I

didn’t do nothing is (lets out a breath) is ‘cause

App. 7

she was black. If it would have been a white girl

I probably would have stopped him, but I

didn’t. I just seen faces of other people and |

thought she deserved it. Then we went - after it

was over we went back to the car, we got the

garbage bag, we put it over her head, he picked

up the top of her, I picked up the bottom of her

and we took her back to the car and we put her

in the trunk and then we drove out of Dodge

Park, took a right, I’m not exactly sure how far

we drove, all I know is [we] drove not even two

minutes (lets out a breath). Jeremy said this -

this is the place right here, we can dump her

right here. We got out of the car, we looked

around to see if there was any other cars com-

ing, and when there wasn’t we opened up the

trunk of the car, we took her off into the woods,

I’m not exactly sure how far we went into the

woods or how (pause)

[Officer]: You’re doing fine. Just relax, if you’re

not exactly sure, you’re not exactly sure. Just

take a breath and relax.

[Barnett]: I’m not exactly sure how far. We

dropped her body. We took the bag off her — we

went back to the car. We got back to my house,

we cleaned out the trunk the best we could,

burned the bag, burned the clothes Jeremy had

on. (pause) We sat down and we talked about

what we had just done and how that we’d never

talk about it again and we haven't.

At other points in the interview, when asked speci-

fically about the removal of Bush’s clothes, Barnett stated

that Sheets removed them. Barnett also stated that Sheets,

and not Barnett, had raped, beaten, and stabbed Bush. In

the taped confession, Barnett provided statements that

App. 8

the murder was racially motivated and expressed concern

about his safety in prison when inmates found out he did

not stop Sheets from killing Bush because she was black.

One of the interviewing officers testified that Barnett had

expressed similar concerns prior to the start of the inter-

view and that Barnett had stated he did not want to go to

the Douglas County Correctional Center.

After making his statements to the police, Barnett

was placed in the Washington County jail. Around Octo-

ber 31, 1996, he made statements to other inmates at the

jail indicating that he was concerned about his potential

sentencing. The record also contains evidence that while

in jail, Barnett recanted his statements on several occa-

sions to a family member, his girl friend, a cellmate, and

Sheets’ wife. Pursuant to the plea agreement, Barnett

made a telephone call to Sheets, which the record indi-

cates did not produce any clearly incriminating state-

ments from Sheets. Barnett refused to accompany police

to the crime scene. The record is not clear if this was

because Barnett was seeking a new attorney or because

he was not intending to comply with the agreement.

On November 13, 1996, Barnett committed suicide in

his jail cell. On February 25, 1997, a hearing was held in

Douglas County District Court on the State’s notice of

intent to offer statements of unavailable witness at trial.

Following the hearing, the district court issued an order

determining that the State had met its burden of proof to

demonstrate that Barnett’s statements were trustworthy,

finding the statements admissible under either

Neb.Rev.Stat. § 27-804(2)(c) (Reissue 1995), the hearsay

exception for statements against penal interest, or

App. 9

§ 27-804(2)(e), the residual hearsay exception. Section

27-804(2) provides:

Subject to the provisions of section 27-403, the

following are not excluded by the hearsay rule if

the declarant is unavailable as a witness:

making so far contrary to the declarant’s pecuni-

ary or proprietary interest, or so far tended to

subject him to civil or criminal liability or to

render invalid a claim by him against another,

that a reasonable man in his position would not

have made the statement unless he believed it to

be true. A statement tending to expose the

declarant to criminal liability and offered to

exculpate the accused is not admissible unless

corroborating circumstances clearly indicate the

trustworthiness of the statement.

At trial, the jury was allowed to hear Barnett’s con-

fession in its entirety, over Sheets’ Confrontation Clause

and hearsay objections. Other evidence was adduced at

trial concerning the nature of the friendship between

Sheets and Barnett at the time the confession was made.

Some evidence indicated that the two were as close as

ever. Other evidence indicated that the relationship had

become strained. Evidence was also provided about the

sexual encounter between Sheets and Barnett’s girl friend

and Barnett’s later recantations in which he stated that

neither he nor Sheets were involved in the crime and that

he had made up the story to impress people at a party.

Sheets was convicted of first degree murder and use

of a knife to commit a felony. On June 27, 1997, a hearing

App. 10

was conducted before a three-judge sentencing panel to

determine whether Sheets would be sentenced to life

imprisonment or death. After consideration of the aggra-

vating and mitigating circumstances set forth in

Neb.Rev.Stat. § 29-2523 (Reissue 1995) and the nonstatu-

tory mitigating circumstances offered by Sheets, the panel

conducted a comparative review pursuant to

Neb.Rev.Stat. § 29-2522(3) (Reissue 1995). Two of the

three judges ultimately determined that the death penalty

should be imposed. The third judge, however, dissented,

based upon his finding that the State had not proved

beyond a reasonable doubt that the murder was “espe-

cially heinous, atrocious, [or] cruel,” within the meaning

of § 29- 2523(1)(d). That same member of the panel there-

fore concluded that the proper punishment should be a

life sentence, rather than the imposition of a sentence of

death. A death sentence was imposed on the charge of

murder in the first degree based upon the 2 to 1 vote of

the sentencing panel. Sheets’ mandatory direct appeal

was docketed in this court pursuant to Neb.Rev.Stat. § 29-

2525 (Reissue 1995).

ASSIGNMENTS OF ERROR

Rephrased, Sheets assigns that the district court erred

in (1) admitting the tapes of Barnett’s confession in viola-

tion of Neb.Rev.Stat. § 27-802 (Reissue 1995), § 27-804,

and Sheets’ right to confront witnesses against him, pur-

suant to Neb. Const. art. I, § 11, and the 6th and 14th

Amendments to the U.S. Constitution; (2) admitting a

memorandum regarding Sheets’ service in the U.S. Navy;

and (3) not allowing him to treat Officer Bill Jadlowski as

a hostile witness. Sheets assigns that the sentencing panel

App. 11

erred in its application of aggravating and mitigating

circumstances, in the performance of its comparative

review, and in the imposition of the death penalty on a

vote of 2 to 1.

STANDARD OF REVIEW

Whether statements fall within a firmly rooted hear-

say exception for Confrontation Clause Purposes is a

question of law. Lilly v. Virginia, 527 U.S. 116, 119 S.Ct.

1887, 144 L.Ed.2d 117 (1999). On a question of law, an

appellate court is obligated to reach a conclusion inde-

pendent of the determination reached by the court below.

State v. Bottolfson, 259 Neb. 470, 610 N.W.2d 378 (2000).

When determining whether the admission of a

declarant’s out-of-court statements violates the Confron-

tation Clause, an appellate court independently reviews

whether the government's proffered guarantees of trust-

worthiness satisfy the demands of the clause. Lilly, supra;

U.S. v. Castelan, 219 F.3d 690 (7th Cir.2000). Historical

facts are reviewed for clear error. Lilly, supra.

ANALYSIS

The primary issue in this case is whether the admis-

sion into evidence of Barnett’s confession, consisting of

hearsay statements made to investigating authorities pur-

suant to a plea agreement, violated Sheets’ right to con-

frontation. Although Sheets also assigned as error the

admission into evidence of the hearsay statements under

§§ 27-802 and 27-804, he does not argue this in his brief.

Errors that are assigned but not argued will not be

addressed by an appellate court. State v. Dixon, 259 Neb.

App. 12

976, 614 N.W.2d 288 (2000); State v. Baue, 258 Neb. 968,

607 N.W.2d 191 (2000). Accordingly, we do not address

whether the district court erred in admitting the confes-

sion into evidence under §§ 27-802 and 27-804 and only

address the issue of whether Sheets’ confrontation rights

were violated.

The Confrontation Clause, U.S. Const. amend. VI,

provides, “In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses

against him.” Accord Neb. Const. art. I, § 11.

T]he Clause envisions “a personal examination

and cross-examination of the witness in which

the accused has an opportunity, not only of test-

ing the recollection and sifting the conscience of

the witness, but of compelling him to stand face

to face with the jury in order that they may look

at him, and judge by his demeanor upon the

stand and the manner in which he gives his

testimony whether he is worthy of belief.”

Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 65

L.Ed.2d 597 (1980). “The Confrontation Clause reflects

‘the ancient faith of the common law, incorporated by the

founders in the Bill of Rights, that live confrontation and

cross-examination of witnesses in the courtroom is the

key to finding truth in a criminal trial.’ ” U.S. v. Flores,

985 F.2d 770, 780 (5th Cir.1993). Thus, the U.S. Supreme

Court has stated that the Confrontation Clause forces all

witnesses “ ‘to submit to cross-examination, the “greatest

legal engine ever invented for the discovery of truth.” ’ ”

Lilly, 527 U.S. at 124, 119 S.Ct. 1887, quoting California v.

Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

See, also, State v. Hughes, 244 Neb. 810, 510 N.W.2d 33

nea a J

App. 13

(1993). “The Confrontation Clause should be abrogated

only when the evidence is sufficiently reliable and trust-

worthy that it obviates the need to explore the state of

mind of the declarant.” Hughes, 244 Neb. at 816, 510

N.W.2d at 38, citing White v. Illinois, 502 U.S. 346, 112

S.Ct. 736, 116 L.Ed.2d 848 (1992), and Roberts, supra.

A confession of an accomplice that incriminates a

criminal defendant is deemed to be inherently unreliable.

Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d

117 (1999); Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90

L.Ed.2d 514 (1986); Hughes, supra. Thus, over the years,

the U.S. Supreme Court has “ ‘spoken with one voice in

declaring presumptively- unreliable accomplices’ confes-

sions that incriminate defendants.’ ” Lilly, 527 U.S. at 131,

119 S.Ct. 1887, quoting Lee, supra. See, also, Hughes, supra

(statements made while in police custody and in which

another party is implicated are highly suspect and pre-

sumptively unreliable). The burden is on the State to

overcome this strong presumption of unreliability. See

Hughes, supra.

In Roberts, supra, the U.S. Supreme Court determined

that when a witness is unavailable for cross-examination,

his or her statements are admissible only if they bear

adequate indicia of reliability. Reliability can be inferred,

without more, in a case in which the evidence falls within

a firmly rooted hearsay exception. In other cases, the

evidence must be excluded, absent a showing by the State

of particularized guarantees of trustworthiness. Id.;

Hughes, supra. Thus, the Roberts analysis requires the

application of a two-part test: (1) a determination of

whether the statements fall within a firmly rooted hear-

Say exception and (2) if they do not, whether they have

App. 14

particularized guarantees of trustworthiness. Hughes,

supra. Accordingly, we next consider whether Barnett’s

confession was admissible under either part of the Roberts

test.

FIRMLY ROOTED ANALYSIS

The first question is whether an alleged accomplice’s

custodial statements that inculpate a criminal defendant

fall under a firmly rooted hearsay exception. Hearsay

that falls within a firmly rooted hearsay exception is

presumptively reliable and trustworthy; therefore, infer-

ring reliability of such statements will not violate a defen-

dant’s confrontation rights. Hughes, supra, citing Roberts,

supra, and Flores, supra. In Idaho v. Wright, 497 U.S. 805,

110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), the Court deter-

mined that a residual exception identical to § 27-804(2)(e)

was not a firmly rooted exception for Confrontation

Clause purposes. Accordingly, we focus only on whether

statements against penal interest admitted pursuant to

§ 27-804(2)(c) fall under a firmly rooted exception.

We note that § 27-804(2)(c) uses the term “statement”

in a narrow sense to refer to a specific declaration or

remark incriminating the speaker and not more broadly

to refer to the entire narrative portion of the speaker’s

confession. See, Williamson v. United States, 512 U.S. 594,

114 S.Ct. 2431, 129 L.Ed.2d 476 (1994); U.S. v. Mendoza, 85

F.3d 1347 (8th Cir.1996). In this case, however, the entire

confession, consisting of multiple statements, was intro-

duced into evidence. The record is silent on whether the

district court considered the separate admissibility of

each of the statements contained in Barnett’s confession,

App. 15

and the State did not ask the district court to parse

Barnett’s individual statements for Confrontation Clause

analysis. Compare U.S. v. Castelan, 219 F.3d 690 (7th

Cir.2000).

During the time this appeal was pending, the U‘S.

Supreme Court decided Lilly v. Virginia, 527 U.S. 116, 119

S.Ct. 1887, 144 L.Ed.2d 117 (1999). In Lilly, an accomplice

of the defendant made statements to the police after he

was taken into custody that inculpated the defendant in

the crime. At trial, the accomplice invoked his Fifth

Amendment privilege against self-incrimination. The trial

court then admitted the accomplice’s statements to the

police as statements against interest. All nine justices of

the Court agreed that the admission into evidence of the

accomplice’s statements violated the defendant's right to

confrontation. A plurality of the Court concluded that a

confession by an accomplice which incriminates a crimi-

nal defendant does not fall under a firmly rooted hearsay

exception. Id.

In determining that the accomplice’s statements in

Lilly did not fall under a firmly rooted exception, the

plurality defined a hearsay exception as firmly rooted “if,

in light of ‘longstanding judicial and legislative experi-

ence, ... it ‘rest[s] [on] such [a] solid foundatio[n] that

admission of virtually any evidence within [it] comports

with the “substance of the constitutional protection.” ’ ”

527 U.S. at 126, 119 S.Ct. 1887, quoting Wright, supra, and

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597

(1980).

This standard is designed to allow the introduc-

tion of statements falling within a category of

hearsay whose conditions have proved over

App. 16

time “to remove all temptation to falsehood, and

to enforce as strict an adherence to the truth as

would the obligation of an oath” and cross-

examination at a trial.

Lilly, 527 U.S. at 126, 119 S.Ct. 1887. The plurality

noted the Court’s prior determination that “due to

the sweeping scope of the label, the simple categorization

of a statement as a ‘” ‘declaration against penal

interest’ “ . . . defines too large a class for meaningful

Confrontation Clause analysis.’” Lilly, 527 U.S. at 127,

119 S.Ct. 1887, quoting Lee v. Illinois, 476 U.S. 530, 106

S.Ct. 2056, 90 L.Ed.2d 514 (1986). See, also, State v. Hughes,

244 Neb. 810, 510 N.W.2d 33 (1993). The plurality deter-

mined that the practice of admitting statements of an

accomplice that incriminate a criminal defendant are of

quite recent vintage. Most importantly, such statements

are deemed to be inherently unreliable. Following an

analysis of previous decisions affecting the issue, the

plurality concluded that “accomplices’ confessions that

inculpate a criminal defendant are not within a firmly

rooted exception to the hearsay rule as that concept has

been defined in our Confrontation Clause jurisprudence.”

Lilly, 527 U.S. at 134, 119 S.Ct. 1887.

Three concurring justices in Lilly reserved the possi-

bility that “a genuinely self-inculpatory statement that

also inculpates a codefendant” might nevertheless satisfy

a firmly rooted hearsay exception. 527 U.S. at 146, 119

S.Ct. 1887 (Rehnquist, C.J., concurring). However, the

concurring justices distinguished between such a state-

ment and statements given as “part of a custodial confes-

sion of the sort that this Court has viewed with ‘special

suspicion.’ ” Id. Accord U.S. v. Gomez, 191 F.3d 1214 (10th

cial iia ata caal

App. 17

Cir.1999). See, generally, Williamson v. United States, 512

U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). Thus,

some courts, prior to Lilly, have determined that state-

ments made under circumstances not present in this case,

such as statements to people unconnected with law

enforcement, were genuinely self-inculpatory and, thus,

fell under a firmly rooted hearsay exception. See, e.g.,

Richardson v. Bowersox, 188 F.3d 973 (8th Cir.1999), cert,

denied __ U.S. __, 120 S.Ct. 1971, 146 L.Ed.2d 801

(2000); U.S. v. York, 933 F.2d 1343 (7th Cir.1991), overruled

on other grounds, Wilson v. Williams, 182 F.3d 562 (7th

Cir.1999); U.S. v. Seeley, 892 F.2d 1 (1st Cir.1989). See, also,

Neuman v. Rivers, 125 F.3d 315 (6th Cir.1997) (statement

did not implicate defendant at all).

Other courts have specifically addressed the differ-

ence between statements made outside of police custody

and statements made while in custody, noting that the

latter is presumed to be unreliable. See, e.g., U.S. v. Moses,

148 F.3d 277 (3d Cir.1998), cert. denied 525 U.S. 1148, 119

S.Ct. 1047, 143 L.Ed.2d 53 (1999); U.S. v. Barone, 114 F.3d

1284 (1st Cir.1997); U.S. v. Costa, 31 F.3d 1073 (11th

Cir.1994); U.S. v. Matthews, 20 F.3d 538 (2d Cir.1994);

Olson v. Green, 668 F.2d 421 (8th Cir.1982); Barrow v,. State,

749 A.2d 1230 (Del.1999); Smith v. State, 746 So.2d 1162

(Fla.App.1999); State v. Nieto, 186 Ariz. 449, 924 P.2d 453

(Ariz.App.1996); State v. Kimble, 688 So.2d he Sa

(La.App.1996).

Courts that have considered the issue after Lilly v.

Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117

(1999), have overwhelmingly found that confessions of an

accomplice that inculpate a criminal defendant are not

within a firmly rooted hearsay exception, especially when

App. 18

such statements are made to law enforcement authorities.

See, e.g., U.S. v. Robbins, 197 F.3d 829 (7th Cir.1999); U.S. v.

Gomez, supra; U.S. v. Lopez-Caceres, 89 F.Supp.2d 168

(D.Puerto Rico 1999); U.S. v. Gibson, 84 FSupp.2d 784

(S.D.W.Va.2000); U.S. v. Valenzuela, 53 F.Supp.2d 992

(N.D.II1.1999); State v. Madrigal, 87 Ohio St.3d 378, 721

N.E.2d 52 (2000), reconsideration denied 88 Ohio St.3d

1428, 723 N.E.2d 1115 (2000); Ins. Co., 610 N.W.2d 538

(lowa App.2000) Shinn v. Iowa Mut.; Rankins v. Com., 31

Va.App. 352, 523 S.E.2d 524 (2000); Barrow, supra; Smith,

supra; People v. Quick, 308 Ill.App.3d 474, 720 N.E.2d 1137,

242 Ill.Dec. 182 (1999), appeal denied 188 Il].2d 578, 729

N.E.2d 502, 246 Ill.Dec. 129 (2000). See, generally, U.S. v.

Egan, 53 M.J. 570 (Army Ct.Crim.App.2000); Com. v.

Young, 561 Pa. 34, 748 A.2d 166 (1999); State v. Tangie, No.

(Cite as: 260 Neb. 325, *340, 618 N.W.2d 117, **129) 98-

0896, 2000 WL 142096 (Iowa App. Feb.9, 2000), vacated on

other grounds 616 N.W.2d 564 (Iowa 2000); State v. Din-

kins, 339 S.C. 597, 529 S.E.2d 557 (S.C.App.2000). See, also,

Richardson v. Bowersox, supra (recognizing that use of

statements of codefendants that inculpate different crimi-

nal defendant wouid be prohibited, but allowing state-

ments that only inculpated declarant). See, generally,

Dearing v. Com., 259 Va. 117, 524 S.E.2d 121 (2000).

Applying an analysis similar to that of the plurality

in Lilly, we have previously held that statements against

interest pursuant to § 27- 804(2)(c) do not fall under a

firmly rooted hearsay exception. In particular, we stated:

[S]tatements made while the declarant is in

police custody and in which the declarant impli-

cates another party are highly suspect and pre-

sumptively unreliable. . . . Generally, the

App. 19

circumstances surrounding the making of these

statements necessitate an exploration of the

declarant’s state of mind. It cannot be said,

without a specific showing of trustworthiness,

that such a statement should be admitted with-

out an opportunity for cross- examination.

State v. Hughes, 244 Neb. 810, 817, 510 N.W.2d 33, 38

(1993), citing Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90

L.Ed.2d 514 (1986), and Olson v. Green, 668 F.2d 421 (8th

Cir.1982). We noted that statements made in response to

police interrogation generally do not have inherent guar-

antees of reliability and trustworthiness. “A statement

made by a person subject to criminal liability, in which

the declarant incriminates a third party, may be the result

of the declarant’s motivation and opportunity to curry

favor with the authorities.” Hughes, 244 Neb. at 818, 510

N.W.2d at 38-39. Thus, we held in Hughes that “reliability

of statements that fall within the hearsay exception for

statements against penal interests may not be inferred,

and the proponent of such evidence must carry the bur-

den of demonstrating the trustworthiness and reliability

of the statement.” 244 Neb. at 818, 510 N.W.2d at 39,

citing U.S. v. Flores, 985 F.2d 770 (5th Cir.1993).

We conclude that to the extent § 27-804(2)(c) encom-

passes inherently unreliable statements, it is not a firmly

rooted hearsay exception for purposes of Confrontation

Clause analysis. In this case, the statements in Barnett’s

confession inculpating Sheets were made while Barnett

was in police custody. Such statements are presumptively

unreliable. Thus, the statements did not fall within a

firmly rooted hearsay exception. See, Lilly v. Virginia, 527

U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); U.S. v.

App. 20

Gomez, 191 F.3d 1214 (10th Cir.1999); Flores, supra; Hughes,

supra. Accordingly, we next address whether the State has

shown that the statements had particularized guarantees

of trustworthiness under the second portion of the

Roberts test.

GUARANTEES OF TRUSTWORTHINESS

Sheets contends that the State did not meet its bur-

den to prove that Barnett’s statements had particularized

guarantees of trustworthiness. Sheets points to the fact

that Barnett’s statements were given while he was in

custody and pursuant to a plea agreement. The confes-

sion inculpated Sheets in the crime and portrayed Sheets

as the person who physically raped, beat, and killed

Bush. Sheets further notes that Barnett made previous

inconsistent statements about the crime and that Barnett

later recanted his own and Sheets’ involvement. The

State, however, argues that statements in Barnett’s con-

fession were not made in response to leading questions

and that the police did not provide Barnett with details of

the crime. The State contends that because Barnett was

counseled by an attorney, incriminated himself substan-

tially in the commission of the crime, and promised to be

truthful, the presumption of unreliability has been rebut-

ted.

We independently review the State’s proffered guar-

antees of trustworthiness. The Court stated in Lilly:

Nothing in our prior opinions, however, sug-

gests that appellate courts should defer to lower

courts’ determinations regarding whether a

hearsay statement has particularized guarantees

App. 21

of trustworthiness. To the contrary, those opin-

ions indicate that we have assumed, as with

other fact- intensive, mixed questions of consti-

tutional law, that “[i]Jndependent review is. . .

necessary . . . to maintain control of, and to

clarify, the legal principles” governing the fac-

tual circumstances... .

Lilly, 527 U.S. at 136, 119 S.Ct. 1887, quoting Ornelas

v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d

911 (1996). The presence or absence of historical facts are

reviewed for clear error. Id.

To determine whether a statement against penal

interests meets the second prong of the Roberts test, a

court must examine the totality of the circumstances sur-

rounding the making of the statement to determine

whether the statement has particularized guarantees of

trustworthiness such that adversarial testing would be

expected to add little, if anything, to its reliability. State v.

Hughes, 244 Neb. 810, 510 N.W.2d 33 (1993), citing Idaho v.

Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638

(1990). See, also, State v. Palser, 238 Neb. 193, 469 N.W.2d

753 (1991). Thus, hearsay admitted under the Confronta-

tion Clause must be so trustworthy that cross-examina-

tion of the declarant would be of marginal utility. Wright,

supra. See Hughes, supra. There is no mechanical test for

determining whether a statement bears particularized

guarantees of trustworthiness under the clause. Wright,

supra. However, we stated in Hughes that particularly

relevant to the determination of trustworthiness is

whether the declarant was in police custody when the

statement was made, whether the declarant had motive to

mitigate his or her own criminal liability, and whether the

App. 22

declarant made the statement in response to leading

questions. See, also, Lee v. Illinois, 476 U.S. 530, 106 S.Ct.

2056, 90 L.Ed.2d 514 (1986).

When a court examines the totality of the circum-

stances, it is important to note that evidence tending to

corroborate the content of a hearsay statement cannot

support a finding that the statement bears particularized

guarantees of trustworthiness. Lilly v. Virginia, 527 U.S.

116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); U.S. v. Flores,

985 F.2d 770 (5th Cir.1993); Hughes, supra, citing Wright,

supra. If the circumstances indicate a likelihood that the

declarant had a motive to lie, there is a greater need to

cross-examine the declarant, and corroborating evidence

is not a substitute for that need to explore the declarant’s

motivation. Id. The analysis of whether the second prong

of the Roberts test has been met is the same when review-

ing statements admitted under either § 27-804(2)(c) or

(2)(e). See, Wright, supra; Hughes, supra.

In this case, statements in Barnett’s confession are of

the kind that historically have caused the greatest con-

cern. The statements were made while Barnett was in

custody, and the confession acted to inculpate Sheets in

the crime. In statements made to nonundercover, law-

enforcement personnel after the commission of the

offense, “there always exists the strong possibility that

the declarant has the ‘desire to shift or spread blame,

curry favor, avenge himself, or divert attention to

another.’ ” Flores, 985 F.2d at 780.

In Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887,

144 L.Ed.2d 117 (1999), the Court stated:

App. 23

It is highly unlikely that the presumptive unre-

liability that attaches to accomplices’ confes-

sions that shift or spread blame can be

effectively rebutted when the statements are

given under conditions that implicate the core

concerns of the old ex parte affidavit practice —

that is, when the government is involved in the

Statements’ production, and when the state-

ments describe past events and have not been

subjected to adversarial testing.

See, also, Flores, supra. The Seventh Circuit Court of

Appeals recently stated:

Since Lilly was decided, no circuit has yet deter-

mined if — and under what circumstances — an

accomplice’s custodial confession implicating a

defendant can ever be deemed to possess suffi-

cient inherent indicia of trustworthiness to sat-

isfy the Confrontation Clause. Thus, the full

scope of Lilly remains undefined. At least one

treatise has explained that in Lilly “all nine jus-

tices of the Supreme Court indicated, more or

less explicitly, that the admission of custodial

statements to law enforcement personnel

against penal interest . .. whether or not consti-

tuting a confession, that incriminate another

person violates the confrontation clause when

admitted against such other person in a criminal

case.”

U.S. v. Castelan, 219 F.3d 690, 695 (7th Cir.2000), quot-

ing 31 Michael H. Graham, Federal Practice and Pro-

cedure § 6742 (2d ed.2000).

The suggestion that Barnett had a motive to curry

favor with authorities is especially strong in this case. Of

most importance, Barnett made his statements pursuant

App. 24

to a plea bargain, thereby avoiding a charge of first

degree murder. Although the maximum sentence Barnett

might have received for either first or second degree

murder was a life sentence because he was 17 years of

age at the time the crime was committed, the minimum

would be dramatically different. Under the relevant stat-

utes, Barnett would have been subject to a 10-year mini-

mum sentence of imprisonment for second degree

murder. See Neb.Rev.Stat. §§ 28-304 and 28-105 (Reissue

1995). Further, as part of the agreement, the State agreed

not to bring a weapons charge against Barnett. The sen-

tence for such a charge would have been a maximum of

20 years’ imprisonment, a $25,000 fine, or both, and the

minimum would have been 1 year’s imprisonment. See

Neb.Rev.Stat. §§ 28-1205 and 28-105 (Reissue 1995). The

sentence would have run consecutively to the murder

sentence. See § 28-1205. Barnett’s attorney testified that

although the matter was not really discussed, one could

hope to serve the minimum amount of time when time off

for good behavior was considered, which in this case

would be 5 years’ imprisonment.

The record shows that Barnett stated to investigating

officers his fear that he would be harmed in jail because

he was implicated in the killing of a black woman due to

racial animus. Thus, the plea bargain specifically

included promises on the part of the State to provide for

Barnett’s protection. Following his confession, Barnett

was housed in the Washington County jail instead of in

the Douglas County jail. This indicates a strong motive

for Barnett to seek to curry favor with the authorities. See

U.S. v. Flores, 985 F.2d 770 (5th Cir.1993). Additionally,

Barnett expressed concerns about the length of time he

I EO Ie Rt er Pe ee

App. 25

might spend in jail under the plea bargain, asking others

in the Washington County jail about what sentence they

thought he might receive for second degree murder and

how much time he might actually serve.

The absence of any specific agreement regarding the

maximum sentence does not lessen the possibility that

Barnett was seeking favorable treatment. See, generally,

Garrison v. State, 726 So.2d 1144 (Miss.1998) (although

declarant was never offered, nor did he receive, favorable

treatment, it could be perceived that in declarant’s mind,

guilty plea might engender favorable treatment when

declarant held out hope for alternative sentencing as

minor). As the 10th Circuit Court of Appeals has stated:

[T]he presence of a plea agreement, even after

the defendant has been convicted, also would

not serve as an indicia of trustworthiness

because the declarant would have a strong

desire to curry favor with the government and

divert attention to another in the “hopes that the

government will make favorable recommenda-

tions to the sentencing judge.” . . . Even after

sentencing, these motives may exist because

“the government still possesses influence

regarding the security level and location of the

prison where the [declarant] is to be incarcer-

ated.”

Flores, 985 F.2d at 782 n. 25, quoting U.S. v. Gomez-Lemos,

939 F.2d 326 (6th Cir.1991). See, generally, U.S. v. Hazelett,

32 F.3d 1313 (8th Cir.1994). Thus, courts generally find

that custodial statements made pursuant to an express or

implied offer of leniency do not have the particularized

guarantees of trustworthiness necessary to satisfy the

Confrontation Clause. See, e.g., U.S. v. Castelan, 219 F.3d

App. 26

690 (7th Cir.2000); U.S. v. Gomez, 191 F.3d 1214 (10th

Cir.1999); State v. Lopez, 128 N.M. 410, 993 P.2d 727 (1999);

State v. Nieto, 186 Ariz. 449, 924 P.2d 453 (Ariz.App.1996);

Wilson v. State, 334 Md. 313, 639 A.2d 125 (1994). See,

generally, Flores, supra; Garrison, supra; Brown v. State, 953

P.2d 1170 (Wyo.1998).

In essence, Barnett implicated Sheets as the master-

mind and primary actor and himself as subjectively, if not

actually, a less culpable accomplice. Meanwhile, in

exchange for Barnett’s tes... .ony against Sheets, he

arranged a plea bargain in which he received a reduced

charge, an agreement not to file a weapons charge, and a

commitment for his safety while incarcerated. Barnett

then made his statements pursuant to that agreement. A

circumstance in which a declarant admits his or her pres-

ence and participation in a crime, but indicates that

another was the “mastermind” or primary actor, is one of

the more common fact patterns in which courts hold that

a declarant’s statements inculpating the defendant may

not be admitted at trial. See, e.g., Lilly v. Virginia, mar US.

116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); Williamson v.

U.S., 512 U.S. 594, 114 S.Ct. 2431, 129 (Cite as: 260 Neb.

325, *346, 618 N.W.2d 117, **133) L.Ed.2d 476 (1994) (Gin-

sberg, J., concurring); Hazelett, supra; U.S. v. Magana-

Olvera, 917 F.2d 401 (9th Cir.1990); U.S. v. Valenzuela, 53

F.Supp.2d 992 (N.D.II1.1999). See, also, State v. Kimble, 688

So.2d 552 (La.App.1996) (finding that statement was not

truly self-inculpatory under these circumstances); People

v. Farrell, 10 P.3d 672 (Colo.App. 2000) (declarant pointed

to defendant as leader).

Also of concern is the possible motive Barnett may

have had to seek revenge against Sheets because of the

App. 27

sexual encounter that occurred between Sheets and Bar-

nett’s girl friend. The record could support two different

conclusions: (1) that Sheets and Barnett were best friends

and were very close at the time Barnett made his state-

ments to the police or (2) that the friendship was no

longer very close and had become strained. With the

burden placed on the State to prove guarantees of trust-

worthiness, the possibility, supported by the record, that

Sheets and Barnett had a falling out leads to the conclu-

sion that Barnett had a potential motive to shift or spread

blame to Sheets and to focus on Sheets in attempting to

curry favor with authorities. Given this potential motive

to shift or spread blame to Sheets, cross- examination of

Barnett on this issue would certainly have been of more

than marginal utility. See Idaho v. Wright, 497 U.S. 805, 110

S.Ct. 3139, 111 L.Ed.2d 638 (1990).

The State contends that Barnett’s statements have

particularized guarantees of trustworthiness for several

reasons. First, the State contends that the plea bargain is

of little significance and offers as a guarantee of trust-

worthiness the fact that Barnett, in his confession, did not

exonerate himself or mitigate his criminal liability. How-

ever, Barnett’s confession inculpated Sheets as the person

who physically carried out the crimes. According to Bar-

nett, it was Sheets who removed Bush’s clothes, Sheets

who raped her, Sheets who beat her, and Sheets who

stabbed and killed her.

The fact that Barnett made a broadly self-inculpatory

confession does not make more reliable the confession’s

nonself-inculpatory parts. U.S. v. Gomez, 191 F.3d 1214

(10th Cir.1999), citing Williamson, supra. See, Lilly, supra;

Farrell, supra. See, also, U.S. v. Flores, 985 F.2d 770 (5th

App. 28

Cir.1993). “One of the most effective ways to lie is to mix

falsehood with truth, especially truth that seems partic-

ularly persuasive because of its self-inculpatory nature.”

Williamson, 512 U.S. at 599-600, 114 S.Ct. 2431. Further,

it is no longer clear whether considering the

degree to which a statement is against penal

interest is even permissible: this factor “merely

restates the fact that portions of his statements

were technically against penal inter-

est.” ... “[S]uch statements [against penal inter-

est] are suspect insofar as they inculpate other

persons. ‘[T]hat a person is making a broadly

self-inculpatory confession does not make more

credible the confession’s non- self-inculpatory

parts.’ ”

Gomez, 191 F.3d at 1223, quoting Williamson, supra.

Accord, Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144

L.Ed.2d 117 (1999); Farrell, supra. See, also, Flores, supra

(noting that declarant must make incriminating statement

in order to fit within exception in first place). In addition,

a clear distinction cannot be drawn between cases in

which a declarant shifts the entire blame to the defendant

and those in which the declarant spreads the blame both

to himself or herself and to the defendant. Thus, it has

been held that a statement does not have sufficient indi-

cia of reliability even when the declarant placed a large

portion of the blame on himself or herself but also incul-

pated others. Crespin v. State, 144 F.3d 641 (10th Cir.1998),

cert. denied 525 U.S. 950, 119 S.Ct. 378, 142 L.Ed.2d 313.

The State next points to the fact that Barnett was

represented by counsel as an indication of trustworthi-

ness. The fact that Barnett was represented by counsel

has little bearing on whether the statement was free from

App. 29

any desire, motive, or impulse Barnett may have had

either to mitigate the appearance of his own involvement

or to overstate Sheets’ involvement. See Lilly, supra, and

Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514

(1986) (making this statement in regard to voluntary

nature of statement). In statements made to nonunder-

cover law enforcement personnel after the commission of

the offense, “there always exists the strong possibility

that the declarant has the ‘desire to shift or spread blame,

curry favor, avenge himself, or divert attention to

another.’ ” Flores, 985 F.2d at 780. The presence of an

attorney does not provide an indication that such motives

are absent. Rather, the fact that Barnett made the taped

statement after using counsel to obtain a plea agreement

equally indicates that the statement was made to obtain

leniency. Further, after he retained and consulted at

length with his attorney, Barnett made two different and

conflicting statements to authorities. The presence of an

attorney did not prevent Barnett from providing authori-

ties with inconsistent and, thus, less trustworthy state-

ments. Accordingly, we find the presence of an attorney

under the circumstances of this case to be irrelevant as a

factor showing that Barnett’s statements had partic-

ularized guarantees of trustworthiness.

The State also points to the fact that Barnett’s state-

ments were not made as the result of police coercion and

that Barnett agreed to be truthful when giving his state-

ments. The U.S. Supreme Court has said that whether a

statement is voluntary for Fifth Amendment purposes

does not bear on the question of whether the confession

was also free from any desire, motive, or impulse of the

declarant to mitigate his or her own culpability by

App. 30

spreading or shifting blame to the defendant. Lee, supra.

See, also, U.S. v. Valenzuela, 53 F.Supp.2d 992

(N.D.Il1.1999). Thus, a lack of coercion is irrelevant.

That Barnett promised to be truthful as part of the

plea agreement is also of little help. Before making the

agreement, Barnett was already facing a charge of first

degree murder. He gained a reduced charge by entering

into the plea agreement and agreeing to make statements

to the police and to testify against Sheets. Had he not

carried through with the terms of the agreement, Barnett

would have been no worse off than he was originally

when he was facing a charge of first degree murder. Thus,

Barnett had nothing to lose and everything to gain by

making a confession in which he inculpated Sheets. See,

U.S. v. Mendoza, 85 F.3d 1347 (8th Cir.1996); U.S. v.

Hazelett, 32 F.3d 1313, 1318 (8th Cir.1994) (stating that for

all practical purposes, declarant’s conviction was assured

and that “she had nothing to lose by confessing, and she

certainly had nothing to lose by implicating another per-

son, particularly someone more culpable”); U.S. v. Costa,

31 F.3d 1073 (11th Cir.1994). As the U.S. Supreme Court

has stated, a reality of the criminal process is that “once

partners in a crime recognize that the ‘jig is up,’ they tend

to lose any identity of interest and immediately become

antagonists, rather than accomplices.” Lee, 476 U.S. at

544-45, 106 S.Ct. 2056. Even statements made under oath

have at times been considered not to exhibit partic-

ularized guarantees of trustworthiness. See, e.g., U.S. v.

Flores, 985 F.2d 770 (5th Cir.1993); U.S. v. Lopez-Caceres, 89

F.Supp.2d 168 (D.Puerto Rico 1999).

The State points out that Barnett’s statements were

not made in response to leading questions. We stated in

App. 31

State v. Hughes, 244 Neb. 810, 510 N.W.2d 33 (1993), that

whether a statement was made in response to leading

questions was one of the factors particularly relevant to

the determination of trustworthiness. The State also

points to the level of detail provided by Barnett and

argues that the police did not provide him with informa-

tion or details about the crime. Although we agree that

these factors do provide some basis for determining trust-

worthiness, we conclude that such factors cannot over-

come the strong presumption of unreliability present in a

case such as this where Barnett made the statements

while in police custody and where a motive to curry

favor with the authorities existed. As the Fifth Circuit

Court of Appeals stated in Flores, “While the presence of

[various] factors ... doubtless renders a given confession

more reliable than it would otherwise be, we are not

persuaded that it substantially eliminates any reasonable

possibility that the third party inculpatory portions of a

confession to law enforcement personnel are unreliable.”

985 F.2d at 782. See United States v. Sarmiento-Perez, 633

F.2d 1092 (5th Cir.1981). See, generally, People v. Quick, 308

Ill.App.3d 474, 720 N.E.2d 1137, 242 Ill.Dec. 182 (1999)

(listing factors similar to those offered by State as not

sufficient to overcome presumption of unreliability). The

court in Flores further stated:

The Supreme Court has never allowed the

admission against a defendant of a codefen-

dant’s hearsay inculpatory statements to law

enforcement authorities, although it has sug-

gested that theoretically such hearsay could be

admitted in appropriate circumstances... . But

that suggestion should not drive us to allow a

codefendant’s confession to law enforcement

App. 32

authorities to be admitted against the defendant

merely because the district court is able to fairly

recite a litany of factors and conclude that the

particular confession has “sufficient indicia of

reliability.”

985 F.2d at 782.

In order to satisfy principles of confrontation, there

must be enough indication of reliability and trustworthi-

ness that cross-examination would be of marginal utility.

Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d

638 (1990). See Hughes, supra. “ ‘The [particularized guar-

antees of] “trustworthiness” test credits the axiom that a

rigid application of the [Confrontation] Clause’s standard

for admissibility might in the exceptional case exclude a

statemeni of an unavailable witness that is incontestably

probative, competent, and reliable, yet nonetheless out-

side of any firmly rooted exception.’ ” U.S. v. Castelan,

219 F.3d 690, 695 (7th Cir.2000), quoting Lilly v. Virginia,

527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). This,

however, is not the exceptional case where the statements

are incontestably probative, competent, and reliable. In

this case, the government was involved in the production

of the statements, the statements were not subjected to

adversarial testing, and the statements were made under

circumstances in which Barnett had a motive to exagge-

rate or fabricate Sheets’ role. In this case, the presump-

tion of unreliability has not been rebutted. See, e.g.,

Vincent v. Seabold, 226 F.3d 681 (6th Cir. 2000); U.S. v.

Flores, 985 F.2d 770 (5th Cir.1993); United States v. Sar-

miento-Perez, supra; U.S. v. Valenzuela, 53 FSupp.2d 992

(N.D.111.1999); U.S. v. Egan, 53 M.J. 570 (Army

Ct.Crim.App.2000); State v. Hughes, 244 Neb. 810, 510

N.W.2d 33 (1993); People v. Quick, supra; People v. Farrell,

App. 33

10 P.3d 672 (Colo.App. 2000). Although Sheets also raised

the fact that Barnett recanted his confession on several

occasions, we do not find it necessary to determine

whether recantation is a circumstance “exist[ing] at the

time the statement was made” and thus a factor to be

considered when addressing whether statements have

particularized guarantees of trustworthiness. See Idaho v.

Wright, supra.

The circumstances surrounding the making of the

statements in this case suggest three possibilities: (1) It is

possible that the murder was committed as described; (2)

it is possible that Barnett reversed the roles between

Sheets and himself; and (3) it is possible that Sheets had

no involvement in the murder whatsoever. Given the

circumstances surrounding the making of the statements

and Barnett’s subsequent death, we cannot say that cross-

examination would be of marginal utility.

The Confrontation Clause is not a mere technicality.

It is a right of citizens which provides a protection that

“responds to ‘ “something deep in human nature that

regards face-to-face confrontation between accused and

accuser as ‘essential to a fair trial in a criminal prosecu-

tion.’ ”’” Flores, 985 F.2d at 781. Any motive Barnett

would have had to lie when incriminating Sheets could

be truly explored only by cross-examination. Sheets was

denied that right. We conclude that Barnett’s statements

lack inherent particularized guarantees of trustworthi-

ness. Accordingly, we determine that the district court

erred in admitting Barnett’s taped confession in its

entirety into evidence.

App. 34

HARMLESS ERROR

The admission into evidence of statements in viola-

tion of the Confrontation Clause is subject to a harmless

error analysis. See Hughes, supra. An erroneous admission

of evidence is considered prejudicial to a criminal defen-

dant unless the State demonstrates that the error was

harmless beyond a reasonable doubt. Id. An error is

harmless when the improper admission did not mate-

rially influence the jury to reach a verdict adverse to the

substantial rights of the defendant. Id. In this case, Bar-

nett’s taped statements were the primary evidence

against Sheets. Accordingly, the admission into evidence

of those statements was not harmless beyond a reason-

able doubt.

Having found error, we now determine whether the

evidence presented by the State was sufficient to sustain

the conviction before the cause is remanded for a new

trial. In Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102

L.Ed.2d 265 (1988), the Court held that the Double Jeop-

ardy Clause does not forbid retrial so long as the sum of

the evidence offered by the State and admitted by the

trial court, whether erroneously or not, would have been

sufficient to sustain a guilty verdict. See State v. Anderson,

258 Neb. 627, 605 N.W.2d 124 (2000). Thus, although we

have concluded that Barnett’s confession was erroneously

admitted, we include such evidence in our analysis of

sufficiency of the evidence. See Lockhart, supra. We con-

clude that Barnett’s confession was sufficient to sustain

Sheets’ convictions. Because the erroneously admitted

confession was not harmless, we reverse, and remand for

a new trial.

App. 35

CONCLUSION

We determine that to the extent § 27-804(2)(c) encom-

passes inherently unreliable statements, it is not a firmly

rooted hearsay exception for purposes of Confrontation

Clause analysis. We further determine that the State did

not meet its burden to prove that statements in Barnett’s

taped confession had the particularized guarantees of

trustworthiness necessary to overcome Sheets’ right to

confrontation. Finally, we conclude that the admission

into evidence of the statements was not harmless.

Accordingly, we reverse, and remand for a new trial.

Because we reverse on the basis that Sheets’ confronta-

tion rights were violated, we do not reach his other

assignments of error.

REVERSED AND REMANDED FOR A NEW TRIAL.

WRIGHT, J., concurring.

I join in the majority opinion, but I write separately

because I would also consider the fact that Barnett recan-

ted his statement.

We must evaluate whether Barnett’s statement con-

tains particularized guarantees of trustworthiness such

that adversarial testing would be expected to add little if

anything to its reliability. See Idaho v. Wright, 497 U.S. 805,

110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). In Wright, the

Court declined to endorse a mechanical test determining

particularized guarantees of trustworthiness but did state

that evidence corroborating the truth of a hearsay state-

ment cannot be used to support a finding that the state-

ment bears the requisite particular'zed guarantees of

trustworthiness. Thus, the proponent of the statement’s

App. 36

reliability is not permitted to bootstrap the statement’s

admissibility by use of corroborating evidence. “[T]he

presence of corroborating evidence more appropriately

indicates that any error in admitting the statement might

be harmless... . ” Wright, 497 U.S. at 823, 110 S.Ct. 3139.

While it is clear that corroborating evidence cannot

be used to enhance the reliability of a statement, it is not

clear whether such a rule prevents consideration of a

recantation of the statement by the declarant. In my opin-

ion, courts can and should consider whether the declar-

ant has recanted a statement. The right to cross-examine

is abrogated only when adversarial testing would be

expected to add little if anything to its reliability. What

would be of greater significance than the fact that the

declarant had recanted the statement? The Confrontation

Clause should be abrogated only when the evidence is so

sufficiently reliable and trustworthy that it obviates the

need to explore the state of mind of the declarant. White

v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848

(1992); State v. Hughes, 244 Neb. 810, 510 N.W.2d 33

(1993).

Barnett recanted the statement at least four times. He

told his mother that he was not present when Bush was

murdered, that he would tell the truth at Sheets’ prelimi-

nary hearing, that he and Sheets were not involved in the

murder, and that he could not “send anybody else down

for some drunken, stupid thing” he had started and could

not get out of. Barnett was referring to an episode where

he was drinking with Jason LaNoue and talked about the

killing.

App. 37

Barnett’s girl friend spoke with Barnett while he was

in jail. She testified that Barnett said he and Sheets had

not killed Bush. When she asked Barnett why he had not

told the police that it was all a lie, he stated that he had

tried to tell the police “it was just a bunch of drunken

bull, and they wouldn’t believe him.” He told her that

when he got to trial, “he was going to tell the truth that

they didn’t do it.”

A cellmate of Barnett’s in the Washington County jail

testified that Barnett told him that neither Barnett nor

Sheets had any involvement in the murder of Bush. The

cellmate stated that Barnett had made up the story to

impress some people at a party.

Sheets’ wife testified that she had received a tele-

phone call from Barnett while he was in the Washington

County jail and that Barnett told her he had just been

“bulishitting” and nothing he had said was true.

In my opinion, Barnett’s recantation is of enormous

significance in our evaluation of the statement’s trust-

worthiness. The fact that Barnett made prior inconsistent

statements and subsequently recanted his confession goes

to the very heart of Sheets’ right to cross-examine his

accuser.

This issue was addressed in Ryan v. State, 899 P.2d

1371 (Alaska App.1995). There, the victim of a sexual

assault committed suicide a few hours before she was

scheduled to testify before a grand jury. The state secured

indictments against the two defendants, John Ryan and

Jerome Trigg, through testimony of a police officer who

had interviewed the victim.

App. 38

During the first interview by police, the victim

denied that she had been socializing with the two men

who had assaulted her. She claimed that the men had

stolen her vehicle and driven away and that her uncle

had driven her to a cabin and left. She then entered the

cabin, and the men, who appeared to be drunk, ordered

her to take off her clothes and assaulted her.

The next day, in a second statement, the victim

altered her previous account of how she had arrived at

the cabin and how the assault had occurred. She admitted

socializing with Ryan and Trigg and driving to the cabin,

where the three of them continued to drink. At some

point, things got out of hand, and she was assaulted by

both men.

Before trial, Ryan and Trigg challenged the admis-

sibility of the victim’s statements, but the trial court

found that the statements to police were admissible

under Alaska Evid. R. 804(b)(5), one of Alaska’s two

residual hearsay exceptions. The court concluded that the

residual hearsay exceptions were not firmly rooted excep-

tions and, therefore, examined the statements for partic-

ularized guarantees of trustworthiness.

The appellate court reversed, stating that its task was

to determine whether the statements were so inherently

trustworthy, so free from possible doubt, that cross-exam-

ination of the victim would yield negligible benefit to

Ryan and Trigg as they stood trial for sexual assault. The

state claimed that Idaho v. Wright, 497 U.S. 805, 110 S.Ct.

3139, 111 L.Ed.2d 638 (1990), prohibited consideration of

the fact that the victim had made inconsistent statements

Beceem asec ASAP RN ESE rrr

see SC il a i tl mat a amma Sa a

App. 39

in evaluating the trustworthiness of the hearsay state-

ment. The court concluded:

The State’s argument, while perhaps ingenious,

is inconsistent with both the law and common

sense. In judging the reliability of an absent

person’s assertion, reasonable people would

want to know, and would take into account, the

fact that the same person had made an inconsis-

tent assertion on another occasion. The case law

recognizes and employs this rule of common

sense.

Ryan, 899 P.2d at 1377 n. 3.

I conclude that Barnett’s recantation is a circum-

stance that should be considered.

MILLER-LERMAN, J., concurring.

INTRODUCTION

I concur in the result reached by the majority; how-

ever, I do so based on different reasoning. With respect to

the majority’s conclusion that the Barnett custodial state-

ment of September 28, 1996, should be excluded because

it does not fall within a firmly rooted hearsay exception, I

agree. With respect to the majority’s analysis that the

statement should be excluded as inadmissable hearsay

because it lacks particularized guarantees of trustworthi-

ness under the second prong of the test as articulated in

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597

(1980), I conclude that the Confrontation Clause, rather

than the general rule against the admission of hearsay,

requires the exclusion of the custodial statement as a

constitutional, rather than an evidential, matter.

App. 40

Under the Sixth Amendment to the U.S. Constitution,

a defendant in a criminal prosecution has the right “to be

confronted with the witnesses against him.” See, also,

Neb. Const. art. I, § 11. The U.S. Supreme Court has

directed that for “hearsay evidence [to be] admitted

under the Confrontation Clause [it must] be so trustwor-

thy that cross-examination of the declarant would be of

marginal utility,” Idaho v. Wright, 497 U.S. 805, 823, 110

S.Ct. 3139, 111 L.Ed.2d 638 (1990), and has further stated

that the prohibitions of the Confrontation Clause do not

“equate ... with the general rule prohibiting the admis-

sion of hearsay statements,” 497 U.S. at 814, 110 S.Ct.

3139. In this case, I conclude that the cross-examination of

Barnett would be of greater than marginal utility and that

adversarial testing would add to an assessment of the

custodial statement’s reliability, and, therefore, the

admission of the Barnett statement, which is hearsay,

violated the Confrontation Clause. Such admission was

not harmless in this case, particularly in light of the fact

that Barnett’s statement tied the defendant to the crimes.

I, therefore, concur in the result reached by the majority

that the admission of the custodial statement was revers-

ible error and that the cause should be remanded for a

new trial.

ANALYSIS

Development of Roberts in Wright and Lilly.

As stated by the majority, the U.S. Supreme Court

initially developed a two-part test for the admissibility of

statements of unavailable witnesses in Roberts, supra. The

Court held that when a hearsay declarant is not present

App. 41

for cross-examination at trial and it is determined that the

declarant is unavailable, the Confrontation Clause allows

admission of the declarant’s statement only if the state-

ment is shown to bear adequate “ ‘indicia of reliability.’ ”

Roberts, 448 U.S. at 66, 100 S.Ct. 2531. Such reliability

must be demonstrated by showing that (1) the statement

falls within a “firmly rooted hearsay exception” or (2) if

the statement does not fall within a firmly rooted hearsay

exception, it contains “particularized guarantees of trust-

worthiness.” Id.

The two parts of the Roberts test were intended to be

functional equivalents. The Court has stated:

In Roberts, we recognized that even if certain

hearsay evidence does not fall within “a firmly

rooted hearsay exception” and is thus presump-

tively unreliable and inadmissible for Confron-

tation Clause purposes, it may nonetheless meet

Confrontation Clause reliability standards if it is

supported by a “showing of particularized guar-

antees of trustworthiness.” . . . However, we

also emphasized that “[rJeflecting its underlying

purpose to augment accuracy in the factfinding

process by ensuring the defendant an effective

means to test adverse evidence, the Clause

countenances only hearsay marked with such

trustworthiness that ‘there is no material depar-

ture from the reason of the general rule.’ ”

(Citations omitted.) Lee v. Illinois, 476 U.S. 530, 543,

106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (quoting Roberts,

supra). Evidence possessing “particularized guarantees of

trustworthiness” must therefore be at least as reliable as

evidence admitted under a firmly rooted hearsay excep-

tion. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65

App. 42

L.Ed.2d 597 (1980). See, also, Idaho v. Wright, 497 U.S. 805,

110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

Under the Roberts test, the reliability of evidence

which falls within a firmly rooted hearsay exception “can

be inferred without more.” Roberts, 448 U.S. at 66, 100

S.Ct. 2531. Statements within a firmly rooted hearsay

exception are therefore admissible without an additional

explicit Confrontation Clause analysis.

The U.S. Supreme Court developed the Roberts test in

Wright, supra. The Court in Wright stated that “[b]ecause

evidence possessing ‘particularized guarantees of trust-

worthiness’ must be at least as reliable as evidence admit-

ted under a firmly rooted hearsay exception,” evidence

admitted under the second part of the Roberts test must

be “so trustworthy that adversarial testing would add

little to its reliability.” 497 U.S. at 821, 110 S.Ct. 3139. The

Court in Wright further stated that “hearsay evidence

admitted under the Confrontation Clause [must] be so

trustworthy that cross- examination of the declarant

would be of marginal utility.” 497 U.S. at 823, 110 S.Ct.

3139. See, also, Wright, 497 U.S. at 820, 110 S.Ct. 3139

(“declarant’s truthfulness is so clear from the surround-

ing circumstances that the test of cross-examination

would be of marginal utility”).

The Court in Wright noted that the Confrontation

Clause “bars admission of some evidence that would

otherwise be admissible under an exception to the hear-

say rule.” 497 U.S. at 814, 110 S.Ct. 3139. However, the

Court also recognized that “statements admitted under a

‘firmly rooted’ hearsay exception are so trustworthy that

adversarial testing would add little to their reliability.”

renner 28 sc: ce mr aa en ener am

App. 43

Wright, 497 U.S. at 821, 110 S.Ct. 3139. Following the

development of the Roberts test in Wright, it is clear that if

a statement can be categorized as falling within a firmly

rooted hearsay exception, it is admissible under the Con-

frontation Clause without further examination; if, how-

ever, a statement is not within a firmly rooted hearsay

exception but does contain “particularized guarantees of

trustworthiness,” such statement is nevertheless subject

to further Confrontation Clause analysis as to whether

the statement is so trustworthy that adversarial testing

would add little to its reliability, and cross-examination

would be of marginal utility.

In Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144

L.Ed.2d 117 (1999), a case which involved a custodial

statement, the U.S. Supreme Court’s plurality opinion

states that the Court is adhering to the general frame-

work for Confrontation Clause analysis of hearsay state-

ments set forth in Roberts. However, the Lilly plurality

opinion recites the second part of the Roberts test as

requiring that to be admissible, the statement must con-

tain “ ‘particularized guarantees of trustworthiness’ such

that adversarial testing would be expected to add little, if

anything, to the statements’ reliability.” (Emphasis sup-

plied.) Lilly, 527 U.S. at 125, 119 S.Ct. 1887. Although the

text of Lilly refers to Roberts as the source of the foregoing

statement, Roberts says only that the statement must have

“particularized guarantees of trustworthiness.” 448 U.S.

at 66, 100 S.Ct. 2531. The remainder of the test as recited

in Lilly is a paraphrase of the Wright development of the

Roberts test.

Roberts Test as Developed by Wright and Lilly as

Applied to Custodial Statement.

App. 44

Synthesizing the cases recited above, I respectfully

suggest that the test and method in practice for analyzing

the admissibility of a custodial hearsay statement which

inculpates a criminal defendant are not entirely clear. I

believe that the two-part Roberts test has been developed

by Wright and Lilly. Following Roberts, Wright, and Lilly,

if a custodial statement falls within a firmly rooted hear-

say exception, the statement continues to be admissible

without further Confrontation Clause analysis. If, how-

ever, the custodial statement does not fall within a firmly

rooted hearsay exception, I view the second part of the

test, as a practical matter, as now requiring two inquiries:

first, an evidential hearsay inquiry as to whether the

custodial statement contains particularized guarantees of

trustworthiness and, second, a constitutional inquiry

driven by the Confrontation Clause as to whether the

custodial statement is so trustworthy that adversarial

testing would add little to its reliability, and cross- exam-

ination would be of marginal utility.

I believe that these two inquiries are separate and

distinct. I do not believe that the second inquiry pertain-

ing to adversarial testing and the utility of cross-examina-

tion is merely a descriptor of the conclusion reached as a

result of the first inquiry pertaining to the examination

for particularized guarantees of trustworthiness. I believe

a constitutional inquiry is qualitatively different from

other inquiries. Thus, I also do not view the constitutional

inquiry as just another item of reliability to be evaluated

equally along with other garden-variety indicia of

reliability in reaching a conclusion as to whether a state-

ment bears particularized guarantees of trustworthiness.

App. 45

Following Idaho v. Wright, 497 U.S. 805, 110 S.Ct.

3139, 111 L.Ed.2d 638 (1990), and Lilly, supra, and not-

withstanding the fact that the Court has not tied the

inquiries together with the word “and,” I respectfully

view the two inquiries of the second prong of the devel-

oped Roberts test as being conjunctive, and if a custodial

statement fails either inquiry, its admission is barred. In

particular, I would conclude that if, on an objective basis,

adversarial testing would add to an assessment of the

custodial statement’s reliability and cross-examination

would be of greater than marginal utility, the custodial

statement’s admission is barred as a constitutional matter

under the Confrontation Clause, regardless of the out-

come of the first inquiry under the second prong of the

developed Roberts test.

Application of Developed Roberts Test to Instant

Case.

In the instant case, I agree with the majority’s conclu-

sion that the statement does not fall within a firmly

rooted hearsay exception. Therefore, I am required to

analyze the custodial statement under the second prong

of the Roberts test as developed by Wright, supra, and Lilly

v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117

(1999). Because, as discussed below, I conclude that

adversarial testing would add to an assessment of the

custodial statement’s reliability and that cross-examina-

tion would be of greater than marginal utility, I also

conclude that the Confrontation Clause bars admission of

the custodial statement, and I need not address the first

inquiry under the second prong of the developed Roberts

test by evaluating at length purported guarantees of

trustworthiness.

App. 46

The evidence in the instant case is such that there are

numerous matters for which adversarial testing would be

useful for assessing the custodial statement’s reliability,

and cross-examination would be of more than marginal

utility in the jury’s assessment of Barnett’s credibility.

Among the matters which objectively ought to be the

subject of cross-examination for Confrontation Clause

purposes are (1) the nature of Barnett’s plea bargain and

consequent exposure at sentencing; (2) Barnett’s motives

to curry favor with the authorities and to exaggerate the

defendant’s involvement in the crimes while minimizing

his own role; (3) the nature of the relationship between

Barnett and the defendant due to their separate sexual

relationships with Barnett’s girl friend and Barnett’s pos-

sible motive to seek revenge against the defendant; (4)

the nature, motive, and substance of the two statements

Barnett gave to the authorities prior to giving the Septem-

ber 28, 1996, statement, which prior statements differed

considerably from the statement at issue in this case; and

(5) the nature, motive, and substance of several state-

ments Barnett made to various persons recanting his

involvement in the crimes after making the statement of

September 28.

Each of the above matters would have made cross-

examination of Barnett of more than marginal utility, and

adversarial testing by cross-examination on these matters

would have added significantly to the jury’s assessment

of Barnett’s credibility and the reliability of Barnett’s

custodial statement in which the defendant is inculpated.

The defendant’s right of confrontation was particularly

implicated in the instant case by the fact that Barnett’s

custodial statement tied the defendant to the crimes, and

App. 47

it was, therefore, particularly vital that the defendant

have the opportunity to subject such evidence to adver-

sarial testing. Admission of the Barnett statement vio-

lated the defendant’s right to confrontation, and

therefore, the admission of the Barnett custodial state-

ment was reversible error, without regard to an assess-

ment of the factors proferred by the State in its

supplemental brief filed on July 27, 1999, as evincing

guarantees of trustworthiness, and the cause should be

remanded for a new trial.

Relationship Between Hearsay and Confrontation

Clause.

In reaching the foregoing conclusion, I am aware that

jurists and scholars have expressed their unease with the

jurisprudence surrounding the relationship between the

rule against hearsay and the Confrontation Clause as it

relates to the admissibility of out-of-court statements by

unavailable declarants that inculpate the defendant. See,

e.g., Lilly, supra (Breyer, J., concurring); White v. Illinois,

902 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)

(Thomas, J., concurring in part, and concurring in judg-

ment; Scalia, J., joins); Akhil Reed Amar, Confrontation

Clause First Principles: A Reply to Professor Friedman, 86

Geo. L.J. (cite as: 260 Neb. 325, *361, 618 N.W.2d 117,

™14Z) 1045 (1998); Margaret A. Berger, The Deconstitu-

tionalization of the Confrontation Clause: A Proposal for

a Prosecutorial Restraint Model, 76 Minn. L.Rev. 557

(1992); Joshua C. Dickinson, The Confrontation Clause

and the Hearsay Rule: The Current State of a Failed

Marriage in Need of a Quick Divorce, 33 Creighton L.Rev.

763 (2000); Richard D. Friedman, Confrontation: The

App. 48

Search for Basic Principles, 86 Geo. L.J. 1011 (1998); Ben-

jamin E. Rosenberg, The Future of Codefendant Confes-

sions, 30 Seton Hall L.Rev. 516 (2000); The Supreme

Court, 1998 Term — Leading Cases: I. Constitutional Law,

B. Criminal Law and Procedure, 1. Confrontation Clause

- “Firmly Rooted” Hearsay Exceptions, 113 Harv. L.Rev.

233 (1999). Much of the commentary is dedicated to the

Roberts doctrine and its subsequent development by the

Court.

As outlined above, initially under Roberts, it

appeared that hearsay which fell under a firmly rooted

exception and hearsay which was found to bear partic-

ularized guarantees of trustworthiness were functional

equivalents for purposes of admissibility. However, case

law subsequent to Roberts subjected the nonfirmly rooted

hearsay to explicit Confrontation Clause scrutiny by ask-

ing whether cross-examination of the declarant of a cus-

todial statement would be of marginal utility and

whether adversarial testing would add little, while the

firmly rooted hearsay exception remained admissible and

free of explicit Confrontation Clause analysis. Observers

have commented on this discordance between once

equally admissible statements by which, currently, state-

ments admitted under a firmly rooted hearsay exception

are not subject to explicit Confrontation Clause review,

whereas custodial statements sought to be admitted as

bearing particularized guarantees of trustworthiness are

nevertheless subject to explicit Confrontation Clause

scrutiny.

I am aware of the judicial and scholarly discussion

regarding the purposes of the Confrontation Clause in

general and, in particular, whether the purpose of the

App. 49

Confrontation Clause is to ensure trustworthiness, con-

frontation, or both. For purposes of this concurrence, I

note that Barnett was unavailable. I conclude that the

Barnett statement was offered as “witness” testimony

against the defendant for Confrontation Clause purposes,

White (cite as: 260 Neb. 325, *362, 618 N.W.2d 117, *142) v.

Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)

(Thomas, J., concurring in part, and concurring in judg-

ment; Scalia, J., joins), and I understand that the trust-

worthiness of the statement is the focus of the

admissibility analysis of the majority. I further note that

the Barnett statement at issue was a custodial statement

and that a different analysis might apply to noncustodial

statements.

As noted above, if a statement fits within a firmly

rooted exception to the hearsay rule, its “[rJeliability can

be inferred,” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct.

2531, 65 L.Ed.2d 597 (1980), and it is admitted without

further constitutional analysis under the Confrontation

Clause. Id. The Court has held that firmly rooted excep-

tions include the following: excited utterances and state-

ments made for purposes of medical diagnosis and

treatment, White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116

L.Ed.2d 848 (1992); coconspirators’ statements, Bourjaily

v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d

144 (1987); and dying declarations, Mattox v. United

States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (as

described in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887,

144 L.Ed.2d 117 (1999)).

As suggested by the concurrence filed by Justice

Breyer in Lilly, a criminal defendant would in some cases

find cross-examination of the declarant of a firmly rooted

App. 50

hearsay statement which inculpates the defendant of

greater than marginal utility, but because of the per se

admissibility of the firmly rooted statement, the defen-

dant is not absolutely entitled under the developed

Roberts test to confront such a witness against him or her.

See, also, The Supreme Court, 1998 Term — Leading Cases:

I. Constitutional Law, B. Criminal Law and Procedure, 1.

Confrontation Clause — “Firmly Rooted” Hearsay Excep-

tions, 113 Harv. L.Rev. 233 (1999). But see, Richard D.

Friedman, Confrontation: The Search for Basic Principles,

86 Geo. L.J. 1011, 1019 (1998), in which the author states

that Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d

514 (1986),

is particularly interesting because it reflects

unwillingness on the part of the majority to

accept the full implications of the per se aspects

of the Roberts reliability requirement, as well as

implicit recognition that, even if a statement by

an unavailable declarant fits within a firmly

rooted hearsay exception, its admission may

violate the confrontation right.

Thus, for example, where a coconspirator inculpates

the defendant in an out-of-court statement, without

regard to whether the statement was elicited with the aid

of undercover law enforcement, the criminal defendant

has no absolute right to cross-examine the declarant of

such firmly rooted hearsay, notwithstanding that by an

objective standard, adversarial testing would add to the

fact finder’s assessment of the statement’s trustworthi-

ness and that cross-examination of the declarant would

be of greater than marginal utility. See Bourjaily, supra.

App. 51

As further noted above, if a custodial statement does

not fit within a firmly rooted exception to the hearsay

rule but it does bear particularized guarantees of trust-

worthiness, it is nevertheless subject to the additional

constitutional inquiry of whether cross-examination of

the declarant would be of greater than marginal utility

and whether adversarial testing would add to its

reliability. Thus, such statements sought to be admitted as

bearing particularized guarantees of trustworthiness are

required to undergo a constitutional as well as evidential

analysis. The confrontation inquiry regarding adversarial

testing and whether cross-examination would be of

greater than marginal utility, being of a constitutional

dimension, is outcome determinative. Such inquiry is

qualitatively unlike the evidential inquiry regarding the

particularized guarantees of trustworthiness which con-

siders discrete factual matters surrounding the making of

the custodial statement, such as whether the declarant

was intoxicated, whether the declarant was asked leading

questions, whether the declarant had counsel, et cetera,

which, in the aggregate, lead to a conclusion regarding

trustworthiness.

Given the controlling nature of the constitutional

Confrontation Clause inquiry under the second prong of

the developed Roberts test as applied to a custodial state-

ment, in my view, if cross-examination would be of

greater than marginal utility in assessing the credibility

of the declarant and adversarial testing regarding the

statement would be of benefit, the Confrontation Clause

requires exclusion of the custodial statement, regardless

of the assessment of the other factors surrounding the

making of the custodial statement. To the extent that the

App. 52

purpose of the Confrontation Clause is to determine

“trustworthiness,” the Confrontation Clause inquiry is

neither just another trustworthiness inquiry nor a

descriptor of the result of the trustworthiness inquiry; if

the answer to the Confrontation Clause inquiry is that

adversarial testing would be of benefit to assess the

reliability of the custodial statement and cross-examina-

tion would be of greater than marginal utility, the state-

ment must be excluded.

Whether statements which fit a firmly rooted excep-

tion to the hearsay rule should be subject to explicit

Confrontation Clause analysis or, conversely, whether

statements which do not fit a firmly rooted exception to

the hearsay rule but do bear particularized guarantees of

trustworthiness should be freed of explicit Confrontation

Clause analysis is the subject of scholarly treatment; the

resolution of these questions, however, is not within the

scope or authority of this concurrence. Rather, because

the current jurisprudence requires a Confrontation Clause

analysis of the Barnett custodial statement which was

proferred by the State as bearing particularized guaran-

tees of trustworthiness and because I conclude that cross-

examination of Barnett would be of greater than marginal

utility in evaluating Barnett’s credibility and that adver-

sarial testing would add to the fact finder’s assessment of

the reliability of the statement, I conclude, as a constitu-

tional matter, that admission of the Barnett statement

violated the defendant’s right to confrontation under the

Sixth Amendment. See, also, Neb. Const. art. I, § 11.

App. 53

CONCLUSION

I conclude that the Roberts test, as it applies to custo-

dial statements for determining the admissibility of state-

ments of unavailable witnesses, has been developed by

Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d

638 (1990), and Lilly v. Virginia, 527 U.S. 116, 119 S.Ct.

1887, 144 L.Ed.2d 117 (1999). If a custodial statement does

not fall within the first prong of such test as being a

firmly rooted hearsay exception, the statement must be

examined under the second prong for particularized

guarantees of trustworthiness. With respect to the second

prong, I believe, as a practical matter, there are two

conjunctive inquiries: first, an evidential hearsay inquiry

as to whether the custodial statement contains partic-

ularized guarantees of trustworthiness and, second, a

constitutional inquiry driven by the Confrontation Clause

as to whether the custodial statement is so trustworthy

that adversarial testing would add little to its reliability

and cross-examination would be of marginal utility.

In the present case, particularly in light of the fact

that Barnett’s custodial statement of September 28, 1996,

ties the defendant to the crimes, I conclude, without

regard to an evaluation of the purported features of its

trustworthiness, that adversarial testing would add to the

assessment of its reliability and that cross-examination

would be of greater than marginal utility. Among the

matters which objectively ought to be the subject of cross-

examination for Confrontation Clause purposes are (1)

the nature of Barnett’s plea bargain and consequent expo-

sure at sentencing; (2) Barnett’s motives to curry favor

with the authorities and to exaggerate the defendant's

involvement in the crimes while minimizing his own role;

App. 54

(3) the nature of the relationship between Barnett and the

defendant due to their separate sexual relationships with

Barnett’s girl friend and Barnett’s possible motive to seek

revenge against the defendant; (4) the nature, motive, and

substance of the two statements Barnett gave to the

authorities prior to giving the September 28 statement,

which prior statements differed considerably from the

statement at issue in this case; and (5) the nature, motive,

and substance of several statements Barnett made to var-

ious persons recanting his involvement in the crimes after

making the statement of September 28.

In sum, because I conclude that the defendant’s con-

stitutional confrontation right was violated, I agree with

the majority’s conclusion that the admission of the Bar-

nett statement was reversible error and that the cause

should be remanded for a new trial.

McCORMACK, J., joins in this concurrence.

App. 55

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

| P.O. BOX 98910

2413 STATE CAPITOL BUILDING

LINCOLN, NE 68509

(402) 472-3731

November 15, 2000

J. Kirk Brown

ATTORNEY GENERAL’S OFFICE

2115 State Capitol

Lincoln, NE 68509

IN CASE OF: S-97-1069, State v. Jeremy C. Sheets

Appellee/Motion for Rehearing & Brf filed 09/22/00

has been reviewed by the court and the following order

entered: Motion of appellee for rehearing overruled.

Respectfully,

CLERK OF THE

SUPREME COURT

AND COURT OF APPEALS

App. 56

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 STATE CAPITOL BUILDING

LINCOLN, NE 68509

(402) 472-3731

November 15, 2000

J. Kirk Brown

ATTORNEY GENERAL’S OFFICE

2115 State Capitol

Lincoln, NE 68509

IN CASE OF: S-97-1069, State v. Jeremy C. Sheets

Appe Mot to Stay Mandate filed 09/22/00

has been reviewed by the court and the following order

entered:

Motion sustained pursuant to Rule 14 A.(2). Appellee

shall notify the Clerk of all proceedings filed in this

matter with the Supreme Court of the United States, and

all actions taken by said Court in such proceedings.

Respectfully,

CLERK OF THE

SUPREME COURT

AND COURT OF APPEALS

App. 57

IN THE DISTRICT COURT OF

DOUGLAS COUNTY, NEBRASKA

THE STATE OF

NEBRASKA

Docket 140 Page 770

ORDER

Plaintiff,

vs.

JEREMY C. SHEETS,

Defendant.

On February 25, 1997 hearing was held on the State’s

“Notice of Intent to Offer Statements of Unavailable Wit-

ness at Trial, Neb. Rev. Stat. Section 27-804(2)(e)” and on

State’s “Addendum Notice of Intent to Offer Statements

of Unavailable Witness at Trial, Neb. Rev. Stat. Section 27

804(2)(e).” The body of the notice and addendum notice

provide that: “State is providing notice to offer these

statements pursuant to Neb. Rev. Stat Sections 27-804 (2)

)

Evidence was presented by the State and the defen-

dant, arguments were made, briefs were submitted, and

the matter was taken under advisement.

At the hearing, the issue raised by the State’s notice

and addendum notice is whether the statements identi-

fied in the two notices are admissible as evidence at trial.

However, at the hearing and in the State’s brief, the State

has limited the statements it seeks to offer in evidence to

the following:

1. Tape-recorded statements made on Sep-

tember 26, 1996 by Adam Barnett to Richelle

a receeast b

App. 58

Lanoue. Evidence to be offered through produc-

tion of said tape records and testimony of Rich-

elle Lanoue and Omaha Police Sergeants

Jadlowski and Butera.

2. Tape-recorded statements made on Sep-

tember 28, 1996 by Adam Barnett to Attorney

Chris Kelley and Omaha Police Sergeants Jad-

lowski and Butera. Statements to be offered

through production of said tape recording and

testimony of Chris Kelly, Esq., and Omaha

Police Sergeants Jadlowski and Butera.

Section 27-804(2)(c) provides that an out-of-court

statement will not be excluded by the hearsay rule if: 1)

the out-of-court declarant is unavailable; and 2) the state-

ment is so contrary to the declarant’s penal interest that a

reasonable person in a similar position would not have

made the statement unless he believed it to be true.

Section 27-804(2)(e) provides that an out-of-court

statement will not be excluded by the hearsay rule if it

has circumstantial guarantees of trustworthiness and the

Court determines that: 1) the statement is offered as

evidence of a material fact; 2) the statement is more

probative on the point for which it is offered than any

other evidence which the proponent can procure through

reasonable efforts; and 3) the general purposes of these

rules and the interest of justice will best be served by

admission of the statement into evidence.

The Supreme Court in State v. Hughes, 244 Neb. 810,

510 N.W.2d 33 (1993), has set forth the rules of law that

apply to the admissibility of such hearsay statements:

A. If the statements implicate a defendant’s penal

interest as well as the declarant’s penal interest, then a

App. 59

third element must be satisfied, i.e., that the Court must

examine the totality of the circumstances surrounding the

making of the statement to determine whether they indi-

cate that the statement is trustworthy.

B. The statement is admissible only if it bears ade-

quate “indicia of reliability.” Reliability can be inferred

without more than that in a case where the evidence falls

within a firmly rooted hearsay exception. In other cases,

the evidence must be excluded, at least absent a showing

of particularized guarantee of trustworthiness.

C. Statements made while the declarant is in police

custody and in which the declarant implicates another

party are presumptively unreliable.

D. Reliability of statements that fall within the hear-

say exception or statements against penal interest may

not be inferred, and the proponent of such evidence must

carry the burden of demonstrating the trustworthiness

and reliability of the statement.

The Court makes the following necessary findings

from the evidence:

1. The declarant, Adam Barnett, is deceased and,

therefore is, pursuant to the rules of evidence, legally

unavailable.

2. One of the two statements sought to be admitted

by the State was made in police custody.

3. Both statements made by Adam Barnett were

against his penal interest because they tended to subject

him to criminal liability.

App. 60

4. Both statements made by Adam Barnett not only

subjected him to criminal liability but incriminated the

defendant.

5. The statements are offered as evidence of a mate-

rial fact.

6. The statements are’ more probative om the point

for which they are offered than any other evidence which

the State can procure through reasonable efforts.

Therefore, the Court must examine the totality of the

circumstances surrounding the making of the statement

and must determine and apply the factors to be consid-

ered in determining whether the statements have the

guarantees of trustworthiness and reliability.

State v. Hughes, supra, sets forth the factors to be

considered under both rules of evidence. The Court

determines that the factors are so substantially similar as

to conclude that the same factors would apply to both of

the relied-upon rules of evidence. Those factors are:

A. Motivation and opportunity to curry

favor with the authorities.

B. Whether the statements were made in

response to leading questions or were sponta-

neous.

C. Whether the statements are oral or writ-

ten.

D. The relationship between the declarant

and the witness.

E. Whether the statements were made

under oath.

App. 61

F. Whether the declarant was subject to

cross-examination.

G. Whether the declarant subsequently

reaffirmed or recanted the statements.

H. Other statements of the declarant con-

sistent or inconsistent with the statements.

Adam Barnett, the declarant, was taken by the

Omaha police to central station, was placed in an inter-

view room, advised of his constitutional rights per Mir-

anda, and agreed to talk with police officers about the

Kenyatta Bush homicide. Initially, he denied knowing

anything about it, then stated that the defendant had told

him about it, and then requested an attorney. The inter-

view ceased and later Attorney Chris Kelly was appoin-

ted to represent Barnett. Kelly came to central station and

consulted privately with Barnett for several hours. No

further interviews with Barnett were attempted. Barnett

was booked on criminal homicide and was placed in a

cell.

On the next day, Barnett requested to speak with his

attorney, Chris Kelly. Mr. Kelly came to central station,

was briefed by investigators on the evidence that the

State had at that point and again consulted for several

hours with Barnett whereupon the detectives were

advised that Barnett wanted to make a statement. There-

upon, in the afternoon, Sergeant Jadlowski, in the pres-

ence of Mr. Kelly, began talking with Barnett, who again

cut off the interview and consulted further with Mr.

Kelly. Later, in the evening, Mr. Kelly indicated that Bar-

nett wanted to cooperate and make a full and truthful

disclosure of the case to the police. After consulting with

the County Attorney, a written agreement was reached

App. 62

between Barnett, Attorney Kelly, and the State that pro-

vided that in exchange for a truthful statement by Bar-

nett, he would be charged with second degree murder as

opposed to first degree murder. Prior to the statement, in

a meeting with Barnett, Kelly, Sergeant Jadlowski, and

Deputy County Attorney Leigh Ann Retelsdorf, Barnett

was advised by both Attorney Kelly and Ms. Retelsdorf

that he should not make any statements unless he would

be truthful and that Barnett indicated that he understood

and would tell the truth. Thereupon, a taped statement

was taken by Sergeants Jadlowski and Butera with Bar-

nett’s attorney, Chris Kelly, present during the entire

interview. The statement is incriminating to both Barnett

and the defendant.

The Court, having listened to the taped statement as

well as having reviewed the transcript of same, finds that

Barnett knew that he would be charged with murder in

the second degree, carrying a penalty of ten years to life

imprisonment (which later, it is clear, weighed heavily on

him.) He exhibited little, if any, motivation or oppor-

tunity to curry favor with the prosecutor. He was repre-

sented by an attorney, who had been fully informed of

the State’s evidence to that point, both before and

throughout the interview itself. He knew he must be

truthful in order to comply with the terms of the agree-

ment. While his statements incriminated the defendant,

they did not exonerate him but instead subjected him to

liability of murder in the second degree.

No leading questions, suggesting the answer, were

asked of Barnett. Many of his answers, especially the

most significant, were lengthy and narrative. No ques-

tions, either by their wording or by the tone of the voice,

App. 63

are in any way coercive in nature. Barnett’s answers are

responsive to the questions and exhibit no sign of eva-

siveness or hesitancy over whether or not to fabricate an

_ answer, but rather were spontaneous in tone and in tim-

ing.

Prior to Barnett’s statements to the police, the police

had learned that Barnett had made admissions concern-

ing the murder of Ms. Bush to Jason Lanoue and Richelle

Lanoue, husband and wife. After interviewing both Lan-

oues, Richelle Lanoue was outfitted with a concealed

recording device and in cooperation with the Omaha

police scheduled a meeting with Barnett. Her conversa-

tion with Barnett was recorded and transcribed. Barnett’s

statements to Richelle Lanoue were not made in police

custody and, therefore, the State has no burden to over-

come any presumptions of unreliability. His statements to

Lanoue, a close friend, bear all the indicia of reliability

and trustworthiness, were not the result of leading or

coaxing questions, and are consistent with all other state-

ments that Barnett has made.

Subsequent to his statement to the Omaha police,

Barnett made statements to a cellmate in the Washington

County Jail, to his uncle, Tom Stephanek, and to his

mother in a note right before his death that: “I didn’t do

it.” However, from the testimony of his uncle and the

statement of the cellmate, what Adam Barnett was telling

them was that he did not do the actual, assault and

killing of the victim, Kenyatta Bush, but that he was there

and was a participant in assisting the defendant who did

the actual killing. At best, whether this is consistent with

his other statements or is a recantation would be ulti-

mately a question for the jury and their determination of

App. 64

the credibility and the w

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