STATE v. MORALES

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130 N.W.2d at 133. In reaching the same conclusion in Black, we observed that the State's questions were brief and that the "jury was not left to speculate as to what [the witness's] testimony might have been, because her earlier statements were introduced into evidence" substantively as statements against penal interest under Minn. R. Evid. 804(b)(3). Black, 291 N.W.2d at 212-13.

Here, the circumstances of the State's questioning and Vega-Lara's refusals were quite different from those in Mitchell or Black. The State's direct examination of Vega-Lara was extensive, taking up 20 pages of trial transcript, and Vega-Lara refused to answer each question posed by the State. Moreover, the State's questions were heavily fact-laden and each went directly to the substance of the charged offenses. The questions were leading and represented an extensive narrative of the robbery and murder. The State asked Vega-Lara about the events leading up to the murder, including whether Vega-Lara spoke with Morales about robbing the house of prostitution, whether Vega-Lara went to the house carrying a gun on March 13 with Morales and Solorzano-O'Brien, whether Morales also carried a gun and wore a hat, and whether Vega-Lara and Solorzano-O'Brien went into the bedrooms with the two women while Morales sat on the couch. The State also asked a sequence of questions about the specific events of the murder, including these questions in the following order:

• "When you were at [the house of prostitution] on March 13th of 2006, did Angel Morales pull out his gun?"

• "[D]id Angel Morales point the gun at Victor Mesa-Ortiz for the purpose of robbing him?"

• "Did Victor Mesa-Ortiz resist when Angel Morales pointed the gun at him and tried to rob him?"

• "When Angel Morales and Victor Mesa-Ortiz were struggling over the gun that was held by Angel Morales, did you take your gun and shoot Victor Mesa-Ortiz?"

As Vega-Lara refused to answer each question, the State in essence attempted to impeach him with his prior testimony, asking further leading questions about the events of the crime. For example, the State was allowed to ask Vega-Lara, "Do you recall being asked was there a reason that Angel Morales wanted to go to [the house of prostitution]. . . . And did you then say, `yeah, because he had told me he wanted to rob the [house]?'" and, "Did you previously testify that [Morales] pointed the gun at Victor Mesa-Ortiz . . . for the purpose of robbing him?"

When pieced together, the State's questions to Vega-Lara at trial provided the only detailed narrative of the crime that was consistent with the State's theory of the case. The only other evidence the State introduced that implicated Morales were statements Morales allegedly made to M.G. about his plans to rob a house of prostitution. But those statements gave little detail about Morales's plans, and the credibility of M.G.'s testimony on these statements was attacked on cross-examination. In contrast, Vega-Lara's examination was lengthy and provided the jury with the only descriptive eyewitness account of the murder. The State had no other direct evidence — and very little circumstantial evidence — against Morales beyond evidence that a third man wearing a hat accompanied Vega-Lara and Solorzano-O'Brien to the house of prostitution on the day of the murder.

We guard against allowing the State to call a witness who refuses to testify because such refusals encourage the jury to draw unfavorable inferences that may prejudice the defendant. See Mitchell, 268 Minn. at 516, 130 N.W.2d at 130. Because Vega-Lara refused to answer each of the State's questions in what was a lengthy and detailed examination, the jury had several opportunities to draw inferences unfavorable to Morales. The fact that the State was allowed to introduce Vega-Lara's prior testimony for what was essentially impeachment purposes perhaps added to the prejudice, because Vega-Lara's prior testimony essentially supplied the jury with particular incriminating inferences consistent with the State's theory.

Further adding to the unfair prejudice, the State's attempt to impeach Vega-Lara was based on Vega-Lara's prior testimony at his own trial, which may have been self-serving and unreliable because he testified as a criminal defendant, attempting to partially exonerate himself. See Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986).

In addition to the unfair-prejudice concern about improper inferences from an accomplice's refusal to testify articulated in Mitchell, we have warned in other cases against allowing the State to call a witness only to impeach the witness with prior testimony. In State v. Dexter, we affirmed a district court's ruling "barring the prosecution from impeaching one of its own witnesses with extrinsic evidence of prior inconsistent statement[s]" because the State sought "to present, in the guise of impeachment, evidence which is not otherwise admissible." 269 N.W.2d 721, 721 (Minn. 1978). Later, in State v. Ortlepp, we explained that:

[A] problem arises when a prosecutor calls a witness who has given a prior statement implicating the defendant. . . . If the prosecutor is permitted to call th[e] witness and use the prior statement for impeachment purposes, there is a large risk that the jury, even if properly instructed, will consider the prior statement as substantive evidence.

363 N.W.2d 39, 42-43 (Minn. 1985). Here, because Vega-Lara's testimony consisted of nothing more than his refusals to testify, there was an especially great risk that the jury would treat his prior testimony as substantive evidence. As Ortlepp explains, the district court's instruction to the jury did not necessarily cure the prejudice. See 363 N.W.2d at 42-43.

We acknowledge that in some situations, the introduction of prior testimony may have the opposite effect: it may reduce the danger of unfair prejudice. For example, in Black, we stated that the State's questioning of the witness was not unfairly prejudicial in part because "[t]he jury was not left to speculate as to what [the witness's] testimony might have been" as the witness's prior testimony was introduced into evidence. 291 N.W.2d at 212. But in Black, the prior testimony was admitted as substantive evidence, see id. at 213; here, the evidence was not.

We conclude that the State's ability to call Vega-Lara and then present his prior testimony provided the State with an opportunity to introduce evidence that the district court had ruled was "not otherwise admissible." See Dexter, 269 N.W.2d at 721. In this situation, unlike in Black, the introduction of the prior testimony increased the unfair prejudice we were concerned about in Mitchell. Given that the State's examination of Vega-Lara was lengthy, provided the jury with numerous opportunities to make inferences, and additionally provided specific prejudicial inferences in the form of nonsubstantive evidence, we conclude that the State's questioning of Vega-Lara was prejudicial and unfair and amounted to reversible error under Mitchell. Because we conclude that the questioning of Vega-Lara requires reversal of Morales's conviction, we need not address Morales's argument that the impeachment of Vega-Lara was improper for the reason that Vega-Lara's refusal to testify at Morales's trial was not inconsistent with and did not contradict his prior testimony.

A parallel analysis can be made under a similar unfair-prejudice theory articulated by the Supreme Court in Namet. The examination of Vega-Lara was unfairly prejudicial because the inferences it created added "critical weight" to the State's case in a form not subject to cross-examination. Namet, 373 U.S. at 187, 83 S.Ct. 1151. The State's examination of Vega-Lara added critical weight because it provided the jury with the only descriptive eyewitness account of the murder. Moreover, because Vega-Lara refused to answer all but one question on cross-examination, that critical weight was in a form not subject to cross-examination.
In Namet, the Court found no reversible error because the witness answered several questions — there were "few invocations of privilege." Namet, 373 U.S. at 189, 83 S.Ct. 1151. Moreover, the Court found it significant that "the few claims of testimonial privilege were at most cumulative support for an inference already well established by the nonprivileged portion of the witness' testimony." Id. Here, unlike in Namet, Vega-Lara refused to answer all questions on direct examination and the inferences were not well established by other testimony.

The dissent argues that the questioning of Vega-Lara was not unfairly prejudicial because the State "was attempting to lay the foundation for Vega-Lara's testimony to be admitted as substantive evidence under Minn. R. Evid. 801(d)(1)(A)." The dissent states that "[b]ecause the State's questions were grounded in our rule of evidence," Morales was not subject to unfair prejudice. We disagree. Even if the State's actions were within the rules of evidence, that fact alone does not dictate that we conclude the State's actions were not unfairly prejudicial. According to Mitchell, the test is whether the State's examination of the refusing witness was brief, fact-laden, and went to the substance of the charged offense — not whether the State was following the rules of evidence in questioning the witness. 268 Minn. at 521, 130 N.W.2d at 133. The same principle is true in other contexts: even if evidence is admissible under some rule of evidence, it may be error to admit that evidence if "its probative value is substantially outweighed by the danger of unfair prejudice." Minn. R. Evid. 403.

In Black, we cited the State's need to lay foundation for a prior inconsistent statement as a legitimate reason to call a witness the State thought would refuse to testify. 291 N.W.2d at 212. But we did not cite the need for foundation as a reason why the questioning of the witness was not prejudicial to the defendant in Black. Rather, we concluded that the questioning of a refusing witness was not reversible error after considering the substance of the questioning and determining that the questions were brief. Id. It appears that in Black, the witness's attorney and the district court asked the witness questions, and then the court held the witness in contempt after the witness refused to testify during direct examination by the State. See id. Nothing in our opinion in Black suggests that the State was allowed to question the witness at length after she refused to testify. Therefore, the questioning at issue here is distinguishable.

We recognize that the State was in a difficult position in this case. The only alleged eyewitness to the crime, beside Morales, refused to testify after being ordered to do so by the district court. Regardless of the State's difficult position, Morales has a right to a fair trial, and the obstinacy of a witness who refuses to testify cannot threaten that right or justify trial conduct we held in Mitchell to be unfairly prejudicial. We and other jurisdictions have explained that a witness's refusal to testify can be prejudicial to the defendant when the questions asked of the witness are fact-laden and "`plant in the jury's mind full details as to how [the State] claimed [the] crime was committed.'" Mitchell, 268 Minn. at 520-21, 130 N.W.2d at 133 (quoting Washburn v. State, 164 Tex.Crim. 448, 299 S.W.2d 706, 707 (Tex.Crim.App. 1956)). Neither Vega-Lara's refusal to cooperate nor the State's need to lay foundation excuses the State's unfairly prejudicial questioning.

Given the State's difficult position and the risk of unfair prejudice, a better course of action may have been for the district court to allow the State to question Vega-Lara outside of the presence of the jury in order to "lay foundation," or, in other words, to ascertain if Vega-Lara would testify in a manner inconsistent with his previous testimony. Under such a scenario, if the district court ultimately determined that the evidence is not admissible as substantive evidence as the court did here, there would have been no unfair prejudice to Morales because the prejudicial questioning would have occurred outside the presence of the jury.

iii. Were Vega-Lara's Prior Statements Admissible as Substantive Evidence?

The State argues that the district court erred when it refused to admit Vega-Lara's statements as substantive evidence under the catchall hearsay exception in Minn. R. Evid. 807, or as non-hearsay under Minn. R. Evid. 801(d)(1)(A). The State then cites Ortlepp, 363 N.W.2d 39 (Minn. 1985) for the proposition that any Dexter problem that may arise when a prosecutor calls a witness and is permitted to use a prior statement for impeachment purposes is resolved if the prior statements admitted for impeachment purposes were also admissible as substantive evidence. See id. at 42-43. According to the State's argument, if Vega-Lara's statements were admissible as substantive evidence, there was no reversible error.

While we may have said in Ortlepp that there is no Dexter problem if the impeachment evidence was also admissible as substantive evidence, we have never said that such an event would resolve concerns under Mitchell. But, as indicated above, we did state in Black that the admission of a refusing witness's prior statement reduced the unfair prejudice to the defendant because the prior testimony made it so "[t]he jury was not left to speculate as to what [the witness's] testimony might have been." 291 N.W.2d at 212. If Vega-Lara's prior out-of-court statements were admissible substantively under Rules 807 or 801(d)(1)(A), that fact may affect whether Morales was unfairly prejudiced by the State's questioning of Vega-Lara. Therefore, we address the State's claim that Vega-Lara's testimony was admissible as substantive evidence under Rules 801(d)(1)(A) and 807.

Minnesota Rule of Evidence 801(d)(1)(A) provides that a statement is not hearsay if "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Prior statements must meet all the requirements under Rule 801(d)(1)(A) in order to be admissible as substantive evidence. We conclude that Vega-Lara's prior testimony cannot be admitted under Rule 801(d)(1)(A) because Vega-Lara was not subject to cross examination at Morales's trial "concerning the statement[s]." Rule 801(d)(1) requires that a witness "be `testable about the statement, meaning that he must be reasonably responsive to questions on the circumstances in which he made it.'" State v. Amos, 658 N.W.2d 201, 206 (Minn. 2003) (quoting 4 Christopher B. Mueller Laird C. Kirkpatrick, Federal Evidence § 404, at 175 (2d ed. 1994)). Vega-Lara answered one question on cross-examination but was otherwise completely unresponsive. He refused to answer all other questions regarding his prior testimony. For example, counsel for Morales asked Vega-Lara, "Did you testify at your own trial that the planning was done by Mr. Morales in order to place the blame on Mr. Morales instead of yourself?" And Vega-Lara responded, "Refuse to answer." This answer, like all but one of Vega-Lara's answers, was not "reasonably responsive" to the question asked. See Amos, 658 N.W.2d at 206. Accordingly, we conclude that Vega-Lara was not "reasonably responsive" to the questions regarding the circumstances in which he made his prior statements, and therefore, his prior testimony was not admissible under Rule 801(d)(1)(A). Having reached this conclusion, we need not address the other requirements of Rule 801(d)(1)(A). Therefore, we hold that Vega-Lara's prior statements were not admissible as substantive evidence under Rule 801(d)(1)(A).

The State argues that Vega-Lara's testimony was also admissible as substantive evidence under Minn. R. Evid. 807. Rule 807 is the residual exception to the rule against admitting hearsay. It provides:

A statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it. . . .

Minn. R. Evid. 807. Here, we conclude that Vega-Lara's prior statements do not have "equivalent circumstantial guarantees of trustworthiness" as the statements intended to be covered by Rules 803 and 804. While Vega-Lara's statements were made under oath, he was testifying at his own trial and had much to gain from bending the truth and implicating others in the crime. Thus, the State has failed to show that Vega-Lara's statements were sufficiently reliable to overcome the general prohibition against admitting out-of-court statements.

Additionally, as the district court noted, there were "notice issues" with respect to the admission of Vega-Lara's prior testimony under Rule 807. The State sent a transcript of Vega-Lara's prior testimony to Morales on July 20, 2007, and Morales knew Vega-Lara was on the State's witness list. But there was no pretrial notice that the State would seek to introduce Vega-Lara's prior testimony as substantive evidence under Rule 807 or any other hearsay exception. The State moved to admit a transcript of Vega-Lara's prior testimony as substantive evidence near the close of trial.

We conclude that Vega-Lara's prior testimony was not admissible as substantive evidence under Rule 807. Nor was it admissible as substantive evidence under Rule 801(d)(1)(A). Therefore, the Dexter problem created when the State called Vega-Lara as a witness and used his prior testimony was not resolved. Similarly, the unfair prejudice to Morales caused by the State's questioning of Vega-Lara, a refusing witness, was not reduced.

For all the foregoing reasons, we conclude that the State's examination of Vega-Lara, an accomplice witness who refused to testify, was prejudicial to Morales to such an extent that it denied Morales a fair trial. Under Mitchell, such unfair prejudice is reversible error. Therefore, we reverse and remand for a new trial.

II.

Even though we have determined that Morales is entitled to a new trial based on the State's unfairly prejudicial examination of Vega-Lara under Mitchell and Namet, we still must address the State's second contention. More particularly, we must address the State's argument that the court of appeals erred when it reversed the district court's decision to admit Vega-Lara's prior out-of-court statements to M.G. Our response to this question may affect the new trial.

Vega-Lara's prior out-of-court statements to M.G. were admitted by the district court under the statement-against-interest exception to the hearsay rule in Minn. R. Evid. 804(b)(3). Evidentiary rulings by a district court generally rest within that court's discretion. State v. Henderson, 620 N.W.2d 688, 696 (Minn. 2001). Therefore, we will not reverse the district court's decision to admit Vega-Lara's statements to M.G. absent a clear abuse of discretion. See id.

At trial, the State called M.G. to testify about statements Vega-Lara made to him regarding the robbery and murder of Mesa-Ortiz. Over a hearsay objection by Morales, the district court admitted several of Vega-Lara's statements to M.G. about the robbery and murder under Minn. R. Evid. 804(b)(3), the statement-against-interest exception. Morales challenges the admission of only some of the statements. The three statements he challenges are as follows:

State: And during that conversation with Felipe Vega-Lara, did he tell you that he and Tarun Solorzano-O'Brien and another person went to the [house] to commit a robbery?

M.G.: Yes.

State: And did Felipe Vega-Lara tell you that both he and another person had a handgun when they went to that location?

M.G.: Yes.

. . . .

State: Okay. When Mr. Vega-Lara talked to you about the robbery at the [house], did he tell you that another person was struggling with the victim and Mr. Vega-Lara shot the victim?

M.G.: Yes.

(Emphasis added.) The foregoing statements were altered before being admitted at trial. In his original statement to the police, M.G. stated that Vega-Lara specifically named "Morales." At trial, the State offered to substitute the words "another person" for Morales and the court agreed to the substitution.

The court of appeals held that the district court erred in admitting Vega-Lara's statements to M.G. Morales, 764 N.W.2d at 627. The court of appeals explained that the statements "were not, on balance, against Vega-Lara's penal interest; rather, they tended to minimize his own culpability in the offense." Id. The court also stated that the State's mention of "another person" was an obvious reference to Morales and an ineffective word substitution. Id. at 626-27.

As it did throughout the trial, the State concedes on appeal that the parts of Vega-Lara's statements to M.G. that specifically mention "Morales" would not be admissible under the statement-against-interest exception to the hearsay rule. But, the State notes that it substituted the words "another person" at trial and did not allow M.G. to mention Morales. The State argues that the altered statements were properly admitted because substituting "another person" for Morales's name was appropriate and sufficiently protected Morales from prejudice. The State acknowledges that it mistakenly failed to make the substitution in its closing argument, but asserts that this mistake does not affect the admissibility of the earlier-admitted evidence.

The State relies on an Eighth Circuit Court of Appeals decision, United States v. Logan, 210 F.3d 820, 821 (8th Cir. 2000), as support for its assertion that substituting "another person" for Morales's name was appropriate. But Logan addresses whether the admission of a nontestifying codefendant's out-of-court confession in a joint trial violated a defendant's Confrontation Clause rights. Id. Because Logan addresses the Confrontation Clause in the context of joint criminal trials in federal court and does not address the statement-against-interest exception to the hearsay rule, we conclude it is not instructive in this case. Instead, we will determine whether Vega-Lara's statements to M.G. are admissible by conducting an analysis of the statement-against-interest exception to the hearsay rule and cases that apply the rule.

Morales asserts that Vega-Lara's statements are not self-incriminating because they inculpate Morales. He also argues that substituting "another person" for "Morales" did not effectively "transform the inadmissible, non-self-incriminatory hearsay statements into admissible statements against Vega-Lara's penal interest" because the substituted statements still shifted blame onto a third person. Morales asserts that the jury could infer the words "another person" referred to Morales because M.G. mentioned Morales's name in other contexts during his testimony and the State failed to abide by the substitution in its closing statement.

A. The Statement-Against-Interest Exception

Hearsay is inadmissible unless an exception applies. Minn. R. Evid. 802. Minnesota Rule of Evidence 804(b)(3) provides an exception to the hearsay rule for statements made against a declarant's interest. The rule states that if a declarant is unavailable, a statement is admissible if, at the time of its making, it "so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Minn. R. Evid. 804(b)(3). Determining the admissibility of "declarations against penal interest" under Rule 804(b)(3) requires three steps:

The full text of Minn. R. Evid. 804(b)(3) provides:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

. . . .

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing 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.

First, the court must determine if the declarant was unavailable to testify at trial. Second, the court must determine that the statement must "at the time of its making . . . so far [tend] to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Third, the court must scrutinize the statements to avoid violating the Confrontation Clause.

State v. Tovar, 605 N.W.2d 717, 723 (Minn. 2000) (citations omitted).

B. Unavailability of a Declarant

As we articulated it in Tovar, the first step in determining whether a statement is admissible under Rule 804(b)(3) is to determine whether Vega-Lara, the declarant, was unavailable. See 605 N.W.2d at 723. Minnesota Rule of Evidence 804(a)(2) states that a witness is unavailable for purposes of hearsay exceptions if he "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so." The comment to Rule 804 states that "[i]f the declarant is present at trial but will not or cannot testify as to an issue for any reason, whether justified or not, the declarant is deemed to be unavailable on that issue for the purposes of the rule." Minn. R. Evid. 804 comm. cmt.1989. Though Vega-Lara was physically present at Morales's trial, it is undisputed that he consistently refused to testify about the robbery and murder — the subject matter of his statements to M.G. — as well as his conversation with M.G. We conclude that Vega-Lara's persistent and consistent refusal to testify, despite the court's order compelling him to do so, made Vega-Lara unavailable for purposes of Rule 804(b)(3).

C. Statements Subject Declarant to Criminal Liability

The second step articulated in Tovar is to determine whether Vega-Lara's admitted statements were against Vega-Lara's interest in that they so far tended to subject Vega-Lara to criminal liability that a reasonable person in Vega-Lara's position would not have made the statements unless believing them to be true. See Tovar, 605 N.W.2d at 723; Minn. R. Evid. 804(b)(3). In Williamson v. United States, the Supreme Court concluded that the word "statement," as used in the statement-against-interest exception, of the Fed.R.Evid. 804(b)(3), should be narrowly construed as "a single declaration or remark" rather than an entire confession narrative. 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (citation omitted) (internal quotation marks omitted); see also Jones, 556 N.W.2d at 908. Williamson provides that the appropriate analysis under Rule 804(b)(3) does not consider whether an entire confession is, on balance, against the declarant's interest. 512 U.S. at 600-01, 114 S.Ct. 2431. Rather, courts must analyze whether individual declarations or remarks within a confession or conversation are each against the declarant's interest. Id.

Explaining its holding, the Supreme Court in Williamson stated that Federal Rule 804(b)(3) "is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true." 512 U.S. at 599, 114 S.Ct. 2431. The Court concluded that self-exculpatory statements embedded in a broader self-inculpatory narrative are not admissible under Rule 804(b)(3) because they "are exactly the [statements] which people are most likely to make even when they are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements." 512 U.S. at 600, 114 S.Ct. 2431. The Court held that Rule 804(b)(3) therefore "does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory." Williamson, 512 U.S. at 600-01, 114 S.Ct. 2431.

After Williamson, the question for determining admissibility under Rule 804(b)(3) is still whether, in light of all the surrounding circumstances, "the statement was sufficiently against the declarant's penal interest `that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.'" Williamson, 512 U.S. at 603-04, 114 S.Ct. 2431 (quoting Fed.R.Evid. 804(b)(3)). Given the Court's definition of "statement" in Williamson, courts must consider whether each declaration or remark — rather than the narrative or conversation as a whole — is sufficiently against the declarant's interest when determining whether a statement is admissible under the Rule 804(b)(3) exception. We adopted the Williamson rule in State v. Ford and now require courts to parse a declarant's generally self-inculpatory narrative to separate and omit from the narrative non-self-inculpatory declarations or remarks. State v. Ford, 539 N.W.2d 214, 227 (Minn. 1995) (citing Williamson, 512 U.S. at 600-01, 114 S.Ct. 2431); see also Tovar, 605 N.W.2d at 723.

Here, we consider Vega-Lara's confession to M.G. Though the confession may have been inculpatory as a whole, Williamson and Ford provide that we must individually analyze each of Vega-Lara's statements within the confession narrative to determine if they are admissible under Minn. R. Evid. 804(b)(3). See Williamson, 512 U.S. at 600-01, 114 S.Ct. 2431; Ford, 539 N.W.2d at 227. If each of the three challenged statements was sufficiently against Vega-Lara's penal interest in light of the surrounding circumstances, the district court did not err by admitting the statements.

Though the district court must screen admitted confessions or conversations to omit non-self-inculpatory statements, the sieve we use for the screening must not be too fine. The question is not whether the district court should have required the State to remove the phrase "another person" from Vega-Lara's comments to M.G. This is because "another person" is not itself a statement; it does not amount to a declaration or a remark. Rather, our focus is on each of Vega-Lara's statements individually, and we must consider each of the individual statements as a whole.

We first observe that each of the three challenged statements refer to and incriminate "another person." But Rule 804(b)(3) does not necessarily preclude the admission of a statement that inculpates a third person. Though the Supreme Court, when it interpreted Fed.R.Evid. 804(b)(3) in Williamson, warned that confessions by an accomplice may not be entirely self-inculpatory, the Court did not announce a categorical rule that requires the exclusion of statements with incriminating references to third parties. See 512 U.S. at 601, 603, 114 S.Ct. 2431; see also Fed.R.Evid. 804 advisory committee's note ("These decisions, however, by no means require that all statements implicating another person be excluded from the category of declarations against interest."). In fact, the Court suggested that a statement that names a third party may be admissible when it said, "Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor." Williamson, 512 U.S. at 603, 114 S.Ct. 2431. As Justice Antonin Scalia explained in his concurrence, "a declarant's statement is not magically transformed from a statement against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible codefendant." Id. at 606, 114 S.Ct. 2431 (Scalia, J., concurring) (emphasis added).

Courts in several other jurisdictions agree that there is no per se rule in Williamson that statements with incriminating references to third parties are not self-inculpatory. See United States v. Centracchio, 265 F.3d 518, 526 (7th Cir. 2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); United States v. Hammond, 681 A.2d 1140, 1144-45 (D.C. 1996); State v. Prasertphong, 206 Ariz. 70, 75 P.3d 675, 686-87 (2003), vacated and remanded on other grounds, 541 U.S. 1039, 124 S.Ct. 2165, 158 L.Ed.2d 727 (2004); State v. Hallum, 585 N.W.2d 249, 255 (Iowa 1998), vacated and remanded on other grounds, 527 U.S. 1001, 119 S.Ct. 2335, 144 L.Ed.2d 233 (1999); People v. James, 93 N.Y.2d 620, 695 N.Y.S.2d 715, 717 N.E.2d 1052, 1062-63 (1999).

Under the Supreme Court's holding in Williamson, statements that name or incriminate a third party may not be per se inadmissible. But it is clear that such statements should be scrutinized carefully. This is because they tend not to be entirely self-inculpatory. But such statements can be admitted under the statement-against-interest exception to the hearsay rule if, in light of all the surrounding circumstances, they are "sufficiently against the declarant's penal interest `that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.'" Williamson, 512 U.S. at 603-04, 114 S.Ct. 2431 (quoting Fed.R.Evid. 804(b)(3)).

We acknowledge that, along with the Supreme Court, we have often observed that the statements of an accomplice that incriminate a criminal defendant are unreliable in the context of pre- Crawford Confrontation Clause cases. See, e.g., Lilly v. Virginia, 527 U.S. 116, 130-31, 133, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (stating that confessions by an accomplice that shift or spread blame are inherently unreliable); State v. King, 622 N.W.2d 800, 808-09 (Minn. 2001) (same). But the issue in the cases that warn about the untrustworthiness of co-accomplice confessions is not the same issue before us here. First, Vega-Lara's statements as modified by the parties' substitution agreement incriminate "another person," not Morales directly. Second, the issue in Lilly was whether the defendant's Sixth Amendment Confrontation right "was violated by admitting into evidence at his trial a nontestifying accomplice's entire confession that contained some statements against the accomplice's penal interest and others that inculpated the accused." 527 U.S. at 120, 119 S.Ct. 1887. Applying the now-discarded rule from Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court determined that the statement-against-interest exception was not a "firmly rooted" hearsay exception. Lilly, 527 U.S. at 134, 119 S.Ct. 1887. It also concluded that the particular hearsay at issue did not contain "particularized guarantees of trustworthiness." Id. at 137-38, 119 S.Ct. 1887 (citation omitted) (internal quotations omitted). We note that the test for the statement-against-interest exception is the same regardless of the identity of the declarant: "The question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant's penal interest `that a reasonable person in the declarant's position would not have made the statement unless believing it to be true,' and this question can only be answered in light of all the surrounding circumstances." Williamson, 512 U.S. at 603-04, 114 S.Ct. 2431 (quoting Fed.R.Evid. 804(b)(3)).

Based upon the foregoing analytical framework, even though Vega-Lara's three statements to M.G. refer to and incriminate "another person" they may nonetheless be admitted if they are truly self-inculpatory. In Williamson, the Supreme Court suggested that the confessions of arrested accomplices may not be admissible if they are merely attempts to shift blame or curry favor. 512 U.S. at 603, 114 S.Ct. 2431. Similarly, in Tovar, we concluded that a declarant's statements were self-interested and non-self-inculpatory "because they were made in an attempt to obtain a plea bargain and [the declarant] appeared to downplay his own involvement in [the] murder and exaggerate the involvement of others." 605 N.W.2d at 724. Here, Vega-Lara was not speaking with law enforcement agents, attempting to secure a plea bargain in exchange for informing on accomplices, or testifying at his own trial, attempting to lessen his culpability. Instead, Vega-Lara was conversing with a friend, without any expectation that his statements could be used to "curry favor" with law enforcement. Williamson, 512 U.S. at 603, 114 S.Ct. 2431.

The advisory committee's notes to Fed.R.Evid. 804 suggest that statements that inculpate a third party can be admitted as a statement against a declarant's interest, especially in situations where the declarant is talking to someone other than a law enforcement agent:

Whether a statement is in fact against interest must be determined from the circumstances of each case. Thus a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest. . . . On the other hand, the same words spoken under different circumstances, e.g., to an acquaintance, would have no difficulty in qualifying.

Additionally, though Vega-Lara's statements demonstrate that other individuals may have been involved in the robbery and murder of Mesa-Ortiz, the statements do not shift blame away from Vega-Lara. In the first two statements, Vega-Lara admitted that he and another person each carried a gun and went to the house of prostitution with the intent to commit a robbery. The fact that Vega-Lara claimed that another person went with him and also carried a gun does not lessen Vega-Lara's own culpability. In these first two statements, Vega-Lara did not downplay his own involvement or exaggerate the involvement of others. The statements so far tended to subject Vega-Lara to criminal liability that a reasonable person would not have made the statements if they were not true.

Vega-Lara's third statement, as relayed by M.G. was that "another person was struggling with the victim and Mr. Vega-Lara shot the victim." This statement presents a closer call because it could be interpreted as Vega-Lara offering a justification for the shooting — that another person was struggling with Mesa-Ortiz. But even this statement falls short of the kind of finger-pointing and blame-shifting behavior characterized as unreliable in Williamson. See 512 U.S. at 603, 114 S.Ct. 2431. As the statement was relayed to the jury, Vega-Lara did not explicitly say that he shot Mesa-Ortiz because of the struggle. In the context of conversing with M.G., Vega-Lara was simply recounting the events as he remembered them. At its core, the third statement is self-inculpatory because it identifies Vega-Lara as the shooter and tends to subject Vega-Lara to criminal liability. Further, it does so without shifting blame, without exaggerating "another person's" culpability, or lessening the criminality of Vega-Lara's act at the expense of a third person. We conclude that the third statement was sufficiently against Vega-Lara's penal interest that a reasonable person in Vega-Lara's position would not have made the statement unless he believed it was true.

For the foregoing reasons, we conclude that all three statements to M.G. directly inculpate Vega-Lara. Cf. Tovar, 605 N.W.2d at 723 ("This analysis requires the court to construe the term `statement' narrowly and allow only those statements that directly inculpate the declarant. . . ."). In light of the circumstances, the fact that Vega-Lara's three statements inculpate "another person" as well as himself does not make them less reliable. We conclude that each statement so tended to subject Vega-Lara to criminal liability without lessening the criminality of his act at the expense of a third party that a reasonable person in Vega-Lara's position would not have made the statements if they were not true. D. Confrontation Clause Considerations

We acknowledge that our analysis of statements that incriminate third parties might suggest that the State conceded too much when it admitted that those parts of Vega-Lara's statements that explicitly named Morales were inadmissible. But the question of whether the original version of the statements would have been admissible was not raised or briefed before us. Therefore, we do not address it.

The third step as we articulated it in Tovar in determining whether a hearsay statement is admissible as a statement-against-interest is to consider whether the admission of the statement violated the Confrontation Clause of the Sixth Amendment. State v. Tovar, 605 N.W.2d 717. In Crawford v. Washington, the Supreme Court held that a witness's out-of-court testimonial statements are not admissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Here, Vega-Lara made the challenged statements to a friend; he was not being interrogated by the police and he did not make the statements before a grand jury, at a preliminary hearing, or at a trial. Based on these circumstances, we conclude that these statements are not testimonial and therefore their admission did not violate the Confrontation Clause. See State v. Her, 750 N.W.2d 258, 265 (Minn. 2008) (stating that the admission of nontestimonial hearsay statements does not violate a defendant's confrontation rights), vacated and remanded on other grounds, ___ U.S. ___, 129 S.Ct. 929, 173 L.Ed.2d 101 (2009).

Having considered the three analytical steps articulated in Tovar to determine whether Vega-Lara's three statements to M.G. were admissible under Minn. R. Evid. 804(b)(3), we conclude that Vega-Lara's statements were admissible. More particularly, we conclude: (1) Vega-Lara was unavailable for purposes of Minn. R. Evid. 804; (2) each statement directly inculpated Vega-Lara and the statements were sufficiently against Vega-Lara's penal interest that a reasonable person in his position would not have made the statements unless he believed them to be true; and (3) the admission of the statements did not violate Morales's confrontation rights. Therefore we hold that the district court did not abuse its discretion when it admitted, under Minn. R. Evid. 804(b)(3), the three statements Vega-Lara made to M.G.

Affirmed in part, reversed in part, and remanded.

STRAS, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.