Presiding Justice Nancy Smith
McArthur appealed from a judgment convicting him of burglary, among other thing. He contended he was denied his right to be present for a bench conference that occurred during his testimony. The panel found McArthur knowingly and voluntarily waived that right. McArthur also alleged his right to present a defense was violated when the court precluded him from presenting hearsay evidence in which his accomplice attempted to exonerate McArthur. The divided panel ruled while the accomplice was unavailable to testify, and the hearsay evidence consisted of statements made during the accomplice’s plea colloquy, it found court properly concluded such statements were unreliable, thus did not err in refusing to admit them in evidence. It stated the court properly found the accomplice’s testimony unreliable as he attempted to change his account of the incident from a desire not to enter the prison system as a “snitch,” yet changed his account again after being warned of the punishment for perjury. Thus, the majority affirmed the decision. The dissent voted to reverse and to grant McArthur a new trial stating the accomplice’s declarations against his penal interest were supported by evidence establishing a reasonable possibility they may be true.
