# Petition for Writ of Certiorari — Nebraska v. Sheets

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1019

## Text

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

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 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?

il

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

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

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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)

4

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.

5

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)

6

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

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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

8

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)

10

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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11

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)

12

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.

13

(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

ee

14

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)

15

[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 __!]_ ==

16

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

17

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?

18
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.

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 . . .

19

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.

20

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

21

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

22

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

23

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.

24

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

yn

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.

26

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?

I.
Indicia of reliability vs. cross-examination

The Nebraska Supreme Court proceeded on the
assumption that the “indicia of reliability” cannot include

si

27

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

28

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

29

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

30

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,
v.
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:

(c) A statement which was at the time of its
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 differen

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0814%3A1. Public record. Not legal advice.