People v. Greenberger (58 Cal. App. 4th 298, 1997)

Opinion

WEISBERG, J.

In the published portion of this opinion we decide that a defendant’s declarations against interest may be received in a joint trial without denying the codefendant the right of confrontation guaranteed by the United States Constitution. We further conclude that the trial court properly denied motions of each defendant to sever. We also determine that the trial court properly instructed the jury on the charge of aggravated kidnapping and did not err in refusing to instruct on time-barred lesser offenses. In the unpublished portion of this opinion, with the exception of defendant Lowe’s contention that the trial court erred in imposing concurrent sentences, we conclude that the numerous other issues raised by the defendants lack merit. We therefore modify Lowe’s judgment by staying the sentence imposed for second degree murder until completion of the term imposed for aggravated kidnapping, at which time the stay is to become permanent, and affirm the judgment as modified. We affirm the judgments as to Greenberger, Mentzer and Marti.

I. Procedural History

The defendants Karen DeLayne Greenberger (Greenberger), William Molony Mentzer (Mentzer), Alex Lomota Marti (Marti) and Robert Ulmer Lowe (Lowe) were tried jointly in a jury trial which commenced on September 4, 1990. The defendants were charged with the following crimes in the amended information: Count 1 alleged the crime of murder in violation of Penal Code section 187, subdivision (a), and count 2 alleged the crime of aggravated kidnapping in violation of section 209, subdivision (a). Count 1 also alleged the special circumstances that the murder was committed for financial gain and during the commission of kidnapping within the meaning of section 190.2, subdivisions (a)(1), (a)(17) and (b). Count 2 alleged that the victim had suffered bodily harm and death. Counts 1 and 2 also alleged that Marti and Mentzer personally used a firearm within the meaning of sections 12022.5 and 1203.06, subdivision (a)(1). Both counts alleged pursuant to section 12022, subdivision (a) that a principal in the commission of the offense was armed with a firearm. The victim in both counts was Roy Radin.

On July 19, 1991 the jury found Mentzer and Marti guilty of first degree murder and found the special circumstance allegations that the murder had been committed for financial gain and in the commission of a kidnapping to be true. The jury found Greenberger and Lowe guilty of second degree murder in count 1. The jury found all defendants guilty of aggravated kidnapping resulting in death in violation of section 209, subdivision (a) in count 2. The allegations of personal use of a firearm were found true as to Mentzer and Lowe in both counts, and the allegation of a principal armed with a firearm was found true as to all defendants in both counts.

On October 18, 1991, the penalty phase of the trial resulted in jury verdicts of life in prison without the possibility of parole (LWOP) for Mentzer and Lowe. The trial court sentenced all four defendants to LWOP for count 2. For count 1, Greenberger and Lowe were sentenced to 15 years to life in prison, and Mentzer and Marti were sentenced to LWOP. Enhancements of two years pursuant to section 12022.5 were imposed on Mentzer and Marti. Enhancements of one year pursuant to section 12022, subdivision (a) were imposed on Greenberger and Lowe. The trial court stayed the sentences and enhancements imposed on Greenberger for count 1 and the sentences and enhancements imposed on Mentzer and Marti for count 2 pursuant to section 654 and ordered the sentences in both counts imposed on Lowe to run concurrently. Enhancements of one year pursuant to section 12022, subdivision (a) in count 1 were stayed for Lowe and Marti.

Each defendant filed a timely notice of appeal.

II. The Facts

A. The Prosecution’s Case

The prosecution presented evidence to support its theory that defendant Greenberger hired defendants Mentzer, Marti and Lowe to kidnap and murder Roy Radin because Radin had cut her out of a Hollywood movie deal and had been involved in the theft of cocaine and money from her house.

Radin-Greenberger Relationship

Roy Radin (Radin), the victim in both counts, was involved in the entertainment business in New York. He was interested in producing a movie to be called The Cotton Club. The name of the proposed movie derived from a nightclub of the same name. Radin met Greenberger in January 1983 in Los Angeles. Greenberger, who was involved in the illegal distribution of cocaine in Los Angeles, expressed an interest in assisting Radin in his efforts to make The Cotton Club. She also supplied cocaine to him. Greenberger introduced Radin to Tally Rogers, who worked for Greenberger in distributing cocaine. Rogers and Radin became friends.

Greenberger also introduced Radin to Hollywood film producer Robert Evans in April 1983. Evans was also interested in making a movie based on the Cotton Club. If Evans and Radin consummated a deal, Greenberger expected to be paid $50,000 as a finder’s fee. Greenberger also hoped to have either financial participation or employment in the production company that would ultimately make the movie.

Radin arranged for financing and conducted negotiations with Evans. Although Evans, who had befriended Greenberger, wanted to allow Greenberger some limited participation in the final contract, Radin refused. This resulted in an emotional confrontation between Greenberger and Radin in April 1983. Evans was interested in buying out Radin and proceeding without him. However, Radin intended to go through with the production with Evans.

Theft From Greenberger

On April 18, 1983, someone stole 10 kilograms of cocaine and $275,000 in cash from Greenberger’s home in Sherman Oaks. Greenberger suspected that Tally Rogers, who had disappeared, had committed this theft. She had received the cocaine from Milan Bellachasses and was afraid that she would be held responsible by Bellachases for the loss of the cocaine and money. Bellachasses was a major cocaine distributor in Miami and Greenberger’s supplier. Upon discovery of the theft Greenberger hired Mentzer as a bodyguard. Marc Fogel had introduced her to Mentzer. Greenberger had supplied cocaine to Fogel in the past.

Greenberger called Radin in New York in late April and told him she was looking for Rogers because he had stolen the money and cocaine from her house. She accused Radin of knowing where Rogers was and of being involved in Rogers’s disappearance. Radin became angry and hung up.

Greenberger-Radin Dinner Date

Radin returned to Los Angeles in early May 1983. Greenberger attempted to reach him by phone, but he refused to accept her calls. She was finally able to speak to Radin’s personal assistant, Jonathan Lawson, on May 12. She arranged to meet with Radin the next night so that she and Radin could resolve their dispute over the Cotton Club deal at dinner. The same day Greenberger listed her Sherman Oaks home for sale, telling the real estate broker that she was moving to New York to work for Evans.

After Radin agreed to have dinner with Greenberger on May 13, he became concerned for his safety. Radin arranged to have a friend, Demond Wilson, follow him to the restaurant and provide security during the drive to dinner and at dinner. Wilson was to be armed.

The Plan

On May 13 Mentzer obtained the use of a limousine and another car with the assistance of Marc Fogel. On that same day a meeting occurred at Mentzer’s apartment in Los Angeles. Mentzer, Lowe, Marti, Carl John Plzak and Raja Korban were present. Korban and Plzak first met Mentzer, Marti and Lowe when they all worked at an agency that performed vehicle repossessions and private detective services. Plzak worked for Mentzer in April 1983 providing security and surveillance for Greenberger. At that time Greenberger and Mentzer told him that she had been “ripped off for cocaine and money” by Tally Rogers.

While driving to this meeting Marti told Korban that the “fat scumbag” who owed money to a woman was going to be killed. At the meeting Mentzer, in the presence of Lowe and Marti, described the plan to kidnap Radin. Both Plzak and Korban testified at trial under a grant of immunity. They testified that the plan called for Plzak and Korban to wait for Jonathan Lawson, Radin’s personal assistant, to leave the hotel as Greenberger met with Radin that night. Lawson was expected to go to Greenberger’s car which was parked near an apartment Greenberger rented in Beverly Hills. Plzak and Korban were to kidnap Lawson who was to be used as leverage to get information from Radin about the location of the money and cocaine. They were to communicate with the others by walkie-talkie about their progress with Lawson.

The plan further called for Lowe to chauffeur Greenberger and Radin in the limousine Mentzer had obtained the previous day. They were to drive from Radin’s hotel to a restaurant in Beverly Hills. The plan called for Greenberger to get out of the limousine at some point en route to Beverly Hills and for Mentzer and Marti to get in and force Radin to the floor at gunpoint.

Korban testified that Mentzer told the group that Lowe, Mentzer and Marti would drive Radin to the desert, and they would try to get information from Radin regarding the money owed Greenberger. Once in the desert the plan was to shoot Radin and blow up his face so his corpse could not be identified.

Marti had a gym bag containing a handgun during this meeting. Mentzer had a bag with handcuffs, gloves and small explosives. Mentzer, who said he was being paid a “lot of money” by Greenberger for the job, gave Korban an envelope containing $500 and a similar envelope and a walkie-talkie to Plzak.

Night of Radin’s Death

On May 13 between 7 and 7:30 p.m. Greenberger arranged to have her child and nanny driven to the airport to fly to Miami. Greenberger then arrived at Radin’s hotel. Radin and Lawson were in Radin’s suite. Greenberger indicated that she hoped that the problems she and Radin had relating to the Cotton Club project would be resolved during dinner. Greenberger stated that she had arrived in a limousine that she and Radin would use to go to dinner.

Greenberger asked Lawson to go to her car, which she said was parked nearby at her apartment, and obtain some cocaine from the glove box. Lawson refused. Korban and Plzak waited at Greenberger’s apartment for approximately an hour. When Lawson did not appear they left.

At approximately 9:30 p.m. Radin and Greenberger left the hotel and entered Greenberger’s chauffeur-driven limousine. Demond Wilson, waiting outside the hotel, tried to follow the limousine but eventually lost it in traffic. Wilson then went to the restaurant expecting to find Greenberger and Radin there. They never appeared.

Later Greenberger arrived at her apartment by herself and met Korban and Plzak. She drove off with Plzak. She asked Plzak whether he had heard from Mentzer and said that she needed to contact him. Plzak replied that he had not heard from Mentzer. Greenberger then tried unsuccessfully to reach Mentzer by walkie-talkie and telephone. When Plzak told her that Lawson had never appeared at her apartment, Greenberger stated that Lawson had refused to go to her car. Greenberger told Plzak that “they” grabbed Radin and were on the way to the desert. She referred to Radin as “the fat pig” or “the producer.” When they parted, Greenberger told Plzak that she was going to set up an alibi and that he should not say he had seen her that night.

Greenberger then met with a friend with whom she stayed for several hours. During this time she made numerous phone calls to Mentzer and Evans, among others.

Lawson spoke to Greenberger by phone several times the night of May 13 and the next day. Greenberger stated she was trying to locate Radin and told Lawson conflicting versions of how she and Radin had separated during the limousine ride en route to the restaurant for dinner.

The Next Day

Marti called during the morning of May 14 and told Korban that Mentzer wanted Korban to return the $500 because Korban had not earned it. Korban returned the money to Marti that afternoon. Marti told Korban that nothing had happened the preceding night. He stated: “We just roughed him up.”

Plzak went to Mentzer’s apartment in the early morning of May 14 at Mentzer’s request and met with Mentzer and Lowe. Mentzer described to Plzak the events of the previous night. He described how he and Marti had entered the limousine. Mentzer said they thought the police were following them, and they were about to be stopped. He stated that he jammed the gun into “the producer’s” mouth and forced him to the floor. Mentzer stated Lowe then drove them to the desert where Mentzer and Marti shot Radin 27 times. They had taken Radin’s Rolex watch and gun. Lowe stated to Plzak that he had to walk away from the shooting because he could not watch. Lowe also said that he cleaned the interior of the limousine after the shooting.

Lowe and Plzak then left to return the limousine to the rental office from which it had been obtained. Lowe told Plzak that Radin said that he did not know where the money was. Both Lowe and Mentzer described Radin as “the fat pig” or “fat pig producer.”

Flight to Florida

During the night of May 14 Greenberger, Mentzer, Lowe, Marti and Plzak flew to Florida in a private plane. Mentzer told Plzak that they had word that Rogers was in Miami.

While in Florida Marti and Plzak drove to a small pond where Marti threw in some towel-covered objects. Marti told Plzak that these were the two .22-caliber guns and silencers used to kill “the fat pig.” When Marti told Mentzer that he had discarded the weapons, Mentzer expressed displeasure, saying that the guns could not be traced and that silencers were hard to obtain.

Plzak was paid by Greenberger for security work he did during their stay in Florida.

Discovery of Radin’s Body

Radin was reported missing by his friends in mid-May. A badly decomposed body was discovered June 10,1983, in Caswell Canyon, a remote area in northern Los Angeles County. The circumstances of the discovery of the body were unconnected to Radin’s disappearance. The body was identified as Roy Radin by dental records and fingerprints. There was no jewelry or identification on the body.

Forensic pathological examination of the body disclosed that Radin had been shot numerous times in the head with .22-caliber bullets. The face had been damaged in a manner consistent with an explosive device having been placed in his mouth. The condition of the body was consistent with death having occurred on May 13, 1983.

Police Investigation

The police investigation included searches of the residences of Mentzer and Marti and a search of storage lockers used by Mentzer. The police located and interviewed Plzak and Korban and used undercover operative William Rider to obtain tape-recorded incriminatory statements from Mentzer and Lowe in 1988. Rider was an acquaintance of Mentzer, Marti and Lowe. Rider had spoken to Marti and Mentzer in 1983, and each had admitted involvement in the Radin murder. Rider testified for the prosecution about the 1983 admissions, and tape recordings of the 1988 conversations with Mentzer and Lowe were played to the jury. The content of these conversations will be set forth in detail below.

Marti also made certain admissions to Estanislau Kreutzer whom Marti employed in 1986-1987 to help him in the distribution of cocaine. Kreutzer was a friend of Marti from Argentina. Kreutzer testified that Marti warned him on numerous occasions in 1986 and 1987 not to steal from him. Marti made veiled references to the murder of Radin by saying that he had been involved in the shooting of a “poor guy” who had stolen $300,000 and 10 kilograms of cocaine, but that he had not been in charge of the murder. Kreutzer observed a photograph on a desk in Marti’s house. The photograph depicted Marti holding a gun and standing next to Mentzer. Marti told Kreutzer that the location where the photograph was taken was near Magic Mountain (in the vicinity where Radin’s body was discovered) and that he needed to find a new place to dump bodies because that place was full.

Mentzer, Marti, and Greenberger were arrested on October 2, 1988. Lowe was arrested on October 3, 1988.

B. The Defense

Mentzer

At the conclusion of the People’s case Mentzer rested without presenting any evidence. He requested that his case be severed and submitted to the jury before the other defendants presented their defense. His request was denied.

Marti

Marti offered evidence to impeach the credibility of William Rider, Estanislau Kreutzer and Carl Plzak. He presented evidence that Rider used cocaine heavily in 1983, that Plzak made inconsistent statements to a defense investigator about his recollection of the events of 1983 and that Kreutzer attempted to hire Joseph Barbalinardo in 1987-1988 to kill Marti because of the debt owed by Marti. Marti testified in surrebuttal that he was in Florida working for Milan Bellachasses from May 9 to May 20, 1983.

Lowe

Lowe also presented an alibi. Family members and friends testified that he was in Maryland on May 13 and 14, 1983, and that he left by motor vehicle for Florida on May 14. His former wife and others also testified that Lowe had a penchant for exaggeration, especially when drinking too much. This was offered to explain his statements to Rider.

Lowe offered evidence to impeach the credibility of Rider. He also presented the testimony of a federal probation officer who testified that he was the probation officer for Gary Keys, Greenberger’s regular driver, and had spoken to Keys in 1983 about a homicide. Keys told the probation officer that he had driven a group of men to a hilly area overlooking the ocean. The men dragged an individual screaming from the limousine, returned later without the individual who had been screaming and one stated, “You didn’t see anything.”

Greenberger

Greenberger presented the testimony of Tim Whitehead, who worked for her in the cocaine distribution business. Whitehead described efforts to locate Tally Rogers, who he and Greenberger believed had stolen the cocaine and money from Greenberger’s house. He testified that he and Greenberger were afraid that they would be killed by their cocaine source if they did not find the stolen money and drugs. Greenberger introduced him to Mentzer, Marti and Lowe on April 20. He described phone conversations between Mentzer and Milan Bellachasses, the cocaine supplier in Florida who had threatened to hold Greenberger and Whitehead responsible if they did not find Rogers.

Whitehead described going to Memphis on April 23 with Mentzer, Lowe and Marti to look for Rogers. They discussed firebombing Rogers’s house. Mentzer, Marti and Lowe put gasoline into glass jars to carry out the plan, which was eventually abandoned. Whitehead also testified that he went to Mississippi with Lowe to kidnap Rogers’s mother but they abandoned this as well.

Whitehead testified he was in Miami in early May with Mentzer and Marti and talked with Bellachasses about how to find Rogers. At one point Mentzer stated that they had located Rogers through Radin’s records. Bellachasses told Mentzer and Marti to go to California and talk to Radin.

Greenberger testified in her own behalf. She admitted distributing cocaine for her one-time boyfriend Bellachasses. She described the theft of cocaine and money from her house and her fear that she would be killed by the Colombians who supplied the cocaine to Bellachasses. She testified about efforts to find Tally Rogers and recover the stolen drugs and money.

Greenberger testified about hiring Mentzer to find Rogers and to furnish security for her. Mentzer brought in Lowe, Marti and Plzak to assist. She described their efforts at Bellachasses’s direction to find Rogers.

Greenberger also described how she met Radin and had introduced Rogers to Radin. She testified about meeting Robert Evans and putting Evans and Radin together for the Cotton Club project. She described the negotiations involved in the project and how she anticipated being a partner with Radin. She also described her relationship with Evans who wanted her to work with him in film production.

Greenberger testified that she believed that Radin had been involved in the theft of the money and cocaine. This belief was based upon information she had received from Bellachasses and Mentzer who told her that phone calls to Rogers had been traced to Radin’s hotel room in Beverly Hills.

She contacted Jonathan Lawson to set up a dinner date with Radin to discuss the movie deal. Bellachasses told her he wanted Mentzer to talk to Radin about what he knew about Rogers. Greenberger testified that she made arrangements to sell her house because she planned to move to New York and work for Evans. She testified that her son’s flight to Florida had been planned as part of a birthday celebration, and she had planned to join him after her meeting with Radin.

On May 13 Lowe drove her in the limousine to the hotel where Radin was staying. At the hotel she, Lawson and Radin used cocaine. Radin wrote her a check for her role in introducing him to Evans. She testified that she did ask Lawson to pick up something from her car, and Lawson refused. She testified that Mentzer had directed her to do this as a ruse to get Lawson out of the hotel room.

Greenberger testified Radin became boisterous and belligerent after they left the hotel. She and Radin were being driven in the limousine by Lowe. She did not know they were being followed. The car suddenly turned off Sunset Boulevard onto a side street, and the two back doors opened simultaneously. Mentzer was there, and he told her to go to her Beverly Hills apartment. She testified that she complied because she was confused and did not know what to think. She saw Mentzer the next day, and he told her that Radin had a gun and had intended to kill her, but that they had killed him first. She then left town, went to Florida and thereafter moved around quite a bit. It was her belief that Bellachasses had hired Mentzer to kidnap Radin.

III. Declarations Against Interest

A. Background

Statements Made to William Rider

William Rider was an acquaintance of Mentzer, Marti and Lowe. Rider was a former police officer and had been in charge of security for his former brother-in-law Larry Flynt in Los Angeles. He had hired Mentzer, Marti and Lowe to work for him between 1979 and 1982. He had also met Greenberger in 1983 in Mentzer’s apartment.

Statements Made in 1983

Rider testified about statements Marti and Mentzer made to him in 1983 in which they implicated themselves in the murder of Radin. This testimony was received over objection of each defendant as declarations against interest. Although the subject of objection in the trial court, the admission of these statements is not challenged in this appeal.

Rider testified that he was alone with Mentzer in the first half of 1983 at Flynt’s estate in Bel-Air, and Mentzer said he had “just done a hit and had dumped the body” in a location Rider and Mentzer had used for target practice, a location consistent with the location in which Radin’s body was discovered.

Rider testified that he then had a conversation with Marti at Flynt’s estate. He and Marti were alone. He testified that Marti told him that he had shot first and Mentzer second and that “Mentzer had to drink a pint of wine because he was afraid or reluctant before they did the hit.” In a subsequent conversation Rider testified, Marti told him that “he hated Jews and that he enjoyed shooting the big fat Jew.”

Rider also testified that Marti and Mentzer showed him a newspaper article about the discovery of Radin’s body. In a later conversation with Marti and Mentzer, Marti offered to sell Radin’s Rolex watch to Rider. During this conversation Marti referred to Radin as “big fat Rodan.” Rider also testified that Mentzer, in a conversation outside the presence of Marti, stated that he had used a .22-caliber semiautomatic weapon and that Robert Evans had paid for the murder.

Statements Made in 1988

Rider was recruited by the police in 1988 to assist in their investigation. He was paid by the police and was also provided security. Rider met with Lowe in Maryland on May 10, 1988, and surreptitiously tape-recorded a conversation with him. Rider met with Mentzer on July 7, 1988, at a hotel in Los Angeles. This conversation was also surreptitiously tape-recorded. Redacted versions of the tape recordings were played, and transcripts were provided to the jury. Some of Lowe’s statements implicated Mentzer, and some of Mentzer’s statements implicated Marti and Lowe.

The trial court dealt with the admissibility of these statements in various pretrial motions. The issue was one ground for motions to sever on behalf of Mentzer, Marti and Lowe. The People had initially taken the position that redaction of these statements to remove reference to nondeclarant defendants could be accomplished so that the right of confrontation of the nondeclarants would not be compromised and severance would not be required.

Hearings were conducted and rulings were made on just how the redactions would be implemented. Later, the People changed their position and argued that these statements were admissible against both the declarant and the nondeclarants as declarations against interest. Thereafter, the trial court conducted additional hearings and admitted some of these statements over the objections of the nondeclarant defendants. The trial court concluded that the statements were admissible pursuant to Evidence Code section 1230 as declarations against interest.

Mentzer, Marti and Lowe each contend that the trial court committed reversible error in admitting these statements because their admission denied the nondeclarant the right of confrontation guaranteed by the United States Constitution. They further argue that admission of these statements was contrary to the holdings of the United States Supreme Court in Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] and the California Supreme Court in People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265]. They also argue that failure to sever their trial from that of the declarant defendant constituted reversible error. Respondent argues that these statements were properly received as declarations against interest.

The question thus presented is whether the statements of a defendant may be received in a joint trial although they implicate the codefendant if the statements meet the requirements of the hearsay exception for declarations against interest. This requires the answering of subsidiary questions: (a) Does admission of a declaration against interest deny a nondeclarant defendant the right of confrontation guaranteed by the United States Constitution? (b) If it does not, is the answer the same if the declarant is a codefendant?

B. Discussion

1. Confrontation Clause

The Sixth Amendment’s confrontation clause, which is applicable to the states through the Fourteenth Amendment (Pointer v. Texas (1965) 380 U. S. 400, 403-405 [85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923], provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The confrontation clause “reflects a preference for face-to-face confrontation at trial . . .” which is accomplished through cross-examination of witnesses. (Ohio v. Roberts (1980) 448 U.S. 56, 62-63 [100 S.Ct. 2531, 2537, 65 L.Ed.2d 597].) “In short, the Clause envisions [^Q ‘a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing 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.’ ” (Id. at pp. 63-64 [100 S.Ct. at pp. 2537-2538], quoting Mattox v. United States (1895) 156 U. S. 237, 242-243 [15 S.Ct. 337, 339, 39 L.Ed. 409].)

However, the Supreme Court has recognized that there are competing interests that justify dispensing with confrontation at trial in certain circumstances and permitting the introduction of hearsay evidence. “Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings.” (Ohio v. Roberts, supra, 448 U.S. at p. 64 [100 S.Ct. at p. 2538].) The court has accommodated these competing interests in a process that has “been gradual, building on past decisions, drawing on new experience, and responding to changing conditions.” (Ibid.)

The Roberts court recognized the two means by which the confrontation clause restricts the range of admissible hearsay. First, the proponent of the evidence must establish the necessity for the introduction of this evidence. This usually, but not always, means that the declarant is unavailable. Second, the hearsay must have adequate indicia of reliability to justify dispensing with the requirement of confrontation. “The Court has applied this ‘indicia of reliability’ requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the ‘substance of the constitutional protection.’ . . . [*]□ . . . Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” (Ohio v. Roberts, supra, 448 U.S. at p. 66 [100 S.Ct. at p. 2539], citation and fn. omitted.)

“Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.” (Idaho v. Wright (1990) 497 U.S. 805, 817 [110 S.Ct. 3139, 3147, 111 L.Ed.2d 638].)

In assessing whether hearsay evidence which does not fall within a firmly rooted exception possesses “particularized guarantees of trustworthiness” the totality of the circumstances surrounding the making of the statement which render the declarant particularly worthy of belief must be examined. “In other words, if the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial.” (Idaho v. Wright, supra, 497 U.S. at p. 820 [110 S.Ct. at p. 3149].)

2. Declarations Against Interest

The hearsay exception for declarations against interest was recognized in California in People v. Spriggs (1964) 60 Cal.2d 868, 874 [36 Cal.Rptr. 841, 389 P.2d 377]. Although the Spriggs court acknowledged that the majority of jurisdictions did not then permit this exception to the hearsay rule, it reasoned that “. . . a person’s interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest . . .” thereby giving the statement a high degree of trustworthiness justifying its admission in evidence. (Id. at p. 874.) The rule was codified as section 1230 of the Evidence Code in 1967 with the additional requirement that the declarant be unavailable as a witness.

The extent of this hearsay exception was defined in People v. Leach (1975) 15 Cal.3d 419, 441 [124 Cal.Rptr. 752, 541 P.2d 296]. The court concluded that, “[i]n the absence of any legislative declaration to the contrary,” not all statements which implicate the declarant are admissible against the nondeclarant. {Id. at p. 441.) Only those statements or portions of statements that are specifically disserving of the penal interest of the declarant were deemed sufficiently trustworthy to be admissible. Statements not specifically disserving were characterized as “collateral” statements and inadmissible.

The California Supreme Court has recently dealt with the scope of Evidence Code section 1230. In People v. Gordon (1990) 50 Cal.3d 1223 [270 Cal.Rptr. 451, 792 P.2d 251] defendant Gordon was prosecuted for robbery and murder. Gordon, who had been shot during the commission of the crime, fled with his crime partners across the country. They ultimately arrived in Georgia where they met Dennis Rauch. Rauch assisted Gordon in caring for his wounds. Rauch was subsequently arrested and made a statement which provided very damaging information about Gordon. Rauch was unavailable at the trial, and his statement to the police was presented to the jury as a declaration against his penal interest over Gordon’s hearsay objection. Gordon argued that Rauch’s statement should be characterized as “neutral or exculpatory” and unreliable. (Id. at p. 1252.) Since Gordon had not asserted in the trial court that admission of Rauch’s statement denied him the right of confrontation, the Supreme Court confined its ruling to the issue of whether the statement constituted a declaration against Rauch’s penal interest. Although the statement not only implicated Rauch as an accessory after the fact but also incriminated Gordon in the robbery and murder, the California Supreme Court upheld the trial court’s exercise of discretion in admitting the statements. The high court concluded that the circumstances surrounding the statement and its content provided sufficient indicia of reliability for the trial court to admit the statement. (Id. at pp. 1251-1253; see also People v. Wilson (1993) 17 Cal.App.4th 271, 276 [21 Cal.Rptr.2d 420].)

The United States Supreme Court in Williamson v. United States (1994) 512 U.S. 594 [114 S.Ct. 2431, 129 L.Ed.2d 476] interpreted rule 804(b)(3) of the Federal Rules of Evidence (28 U.S.C.) in much the same fashion as the California Supreme Court interpreted Evidence Code section 1230 in Leach. The court echoed the reasoning of Spriggs, Leach, and Gordon, in observing that this exception to the hearsay rule 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.” (Williamson v. United States, supra, 512 U.S. at p. 599.) However, this reasoning only applies to declarations within a confession that are individually self-incriminatory and not to statements that are collateral to them. “The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-selfinculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.” (Id. at pp. 599-600 [114 S.Ct. at p. 2435].)

“There are many circumstances in which [the] Rule . . . does allow the admission of statements that inculpate a criminal defendant. 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 v. United States, supra, 512 U.S. at p. 603 [114 S.Ct. at p. 2436].)

The court expressly stated that it did not address whether the declaration against interest exception to the hearsay rule was “ ‘firmly rooted’ ” for confrontation clause purposes, noting that there is a split in federal circuit courts on this issue. (Williamson v. United States, supra, 512 U.S. at p. 605 [114 S.Ct. at p. 2437].) However, the court did note that “the very fact that a statement is genuinely self-inculpatory—which our reading of Rule 804(b)(3) requires—is itself one of the ‘particularized guarantees of trustworthiness’ that makes a statement admissible under the Confrontation Clause.” (Ibid.)

The parties herein disagree whether the California hearsay exception for declarations against penal interest is firmly rooted. However, this is not a dispute that requires resolution here. In order for a statement to qualify as a declaration against penal interest the statement must be genuinely and specifically inculpatory of the declarant; this provides the “particularized guarantee of trustworthiness" or “indicia of reliability” that permits its admission in evidence without the constitutional requirement of cross-examination. Therefore, the determination that the statement falls within this hearsay exception also satisfies the requirements of the confrontation clause. (See People v. Wilson, supra, 17 Cal.App.4th at p. 278 and U.S. v. York (7th Cir. 1991) 933 F.2d 1343, 1361-1363.)

Mentzer, Marti and Lowe point out that California cases have applied an additional restriction on the admissibility of declarations against penal interest. These cases state that even if the declaration meets the requirements of Evidence Code section 1230, it must be excluded if it “goes to the heart of the case, if it is ‘crucial’ or ‘devastating’ to the defendant[.]” (People v. Coble (1976) 65 Cal.App.3d 187, 195 [135 Cal.Rptr. 199]; see also People v. Bullard (1977) 75 Cal.App.3d 764, 771 [142 Cal.Rptr. 473]; People v. Claxton (1982) 129 Cal.App.3d 638, 666 [181 Cal.Rptr. 281]; People v. Frutos (1984) 158 Cal.App.3d 979, 986 [205 Cal.Rptr. 204]; People v. Rios (1985) 163 Cal.App.3d 852, 867 [210 Cal.Rptr. 271].)

The origin of this limitation is found in Coble’s reference to language in the plurality opinion of Dutton v. Evans (1970) 400 U.S. 74, 86-88 [91 S.Ct. 210, 218-219, 27 L.Ed.2d 213], in which the Supreme Court upheld Georgia’s unusually broad hearsay exception for coconspirator statements. However, the court in Coble misread Dutton in concluding that otherwise admissible hearsay statements are inadmissible if found to be crucial or devastating to the nondeclarant’s case. This was not the holding of Dutton. Further, appellants have cited no federal case holding that this confrontation clause limitation has been imposed in the federal courts. Indeed, as we discuss post, the federal cases admit such evidence without limitation. Since the Coble restriction on admissibility of evidence is based upon an erroneous assessment of the requirements of the confrontation clause rather than an interpretation of California law relating to hearsay, it runs afoul of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)), which mandates, with certain exceptions, the admission of all relevant evidence not otherwise excluded by the United States Constitution. We disapprove the limitation set forth in Coble.

We conclude that admission of a statement possessing sufficient indicia of reliability to fall within the hearsay exception of a declaration against penal interest does not deny a defendant the right of confrontation guaranteed by the United States Constitution.

3. Joint Trials

The United States Supreme Court concluded in Bruton v. United States, supra, 391 U.S. at page 125 [88 S.Ct. at page 1622] that admission of extrajudicial statements of a codefendant in a joint trial violated the nondeclarant’s right of cross-examination secured by the confrontation clause of the Sixth Amendment even though the statement was received only against the declarant. The court reasoned that limiting instructions, while useful in many situations, cannot adequately ensure that the jury will not use this evidence in deciding the case of the nondeclarant. The court concluded: “The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.” (Id. at p. 136 [88 S.Ct. at p. 1628].) Roberts v. Russell (1968) 392 U.S. 293 [88 S.Ct. 1921, 20 L.Ed.2d 1100] extended the holding of Bruton to prosecutions under state law.

Appellants argue that Bruton is an absolute bar to introduction of statements of one defendant that implicate another when the defendants are tried jointly. They argue that labeling the declarant’s statement a declaration against interest does not diminish the prejudicial impact on the codefendant which the holding of Bruton was intended to prevent.

The trial court took the opposite position when it concluded that the statements complained of were admissible as declarations against interest. Respondent, relying upon the trial court’s ruling that the statements were properly admissible, argues that there was no violation of the nondeclarant’s right of confrontation.

A careful reading of Bruton and its progeny reflects a body of law which has dealt with the use of limiting instructions to prevent inadmissible and highly prejudicial evidence from infecting the case of the jointly tried codefendant. Bruton does not stand for the proposition that all statements of one defendant that implicate another may not be introduced against all defendants in a joint trial. The Bruton opinion itself stated that the offending hearsay statement in that case was clearly inadmissible against the nondeclarant under traditional rules of evidence, and that there was no recognized exception to the hearsay rule for its admission. The court went on to state that “we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.” (Bruton v. United States, supra, 391 U.S. at p. 128, fn. 3 [88 S.Ct. at p. 1628].)

In Lee v. Illinois (1986) 476 U.S. 530 [106 S.Ct. 2056, 90 L.Ed.2d 514] the court dealt with confessions made by each defendant implicating the other and used as substantive evidence against both tried jointly. The court observed that “. . . this is not strictly speaking a Bruton case because we are not here concerned with the effectiveness of limiting instructions in preventing spill-over prejudice^]” (Id. at p. 542 [106 S.Ct. at page 2063].) The court concluded that, although such confessions were presumed to be unreliable, the presumption could be rebutted if the confession is shown to have particularized guarantees of trustworthiness. (Id. at p. 543 [106 S.Ct. at page 2063].) The dissenting opinion of Justice Blackmun pointed out that “[t]he Bruton rule thus necessarily applies only to situations in which the out-of-court statements are constitutionally inadmissible against the defendant.” (Id. at p. 552, fn. 5 [106 S.Ct. at p. 2064]; see also, U.S. v. York, supra, 933 F.2d at p. 1362, fn. 3 [“Bruton only prohibits the use of an inculpatory hearsay statement against an accused when the jurisdiction’s rules of evidence do not permit that statement to be introduced into evidence against the accused. Where the rules so permit, Bruton is inapplicable.”].)

Since declarations against interest may be admitted in evidence without doing violence to the confrontation clause, we see no reason why such declarations, when made by a codefendant, should not also be admissible. This is not to say that all statements which incriminate the declarant and implicate the codefendant are admissible. Any such statement must satisfy the statutory definition of a declaration against interest and likewise satisfy the constitutional requirement of trustworthiness. This necessarily requires a “fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved; . . .” (Williamson v. United States, supra, 512 U.S. at p. 604 [114 S.Ct. at p. 2437].) There is nothing in Bruton which prohibits introduction of such evidence.

The court in U.S. v. Hamilton (7th Cir. 1994) 19 F.3d 350, came to the same conclusion. The court determined that admission of one defendant’s extrajudicial statements implicating himself and the codefendant did not violate the codefendant’s right of confrontation so long as the declaration met the requirements of F.R.E. rule 804(b)(3). The Hamilton case was a federal prosecution for bank robbery. Hamilton and Miller were tried jointly. Miller contended that the trial court had admitted evidence that violated his Sixth Amendment right of confrontation. The evidence complained of consisted of statements Hamilton had made to a cellmate while awaiting trial in which he provided a detailed account of how he and Miller had committed the charged robbery. The Hamilton court concluded that Bruton was not a barrier to admission of this hearsay evidence so long as the evidence was admissible under F.R.E. rule 804(b)(3). The statements were then analyzed and determined to be admissible. (19 F.3d at pp. 354-357; see also U.S. v. Curry (7th Cir. 1992) 977 F.2d 1042.)

In U.S. v. Matthews (2d Cir. 1994) 20 F.3d 538 the court came to a similar conclusion. Matthews and Prater were tried jointly for bank robbery. Prater’s extrajudicial statements to his girlfriend were admitted over Matthews’s Sixth Amendment objections that such evidence denied him his right of confrontation. As in Hamilton the statement consisted of a detailed account of how Prater and Matthews had committed the robbery. The court concluded: “Given the totality of the circumstances as to the content and context of Prater’s statements, we conclude that those statements had sufficient ‘particularized guarantees of trustworthiness’ that their admission against Matthews did not violate Mathews’s rights under the Confrontation Clause.” (Id. at p. 546.)

In U.S. v. Sasso (2d Cir. 1995) 59 F.3d 341, a federal firearms prosecution, Sasso and Armienti were tried jointly. Armienti made prearrest statements to his girlfriend which implicated Sasso and himself. The court explained that examination of the circumstances of the statement must be undertaken to determine whether the portions implicating the nondeclarant were reliable. Upon such an examination the statements, as in Matthews and Hamilton, were found to be reliable, admissible and nonviolative of the nondeclarant’s right of confrontation. The court recognized it had decided Matthews before the Supreme Court’s decision in Williamson, but concluded that the views expressed in both are consistent. The court observed that Matthews stressed the need to examine the statement in question to determine whether there were particularized guarantees of trustworthiness surrounding the statement, such as no effort to shift responsibility, and not mere reliance upon the fact that portions of the statement that incriminated the nondeclarant were in close proximity to statements inculpatory of the declarant. (U.S. v. Sasso, supra, 59 F.3d at pp. 348-350; see also Earnest v. Dorsey (10th Cir. 1996) 87 F.3d 1123, 1130-1134, cert. den. _ U.S. _ [117 S.Ct 527, 136 L.Ed.2d 414].)

The cases cited by appellants are not persuasive. Indeed, the case of U.S. v. Flores (5th Cir. 1993) 985 F.2d 770 supports respondent’s position. In Flores, the government had offered against both defendants the postarrest grand jury testimony of one defendant. The court concluded that such evidence, because of the strong possibility that the declarant would shift blame or curry favor, was inherently unreliable and inadmissible. (Id. at pp. 777-780.) However, the court went on to say that “even generally objectionable statements in which the declarant adversely implicates not only his own penal interest but also that of another may be made under circumstances that both suggest reliability and do not seriously invade the intended protections of the Confrontation Clause, such as statements made to a personal acquaintance in a noninvestigatory context where the setting suggests no motive to speak falsely. . . . Such statements might well fall [within] the Lee category of those shown to have ‘particularized guarantees of trustworthiness.’ ” (Id. at p. 780, quoting Lee v. Illinois, supra, 476 U.S. at p. 543.)

Marti also cites United States v. Battiste (N.D. Ill. 1993) 834 F.Supp. 995 in which the district court disapproved of higher court opinions in the Seventh Circuit. However, cases decided in that circuit after Battiste, such as Hamilton, supra, continue to support admission of such evidence. We find the reasoning of Matthews, Hamilton, Sasso, Gordon and Wilson persuasive. The balance of the authority cited by appellants addresses the issue of trustworthiness which is an individualized inquiry intimately related to the facts of each case. As appropriate, these cases will be discussed, post, in relation to the analysis of the circumstances of the statements herein.

We therefore conclude that a declaration against interest may be admitted in a joint trial so long as the statement satisfies the statutory definition and otherwise satisfies the constitutional requirement of trustworthiness.

4. Were the Statements Declarations Against Interest and Trustworthy?

There is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry. (See People v. Frierson (1991) 53 Cal.3d 730, 745 [280 Cal.Rptr. 440, 808 P.2d 1197]; People v. Cudjo (1993) 6 Cal.4th 585, 607 [25 Cal.Rptr.2d 390, 863 P.2d 635]; Dutton v. Evans, supra, 400 U.S. at pp. 88-89 [91 S.Ct. at p. 219]; Idaho v. Wright, supra, 497 U.S. at p. 819 [110 S.Ct. at pp. 3148-3149]; Williamson v. United States, supra, 512 U.S. 594, 601 [114 S.Ct. 2431, 2435. ].)

Clearly the least reliable circumstance is one in which the declarant has been arrested and attempts to improve his situation with the police by deflecting criminal responsibility onto others. “Once partners in crime recognize that the ‘jig is up,’ they tend to lose any identity of interest and immediately become antagonists, rather than accomplices.” (Lee v. Illinois, supra, 476 U.S. at p. 544 [106 S.Ct. at p. 2064].) However, the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. (U.S. v. Flores, supra, 985 F.2d at p. 780; U.S. v. Matthews, supra, 20 F.3d at p. 546; U.S. v. Sasso, supra, 59 F.3d at p. 349.)

When examining what was actually said by the declarant special attention must be paid to any statements that tend to inculpate the nondeclarant. This is so because a statement’s content is most reliable in that portion which inculpates the declarant. It is least reliable in that portion which shifts responsibility. Controversy necessarily arises when the declarant makes statements which are self-inculpatory as well as inculpatory of another. This is why Evidence Code section 1230 only permits an exception to the hearsay rule for statements that are specifically disserving of the declarant’s penal interest. (People v. Leach, supra, 15 Cal.3d at p. 441.) This is not to say that a statement that incriminates the declarant and also inculpates the nondeclarant cannot be specifically disserving of the declarant’s penal interest. Such a determination necessarily depends upon a careful analysis of what was said and the totality of the circumstances. (People v. Wilson, supra, 17 Cal.App.4th at p. 276 [“The fact that the statement is also disserving to [nondeclarant] does not render the statement unreliable and inadmissible. . . .”]; U.S. v. Sasso, supra, 59 F.3d at 349; People v. Gordon, supra, 50 Cal.3d at pp. 1252-1253.)

Determination of whether a statement is trustworthy is entrusted to the sound discretion of the trial court. In reviewing the trial court’s rulings we apply the abuse of discretion standard. (People v. Gordon, supra, 50 Cal.3d at pp. 1250-1253.) “The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion. Of course, we review the specific determinations underlying the court’s ruling under the standards appropriate thereto.” (Id. at p. 1251.) “It follows that a determination whether the declaration is indeed against interest should itself be reviewed for abuse of discretion: that issue goes to the core of the question of basic trustworthiness, and hence must be deemed entrusted to the court’s discretion.” (Id. at p. 1252.) (Cf. United States v. Monaco (9th Cir. 1984) 735 F.2d 1173, 1176.)

In determining the particularized guarantees of trustworthiness, consideration of corroborating evidence is inappropriate since that would constitute “bootstrapping on the trustworthiness of other evidence at trial.” (Idaho v. Wright, supra, 497 U.S. at p. 823 [110 S.Ct. at p. 3150].)

The trial court conducted extensive hearings to determine whether the statements herein would be admissible. The court stated its understanding of the need to examine the circumstances and context in which the statements were made as well as their content. In addition to the tapes and their transcripts the court considered the preliminary hearing transcripts. Portions of the statements were excluded on various grounds, including lack of reliability, absence of personal knowledge of the declarant, and the fact that they were not specifically disserving of the declarant’s interest. Some were excluded as cumulative.

It is not disputed that Mentzer and Lowe were unavailable as witnesses to both the prosecution and to the nondeclarant defendants. (Evid. Code, § 240, subd. (a)(1); People v. Leach, supra, 15 Cal.3d at p. 438.)

a. Lowe-Rider Statements About Mentzer

The conversation in 1988 between Lowe and Rider contained references to Mentzer (Bill). Mentzer contends that the circumstances of that conversation make any references to him unreliable. The conversation occurred in a bar. Both Lowe and Rider had been drinking. Mentzer argues that Lowe was intoxicated. Mentzer also argues that Lowe was motivated by a desire to impress Rider. These were all factors the trial court considered and rejected. Mentzer also contends that evidence presented during Lowe’s defense established that Lowe had a habit of exaggeration. However, respondent correctly points out that this evidence was not presented to the trial court prior to the time the court ruled on the admissibility of the statement and the statement was received in evidence. Since Mentzer failed to raise this issue in the trial court, he is foreclosed from doing so here.

The specific statements Mentzer objects to are: “And - you know what? Have you been with Bill on a - on a - homicide? . . . Have you been with Bill on a homicide? You have not. The mother fucker gets drunk. . . . Oh, I’m not saying who it was, I’m just saying the fucker gears himself up to get the balls to do it. And that ain’t. . . . Friday the 13th they shot him 13 times.” These statements were made shortly before Lowe acknowledged that he drove the car during the Radin kidnapping and described how he had been compensated for his participation.

Mentzer argues that Lowe’s statements were not specifically disserving of Lowe’s penal interest since Lowe initially denied his involvement to Rider and then indicated he only drove the car and had been paid. Mentzer argues that references which inculpated him were collateral to anything incriminating of Lowe and should have been excluded by the trial court. Respondent argues that the statement must be viewed in context, and that what Lowe said disclosed that he had been paid for driving the car involved in the murder and that he was present at the murder scene with Mentzer, all highly self-incriminating declarations. Respondent contends that Lowe’s reference to Mentzer was merely part of this self-incriminating statement.

The trial court considered the circumstances of the conversation between Lowe and Rider and each of the statements uttered by Lowe. The trial court stated: “I think that based on the totality of the evidence now before me. ... I think this is the type of situation where considering the relationship between the parties, the circumstances of the discussion, and the context of the statements I do think it’s reliable and I don’t find anything about the drinking that made it unreliable. If anything, [szc] probably talked more loosely than he otherwise would have. And there are indications at times these [sz'c] actually happened. For example, there is at least one occasion where he initially denies involvement and then proceeds to admit. So, I think based on the totality of what I have before me I do find that it is trustworthy and reliable.” It is also clear from the record that the trial court was fully aware of the requirement that such statements must be specifically disserving of the declarant to qualify under Evidence Code section 1230 as declarations against penal interest when it ruled the statements admissible.

We agree with the trial court’s assessment that at the time Lowe made the statements about having “been with Bill on a homicide” and “they shot him 13 times” and describing how he had been paid for driving the car, the statements were specifically disserving of Lowe’s penal interest because they subjected Lowe to the risk of criminal liability to such an extent that a reasonable person in his position would not have made them unless he believed them to be true. We also find the trial court could have reasonably concluded that the circumstances of the conversation provided sufficient indicia of reliability to ensure that the statements were trustworthy. We find no abuse of discretion in admitting the portion of Lowe’s statement which implicated Mentzer. (See People v. Gordon, supra, 50 Cal.3d at p. 1252-1253.)

b. The Mentzer-Rider Conversations

The conversations between Mentzer and Rider in 1988 contained references to both Marti (Alex) and Lowe (Bob). Marti and Lowe argue that the circumstances of the conversations do not support the trial court’s finding that the statements in question were trustworthy. They contend that Mentzer was motivated to agree with whatever Rider said because he wanted to work for Rider. Marti and Lowe argue that the only way they could have explored this issue would have been to cross-examine Mentzer, who was unavailable as a witness. Lowe also argues in his written brief that the conversation was “redolent with classic male-to-male ‘stag’ talk, i.e., ‘B.S.’ which was [and is] notoriously unreliable and untrustworthy.” Lowe’s counsel conceded to the trial court that Mentzer did not know that Rider was actually working as a police undercover operative when these conversations occurred.

During the hearing relating to admissibility of these statements the trial court stressed that it considered the entire circumstances of the conversation. The court observed that Mentzer regarded Rider as a friend and that the conversation occurred in a noncoercive atmosphere. The trial court contrasted this situation with that in which an arrestee attempts to shift responsibility to another and curry favor with the police. The trial court found sufficient indicia of reliability in the totality of the circumstances to conclude that the statements were trustworthy. In addition to evaluating the circumstances of the conversations, the trial court conducted a hearing to determine whether statements that implicated Lowe and Marti were admissible as declarations against Mentzer’s penal interest. Each statement was discussed in detail.

c. Mentzer-Rider Statements About Marti

Marti contends that the trial court erred in admitting anything said by Rider or Mentzer. He further argues that the trial court’s rulings deprived him of his right of c