¶1dissenting. I do not know whether Barney Lee Doles is guilty or not. Given only the evidence presented to the jury I probably would concur in their judgment. However, the problem is that the trial court refused to allow a statement of an eye-witness to the homicide to be considered by the jury. The statement was taken by police officers while they were investigating this incident. Mary Lisa Dean, who was the decedent’s roommate at the time of the homicide, gave a statement which was very exculpatory to the appellant. In her statement she said: “Barney was already in the house and I assumed the door was locked,”; “I heard Mr. Doles tell Sonny not to come any further.”; “The whole time he was begging Sonny to go home and leave him alone.”; “... Sonny kept walking in the house and looked at me and said, ‘I don’t give a damn.’”; “Sonny turned around and groaned at me and j ust fell on the stairs. ’ ’ I quote only small segments of the statement but one can readily see the effect it could have had on the jury. It should have been admitted pursuant to Uniform Rules of Evidence, Rule 804. This rule exempts certain hearsay testimony from exclusion under Uniform Rules of Evidence, Rule 802 (the hearsay rule). It is my opinion that the statement was admissible under Rule 804 (b) 5. It was evidence of a material fact; it was more probative than any evidence the appellant could procure through reasonable efforts; and I think that it tended to further the interest of justice and should have been admitted into evidence. Furthermore, the statement was taken by police officers during their investigation of the shooting and thus should be considered as having “equivalent circumstantial guarantees of trustworthiness” as required under this rule.
¶2It is undisputed that both the appellant and the state made reasonable and sincere efforts to locate the witness. It is probable she was or is in Canada. In any event she was unavailable to testify in this case. In fact it was stipulated that she was unavailable for this trial. I would not have granted a continuance but would have admitted the statement under the belief that the interests of justice would be best served by admission of the statement into evidence. In my opinion it was prejudicial error to refuse to allow the statement to be considered by the jury.