Record and brief — New Mexico v. Earnest
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DOCKET
Oo. 85°-162-CSY Title: New Mexicos Fetitioner
tatus: GRANTED Ve
Ralph noaney Earnest
ocketed: Court: Supreme Court of New Mexico
une 19 1985
Counsel tor petitioners McEuen-William,s BardackesPaul
Counsel tor responcent: SullivanszJ. Thomas.
ntry Date Note Proceedings and Orders
1 May 9 1985 Application tor extension of time to file petition anc
orcer granting same until June 19 1985 (whites May 10,
19¢5).
2 Jun 19 1985 G Petiticn for writ of certiorari filec.
EDITOR'S NOTE 3 Aug 2 1985 alg Peas Raloh Rocney Earnest in opposition
THE FOLLOWING PAGES WERE POOR HARD Copy 4 Aug 21985 G nde gl smal for leave to proceec in forma
eM .. phen pl ge AND WHEN A 5 Aug 7 1985 VISTRISUTED. September 30, 1985
vila 68 tae ED, A NEW FICHE 7 Oct 7 1985 KEDISTRIBUTED. October 11, 1985
. 9 Oct 15 1985 REDISTRISUTED. October 1&- 1985
10 Oct 21 1985 motion of respondent for leave tec proceed in forma
pauperis GrANTeD.
11 Oct 21 1985 Fetition GrANTecD.
TRRRRBRBEBSABRRSBBERSAESESESERSAAE SALES ERE RES SEAARSR ARR ARERR RS RRR ESSE S|
13 Nov 25 1985 vroer extending time to file brief of petitioner on the
merits until Decemoer 13, 1985.
16 Dec 9 1985 necord filed.
17 Dec 9 1985 certified copy of original record and tapes receivec.
16 Dec 13 1985 Brier of petitioner New Mexico filed.
19 Dec 13 1985 Joint appendix filed.
20 Dec 13 1985 Briet amicus curiae of Indianas et al. filed.
22 Jan 6 1986 Uroer extending time to file brief of responcent on the
merits until January 27 1986.
23 Jan 23 1986 Briet of respondent Ralph Rodney Earnest filed.
24 Jan 27 1986 Briet amicus curiae of NM Public Defender Department filec.
25 Jan 27 1986 Briet amicus curiae of ACLU, et al. filed.
26 Feb 4 1986 SET FOR ARGUMENTs Tuesdays April 17 1986. (1st case)
27 Feb 11 1986 CIRCULATED.
28 Mar 6 1986 X Reply triet of petitioner New Mexico filec.
29 Mar 12 1986 " Une envelope ot tapes received.
30 Apr 1 1986 ARGUED.
PETITION
FOR WRIT OF
CERTIORARI
FILED
5-162
JUL 19 1985
CLERK
Office Supreme Court, vs. |
STEVAS,
nal
IN THE
Supreme Court of the United States
October Term, 1984
STATE OF NEW MEXICO,
Petitioner,
V.
RALPH RODNEY EARNEST,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF NEW MEXICO
PAUL BARDACKE
Attorney General of New Mexico
WILLIAM McEUEN
Assistant Attorney General
Post Office Drawer 1508
Santa Fe, New Mexico 87504-1508
(505) 827-6932
Counsel for Petitioner
June, 1985
SL, LTTE ETT IID | ELT! SCTE AOLLOOLLE: NEI LEO LILO LO ES | EEE NE ST
VERGARA PRINTING CO * SANTA FE, NEW MEXICO
QUESTION PRESENTED
Does the Sixth Amendment require the exclusion at trial
of an uncross-examined hearsay statement without regard to
its indicia of reliability?
TABLE OF CONTENTS
Page
QUES TI PUR PC NTE nn voc cvctbncndck tans eee i
tot re re eer 2
FOL CUES ovo ccs ccuctcetuchesdeheeaee 2
CONSTITUTIONAL PROVISIONS INVOLVED ........... 2
DEA CREESE Ce BOs GOD. 0 0. soe ves cubebeoceeseanen 2
REASONS FOR GRANTING THE WRIT................. 5
CRITE EASE oo cccecceueeshéeseneye eee 11
APPENDIX A — Opinion of the New Mexico
Supreme Court, No. 15,162, March 4, 1985........ la
APPENDIX B — Order Denying Rehearing,
No. 15,862, BEE 26, FOP’ 6660s 00vdsabuee 10a
TABLE OF AUTHORITIES |
CASES:
California v. Green,
Dre UR. COP CRP TEN. 6 osc vice 6edecedeeaeee 7,10, 11
Douglas v. Alabama,
cg ee Lh.) rer - &
Dutton v. Evans,
GEO UB. POCIGHED s oc cccccuccsesewceuduaneel 8, 10
Haggins v. Warden,
715 F.2d 1050 (6th Cir.),
cert. denied, 104 S.Ct. 980 (1984) ............22cccees 6
Ohio v. Roberts,
ee Sr passim
Mancusi v. Stubbs,
gS me 8 | ren se 7,10, 11
Pointer v. Texas,
SOO UB. GSC IDES). ow av ca wedsncedevenwuneee 7 |
State v. Parris, Page
EE EE 10
United States v. Allen,
Ee 5
United States v. Ammar,
714 F.2d 238 (3rd Cir.),
cert. denied, 104 S.Ct. 344 (1984) .................... 6
United States v. Katsougrakis,
715 F.2d 769 (2nd Cir.),
cert. denied, 104 S.Ct. 704 (1984) .................. 6,9
United States v. Layton,
720 F.2d 548 (9th Cir.),
Gun, G@emeee, bore ocr. 1423 (1964)... ... 2... eee eee 6
United States v. Lisotto,
722 F.2d 85 (4th Cir.),
cert. denied, 104 S.Ct. 1682 (1984) ................... 9
United States v. Rothbart, -
eS ) 5,11
Williams v. Melton,
733 F.2d 1492 (11th Cir.),
cert. denied, 53 U.S.L.W. 3415 (1984)................. 6
New Mexico Rules & Statutes Cited:
Rule 804(a)(2), Rules of Evidence ...................... 3
Rule 804(b)(4), Rules of Evidence ...................... 3
iii
No.
—
IN THE
Supreme Court of the United States
October Term, 1984
STATE OF NEW MEXICO,
Petitioner,
v.
RALPH RODNEY EARNEST,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF NEW MEXICO
The petitioner, State of New Mexico, respectfully prays that
a writ of certiorari issue to review the judgment and opinion of
the New Mexico Supreme Court entered in this proceeding on
March 4, 1985.
OPINION BELOW
The opinion of the New Mexico Supreme Court, not yet
reported, appears in Appendix A.
JURISDICTION
The judgment of the New Mexico Supreme Court was en-
tered on March 4, 1985. A timely motion for rehearing was
denied on March 21, 1985. Petitioner received an extension of
time to file this Petition through and including June 19, 1985,
in Order No. A-849, by the authority of Associate Justice
Byron White, Circuit Justice for the Tenth Circuit wherein
petitioner is located. This Court’s jurisdiction is invoked pur-
suant to 28 U.S.C. 1257(3).
CONSTITUTIONAL PROVISIONS INVOLVED
Constitution of the United States, Sixth Amendment:
“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him... .”’
Constitution of the United States, Fourteenth Amendment:
*“*.. .[NJor shall any State deprive any person of life, liberty,
or property, without due process of law... .”’
STATEMENT OF THE CASE
On February 12, 1982, the body of David Eastman was
found next to a rural highway near Carlsbad, New Mexico.
(Tape 10, 9/83, 766-889)! Eastman’s throat had been cut
and he had two gunshot wounds to the head. (Tape 19, 9/83,
I Respondent’s trial was tape recorded. Petitioner’s citations were taken
from a Lanier Model P-88/T.
332-347, 406-418) Approximately three hours later, respond-
ent Ralph Rodney Earnest and co-defendants Phillip Boeglin
and Perry “‘Red’’ Conner were arrested driving Eastman’s El
Camino pickup. (Tape 10, 9/83, 178-248; Tape 16, 114-116)
That afternoon, co-defendant Boeglin requested to speak to
the district attorney’s staff, and gave a statement describing
the homicide of Eastman. (Tape 14, 90-112) The statement was
incriminatory as to all three co-defendants, and included
Boeglin’s confession to cutting Eastman’s throat and Boeglin’s
statement that respondent had fired one of the bullets which
struck Eastman in the head. (State’s Exhibits No. 39 and
No. 39A)
Respondent’s first trial resulted in a mistrial. Prior to re-
spondent’s second trial, counsel for petitioner and respondent
argued the admissibility of Boeglin’s statement. Petitioner
argued that Boeglin’s statement was a statement against penal
interest as defined by Rule 804(b) (4) of the New Mexico Rules
of Evidence. The trial court noted that Boeglin’s statement was
strongly self-incriminatory, and took note of the corroborating
evidence from the first trial, but reserved a final ruling until
admission was moved at trial. (Tape 2, 5-95, 718-758)
The state called Boeglin to the stand but he refused to answer
questions concerning his activities on February 11, 1982,
citing his privilege against self-incrimination. (Tape 11, 457-
469) At the state’s request, the trial court granted use immun-
ity to Boeglin, but he again refused to testify. (Tape 11, 477-
513) The trial judge explained to Boeglin that his privilege
against self-incrimination did not allow him to refuse to testify
in the face of a grant of use immunity, warned him that further
refusals would be punished as contempt of court, and ordered
him to testify. Boeglin continued his refusals. (Tape 12, 526-
578) He was cited for contempt and excused from the witness
stand. (Tape 12, 578-592) The state moved the trial court to
declare Boeglin unavailable pursuant to Rule 804(a)(2) of the
4
New Mexico Rules of Evidence, and the motion was granted.
(Tape 12, 601-606; Tape 13, 143-145)
The state then called Dennis DeLuche, an investigator for
the district attorney’s office. DeLuche described receiving a
message several hours after Boeglin’s arrest on February 12,
1982, indicating that Boeglin wished to speak to him. (Tape 14,
90-112) He described taping the subsequent statement and
authenticated a tape and a transcript of that tape. (Tape 14,
107-153) They were admitted as State’s Exhibits No. 39A and
No. 39, respectively. State’s Exhibit No. 39A was played for the
jury, which was allowed to follow the tape on Exhibit No. 39,
after being cautioned to rely upon the tape rather than the
transcript. (Tape 14, 246-255)
Respondent was convicted of murder, conspiracy to commit
murder, kidnapping, conspiracy to distribute controlled sub-
stances, and possession of controlled substances. He received
consecutive sentences amounting to life imprisonment, plus
twenty-two years and six months. He appealed his convictions
to the New Mexico Supreme Court, arguing, among other
things, that the admission of Boeglin’s statement violated his
right to confront witnesses pursuant to the Sixth and Four-
teenth Amendments of the Constitution of the United States.
Petitioner argued on appeal that admission of Boeglin’s state-
ment was governed by the standards of Ohio v. Roberts, 448
U.S. 56 (1980). Petitioner argued that the declarant was un-
available, that the statement against penal interest exception
was a firmly rooted exception to the hearsay rule, and that the
corroborating evidence and other circumstances amounted to
particularized guarantees of trustworthiness. (State’s Answer
Brief, pp. 15-28)
The New Mexico Supreme Court reversed respondent’s con-
victions, holding that admission of Boeglin’s testimony amount-
ed to a denial of confrontation. That Court agreed that Boeglin
was unavailable, but refused to apply the indicia-of-reliability
test from Ohio v. Roberts, supra, to the statement. The Su-
preme Court of New Mexico ruled that Roberts supports only
the admission of prior judicial statements or testimony, citing
United States v. Rothbart, 653 F.2d 462 (10th Cir. 1981).
That Court further ruled that the absence of an opportunity for
full cross-examination renders admission of a statement viola-
tive of confrontation rights, citing United States v. Allen, 409
F.2d 611 (10th Cir. 1969). The Supreme Court of New Mexico
held that this case was controlled by Douglas v. Alabama, 380
U.S. 415 (1965), which required a finding that respondent’s
right of confrontation was violated. Petitioner’s motion for
rehearing on this issue was denied without specification of
reasons.
REASONS FOR GRANTING
THE WRIT
1. The Opinion Below Raises Significant And Recurring
Problems Concerning The Relationship Between The
Rule Against Hearsay And The Confrontation Clause
Of The Sixth Amendment.
The New Mexico Supreme Court’s opinion in this case illus-
trates the continuing problems arising from the necessity for
reconciling hearsay evidence, which may be reliable, with the
requirement of confrontation of witnesses. Central to this
problem is the need for further guidance from this Court
concerning whether the indicia-of-reliability test described
generally in Ohio v. Roberts can satisfy the necessities of the
Confrontation Clause, absent any form of cross-examination.
In that context, the present case poses the following question:
(1) Does Ohio v. Roberts authorize the admission of uncross-
examined, extrajudicial statements from an unavailable declar-
ant if such statements fall within a firmly rooted exception to
the hearsay rule, or are shown to have particularized guarantees
of trustworthiness?
This Court’s opinion in Ohio v. Roberts sets forth a “‘general
approach”’ to the task of reconciling hearsay exceptions with
the requirements of confrontation, by allowing an inquiry into
the indicia of reliability surrounding the statement at issue. 448
U.S. at 65-66. However, this Court’s opinion in Roberts also
emphasized that its approach to this problem is a cautious,
step-by-step attempt to accommodate the important competing
interests necessarily implicated in such questions. 448 U.S. at
64-65; 448 U.S. at 66, n.9. Thus, an appellate court may be
tempted to read Roberts very narrowly and restrict it to its
facts, as the New Mexico Supreme Court did in this case. The
statements at issue in Roberts had been given in a prior judicial
proceeding where they had been tested by the equivalent of
significant cross-examination. 448 U.S. at 70. It is therefore
necessary that this Court address itself to such an analysis in
the factual context of an uncross-examined, extrajudicial state-
ment in order to take the next step in defining the scope of the
indicia-of-reliability test most recently refined in Roberts. It
is important to note that this Court has not spoken concerning
the limits of the indicia-of-reliability test since Roberts, yet
many Courts have applied that test to factual contexts quite
distinct from those at issue in Roberts. E.g., United States v.
Katsougrakis, 715 F.2d 769 (2nd Cir.), cert. denied, 104 S.Ct.
704 (1984) (out-of-court sta’>ments against penal interest;
United States v. Ammar, 714 F.2d 238 (3rd Cir.), cert. denied,
104 S.Ct. 344 (1984) (out-of-court statement by co-conspira-
tor); Haggins v. Warden, 715 F.2d 1050 (6th Cir.), cert. denied,
104 S.Ct. 980 (1984) (excited utterances); United States v.
Layton, 720 F.2d 548 (9th Cir.), cert. denied, 104 S.Ct. 1423
(1984) (out-of-court statements against penal interest); Williams
v. Melton, 733 F.2d 1492 (11th Cir.), cert. denied, 53 U.S.L.W.
3415 (1984) (out-of-court statement under Georgia’s res gestae
rule). Thus, the issue is a recurring one, and this case presents
this Court with an appropriate factual context in which to
address the applicability of the indicia-of-reliability test to
extrajudicial, uncross-examined statements.
The opinion below also illustrates a seeming inconsistency
between early confrontation cases, such as Douglas and its
companion case, Pointer v. Texas, 380 U.S. 400 (1965), and
later cases such as California v. Green, 399 U.S. 149 (1970),
Mancusi v. Stubbs, 408 U.S. 204 (1972), and Roberts. The New
Mexico Supreme Court in the opinion below refused to inquire
as to the indicia of reliability of Boeglin’s statement because it
believed that Ohio v. Roberts was limited to its facts, and
because it believed that Douglas v. Alabama was indistinguish-
able and mandated exclusion of Boeglin’s statement on con-
frontation grounds.
Douglas speaks in terms of a “‘right of cross-examination
secured by the Confrontation Clause.’ 380 U.S. at 419. That
case, like the present case, makes no attempt to analyze the
challenged statement for indicia of reliability which might
afford an ad. quate basis for evaluating the truth of the state-
ment. Instead, Douglas seems to equate confrontation with
cross-examination.
Green, Mancusi, and Roberts were also cases where there was
no cross-examination at trial. But instead of finding a violation
of confrontation rights, those cases analyzed the circumstas ces
of the statements and found sufficient indicia of reliability
to adequately meet the interests of confrontation. However,
in each of those cases, the statements had received at least
the equivalent of cross-examination in a prior judicial pro-
ceeding.
This case presents this Court with an opportunity to clarify
whether Douglas requires the automatic rejection of ex trajudi-
cial, uncross-examined statements by unavailable declarants
or whether the more flexible indicia-of-reliability analysis of
8
Roberts is now to be applied to such statements.2 It is impor-
tant to the continued orderly development of confrontation
analysis that this next step be taken by this Court.
2. The Opinion Below Conflicts With Federal And State
Appellate Court Decisions Which Allow Admission Of
Uncross-examined, Extrajudicial Statements Over Con-
frontation Clause Challenges Where The Statements Bear
Adequate Indicia Of Reliability.
Ohio v. Roberts, supra, states that:
In sum, when a hearsay declarant is not present
for cross-examination at trial, the Confrontation
Clause normally requires a showing that he is
unavailable. Even then, his statement is admissible
only if it bears adequate “indicia of reliability.”
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.
448 U.S. at 66 (footnote omitted).
Roberts involved the admission of preliminary hearing
testimony which had been tested with the equivalent of signifi-
cant cross-examination at the preliminary hearing. 448 U.S.
at 70. Because of this, the transcript from the preliminary
hearing was found to have sufficient indicia of reliability to
survive a confrontation challenge. 448 U.S. at 73.
: Dutton v. Evans, 400 U.S. 74 (1970), dealt with an uncross-examined ,
extrajudicial statement by an unavailable declarant. However, this Court
noted pointedly in Dutton that the statement at issue there was neither
crucial nor devastating evidence in that case, 400 U.S. at 87. Here, the
statement at issue was assuredly devastating to the defense and very
important to the prosecution’s case.
The opinion below limited Roberts strictly to its facts,
ruling that its indicia-of-reliability inquiry is applicable only
to prior judicial testimony or statements, and holding that
there must be an adequate opportunity for cross-examination
to meet the requirements of the Confrontation Clause.
That holding conflicts with several appellate decisions from
state and federal courts which have applied the indicia-of-
reliability analysis from Roberts to support the admission of
uncross-examined, extrajudicial statements from declarants
unavailable at trial.
The Second Circuit has applied the indicia-of-reliability test
from Roberts to statements against penal interest made by an
arsonist, which also implicated the person who hired him in
United States v. Katsougrakis, 715 F.2d 769 (2nd Cir.), cert.
denied, 104 S.Ct. 704 (1984). The statements at issue there
were made at a hospital by a declarant who died a few days
later. The statements were never subjected to any form of
cross-examination, nor was any such opportunity ever afforded
to the defendant. The Second Circuit did not deem the lack of
cross-examination to be dispositive, but instead analyzed the
statement in terms of the applicability of a firmly rooted hear-
say exception and the presence of corroboration confirming
the trustworthiness of the statement. The statement was found
admissible on both grounds.
The Fourth Circuit has also applied the Roberts criteria to
support the admissibility of uncross-examined, extrajudicial
statements. In Uniied States v. Lisotto, 722 F.2d 85 (4th Cir.),
cert. denied, 104 S.Ct. 1682 (1984), the admission of dually
inculpatory statements from fugitive co-defendants was chal-
lenged on Sixth Amendment confrontation grounds. In spite
of the lack of any opportunity to cross-examine, the Fourth
Circuit applied Roberts, and determined whether the declar-
ants were unavailable and the statements reliable. Upon finding
that those criteria were met, the Fourth Circuit ruled that
10
there was no denial of confrontation in admitting the state-
ments.
Likewise, the’ opinion below conflicts with the approach
taken by the Supreme Court of Washington. In State v. Parris,
654 P.2d 77 (Wash. 1982), the Washington Supreme Court
applied the Roberts criteria to uncross-examined, extrajudicial
statements against penal interest by a declarant who refused
to testify. Finding that the penal interest exception was a firmly
rooted exception to the hearsay rule, and that the statements
were accompanied by particularized guarantees of trustworthi-
ness, the Supreme Court of Washington held there was no denial
of Sixth Amendment confrontation rights.
3. The Decision Below Is Incorrect.
The trend in confrontation analysis, clearly shown by Rob-
erts, Mancusi, Dutton, and Green, is to use a flexible approach
designed to adequately accommodate the competing interests
of confrontation, effective law enforcement, and the develop-
ment of local evidentiary law. See Roberts, 448 U.S. at 64-65.
The opinion below would reverse that trend and require an
opportunity to cross-examine declarants as to any statements
introduced at trial. Such a policy carries with it the danger
that the rule against hearsay would be elevated to constitu-
tional status, with the sole exception of prior judicial testi-
mony from a proceeding where there had been an opportunity
for cross-examination at the prior judicial proceeding. The
danger of such a policy was pointed out by Justice Harlan in
his concurring opinion in California v. Green. It would para-
lyze the development of evidentiary law and would prevent
the admission of obviously reliable evidence. The Roberts
opinion recognizes those concerns and incorporates them
into its analysis. 448 U.S. at 64-65. The opinion below ig-
nores those interests, and would have them play no part in
11
confrontation analysis. The opinion below conflicts in princi-
ple with Roberts, Mancusi and Green, and is therefore incorrect.
CONCLUSION
For these reasons, a writ of certiorari should issue to review
the judgment and opinion of the New Mexico Supreme Court.
Respectfully submitted,
PAUL BARDACKE
Attorney General of New Mexico
WILLIAM McEUEN
Assistant Attorney General
Post Office Drawer 1508
Santa Fe, New Mexico 87504-1508
(505) 827-6932
Counsel for Petitioner
3 I+ should also be noted that the opinion below relies solely upon
United States v. Rothbart, supra, as its authority for limiting the applic-
ability of Roberts to cross-examined prior judicial testimony. Rothbart
does not purport to address that issue, confining itself solely to the issue
of whether the declarant was actually shown to be unavailable. 653 F.2d
at 466.
APPENDIX A
IN THE SUPREME COURT OF THE
STATE OF NEW MEXICO
STATE OF NEW MEXICO, No. 15,162
Plaintiff-Appellee, Supreme Court
v. of New Mexico
RALPH R. EARNEST, tg
Defendant-Appellant. aS, ;
Rose Marie
Alderete
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
OPINION
RIORDAN, Justice.
Ralph Rodney Earnest (defendant), Phillip Boeglin (Boeglin),
and Perry Connor (Connor) were charged with murder, con-
spiracy to commit murder, kidnapping, conspiracy to distribute
a controlled substance (methamphetamines), and possession
of a controlled substance (methamphetamines). Defendant,
Boeglin, and Connor were each tried separately. During the
course of defendant’s trial before a jury, a mistrial was declared.
Defendant was subsequently retried, convicted on all counts
and sentenced to life imprisonment for the murder, eighteen
years for conspiracy to commit murder (with nine years sus-
pended), nine years for kidnapping, eighteen months for con-
spiracy to distribute a controlled substance and three years for
possession of a controlled substance. All of these sentences
were to run consecutively to each other and consecutively to
the life sentence. From this judgment and sentence, defendant
appeals. We reverse and remand for a new trial.
The issues we address are:
2a
1. Whether the trial court erred in subjecting defend-
ant to a retrial after defendant’s first trial ended
in a mistrial.
Il. Whether the trial court erred in refusing defend-
ant’s request for a hearing on his motion to dis-
miss the indictment on double jeopardy grounds
or refusing to grant an interlocutory appeal on
this issue.
111. Whether admission of the prior statement of co-
defendant Boeglin violated defendant’s right to
confront the witness against him.
IV. Whether the prosecutor’s reference to defendant’s
post-arrest silence deprived defendant of a fair
trial.
V. Whether the trial court erred in allowing the dis-
trict attorney’s investigator to testify as to co-
defendant Boeglin’s behavior at the time of his
confession.
VI. Whether the trial court erred in ordering the
attorney for co-defendant Connor to testify in
rebuttal to Connor’s testimony where the
attorney/client privilege was never waived.
We find it unnecessary to address a seventh issue raised on
appeal since it is unlikely to become a factor on retrial.
Facts.
The offenses charged were committed on the night of Feb-
ruary 11, 1982 and the early morning hours of February 12,
1982. Defendant and his two co-defendants were arrested on
the morning of February 12, 1982. On that same day, co-
defendants Boeglin and Connor both gave statements to police
‘y
3a
officers. Each of these statements was tape recorded and sub-
sequently transcribed. Boeglin’s statement describes the events
leading up to and including the murder. It incriminates defend-
ant, Boeglin, and Connor.
I. Declaration of Mistrial.
Defendant’s first trial ended when the trial court declared a
mistrial. The order declaring mistrial indicates the mistrial was
granted pursuant to defendant’s motion and a finding that
“manifest necessity’’ existed for a mistrial. In declaring a
mistrial in this manner, the court retained jurisdiction to retry
defendant.
Defense counsel, prior to the declaration of mistrial, had
twice moved for mistrial. The trial court had reserved ruling
and had taken these motions under advisement. After defend-
ant’s first motion for mistrial, the trial court cautioned defense
counsel that defendant would be better off continuing with the
trial and seeking a directed verdict, instead of moving for mis-
trial and facing a retrial. Despite this advice, defense counsel
chose to stand on the motion. Later in the rroceedings, defense
counsel again moved for mistrial, and again the trial court
noted that defense counsel was placing defendant in a situation
where he could be retried rather than acquitted and dismissed
if a directed verdict was granted. Despite these repeated warn-
ings from the bench, defense counsel made no attempt to
withdraw either of the motions for mistrial. Later, when the
trial court announced that it was declaring a mistrial based on
defense counsel’s previous motions, defense counsel attempted
to withdraw the previous mistrial motions. Defense counsel
argued that a mistrial was inappropriate in light of the state
of the evidence and reminded the trial court that it had pre-
viously indicated the appropriateness of directing a verdict. The
trial court responded that defense counsel had been warned that
the outstanding motions for mistrial were not in defendant’s
4a
best interest because, at the time when they were made, the
State had not shown all of the elements of any of the offenses
charged.
It is the general rule that “‘[a] mistrial not moved for or con-
sented to by the defendant must be based upon a manifest
necessity or jeopardy attaches preventing retrial.”’ State v.
Castrillo, 90 N.M. 608, 613, 566 P.2d 1146, 1151 (1977).
“Different considerations obtain, however, when the mistrial
has been declared at the defendant’s request.” U.S. v. Dinitz,
424 U.S. 600, 607 (1976). In this event, “‘a motion by the
defendant for mistrial is ordinarily assumed to remove any
barrier to reprosecution.” U.S. v. Jorn, 400 U.S. 470, 485
(1971). In the instant case, defense counsel had made two mo-
tions for mistrial prior to the time the trial court declared a
mistrial. Therefore, it was not error to subject defendant to a
second trial.
On appeal, defendant asserts that defense counsel effectively
withdrew the two motions for mistrial. We disagree. Defense
counsel knew that a directed verdict and acquittal were possible
for defendant. Defense counsel was twice warned of the results
if the mistrial motions were maintained. Yet, having persisted
in his requests for mistrial, defendant now complains of the
results obtaining from such motions. We hold that defense
counsel was given ample opportunity prior to the declaration of
mistrial to withdraw the motions and failed to do so. See U.S. v.
Crouch, 566 F.2d 1311 (Sth Cir. 1978).!
Defendant asserts that no manifest necessity existed. Again
we disagree. “It is a well settled rule . . . that the requisite
manifest necessity which prevents a declaration of mistrial from
barring reprosecution will generally be found where the mistrial
is declared at the request of the defendant.” MacPherson v.
State, 533 P.2d 1103, 1104 (Alaska), cert. denied, 423 U.S. 871
(1975). In the instant case, defense counsel twice moved for
mistrial, twice ignored warnings from the bench regarding the
Sa
effects of such motions. and failed to withdraw those motions.
Defense counsel’s motions provided the ‘‘manifest necessity”
required to declare a mistrial. Thus, defendant was properly
subjected to retrial.
Il. Failure to Grant Hearing or Interlocutory Appeal.
Defendant asserts that he was entitled, prior to his retrial,
to a hearing or an interlocutory appeal regarding his motion to
dismiss on double jeopardy grounds. State v. Mestas, 93 N.M.
765, 605 P.2d 1164 (Ct.App. 1980), demonstrates that the
Court of Appeals has authority to accept such an application
for interlocutory appeal. Therefore, defendant could have filed
an interlocutory appeal with the Court of Appeals following the
trial court’s denial of his motion to dismiss. However, the rec-
ord does not show that defendant ever made such an attempt.
Thus, defendant waived any right he may have had to an inter-
locutory appeal on this issue. Regardless, we hold that it was
not in error to retry the defendant.
Ill. Admission of Co-defendant’s Statement.
The State called co-defendant Boeglin to testify against
defendant. Boeglin refused to testify on Fifth Amendment
grounds, and the trial court granted him use immunity for his
testimony. However, despite this grant of immunity, Boeglin
still refused to testify and was found in direct contempt by the
trial court. The State then moved to have Boeglin declared un-
available as a witness. This motion was granted over defense
objection. The trial court then allowed Boeglin’s taped state-
ment to be played before the jury and allowed the jury to use
individual transcripts of the statement to better follow the
taped statement. Defendant objected that the use of the state-
ment was a violation of defendant’s right to confront the
witness and engage in meaningful cross-examination. Over this
objection, the statement was presented to the jury.
6a
It is clear in the instant case that Boeglin was unavailable to
testify. NMSA 1978, Evid.R. 804(a)(2) (Repl.Pamp. 1983).
Defendant relies on Douglas v. Alabama, 380 U.S. 415
(1965), in support of his claim that admission of Boeglin’s
statement violated his right te confront and cross-examine
the witness. We find Douglas v. Alabama directly on point.
There, an accomplice was called as a state’s witness and refused
to testify on Fifth Amendment grounds. The accomplice had
previously confessed to the crime, and such confession impli-
cated Douglas. The state was allowed, in the jury’s presence, to
read the confession. Douglas was found guilty. On appeal, it
was held that Douglas’ right to confront and cross-examine
the witness against him had been violated.
In support of the admission of Boeglin’s prior statement,
the State relies on Ohio v. Roberts, 448 U.S. 56 (1980). There,
the Supreme Court fashioned a test whereby prior statements
could be admitted if: (1) the witness is unavailable, and (2)
the prior statement bears adequate indicia of reliability, in that
it falls within one of the “firmly rooted” exceptions to the
hearsay rule, or the statement has particularized guarantees of
trustworthiness. /d. at 66. Under the facts of Ohio v. Roberts,
the prior statement sought to be introduced had been made at
a preliminary hearing where an opportunity to cross-examine
the witness existed. It is in this sense that the instant case (and
Douglas vy. Alabama) are distinguishable from Ohio v. Roberts.
Two 10th Circuit Court of Appeals’ opinions help to clarify
this distinction.
In U.S. v. Allen, 409 F.2d 611 (10th Cir. 1969), it was deter-
mined that the proper test in deciding whether transcipts of
preliminary hearing testimony could be properly admitted at
trial (where the witness refused to testify) was opportunity
for full and complete cross-examination of that witness at
the preliminary hearing. /d. at 613. Thus, it can be logically
inferred that where no such opportunity to cross-examine
7a
the witness existed, then admission of a prior statement is a
denial of a defendant's confrontation rights.
Further, in U.S. v. Rothbart, 653 F.2d 462, 465 (10th Cir.
1981), the Court, in discussing the Ohio v. Roberts test for
admission of prior statements, limits its application to state-
ments and/or testimony made at an earlier judicial proceeding.
in the instant case, Boeglin’s prior statement made to police
officers shortly after his arrest was not made during the course
of any judicial proceeding and defendant was in no way af-
forded an opportunity to cross-examine Boeglin. We therefore
determine that admission of Boeglin’s prior statement was
highly prejudicial, violated defendant’s confrontation rights,
and deprived defendant of meaningful cross-examination.
Defendant’s conviction is therefore reversed and the case
remanded for a new trial.
In so holding, we adopt the 10th Circuit Court of Appeals’
interpretation in Rothbart of Ohio v. Roberts, which limits
admission of prior statements to those that were made at an
earlier judicial proceeding where the defendant was given the
opportunity to fully cross-examine the witness against him.2
IV. Prosecutor’s Reference to Defendant’s Silence.
As his fourth contention on appeal, defendant argues that
he was denied a fair trial in that the prosecutor erroneously
inquired into defendant’s post-arrest silence while cross-
examining the defendant. We disagree.
The evidence indicates that the prosecutor’s references to
defendant’s silence were prompted by earlier implications
made by defense counsel that defendant had always main-
tained his innocence. This being the case there was no error.
State v. Molina, 101 N.M. 146, 679 P.2d 814 (1984).
8a
V. Admission of Investigator’s Testimony.
Boeglin’s statement was admitted through an investigator
for the Eddy County District Attomey’s office who was present
at the time Boeglin made the statement. The prosecution asked
the investigator if he had formed an opinion as to Boeglin’s
state of mind at the time Boeglin made the statement. Defense
counsel objected on the ground that the witness was not prop-
erly qualified as an expert. The objection was overruled. The
investigator then testified that Boeglin had appeared “hyper.”
On appeal, defendant asserts that the investigator was unqual;
ified under NMSA 1978, Evid. Rule 702 (Repl.Pamp. 1983),
to give an expert opinion regarding Boeglin’s state of mind.
However, defendant ignores the effect of NMSA 1978, Evid.
Rule 701 (Repl.Pamp. 1983). That Rule allows admission of
lay testimony in the form of opinions that are rationally based
upon the witness’s perceptions. Thus, the investigator’s testi-
mony was properly admitted.
VI. Waiver of Attorney-Client Privilege.
As the last point of error, defendant asserts that the trial
court erred in ordering the attorney for co-defendant Connor
to give rebuttal testimony to Connor’s testimony. NMSA 1978,
Evid. Rule 503(c) (Repl.Pamp. 1983). bars defendant’s claim.
Connor waived the privilege when he testified regarding what he
did nor tell his attorney. Defendant may not assert another’s
privilege.
Conclusion.
We determine that admission of co-defendant Boeglin’s
prior statement constitutes reversible error, and defendant’s
9a
convictions for murder, conspiracy to commit murder, and
kidnapping are set aside and he is granted a new trial.
IT IS SO ORDERED.
/s/ William Riordan
WILLIAM RIORDAN, Justice
WE CONCUR:
DAN SOSA, JR., Senior Justice
/s/ Mary C. Walters
MARY C. WALTERS, Justice
FOOTNOTES
1 We in no way create a rule requiring the trial court to inquire
of defense counsel whether they wish to stand on their previous
mistrial motions or requiring the trial court to warn defense
counsel of the effects of their previous mistrial moticas.
2 State v. Martinez, 99 N.M. 353, 658 P.2d 428 (1983) (a case
similar to the instant case), is distinguishable on its facts since
the witness against Martinez later testified at trial, and Martinez
was given an opportunity to cross-examine the witness.
APPENDIX B
IN ‘THE SUPREME COURT OF THE
STATE OF NEW MEXICO
Thursday, March 21, 1985
NO. 15,162
STATE OF NEW MEXICO,
Plaintiff-Appellee,
vs.
RALPH R. EARNEST,
Defendant-Appellant.
| This matter coming on for consideration by the Court upon
Motion of Appellee for rehearing, and the Court having con-
sidered said motion and being sufficiently advised;
NOW, THEREFORE, IT IS ORDERED that Motion of
Appellee for Rehearing is hereby denied.
ATTEST: A TRUE COPY
/s/ Rose Marie Alderete
Clerk of the Supreme Court
of the State of New Mexico
RECEIVED
Mar 25, 1985
Attorney General
————— ee.
OPPOSITION
BRIEF
APPELLATE CLINIC
3315 Dane!
21469)-3502
J Thomas Suliiwan
Director
July 18, 1985
anak to aie Gaon Court #S i) -\ed
techingten, B-c. 208430 nT
Re: State of New Mexico v. Ralph Rodney Earnest
EDITOR'S NOTE | No.
Dear Mr. Stevas,
ph oy Ripe py Bg Real i Enclosed please find the following documents for filing in behalf
BETTER COPY CAN BE OBTAINED, A NEW FICHE
of Respondent Ralph Rodney Earnest in the above styled cause:
WILL BE ISSUED : Entry of Appearance by Counsei
Motion for Leave to Proceed In Forma Pauperis
and supporting affidavit
Affidavit of proof of mailing
t Affidavit of service
Response to Petition for Writ of Certiorari
usua rovided. ieve Bryan .¢ ing this case in
Tour O¥¥ice Becauce of the filing problem.
Thank you for your assistance in this cause.
Sincerely, -
- Thomas Sullivan
SCHOOL OF LAW LEGAL CLINICS DALLAS, TEXAS 75275
Crvil Cases Climic
Cruminal Jusuce Clinic + Legal Esvern Program
Federal Taxpayers Clini
Appellate Clinic
wah
7
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984
STATE OF NEW MEXICO,
Petitioner,
Vv.
RALPH RODNEY EARNEST,
Respondent.
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
The undersigned attorney, on behalf of the Respondent,
RALPH RODNEY EARNEST, moves that Respondent be allowed to
proceed in forma pauperis in this case. Respondent has previously
petitioned for writ of certiorari in Earnest v. New Mexico,
No. 84-6791, currently pending, and a copy of the original affi-
davit in support of his in forma pauperis application in that
case is attached to this motion.
Respectfully submitted,
SMU SCHOOL OF LAW
3315 DANIEL
DALLAS, TEXAS 75275
(214) 692-3562
ATTORNEY FOR THE RESPONDENT
IN THE SUPREME COURT OF THE UNIT
ED STA
October Term, 1983 “eas
RALPH RODNEY EARNEST,
Petitioner,
vs. N
oO.
STATE OF NEW MEXICO,
Respondent.
AFFIDAVIT IN SUPPORT OF MOTIO? TO PROCEED
"ON APPEAL Ih FORMA PAUPERIS
I, RALPH RODKIY EARNEST, being first duly sworn, depose and Bay
that I am the Petitioner, in the above-entitled cause; that in support
of By motion to proceed on appeal without being required to prepay fees,
costs or give security therefor, 1 state that because of By proverty I
az unable to pay the costs of said proceeding or to give security
therefor; that I believe I em entitled to redress; and that the issues
which I desire to present on appeal are stated in the accompar.ying
Petition for Certiorari.
I further swear that the responses which I have made to the
questions and instructions below relating to my ability to pay the cost
of prosecuting the appeal are true.
i. Are you presently employed? “O
A) If the answer is yes, ctate the amount of your salary or wages
r
pe month and give the name and address to your employer.
B) If the answer is no, state the date of your last employment and
the amount of the salary and wages per month which you received.
AST oneal to
2. Have you ceceived within the past twelve months any income fron
a business, profession or other form of self-employment, or in the form
of rent payments, interest, dividends, or other source? \x—
A) If the answer is yes, describe each source of income, and state
the amount received from each during the past twelve sonths.
fh
3. Do you own any cash or checking or Savings account? er
A) If the answer is yes, state the total value of the items owned.
4. Do you own auy real estate, stocks, bonds, notes, automobiles,
or other valuable property (excluding ordinary household furnishings and
clothing)? \ Va
A) If the answer is yes, describe the property and state its
NA
approximate value.
5. List the persons who are dependent upon you for support and
state your relationship to those persons.
Wea
I understand that a false statement or answer to any questions in
this affidavit will subject me to penalties for perjury.
Lard 2 Ect
SUBSCRIBLD AND SWORN to before me this = day of Vlagc ft.
19t¢@.
¢ » OFFICAL SEAL
= CHRIS P. MARTINET
NOTARY PUBLUC-STATE OF NEW MEXIGD
wy Commission Expires S -2)-S~
NOTARY PUBLIC
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984
STATE OF NEW MEXICO,
Petitioner,
Vv.
RALPH RODNEY EARNEST,
Respondent.
AFFIDAVIT OF MAILING
STATE OF TEXAS §
COUNTY OF DALLAS ;
I, J. Thomas Sullivan, being first duly sworn and deposed
according to law, state:
1. I am counsel of record for Respondent in this case and
I am a member of the Bar of the United States Supreme Court;
2. On July 18, 1985, within thirty days after receipt of
the petition for writ of certiorari in this case, I deposited
Respondent's response to the petition in a United States mailbox,
properly addressed to the Clerk of the Court and with first-class
postage affixed to it.
AN, Affiant
RNEY AT LAW
SMU SCHOOL OF LAW
3315 DANIEL
DALLAS, TEXAS 75275
(214) 692-3562
SUBSCRIBED AND SWORN To before me this 18th day of July,
1985.
My commission expires:
Yaa [sa
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TER", 1984
STATE OF NEW MEXICO,
Petitioner,
v.
RALFii; RODNEY EARNEST,
Respondent.
AFFIDAVIT OF SERVICE
STATE OF TEXAS §
COUNTY OF DALLAS ;
I, J. THOMAS SULLIVAN, being first duly sworn according
to law, depose and say that:
1. I am counsel for the Respondent in this cause and I
am a member of the United States Supreme Court Bar.
2. On July 18, 1985, I served a copy of the enclosed
response to petition for writ of certiorari upon counsel for
Petitioner by depositing same in the United States Mail with
first class postage affixed, addressed to the following:
Willian McEuen
Assistant Attorney General
P.O. Drawer 1508
Santa Fe, New Mexico 87504
3. I certify that all parties entitled to service of this
pleading have been served by mail.
TTORNEY AT LAW
SMU SCHOOL OF LAW
3315 DANIEL
DALLAS, TEXAS 75275
(214) 692-3562
SUBSCRIBED AND SWORN TO before me this |Z day of July, 1985.
SRR Fe
STATE OF TEXAS
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984
STATE OF NEW MEXICO,
Petitioner,
Vv.
RALPH RODNEY EARNEST,
Respondent.
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
J. THOMAS SULLIVAN
ATTORNEY AT LAW
SMU SCHOOL OF LAW
3315 DANIEL
DALLAS, TEXAS 75275
(214) 692-3562
GARY C. MITCHELL
ATTORNEY AT LAW
P.O. BOX 2460
RUIDOSO, NEW MEXICO 88345
ATTORNEYS FOR THE RESPONDENT
QUESTION PRESENTED
DOES THE SIXTH AMENDMENT REQUIRE THE EXCLUSION AT
TRIAL OF AN UNCROSS-EXAMINED HEARSAY STATEMENT WITHOUT
REGARD TO ITS INDICIA OF RELIABILITY?
TABLE OF CONTENTS
Table of Cases and Authorities. . ‘
Response to Petition for Writ of Certiorari . : .
Reasons for Denying the Writ
I.
II.
Iii.
PETITIONER FAILS TO DEMONSTRATE THAT SIGNIFICANT
AND RECURRING PROBLEMS ARISE FROM THE RELATION-
SHIP OF THE RULE AGAINST HEARSAY AND THE CONFRON-
TATION CLAUSE OF THE SIXTH AMENDMENT. : .
PETITIONER HAS NOT SHOWN THAT THE STATEMENT
ZNVOLVED IN THIS CASE BEARS A SUFFICIENT INDICIA
OF RELIABILITY TO JUSTIFY RELAXATION OF THE
CONFRONTATION CLAUSE REQUIREMENT THAT THE
ACCUSED BE AFFORDED AN OPPORTUNITY TO CROSS-
EXAMINE THE DECLARANT. ° ° ° °
THE DECISION OF THE NEW MEXICO SUPREME COURT
IN RELYING ON DOUGLAS v. ALABAMA IS CORRECT. .
Conclusion. ° ‘ ‘ ‘ °
ii
12
ii
TABLE OF CASES AND AUTHORITIES
United States Supreme Court decisions
Bruton v. United States, 391 U.S. 123 (1968) . °
California v. Green, 399 U.S. 149 (1970). .
Douglas v. Alabama, 380 U.S. 415 (1965) . ° .
Dutton v. Evans, 400 U.S. 74 (1970). . . °
Mancusi v. Stubbs, 408 U.S. 204 (1972) . . .
Mattox v. United States, 156 U.S. 237 (1895) .
Ohio v. Roberts, 448 U.S. 56 (1980). ‘ . ’
Pointer v. Texas, 380 U.S. 400 (1965) " . :
Federal decisions
Olson v. Green, 668 F.2d 421 (8th Cir. 1982), cert.
denied, 102 S.Ct. 421] . . ‘ . P .
United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978)
United States v. Katsougrakis, 715 F.2d 769 (2nd. Cir.
1983) . . . . . . : ° .
United States v. Lisotto, 722 F.2d 85 (4th Cir. 1984),
cert. denied, 104 S.Ct. 1682. . ° °
United States v. Oliver, 626 F.2d 254 (2nd Cir. 1980)
State decisions
State v. Parris, 98 Wash.2d 140, 654 P.2d 77 (1982)
Constitutional provisions
U.S. Const., amend. VI ‘ ° ° . ° .
passim
2, 3
passim
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984
STATE OF NEW MEXICO,
Petitioner,
v.
RALPH RODNEY EARNEST,
Respondent.
RESPONSE TO PETITION FOR
WRIT OF CERTIORARI TO THE
NEW MEXICO SUPREME COURT
TO THE HONORABLE UNITED STATES SUPREME COURT:
Respondent RALPH RODNEY EARNEST files this response to
the petition for writ of certiorari filed by the Attorney
General of New Mexico in the above styled cause. Respondent
essentially accepts the facts set forth in the petition as
true but provides additional facts where pertinent. Respondent
contends that the writ should be denied based on the following
argument. This response is timely if filed on or before July 1),
1985s.
REASONS FOR DENYING THE WRIT
I.
PETITIONER FAILS TO DEMONSTRATE THAT SIGNIFICANT AND
RECURRING PROBLEMS ARISE FROM THE RELATIONSHIP OF THE
RULE AGAINST HEARSAY AND THE CONFRONTATION CLAUSE OF
THE SIXTH AMENDMENT.
The Petitioner predicates its argument in support of the
grant of the writ based on its perception of tension between
Douglas v. Alabama, 380 U.S. 415 (1965) and Pointer v. Texas,
380 U.S. 400 (1965), and later decisions. The claimed tension
does not exist, however, and the decisions ¢iscussed by Petitioner
all reflect fidelity to the general principle that the Confronta-
tion Clause recuires that an accused be permitted to cross-examine
a declarant whose confession to police officers is offered against
him in a criminal trial.
The New Mexico Supreme Court found the facts in Douglas
and the rule relied on by this Court there directly on point.
In both cases accomplices refused to testify on Fifth Amendment
grounds after giving confessions to police implicating the
accused. In both cases, the State was allowed to read the
accomplice's confession in the presence of the jury despite the
fact that the accused was unable to confront the silent witness
through meaningful cross-examination. Applying Douglas, the
New Mexico court held that Respondent's conviction must be
reversed because the statement disclosed to the jury was “highly
prejudicial.”
Petitioner contends that the Court has reached results
seemingly inconsistent with Douglas in a series of subsequent
Gecisions: California v. Green, 399 U.S. 149 (1970); Mancusi v.
Stubbs, 408 U.S. 204 (1972); and Ohio v. Roberts, 448 U.S. 56
(1980). In each of these decisions, however, the eccused had
previously had an opportunity to meaningfully cross-examine
wn absent or recalcitrant witness prior to the introduction of
the inculpatory statement or testimony against him at trial. In
California v. Green, the state was permitted to use the witness's
prior statements which were inculpatory to the defendant which had
been given to police officers and at his preliminary hearing,
where trial counsel had vigorously cross-examined him concerning
the inculpatory statements. Because of the opportunity for cross-
examination, these statements were not only available as impeach-
ment when the witness's story changed dramatically at trial, but
could also serve as substantive evidence against the accused if
believed by the jury. 399 U.S. at 151-152. An adequate oppor-
tunity for cross-examination at the accused's first trial was
sufficient to permit later use of damaging testimony when a
witness against the accused was unavailable in Mancusi v. Stubbs.
The second trial was occasioned by the grant of federal habeas
relief nine years after the initial conviction. 408 U.S. at
214-216. And in Ohio v. Roberts, the unavailable witness had
previously testified under oath and been subjected to cross-
examination. 448 U.S. at 70.
Respondent finds no tension between these decisions and
the principles set forth in Douglas and Pointer v. Texas, 380
U.S. 400 (1965). Where a witness has testified under oath and
has been meaningfully cross-examined, his subsequent unavailability
Goes not preclude the prosecution from offering the prior testi-
mony. This approach is consistent with the earlier decision in
Mattox v. United States, 156 U.S. 237 (1895), in which this Court
held that the death of a witness would serve to permit reliance
on his sworn testimony from a prior trial in a subsequent proceed-
ing.
Similarly, the decisio. in Douglas parallels the result in
Bruton v. United States, 391 U.S. 123 (1968), in which the Court
held that the right of confrontation is denied where the confession
of a non-testifying co-defendant is offered against the accused
in a joint trial. The Court noted that in such a circumstance
the accused is entitled to severance of trials precisely because
his co-defendant "does not testify and cannot be tested by cross-
examination.” 391 U.S. at 136.
In California v. Green, Justice White observed:
While it may be readily conceded that hearsay rules and
the Confrontation Clause are generally designed to protect
similar values, it is quite a different thing to suggest
that the overlap is complete and that the Confrontation
Clause is nothing more of less than a codification of the
rules of hearsay and their exceptions as they existed
historically at common law. Our decisions have never
established such a congruence; indeed, we have more than
once found of a violation of confrontation values even
though the statements in issue were admitted under an
arguably recognized hearsay exception.
399 U.S. at 155-156. Rather than the seemingly inconsistent
line of authority perceived by the Petitioner, the Douglas/
Pointer rule is entirely consistent with California v. Green,
Mancusi v. Stubbs and Ohio v. Roberts, with regard to the Court's
concern that testimony prejudicial to the accused be subject
to testing by cross-examination before it is deemed admissible
during a criminal trial. Where the testimony of an unavailable
witness has not been subject to cross-examination, and_involves
statements of an accomplice or co-defendant of an inculpatory
nature as to the accused, the Court has not hesitated to hold
that the state may not rely on this testimony sustantively as
a basis for conviction.
II.
PETITIONER HAS NOT SHOWN THAT THE STATEMENT INVOLVED
IN THIS CASE BEARS A SUFFICIENT INDICIA OF RELIABILITY
TO JUSTIFY RELAXATION OF THE CONFRONTATION CLAUSE REQUIRE-
MENT THAT THE ACCUSED BE AFFORDED AN OPPORTUNITY TO CROSS-
EXAMINE THE DECLARANT.
Petitioner follows its argument that the decisions of this
Court are inc“nsistent in reconciling demands of the constitutional
confrontation clause with accepted rules of evidence by assertinc
that the reliability of a statement may justify its admission
independent of any opportunity for cross-examination. In advanc-
ing this position, Petitioner relies on the formulation set forth
in Ohio v. Roberts which appears to authorize admission of any
statement which would traditionally be admissible as an excep-
tion to the hearsay rule or which should be admitted because it
bears particularized guarantees of trustworthiness. 448 U.S. at
66.
The facts in Ohio v. Roberts support the conclusion that
statements previously made under oath or during judicial proceed-
ings in which the party/opponent has had an opportunity to meaning-
fully cross-examine the declarant is one such recognized exception.
Even if the indicia of reliability can be inferred by categorizing
the statement within a firmly rooted hearsay exception, the Court
Gid not appear.to hold that the facts surrounding a particular
statement or its making would not so undermine the notion of relia-
bility that it would effectively be rebutted or called seriously
into question.
The cases cited by Petitioner demonstrate the lack of support
given for its position by lower courts which have dealt with the
subject. For instance, in United States v. Katsougrakis, 715
F.2d 769 (2nd Cir. 1983), the court looked to significant evidence
of corroboration of the declarant's statement, made shortly before
his death to a personal friend, rather than a governmental agent.
Id. at 775. The court expressly noted that in its prior Gecision,
.
United States v. Oliver, 626 F.2d 254, 261 (2nd Cir. 1980), it
had warned that a declarant may be motivated to inculpate a
third party in an effort to gain immunity or a reduced sentence.
Because Katsougrakis made the statement to a friend, rather than
agent, and because the statement was against his penal interest,
expressed his participation in the conspiracy and was factually
corroborated, it was deemed properly admitted. 715 F.2d at 777-778.
In contrast, in the instant case, the confession was given as
a result of custodial interrogation and the declarant was placed
in exactly those circumstances warned about in Oliver.
In United States v. Lisotto, 722 F.2d 85 (4th Cir. 1984),
cert. denied, 104 §.Ct. 1682, also relied on by Petitioner, the
statements were admitted as declarations against penal interest
of the declarants precisely because they were co-conspirator
fugitives at the time of trial. Arguably, all co-conspirator
statements are also admissible under the exception of declarations
against penal interest since they impliedly link the declarant to
the conspiracy and its object. Here, in contrast, the statements
of Boeglin were not admissible as co-conspirator statements since
they were made after termination of the conspiracy and while he
was in custody. Compare, Dutton v. Evans, 400 U.S. "4 (1970)
(holding application of Georgia's co-conspirator declaration rule
which is broader than federal rule did not violate confrontation
right where statement was made by co-conspirator while in custody
but statement was of minimal significance in light of overwhelming
evidence in state's case). Petitioner notes that here the state-
ment was “assuredly devastating to the defense and very important
to the prosecution's case." (Pet. for writ of cert., at 8, n. 2).
Finally, Petitioner relies on the decision of the Washington
Supreme Court in State v. Parris, 98 Wash.2d 140, 654 P.2d 77
(1982). The declarant was involved in drug transaction, asserted
his Fifth Amendment privilege and was ruled “unavailable” to testify
at trial. Id. at 78. The Parris Court did not conclude that the
statement alone fell within a “firmly rooted exception" to the
hearsay rule, noting the problems posed by self-serving declarations
against penal interest made by persons in custody. Instead, the
court held that an inculpatory declaration had to accompanied by
corroborating circumstances clearly indicating its trustworthiness.
Id. at 81-82.
Moreover, the Parris Court looked to the Fifth Circuit
opinion in United States v. Alvarez, 584 F.2d €94 (Sth Cir. 1978)
for discussion of factors to be considered when assessing the
trustworthiness of a statement made by an unavailable declarant.
These five factors are summarized: 1) motive of the witness to
lie; 2) general character of the declarant; 3) whether more than
one person heard the statement; 4) whether the statement was made
spontaneously; and 5) tne timing of the declaration and the
relationship of the declarant and witness. Applying those factors
to the Boeglin statement, it is clear that he had @ reason to
inculpate Respondent in an effort to curry favor with the police
after admitting his own involvement in the murder and could well
have done so falsely; he was by admission a person of low character,
admitting to drug dealing and murder: the statement was not made
spontaneously, but was made during custodial interrogation after
two previous statements had been made; ard finally, the witness who
testified was the officer who took the statement.
Justice White, ¢issenting in Bruton, supra at 141-142,
observed: }
Due to his strong motivation to implicate the defendant
and to exonerate himself, a co-defendant's statements
about what the defendant said or did are less credible
than ordinary hearsay evidence. Whereas, the defendant's
own confession possesses greater reliability and eviden-
tiary value than ordinary hearsay, the co-defendant's
confession implicating the defendant is intrinsically much
less reliable.
The Eighth Circuit, in Olson v. Green, 668 F.2d 421 (8th Cir.
1982), cert. denied, 102 S.Ct. 421, applied similar reasoning in
Geclining to apply Ohio v. Roberts to custodial statements offered
as substantive evidence when the declarant has refused to testify.
Id. at 427-428. The fact that the statements might be admissible
under the applicable state evidentiary rule would not supplant
confrontation guarantees of the federal constitution because the
circumstances surrounding the statements did not clearly indicate
their trustworthiness. The court also reviewed current circuit
Gecisions on point. Id. at n. ll.
As a general rule, Respondent contends that the confession
to law enforcement offers made by a non-testifying co-defendant,
co-conspirator or accomplice simply does not bear inherent
guarantees of trustworthiness as to bring such a statement within
the Ohio v. Roberts formulation. At the least, each statement
offered in such fashion must be reviewed on an independent
basis in order to assess trustworthiness since it cannot be
inferred from the simple fact that the type of statement made
might qualify under a general exception to the hearsay rule.
The decisions relied on by Petitioner fail to demonstrate
that this Court's position in Douglas v. Alabama has effectively
been, or should be, altered based on the facts presented in this
case. Because of the inherently damaging nature of such a state-
ment and the environmental factors likely in its making, cross-
examination of the declarant remains a constitutionally mandated
right to guarantee that an accused is not convicted solely on
the story of another who seeks to minimize his participation in
the offense or gain from inculpating the accused. The likelihood
of falsification of testimony is simply too great to permit
statements of a non-testifying co-defendant inculpating the
accused to be used substantively at trial without any benefit
of cross-examination by the accused.
IiIt.
THE DECISION OF THE NEW MEXICO SUPREME COURT IN RELYING
ON DOUGLAS v. ALABAMA IS CORRECT.
Petitioner argues that the New Mexico Supreme Court's
decision would “reverse (a) trend” toward more flexibility
in the admission of statements not subject to cross-examination.
According to Petitioner, this approach elevates the rule against
hearsay to constitutional status, with the only exception being
admissibility of statements made at a prior judicial proceeding.
The problem with the perceived trend is that it does not exist,
or if it does, it does not exist in the decisions of this Court
cited by Petitioner in support of its argument.
Elevation of the rule against hearsay to constitutional
status is not the issue to be addressed; rather, Petitioner would
subordinate the constitutional guarantee to confrontation to the
operation of local rules of evidence and construction of exceptions
to the hearsay rule. Rather than bestowing constitutional status
on the hearsay rules, this Court has consistently sought to
reconcile developments in the law of evidence and constitutional
guarantees. In the cases relied upon by Petitioner, the “trend”
can only be seen to involve the recognized use of statements
made by unavailable declarants who have previously been cross-
examined. To suggest that the trend in this Court has been broader
is simply incorrect. With respect to confessions of non-testifying
co-defendants or accomplices—as opposed to statements made by
co-conspirators during the course of the conspiracy—this Court
has required that an accused be permitted to confront the declarant
and cross-examine him with regard to the statement given before
that statement may be used substantively against him at trial.
This concept of “confrontation” as discussed California v.
Green:
(1) insures that the witness will give his statement under
oath—thus, impressing him with the seriousness of the
matter and guarding against the lie by the possibility of
10
of a penalty for perjury; (2) forces the witness to submit
to cross-examination, the "greatest legal engine ever in-
vented for the discovery of truth,” (3) permits the jury
that is to decide the defendant's fate to observe the
demeanor of the witness in making his statement, thus aiding
the jury in assessing his credibility.
399 U.S. at 158.
In the instant case, the declarant was not sworn prior to
giving his confession, was not subjected to cross-examination,
and did not expose himself to the judgment of the jury as to
his credibility by giving testimony at trial. The goal of
confrontation in Respondent's case was completely defeated by
circumstances in which the statement was ultimately used due
to his inability to confront the confessing co-defendant.
Moreover, the facts surrounding the statement suggest the
inherent problems in relying on custodial statements generally
without affording the accused the opportunity to cross-examine
the declarant. The record at trial showed that the declarant,
Boeglin, admitted to use of methamphetamine prior to being
subjected to custodial interrogation; he was not tested for
presence of the drug in his body at the time the statement was
given even though the officer taking the statement testified that
Boeglin was “hyper;" and he made the confession without having
first been sworn in by a magistrate or having been advised by an
attorney. (Tape 15/490; Tape 13/390-395, 408, 546; Tape 14/033,
060; Tape 13/370-380,. 585; Tape 15/373).
Second, in his statement Boeglin minimized his participation $
in the offense and the statement itself suggests his attempt to
use his statement to make a deal with police. He also gave other
statements in which he denied his own participation in the offense.
(Tape 15/97, 317-322).
Third, the statement given by co-defendant Boeglin identified
the other participants in the offense, but did not link either
person to the Respondent. At best, the statement refers to one
of the other persons involved in the murder as "Rod or Rob,” but
generally refers to that individual as "Rob." He also admitted
———_
tere 4
11
that he was not "sure" what this individual's name was. (Tape 16/
37, 88-166). Although the officer testified that he knew Respon-
dent as “Rod” or “Rodney,” there was no evidence that Boeglin
ever independently identified Respondent as the person he was
intending to refer to when he made the statement. (Tape 16/46).
These factors demonstrate the reason why cross-examination
was so critical to Respondent in this case. First, he needed to
be able to establish through questioning Boeglin whether or not
Boeglin even meant to reter to him eee 9 he gave the confession.
If he did not, the confession clearly had’ no probative value
in the case. Second, he needed to be accorded an opportunity to
test the accuracy of the statement in light of Boeglin's mental
condition and his apparent desire to gain some benefit from his
confession. Third, he needed to be able to question the integrity
of the statement in light of other, conflicting statements which
Boeglin gave on the same day to police. In this case, Petitioner
cannot rest his claim of the “indicia of reliability” of Boeglin's
statement on any exception to the hearsay rule in light of the
facts doveloped at trial which show the inherent lack of trust-
worthiness of Boeglin's confession. If Respondent was to be
convicted on the state's substantive use of this statement, he
was at least entitled to cross-examine Boeglin in order to defend
himself against the accusations contained therein.
The New Mexico Supreme Court correctly applied Douglas v-
Alabama in holding that Boeglin's statement was improperly
admitted at Respondent's trial.
12
CONCLUSION
Based on the foregoing araument, Respondent submits
that the writ should not issue to review the judgment of the
New Mexico Supreme Court on the question advanced in the
petition. The court below correctly applied this Court's
prior decision in Douglas v. Alabama in reversing Respondent's
conviction and remanding this cause for new trial. Respondent
prays the Court deny the writ.
Respectfully submitted,
WA
ORNEY AT LAW
MU SCHOOL OF LAW
3315 DANIEL
DALLAS, TEXAS 75275
(214) 692-3562
GARY C. MITCHELL
ATTORNEY AT LAW
P.O. BOX 2460
RUIDOSO, NEW MEXICO 88345
ATTORNEYS FOR THE RESPONDENT
No. 85-162 DEC 13
IN THE
Supreme Court of the United States 4
October Term, 1984
STATE OF NEW MEXICO,
Petitioner,
v.
RALPH RODNEY EARNEST,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME
COURT OF THE STATE OF NEW MEXICO
JOINT APPENDIX
PAUL BARDACKE J. THOMAS SULLIVAN
Attorney General of New Mexico Appellate Clinic
WILLIAM McEUEN* S.M.U. Law School
. ; 3315 Daniel
Assistant Attorney Gen »ral
ie itaieg Dallas. Texas 75275
P.O. Drawer 1508 Phone: (214) 692-3562
Santa Fe, New Mexico 87504 ;
Phone: (505) 827-6932 Counsel for Respondent
Counsel for Petitioner
*Counsel of Record
_————————————
PETITION FOR CERTIORARI FILED JUNE 19, 1985
CERTIORARI GRANTED OCTOPER 21, 1985
VERGARA PRINTING CO - SANTA FE. NEW MEXICO
——— Ae ae
TABLE OF CONTENTS
Page
ere
Amended Criminal Information ...........-.-----5+55+5 4
Motion by the State to Determine the Admissibility
of Phillip Boeglin’s Statement..........-- 0-20 -e eee eeee 6
State’s Motion to Grant Use Immunity to Phillip Boeglin... .. 8
District Court Order Granting Use Immunity to
Phillip Boeglin. .... 2... 6... eee eee eee eee eee trees 9
State’s Exhibit 39, Transcription of Phillip Boeglin’s
ee. whew chee See aes eS SC UU TE Seeeedens 10
Excerpts from the District Court’s Instructions
to the Jury ee ae aes nee 6 ad's 40 8b ew
District Court’s Order of Judgment, Sentence and
ESE SSS SOE LES ECE TOOT EEEET EN
Point of Error 3, Respondent Earnest’s Brief in Chief
to the New Mexico Supreme Court...............---...26
Point III, Petitioner State of New Mexico’s Answer
Brief to the New Mexico Supreme Court...............-. 37
Opinion of the New Mexico Supreme Court
Se ee 48
Petitioner State of New Mexico’s Motion for
Rehearing in the New Mexico Supreme Court...........-. $7
New Mexico Supreme Court’s Order Denying
Petitioner’s Motion for Rehearing. ............--.+-+5+- 59
Date
3/23/82
5/14 82
9/7/83
9/13/83
9/13/83
9/13/83
9/15/83
9/19/83
3/21/84
6/22/84
3/4/85
3/14/85
3/21/85
RELEVANT DOCKET ENTRIES
Entry
Criminal Information Filed.
Amended Criminal Information Filed.
Motion by the State to Determine the Admissi-
bility of Phillip Boeglin’s Statement.
State’s Motion to Grant Use Immunity to Phillip
Boeglin.
District Court Order Granting Use Immunity to
Phillip Boeglin.
State’s Exhibit 39, Transcription of Phillip Boeg-
lin’s Statement.
Excerpts from the District Court’s Instructions
to the Jury.
Judgment, Sentence and Commitment in _ the
District Court.
Point of Error 3, Respondent Earnest’s Brief in
Chief to the New Mexico Supreme Court.
Point III, Petitioner State of New Mexico’s Answer
Brief to the New Mexico Supreme Court.
Opinion of the New Mexico Supreme Court in
State vs. Earnest, 703 P.2d 872 (1985).
Petitioner State of New Mexico’s Motion for
Rehearing in the New Mexico Supreme Court.
New Mexico Supreme Court’s Order Denying
Petitioner’s Motion for Rehearing.
2
IN THE DISTRICT COURT OF EDDY COUNTY
STATE OF NEW MEXICO
STATE OF NEW MEXICO, )
Plaintiff, )
VS. ) No. CR-82-54
RALPH R. EARNEST, )
Defendant. )
CRIMINAL INFORMATION
(Filed March 23, 1982)
COMES NOW Lesley S. Williams, Assistant District Attorney,
and states that the above-defendant did commit the following
crimes:
COUNT I: MURDER, contrary to Section 30-2-1,N.M.S.A.
1978, and alleges that said defendant did unlawfully murder
David Eastman, and that this did happen on or about Febru-
ary 12, 1982 in Eddy County, New Mexico.
COUNT Il: CONSPIRACY, contrary to Section 30-28-2,
N.M.S.A. 1978, and alleges that said defendant did knowingly
combine with Perry L. Conner and Philip C. Boeglin for the pur-
pose of committing a felony, towit: Kidnapping, and that this
did happen on or about February 12, 1982 in Eddy County,
New Mexico;
COUNT Ill: KIDNAPPING, contrary to Section 30-4-1,
N.M.S.A. 1978, and alleges that said defendant did unlawfully
take. restrain or confine David Eastman by force or deception
with intent that he be confined against his will, and that this
did happen on or about February 12, 1982 in Eddy County,
New Mexico;
COUNT IV: CONSPIRACY, contrary to Section 30-28-1,
N.M.S.A. 1978, and alleges that said defedant did knowingly
combine with Perry L. Conner and Philip C. Boeglin for the
purpose of committing a felony, to-wit: Distribution of a
3
Controlled Substance (Methamphetamines) and that this did
happen on or about February 12, 1982 in Eddy County, New
Mexico;
COUNT V: POSSESSION OF A CONTROLLED SUB-
STANCE, contrary to Section 30-31-22A, N.M.S.A. 1978, and
alleges that said defendant did intentionaliy possess metham-
phetamines with intent to distribute the same, and that this
did happen on or about February 12, 1982 in Eddy County,
New Mexico.
/s/ Lesley S. Williams
LESLEY S. WILLIAMS
Assistant District Attorney
WITNESSES:
Eddie E. Carrasco Gary McCandless
Tony Dominguez J. R. Wilkinson
Joe Johnson Ray Ramirez
Dana Boeglin Kim Chester
Michael Blount Marilyn Sullivan
PENALTY:
Ct I: Capital Felony; Count II & IV: 4th Degree Felony;
Ct. III: 2nd Degree Felony; Ct. V: 3rd Degree Felony.
4
IN THE DISTRICT COURT OF EDDY COUNTY
STATE OF NEW MEXICO
/
STATE OF NEW MEXICO, )
Plaintiff, )
VS. ) No. CR-82-54
RALPH R. EARNEST, )
Defendant. )
AMENDED
CRIMINAL INFORMATION
(Filed May 14, 1982)
COMES NOW Lesley S. Williams, Assistant District Attorney,
and states that the above-defendant did commit the following
crimes:
COUNT I: MURDER, contrary to Section 30-2-1,N.M.S.A.
1978, and alleges that said defendant did unlawfully murder
David Eastman, and that this did happen on or about Febru-
ary 12, 1982 in Eddy County, New Mexico.
COUNT II: CONSPIRACY, contrary to Section 30-28-2,
N.M.S.A. 1978, and alleges that said defendant did knowingly
combine with Perry L. Conner and Philip C. Boeglin for the pur-
pose of committing a felony, towit: Murder, and that this
did happen on or about February 12, 1982 in Eddy County,
New Mexico;
COUNT ILI: KIDNAPPING, contrary to Section 30-4-1,
N.M.S.A. 1978, and alleges that said defendant did unlawfully
take. restrain or confine David Eastman by force or deception
with intent that he be confined against his will, and that this
did happen on or about February 12, 1982 in Eddy County,
New Mexico;
COUNT IV: CONSPIRACY, contrary to Section 30-28-1,
N.M.S.A. 1978, and alleges that said defedant did knowingly
combine with Perry L. Conner and Philip C. Boeglin for the
purpose of committing a felony, to-wit: Distribution of a
5
Controlled Substance (Methamphetamines) and that this did
happen on or about February 12, 1982 in Eddy County, New
Mexico;
COUNT V: POSSESSION OF A CONTROLLED SUB-
STANCE, contrary to Section 30-31-22A, N.M.S.A. 1978, and
alleges that said defendant did intentionally possess metham-
phetamines with intent to distribute the same, and that this
did happen on or about February 12, 1982 in Eddy County,
New Mexico.
/s/ Lesley S. Williams
LESLEY S. WILLIAMS
Assistant District Attorney
WITNESSES:
Eddie E. Carrasco Gary McCandless
Tony Dominguez J. R. Wilkinson
Joe Johnson Ray Ramirez
Dana Boeglin Kim Chester
Michael Blount Marilyn Sullivan
PENALTY:
Ct I: Capital Felony; Count II & IV: 4th Degree Felony;
Ct. II]: 2nd Degree Felony; Ct. V: 3rd Degree Felony.
6
MOTION BY THE STATE TO DETERMINE THE
ADMISSIBILITY OF PHILLIP BOEGLIN’S STATEMENT _.
IN THE DISTRICT COURT OF EDDY COUNTY
STATE OF NEW MEXICO
STATE OF NEW MEXICO, _ )
Plaintiff, )
VS. ) No. CR-82-54
RALPH R. EARNEST, )
Defendant. )
MOTION
(Filed September 7, 1983)
COMES NOW the State of New Mexico by and through the
Office of the District Attorney and respectfully moves the
Court to set a hearing to determine whether the statement of
Phillip C. Boeglin given to the Eddy County Sheriff's Depart-
ment may be utilized pursuant to Rule 804 (a) (2) and (b) (4),
New Mexico Rules of Evidence. As grounds therefor, movant
would state to the Court as follows:
1. That at the previous trial of this matter the State called
Phillip C. Boeglin as a witness.
2. That after being granted use immunity and being ordered
by the Court to testify, Phillip C. Boeglin refused to testify.
3. There exists a possibility that Phillip C. Boeglin will once
again refuse to testify after being granted use of immunity.
4. That the testimony of Phillip C. Boeglin is essential to
the State’s case.
5. That if the decision by the Court is not made prior to
trial jeopardy will attach and may preclude retrial of this matter
at some future date.
6. The Court’s decision on this matter may necessitate an
appeal by one party or the other as to the question of law.
ae pee ee
WHEREFORE, movant prays the Court for an Order setting
a hearing on this Motion.
/s/ Thomas A. Rutledge _
THOMAS A. RUTLEDGE
Deputy District Attorney
I hereby certify that a copy of
the foregoing pleading was mailed
to opposing counsel this _7th
day of September, 1983.
/s/ Thomas A. Rutledge
8
STATE’S MOTION TO GRANT USE IMMUNITY
TO PHILLIP BOEGLIN
IN THE DISTRICT COURT OF EDDY COUNTY
STATE OF NEW MEXICO
STATE OF NEW MEXICO
Plaintiff,
VS. No. CR-82-54
RALPH R. EARNEST,
Defendant.
MOTION
(Filed September 13, 1983)
COMES NOW the State of New Mexico by and through
Thomas A. Rutledge, Deputy District Attorney, Fifth Judicial
District, and pursuant to Rule 58 of the New Mexico Rules of
Criminal Procedure and Section 31-6-15, NMSA 1978 Comp.,
moves the Court for an Order granting PHILLIP C. BOEGLIN
use immunity as to his testimony in the above-captioned and
numbered cause.
In the judgment of movant the testimony of PHILLIP C.
BOEGLIN is necessary to the public interests and in the prose-
cution of the crimes of Murder and Kidnapping, felonies, said
charges currently pending against Ralph R. Earnest. PHILLIP
C. BOEGLIN refuses to testify on the basis of exercising the
privilege against self-incrimination.
The State agrees to comply with Section 31-6-15, NMSA
1978. as to statements made by PHILLIP C. BOEGLIN while
testifying in the trial of Ralph R. Earnest in any future pro-
ceedings involving PHILLIP C. BOEGLIN as a defendant
should such charges be filed.
/s/ Thomas A. Rutledge
THOMAS A. RUTLEDGE
Deputy District Attorney
DISTRICT COURT ORDER GRANTING
USE IMMUNITY TO PHILLIP BOEGLIN
IN THE DISTRICT COURT OF EDDY COUNTY
STATE OF NEW MEXICO
STATE OF NEW MEXICO )
Plaintiff, )
VS. ) No. CR-82-54
RALPH R. EARNEST, )
Defendant. )
ORDER
(Filed September 13, 1983)
THIS MATTER having come before the Court on Motion of
the State of New Mexico to grant use immunity to PHILLIP C.
BOEGLIN., and the Court having been advised in the premises,
ORDERS: That any statements made by PHILLIP C. BOEG-
LIN in the District Court trial of the State of New Mexico vs.
Ralph R_ Earnest, District Court No. CR-82-54, may not be
used in any criminal proceeding stemming from the incident
which is the subject of the aforementioned case against Ralph
R. Earnest, except as provided by Section 31-6-15, NMSA
1978 Comp.
IT IS FURTHER ORDERED that PHILLIP C. BOEGLIN
appear and testify in said criminal proceedings against Ralph
R. Earnest.
/s/ Harvey W. Fort
DISTRICT JUDGE
10
STATE’S EXHIBIT 39, TRANSCRIPTION OF
PHILLIP BOEGLIN’S STATEMENT
IN THE DISTRICT COURT OF EDDY COUNTY
STATE OF NEW MEXICO
STATE OF NEW MEXICO, )
Plaintiff, )
VS. ) No. CR-82-54
RALPH R. EARNEST, )
Defendant. )
(Filed September 13, 1983)
VOLUNTARY STATEMENT PLACE
PRESENT TIME 3:13
DATE
My name is Phillip Boeglin; | am _____years of age; and | have
finished _ years of schooi.
This is Dennis DeLuche, Chief Investigator for the District
Attorney’s Office, Fifth Judicial District, State of New Mexico.
The time is— what, Eddy? Deputy Eddie Carrasco: The time is
3:13. Mr. DeLuche: Present in the room is Detective Eddie Car-
rasco of the Eddy County Sheriff's Office.
Q. Would you state your name for the tape?
A. Phillip Boeglin.
Q. Okay. Phillip, I had a conversation with you previous— +e
today, didn’t I? And— at that time you were— you were
given your Rights, and you did make a statement to us. Is
that correct?
A. Yeah.
Q. Now-— did you uh— have an attorney from that time til now?
A. Huh-uh.
Q. Okay. Do you still recall your rights Yes Uh— do
you want to talk to us again?
A. Yeah.
>
>
>
©
o>
QD rFOPrOP”
o>oO>?
1]
At uh— at this time period?
Pardon?
Do you want to talk to us again now at this time period?
Yeah.
Okay. Do you recall your rights? Your right to remain silent?
Yeah.
That anything you say could and would be used against you
in a court of law?
Uh—huh.
That you have the right to have an attorney?
Yeah.
With you while you’re being questioned? If you cannot
afford an attorney, one will be appointed, free of charge—
doesn’t cost you anything.
Okay. Fave thousand deters. Ten Thousand Dollars Up Front
Well— you can exercise these rights at any time. Not answer
any questions, or make any statement. . .
Yeah.
You understand that. Now, are you specifically waiving
your right to an attorney to talk to us this second time?
Well, I was hoping I could make some kind of deal.
Well, let me tell you this much about deals at this time-
‘Cause uh— you’re asking me to— I’ve never snitched
before, and if | do—
I’m not asking you to snitch, or anything. You're using
the wrong term, Mr. Boeglin.
Yeah, but if you go back inside-
Okay.
—you’re a dead man.
-
>
Oro FOP
12
First of all. I’m not offering you any deals. What | offered
you this morning was, you tell the truth.
And what do I get— six months in the County Jail, then? -:
Uh— I’m not offering you any deals. All .—— to you,
is— is— you give us the truth, and— and we verify it to be \
the truth— first of all, you’ve already told me one story, but
if we verify it to be the truth, Mr. Boeglin, then I will go to
the prosecutor who’s prosecuting the case, and Vil— Vu
talk to him. And I'll tell him what information you've
given, and— and then that is completely up to the prose-
cutor. Do you understand?
Yeah.
I’m not trying to play hard ball with you. All I’m telling
you is— is—
I’m just trying to live. That’s all I’m getting down to, all
right? They got me doing— I mean us— I didn’t tell on
nobody or nothing this morning. | didn’t tell nothing, and
now, all through the County Jail— I was the one that did
every damn thing and all this— I already got me a marked
man, and I don’t know what the hell’s going on here—
Are you saying you've already got a jacket?
Yeah.
Who put the jacket on you?
Hell, | don’t know.
Are you concerned for your— your safety?
Yeah Real aoncerned t
Well— I— I told you, I can’t make you a deal. You can tell
me the truth, and if we find it to be the truth, that’s- \
that’s— that’s fine. You can’t give me half the truth.
Oh— I ain’t planning to, but I expect something in return,
too, like my freedom.
©
>O>rOrop
13
_ Well, | am not going to offer you your freedom. | can’t
offer you your freedom. What I— | can do, is just what I
told you I would do. If you give me uh— the information,
and the truth, depending upon what you’re involvement is—
| don’t know what your involvement is at this point. You
haven’t told me. Now, for example, you— you say, Okay,
I’m going to tell you the truth if you'll let me go, and | say,
Fine, Mr. Boeglin, we’ve got a deal, and you tell me, Okay,
I was the one that cut his throat. Now, what kind of deal
is that, That’s stupid, isn’t it? I don’t have any idea what
you're going to say to me, sir.
Yeah.
And, until we know what the truthis—
) put if in here on
Can you get a lie detector test, and one
Well, but I’m telling you until we know what the truth is—
Yeah, but how long is that going to take?
Well uh— what do you mean, how long is it going to take?
Find the truth— you know what it’s like sitting in a six-by-
nine cell with no light?
Well— I— I don’t. know uh— where you're at. If you're
concerned about your physical safety in the County Jail,
maybe we can arrange— make arrangements to put you
somewhere else.
Huh-— it’s all jail, it’s all the same. Get the jacket everywhere
you go.
If you— if you have information uh— that you’re not in-
volved in a homicide, but you’re present during a homicide,
or something like that, how does this endanger you?
Does if oo)
twits endanger—- me .«
Are you-- you saying that you'll be treated as an informant?
Yeah.
14
Detective Carrasco: What are you being treated as, right now?
A.
dj
o>
Well, they got me locked down— blue room— hear people
talking from out of their cells, you know— word gets
around -
. DeLuche:
Well— Phillip, | understand your position— | really do.
I'm not— I’m not— saying that uh— you're a good man, bad
man, or indifferent man. I’m saying, you're the one with the
problem. Let me— let me tell you this much— I don’t know
the information you have, and I’m not buying +t
Okay? A Pigin3s Poke
Yeah.
You've already— you've already told us one story. If you
shot straight first crack out of the bag, it might have been
different— but, that’s not what happened, is it? You're
the one that’s going to have to make some decisions, and
I'll tell you this much, there is no District Attorney in the
world who’s going to sit down and make a deal with you
when he has no idea what you're going to say.
I just don’t want to get burned, okay?
Well—
| was there— I knew what happened. I can tell you every-
thing. Now, if you don’t consider that worth a lot, that’s
fine, we can go to court, ‘cause hell, I'll probably could
save my damn time any fuckin’ way— don’t make a shit to
me.
I’m telling you— you tell us the truth, we verify it, you're
talking about polygraph, then that’s up to the District
Attorney, that’s not up to me.
Detective Carrasco: The truth though.
Mr. DeLuche: Not eighty percent— not eighty percent.
Detective Carrasco: One hundred percent.
15
Mr. DeLuche: If you’re worried about being protected, while—
A.
Q.
while you’re in custody, while this is being checked out,
you'll be protected, there’s no problem with that.
Oh yeah, speaking— goddam blue room- and still got a
goddam snitch there JacKeT ow I don’t know
You’re the one with the weight on you. You're the one
who’s going to have to make some decisions.
Detective Carrasco: Do you understand that’s a homicide, it’s
A.
not just a petty thing, man?
Yeah. I know it. All right uh— the uh— start off, morning
of the uh— whenever the hell it was— yesterday— I went
out to Red’s house— we got off on some crystal, then uh—
went out to— uh— David Easton’s house and talked to him
for awhile and uh— Red fronted him eleven grams and uh—
when his buddy got off from work, Mike— Mike was sup-
posed to give uh— Red his bike for collateral, and uh-
and uh— Mike got home and | don’t know what happened,
they just went in the back room, but anyway, it didn’t
work out, Mike didn’t want to come off his bike for collat-
eral, so uh— Easton ended up coming off his car for collat-
eral. Okay,uh— ~ Damn,
uh— anyway, uh— he ended up with this El Camino for
collateral and we went back out there a couple of hours
later, and uh— got to thinking Easton was a— Narc— in-
formant? And uh— so uh— went over to the house and
talked to him for awhile and uh— over at his house— he was
over at Wesley Davis’, and we— uh— me and Rod~— or Rob,
whatever his name is— Red went over to— uh— Eastman’s
house and uh— we left. And uh— uh— well, me and uh—
Rob went out there and went out there to Red’s house and
uh— after about an hour, Eastman and uh— Rick pulled up
in the El Camino— well, when he first come in uh— I can't
remember the exact words that uh— anyway, it got around
to asking if he was an informant and they called certain
16
people from out of town that are uh— had been in prison
with him at this time, and they said he was no good— waste
him. That was all they said. Well— they had him tied up
then. and uh— had him out in back shed, and uh— talked
to him for awhile out there, then we took him in the
house— and uh— we more or less took a vote, you know,
what we was going to do with him to get rid of him— then
we changed our minds and uh— decided, you know, to let
him go, and this uh— other guy called up that uh— was
supposed to have been good friends— now, I don’t know
these people’s name, ‘cause I wasn’t associated with them,
and uh— confirmed that— told us that, you know, he had
informed on a bunch of people, and that uh— to waste
him— well— things just kept on— getting worse, you know,
at uh— Red’s house— started to— § la P him around,
you know, and kick him, and shit-- | never did hit him,
| kicked him
. Kicked?
_ Right— and uh— they finally decided they was going to—
tie him up and take him out and— O.D. him, and uh—
Push him overa cliffhe’s a hype, and uh— but Eastman
had this problem— he wanted to die anyway, you know—
just like— doing him a favor, taking him out— so I stayed
up at the house when they left the first time— they was
gone about a half hour, and then they came back and they
had Eastman still with them, and so we went into the house
again, and uh— two more people came over there— | think
one was his next-door neighbor— and uh— one was uh—
| don’t even know who he was, tell you the truth, but, |
17
the impression I got, | don’t know— but uh— they mixed a—
no— well, first they gavg. him four grams, ‘cause he was
going to O.D. hi “Sin? and he fired up ay four
grams of crystal, you know, then he began te O.D. and uh—
yeah— got real sick— we took him out to the— well—
those two other guys left then— those two guys that was
there, and left me— Rob and Red and me was there— and
we took him out to the country on Loving Highway and
uh— well, first the train was crossing and we stopped, and—
Red, you know, pulled him— took him out there and
kicked his ass a little bit more, you know, and uh— went on
down the road and uh— Red starts to slow down, you
know, and said, well, we might as well do it now, and I
was— we was all four in the front of that El Camino— I was
setting here, Eastman was here, Rob was here, and I was
there. and uh— I opened up my door and the car slid around
like that, and I fell out my fuckin’ door, and uh— Eastman
jumped out his, and— soon as he turned, he caught it by—
right between the eyes and uh— he went down on the
ground— was still alive, and I had the knife with me— |
went to cut his throat, but it didn’t cut— and I was— cut
it again and it just barely cut it, and— | just dropped the
knife after that— and— I don’t know who else— could it
be, but uh— the gun started jamming up, and uh— | don’t
know how many shots he jammed on— they re-loaded it,
and— fired two more shots into him— uh I guess into his
head, I don’t know— then we jumped into the car— went
out and stashed everything and— come back to Red’s
house and cleaned up everything and went and threw it all
at the dump, and— went to my house - and— when we was
described, him to you earlier— uh— I don’t know, the
en ssor. coming down the road is when we got arrested.
. Just kept on building, you know— those kind \
of $246.47 nobody really wanted to— you know, do Mr. DeLuche: Who— who had the pistol”
nothing— to me— said, the hell with it, you know— go A. Uh well, Rob shot him first.
ahead and, you know— get him, you know, so uh— I don’t
Detective Carrasco: With what kind of pistol?
know, something must have come out about— maybe it’s
> oOo? & er 8 fr
> OP”
‘J
>
18
Uh—handgun.
What did he do with that pistol?
Threw it out in the country.
Do you know where?
Yeah. I know, if I could find it, | probably could.
Where-abouts in the country?
Oh— way out by Black River _jt’s on— it was dark hauling
ass on them dark roads.
_ DeLuche: Let’s, let me back up just a little bit, now. Rob
shot him first, and then— who shot him after that?
I don’t know. I didn’t look.
Where— where did you take this stuff and stash it?
Uh— an old— up uh— you go out the Old Cavern High-
way— you come to an intersection— dirt road on one side
going to Black River, and ail I know is way back up on
that road under a big rock.
Okay, and what all was stashed up there?
Everything..
Theik
Well, and +eurdope-— is it stashed up there?
Not the dope— I don’t know— what happened to it, be-
cause. when he come to the house, he had— thirteen or
fourteen grams on him, and uh— it come up missing and
then it got back in, you know, and they were Wanting
dope— it was uh, you know, I don’t know what the hell
it was- Speed So, | don’t know what happened—
_ Uh— everything’s stashed up there— did you mean the
knives?
Yeah.
Uh— his jacket?
_ | don’t know about that.
\ vs 4
19
Q. Okay. What— what else can you think of?
A. I don’t know— I stayed in the El Camino with uh—
Detective Carrasco: What about the gun? Is it stashed out there?
A. As far as | know.
Mr. DeLuche: Now the— other two guys that were there while
he was tied up, and that were, waiting and what-not, can
you—
They wentin there
Okay, were they aware that he was there?
o>
A. Yeah. but I don’t know if they was aware of what was going
on. I don’t know— he wasn’t tied up then and was the
house— I don’t know— some of it’s kinda blank, maybe I—
| ain’t never killed nobody or ever seen anybody get killed —
| don’t know— being a snitch uh— if I did.
Q. The— about what time was it then, when you actually en-
tered out on the highway? Was it— before dawn— it was
still dark outside?
A. Yeah.
Q. When you were out on the Loving Highway?
A. I don’t know really what time it was.
Detective Carrasco: The storage shed that’s— behind Red’s
house— there’s a carton of chocolate milk— who left that
there?
A. Uh-— there ain’t no telling~ I couldn’t tell you that.
Mr. DeLuche: When uh— when he was tied up, what was he
tied up with?
A. A rope. But | don’t know what happened to it, cause when
we untied him, we weren’t looking for to find
Detective Carrasco: Do you think the ropes were left in storage?
A. Buddy, I don’t know.
20
Q. Well— try to think back— when you-all brought him out of
the storage room. Was he untied then? Or did you take him
in the house tied up?
A. I think he was still tied up.
Mr. DeLuche: What— what was he in— informing on I’m kinda
confused, now
A. I dont know.
Q. But that was while he was at the State Penitentiary?
A. | don’t know.
Detective Carrasco: Okay. Who did uh— Red talk to over the
phone?
A. | don’t know that either. | know it was somebody that had
done time with him.
Q. Who were the two individuals that were there at the house
when you-all had him tied up?
A. Well. I don’t think he was tied up when they were there.
Q. Did they know what was going on?
A. I don’t know that eiizer, buddy.
Q. Well, who were those individuals?
Mr. DeLuche: A next door neighbor?
A. Yeah. Other than that, I don’t know.
Q. What uh— can you describe them?
A. Yeah— [ did earlier |— really don’t
remember that much, you know—
Q. Well— this uh— this started out by fronting him eleven
grams, now you said when he came back, you had fourteen—
A. He fronted him three the night before.
Q. Oh, he fronted him three the night vefore? Okay.
Detective Carrasco: Phillip, in order to corroborate much of
2]
this information, can you remember who those people
were. so we can— be able to talk to them?
A. | know one was his neighbor, you know— I~ you know, I’m
going to have to probably fuckin’ move out of town anyway
after this, you know— people carry a lot of fuckin’ weight
and I know if | go behind the fuckin’ walls, | know they'll
kill me right off the fuckin’ Gef But in
County Jail— I don’t know— if I can— survive in that son-
of-a-bitch. man, the— way it is already— they got me J
don’t know— fuckin’— like I was one of- haddone if ail
was all mutilated, and they was all wantin’ to put the
finger at me on uh—
Mr. DeLuche: What— what knife did you have?
A. It was a pocketknife— well, it was his knife.
Q. it was uh— whose knife?
A. Uh-— uh— Eastman’s.
Q. Oh, it was Eastman’s.
Detective Carrasco: And that’s out stashed? Okay. When you
had him— at the house— did he leave anything that belonged
to him there in the house? Wallet or anything?
A. No— he didn’t have a wallet.
©
Okay. When you-all dumped him, you said you came back-—
where did you go to?
We went and washed everything up or cleaned everything up.
Where at?
Oh— we didn’t wash it, we just wiped it off.
Where?
Down that road. Out there to the—
DPF? OO? ?
Did you go back to Red’s house, though, to change clothes
or—
Huh-uh.
>
> PP OP
Q.
22
Uh— the clothing you were wearing this morning, and the
clothing that Red and Rob were wearing this morning, is
that the same clothing they had on?
i don’t know if uh— they changed clothes or not, you
know— when we went back to Red’s house they went back
in the bedroom and stashed some stuff—
What did they stash?
Drugs.
Where would they have stashed it?
I don’t Know, they just about got them all with it.
. DeLuche: Uh— when you went to your house, what were
you doing at your place?
I went over there to— I was going to change, and I never
got around to it.
Okay. Did you have to kick the backdoor in?
Yeah.
Okay, that was you that did that?
Yeah.
Uh-— did you stash anything at your place?
Uh— one little back of weedg. You know, I took it up there
and | think I had another bag there.
Uh— I'm going to end this interview. What time have you
got?
Detective Carrasco: Three Fifty-four.
Mr.
DeLuche: Three Fifty-four Hours.
23
EXCERPTS FROM THE DISTRICT COURT'S
INSTRUCTIONS TO THE JURY
IN THE DISTRICT COURT OF EDDY COUNTY
STATE OF NEW MEXICO
STATE OF NEW MEXICO,
Plaintiff
vs. NO. CR-82-54
RALPH R. EARNEST,
Defendant
(Filed September 15, 1983)
JURY INSTRUCTION NO. 12
12 You are the sole judges of the facts in this case. It is your
duty to determine the facts from the evidence produced here
in Court. Your verdict should not be based on speculation,
guess or conjecture. Neither sympathy nor prejudice should
influence your verdict. You are to apply the law as stated in
these instructions to the facts as you find them, and in this way
decide the case.
JURY INSTRUCTION NO. 13
13 You alone are the judges of the credibility of the wit-
nesses and the weight to be given to the testimony of each of
them. In determining the credit to be given any witness, you
should take into account his truthfulness or untruthfulness,
his ability and opportunity to observe, his memory, his manner
while testifying, any interest, bias or prejudice he may have and
the reasonableness of his testimony considered in the light of
all the evidence in the case.
24
IN THE DISTRICT COURT OF EDDY COUNTY
STATE OF NEW MEXICO
STATE OF NEW MEXICO, |)
Plaintiff )
VS. ) NO. CR-82-54
RALPH R. EARNEST, )
Defendant )
JUDGMENT, SENTENCE AND COMMITMENT
(Filed September 19, 1983)
THIS MATTER coming on for hearing on September 19,
1983, before THE HONORABLE HARVEY W. FORT, District
Judge, Plaintiff appearing by THOMAS A. RUTLEDGE, Assis-
tant District Attorney, and Defendant appearing personally
and by his attorney, GARY MITCHELL, the Defendant having
been convicted on September 16, 1983, by a jury of twelve
people of the following crimes: Count | - FELONY MURDER;
Count Il - CONSPIRACY TO COMMIT MURDER; Count III -
KIDNAPPING: Count IV — CONSPIRACY TO COMMIT
DISTRIBUTION OF A CONTROLLED SUBSTANCE, to-wit:
METHAMPHETAMINES; Count V — POSSESSION OF A
CONTROLLED SUBSTANCE, to-wit: METHAMPHETA-
MINES.
Defendant is hereby found and adjudged guilty and con-
victed of said crimes, and is sentenced to be imprisoned in the
Corrections Division of the Criminal Justice Department of
the State of New Mexico for the following term: Count I! -
LIFE; Count II — EIGHTEEN (18) YEARS with all of said
EIGHTEEN (18) YEARS suspended except for NINE (9)
YEARS; Count III — NINE (9) YEARS; Count IV — EIGHT—
EEN (18) MONTHS and Count V — THREE (3) YEARS fol-
lowed by FIVE (5) YEARS of statutory parole. Said sentences
are to run consecutive to each other and consecutive to the
LIFE sentence.
25
Defendant is to receive credit for pre-sentence confinement
from February 12, 1982 to January 6, 1983 and post-confine-
ment from September 16, 1983.
Therefore, You the Sheriff of Eddy County, New Mexico,
are hereby ordered to take the above named Defendant in
custody and deliver him together with this Commitment to
the Corrections Division of the Criminal Justice Department
of the State of New Mexico which is hereby ordered to receive
him and confine him for the above term.
/s/ Harvey W. Fort
HARVEY W. FORT, District Judge
cc: ADA
_ Gary C. Mitchell
P.O. Box 2460
Ruidoso, NM 88345
Adult Probation Office
Eddy County S.O.
Dept. of Corrections
26
POINT OF FRROR 3, RESPONDENT
EARNEST’S BRIEF IN CHIEF TO THE
NEW MEXICO SUPREME COURT
IN THE SUPREME COURT OF THE
STATE OF NEW MEXICO
STATE OF NEW MEXICO,
Plaintiff-Appellee,
VS. No. 15-162
RALPH R. EARNEST,
Defendant-Appellant.
(Filed March 21, 1984)
POINT OF ERROR 3
THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED CONSTITUTIONAL ERROR IN ADMIT-
TING THE CONFESSION OF WITNESS BOEGLIN
AFTER THE WITNESS REFUSED TO TESTIFY EVEN
UNDER AN ORDER GRANTING HIM USE IMMUNITY
FOR HIS TESTIMONY.
Summary of Material Facts
The State called Phillip Boeglin to testify against Defendant.
(Tape 11/470). Boeglin refused to testify concerning the inci-
dent in which Easton was killed and the trial court entered an
order granting him use immunity for his testimony. (Tape 11/
495-510). The motion and order relating to use immunity
appear in the record proper. (RP, 401-402). Following the grant
of immunity, however, Boeglin persisted in his refusal to answer
substantive questions concerning the murder, being found in
direct criminal contempt by the trial court. At this point, the
State moved to have Boeglin declared unavailable as a witness,
which the trial court did over defense objections. (Tape 12/
550—Tape 13/215).
Thereafter, the State called Dennis DeLuche to testify. His
testimony focused on his efforts in questioning Boeglin about
27
the offenses subsequent to the arrest of the three co-defendants.
He identified State’s Exhibit 39 as a transcription of the tape
recording introduced as State’s Exhibit 39a, which contained
Phillip Boeglin’s third statement regarding the circumstances of
the murder of David Easton. (Tape 13/285-340). After voir dire
by defense counsel, the trial court overruled counsel’s objection
to the use of the statement before the jury on the grounds that
its use would violate Defendant’s right to confront the witness
and engage in meaningful cross-examination. (Tape 13/660-680).
The court then allowed the jury to use individual transcripts to
follow the tape of the statement as it was played to the jury.
(Tape 14/290-330; 358-500). Defendant also objected to the
jury’s use of the transcripts. (Tape 14/261).
Argument and Authorities
Prior to trial, the court advised counsel that it would admit
Boeglin’s statement in the event he refused to testify in the
face of citation for contempt, based on its reading of the
opinion in State v. Martinez, 99 N.M. 353, 658 P.2d 428 (1983).
There, this Court had ruled that no reversible error occurred
where the statement of an unavailable witness was read to the
jury after the witness refused to testify and was cited for
contempt. This Court held that the witness was unavailable
and, pursuant to Rule 804(a) (2), N.M.R. Evid. (1978), his
unavailability rendered the statement admissible. On appeal,
however, Martinez had apparently claimed that her mght to
engage in meaningful cross-examination after introduction of
the statement had been denied and that the trial court com-
mitted fundamental error in permitting the witness to later
come in and offer testimony in person. Because the witness was
subject to full cross-examination after giving the live testimony,
the Court held that there was lack of opportunity to cross-
examine the witness concerning his statement to the police.
Defendant submits that the Martinez decision must be
limited to the factual context present in that case and
28
distinguished accordingly. The opinion does not make clear
whether witness Torres was charged as a co-defendant, was a
co-conspirator or the extent to which the statement was inculpa-
tory as to the accused. What is clear is that there was an oppor-
tunity to cross-examine the witness and that no Confrontation
Clause interest was jeopardized by the procedure, in light of
the witness’s eventual decision to testify in person.
In Defendant’s case, in contrast, the statement of witness
Boeglin was that made by a co-defendant also charged with
conspiracy to commit the murder and the statement was incul-
patory as to Boeglin and presumably, as to Defendant. The
statement was improperly admitted for three reasons: 1) admis-
sion of the statement deprived Defendant of his right to con-
front and cross-examine the witnesses against him, protected
by the Sixth Amendment to the United States Constitution
and Article II, section 14 of the New Mexico Constitution;
2) the statement could not properly have been admitted as that
made by a co-conspirator in furtherance of the conspiracy,
since the conspiracy had terminated before the statement was
given: and 3) the statement lacks the indicia of reliability and
trustworthiness required for admission of statements under
exceptions to the hearsay rule.
Controntation Clause violations
Admission of the Boeglin statement violated Defendant’s
right of confrontation in two important respects. First, it
violated his night to cross-examine the witness on the issue of
whether or not he actually gave the statement and whether or
not the statement, as played and_ transcribed for the jury’s use,
was a correct recitation of the statement he made. In Douglas
v. Alabama, 380 U.S. 420 (1965), the Supreme Court held
that the Confrontation Clause was applicable to state prosecu-
tions. There, the Court considered a situation factually similar
to that posed by Defendant’s case: during a severed trial
the prosecutor asked the accused’s co-defendant a series of
29
questions, reading from the co-defendant’s confession. The
witness refused to testify, invoking his privilege not to testify
in spite of the trial judge’s conclusion that his prior conviction
on the same charges barred reliance on his Fifth Amendment
privilege of silence and over his order to the witness to answer
the prosecutor’s questions. /d, at 416. Through this procedure,
the prosecutor read the entire document purporting to be the
witness’s confession before the jury, intermitently inquiring
of the witness whether he had made the statement. The prose-
cutor then called law enforcement officers to testify that the
document embodied the witness’s confession.
The Supreme Court held that this procedure denied the
accused the right to confrontation because it deprived him of
any opportunity to cross-examine the witness concerning
whether or not the document either embodied his confession
or whether he had made any statement. /d, at 419-420. In this
case, Defendant was unable to inquire of Boeglin as to the
authenticity of the purported statement, or even as to whether
Boeglin had, in fact, given any statement at all.
More critically, counsel was unable to cross-examine the
witness concerning whether the references in the statement
could correctly be taken to refer to Defendant. As counsel
developed in the cross-examination of witness DeLuche, who
testified that he took the statement from Boeglin, the state-
ment never named the third individual who Boeglin claimed
was involved as “‘Ralph Earnest.”’ (Tape 16/37). The transcript,
State’s Exhibit 39, reflects that Boeglin referred to the other
person as ““Rob or Rod’’ and stated that he was not sure what
his name was. All other references in the statement were to
“Rob.” (Tape 16/88-166). There was testimony in the record,
including that from DeLuche that Defendant is known as
“Rod.” (Tape 16/66). However, as counsel developed, DeLuche
never conducted a live or photo lineup to ascertain whether
Boeglin meant Defendant when he referred to ““Rod or Rob”
in his statement. (Tape 16/46).
30
Thus, Defendant was initially deprived of any opportunity to
question the witness regarding whether he had made a state-
ment, whether the statement admitted was an accurate rendi-
tion of the statement or whether he intended any part of the
statement to refer to Defendant.
Second, and more significantly, Defendant was deprived of
any opportunity to cross-examine Boeglin regarding the sub-
stance of his alleged statement. The primary purpose of the
Confrontation Clause was expressed by the Supreme Court in
Mattox vy. United States, 156 U.S. 237 (1895):
“The primary object of the constitutional provision in
question was to prevent depositions or ex parte affidavits
. . .being used against the prisoner in lieu of 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 242-243. The Douglas Court amplified these earlier
concerns:
“This case cannot be characterized as one where the pre-
judice in the denial of the right of cross-examination con-
stituted a mere minor lapse. The alleged statements clearly
bore on a fundamental part of the State’s case against peti-
tioner. The circumstances are therefore such that ‘infer-
ences from a witness’ refusal to answer added critical
weight to the prosecution’s case in a form not subject to
cross-examination, and thus unfairly prejudiced the
defendant.’ ”
In the instant case, Boeglin’s refusal to testify in spite of the
trial court’s order could have contributed to the jury’s percep-
tion that the statement was accurate, depriving Defendant of a
chance to rebut that impermissible inference because of his
inability to cross-examine Boeglin before the jury.
3]
The inability of the accused to cross-examine the confession
given by a co-defendant who refuses to testify personally rend-
ers the confession inadmissible because of the infringement on
the accused’s right to confront the witness against him and test
the accuracy of the statement. Bruton v. United States, 392
U.S. 123 (1968). Bruton involved a joint trial; in the instant
case the trials were severed. Nevertheless, the fact that the trials
have been severed does not restore the right of confrontation
to an accused whose co-defendant admantly refuses to testify
and subject himself to cross-examination. Because Boeglin’s
testimony was critical to the State’s case, moreover, supplying
the only direct evidence of Defendant's participation in the
offenses, the error in admitting Boeglin’s statement could not
be deemed harmless. In United States v. Key, _F.2d___ (No.
82-2955, 10th Cir. 1984), the Court applied the Bruton rule in
reversing the conviction of an accused charged with mail fraud,
where the prosecution introduced his co-defendant’s statement,
inculpatory as to the accused, and essential to the government’s
case. While the government might have properly done so in
certain limited instances, such as by excluding all references to
the accused from the evidence, its failure to do so violated
the accused’s right of confrontation and deprived him of the
opportunity to test the accuracy of the evidence. The Court
reversed, noting that the error was cognizable under the “‘plain
error” rule applicable in federal prosecutions.
The fact that Defendant’s trial was severed from that of co-
defendant Boeglin does not remove the constitutional taint
from the proceedings, since the issue of severance is not dispos-
itive of the Confrontation Clause claim. See Douglas v. Ala-
bama, supra. (severed trials of co-defendants did not remove
taint from inability to cross-examine). The “unavailability” of
witness Boeglin did not justify admission of his statement
against Defendant, who was denied any opportunity to cross-
examine the witness regarding whether he had made the state-
ment, whether it was accurate, or even whether the statement
32
referred to Defendant. Defendant’s right to confront and
cross-examine Boeglin was constitutionally rooted in the
guarantee of the Sixth Amendment and in the New Mexico
Constitution; the procedure engaged in by the trial court
violated that right and requires reversal as constitutional error.
Pointer v. Texas, 380 U.S. 400 (1965).
Co-conspirator exceptions
Certain statements made by non-testifying co-conspirators
have been deemed admissible against an accused in a criminal
prosecution. While the trial court did not rely on this exception
to the hearsay rule in admitting the Boeglin statement, Defend-
ant nevertheless would show that the statement could not prop-
erly have been admitted under our Evidence Rule 801(d)(2)
(EL), N.M.R.Evid. (1978). That rule provides that the “‘statement
by a conconspirator of a party during the course and in further-
ance of the conspiracy” is not hearsay and, thus, not precluded
by operation of Rule 802.
Boeglin and Earnest were both indicted for conspiracy in the
murder of David Easton and other offenses. However, the state-
ment given by witness Boeglin was made after the commission
of the offenses for which both were indicted, along with Perry
Conner, as conspirators. The subject of the conspiracy alleged,
the murder of Easton, was accomplished prior to the giving of
the statement, along with all other acts implicated by the two
conspiracy counts.
New Mexico has adopted the federal rule with respect to
co-conspirator declarations. Weinstein, Evidence, section 801
(d)(2)[2], at 801-186. Compare, Dutton v. Evans, 400 U.S.
74 (1970) (Georgia’s more expansive co-conspirator statement
rule not inherently violative of Confrontation Clause). New
Mexico does not permit admission of statements made by a
co-conspirator after the conspiracy has ended, whether through
success, failure or abandonment. See Krulewitch v. United
States, 336 U.S. 440 (1949). Once the conspiracy terminated
33
in the instant case, the statements allegedly made by Defend-
ant’s co-conspirators were not admissible against him. State
v. Merrick, 54 N.C.App. 1, 283 S.E.2d 139 (1981), aff'd, 305
N.C. 383, 289 S.E.2d 354. Here, the evidence elicited from
witness DeLuche showed that Defendant was not present for
the statement given by Boeglin, (Tape 15/343), since the three
co-defendanis had been separated from the time of their arrest
and the separation continued through the giving of the state-
ment by Boeglin. (Tape 13/495). Where the conspiracy has
terminated and one co-conspirator makes a statement outside
the presence of the accused, American courts have overwhelm-
ingly held that the statement is inadmissible in the absence of
live testimony and the opportunity for cross-examination of the
declarant. See generally, Anno. ‘“‘Admissibility of Statements of
Coconspirators Made After Termination of Conspiracy and
Outside Accused’s Presence,” 4 A.L.R.3d 672, especially
section 3, at 678, and cases cited in pocket part.
Courts of other jurisdictions have zealously protected the
confrontation right where the alleged statement of the co-
conspirator was given in the form of a confession made to
police officers investigating the offense and is inculpatory to
the accused. Thus, in State v. Sykes, 569 S.W.2d 258, 261-262
(Mo. App. 1978), the court held admission of the co-conspir-
ator’s confession constituted reversible error since the con-
spiracy had already terminated and the statement could not,
therefore, have been made in furtherance of the conspiracy.
Accord, Com. v. McDowell, 460 Pa. 474, 333 A.2d 872, 874-
875 (Pa. Sup..1975). In Edwards v. State, 279 Ala. 371, 185
So.2d 393, 394 (1966), the court reversed because of failure
to lay the proper predicate showing that the witness made the
statement. An Alabama court again reversed in Price v. State,
190 So.2d 724 (Ala. Ct. App. 1966) where the statement was
given after the co-conspirator had been found guilty and was
serving a jail sentence, since it followed in time the end of the
conspiracy and the accused was not present when the statement
was made.
34
In Green v. State, 115 Ga.App. 685, 155 S.E.2d 655, 659
(1967), the court held that a statement given by the co-con-
spirator while in custody and not in the presence of the accused
was inadmissible as hearsay because it provided a mere narrative
of the events preceding termination of the conspiracy. Similarly,
Boeglin’s statement was not made during, or in furtherance of
the conspiracy, it being a narrative given after the termination
of the conspiracy while he was in custody. Such a statement
would be admissible only against the declarant, Boeglin. See
State v. Patriarca, 308 A.2d 300, 315-318 (R.I. 1973).
The trial court did not admit Boeglin’s statement under the
co-conspirator theory and properly so since the facts showed
that the statement was not made in the course of or in further-
ance of the conspiracy. Further, the State did not argue at trial
that the co-conspirator rule would apply to Boeglin’s statement
and, thus, any claim that the evidence was properly admitted
under this theory has been waived.
Reliability of the statement
In relying on Martinez for the proposition that Boeglin’s
statement could be admitted as an exception to the hearsay
rule authorized by Evidence Rule 804(a)(2) and (b)(4), the
trial court abused its discretion in concluding that the statement
carried a sufficient indicia of trustworthiness to justify its ad-
mission. The statement being hearsay, in accord with the defi-
nition of hearsay given in Rule 801(c), N.M.R.Evid. (1978),
it could only be admitted as an exception to the rule if reliable
as a correct statement tending to proof the truth of the matters
asserted therein.
Boeglin’s statement lacks a sufficient indicia of reliability to
justify admission in three important respects. First, the circum-
stances surrounding the taking of the statement cast doubt on
the credibility of the maker and the matters asserted. The
testimony showed that Boeglin made the statement after arrest;
that he stated he had been using methamphetamine (Tape 15/
35
490), but was not tested for possible effects of the drug at the
time of his interrogation, even though investigator DelLuche
testified that Boeglin was “hyper” (Tape 13/390-395, 408, 546;
Tape 14/033, 060); and that Boeglin made the statement with-
out having been advised by an attorney, or sworn by a magis-
trate. (Tape 13/370-380, 585; Tape 15/373).
Second, even if the circumstances surrounding the taking
of statement did not warrant exclusion, the text of the state-
ment itself, coupled with other evidence, demonstrates that
the statement was not so contrary to the wituess’s interest
as to justify admission under Evidence Rule 804(b)(4). The
statement, while partially inculpatory as to Boeglin’s parti-
cipation in the entire transaction, is also exculpatory as to his
involvement in the fatal wounding of the victim. The state-
ment can actually be best construed as Boeglin’s attempt to
mitigate his own culpability for the principal offense alleged
by stating that ‘“‘Rob” had actually done the shooting. See
State’s Exhibit 39, at page 6. Moreover, the record shows
that Boeglin gave other statements in which he denied parti-
cipation in the offense. (Tape 15/97, 317-322). Clearly, Boeg-
lin’s inculpatory statement was sufficient to lead the police
to the murder weapon and other items of physical evidence
of the offense. (Tape 1!5/34-38). But, the statement serves
as Boeglin’s attempt to exculpate himself from the role of
principal in the commission of the murder at the expense
of the individual referred to as “‘Rob”’ and, thus, the state-
ment cannot be judged as so against Boeglin’s interest that he
would not have made it unless it were true. Boeglin may have
erred in assessing the legal significance of his own inculpatory
admissions, but the statement demonstrates his effort to mini-
mize his role in the offenses. Consequently, the statement
lacks the requisite reliability because Boeglin’s motivation in
giving it undermines the very premise of reliability, since he
attempted to use the statement to gain his personal freedom
at the expense of the others implicated in the statement. See
36
State’s Exhibit 39, at page 3. Boeglin hoped to gain his free-
dom by making a statement incriminating others for the of-
fenses charged.
Third, the statement lacks reliability because neither the text
of the statement, nor other evidence sufficiently serves to
identify Defendant as the person referred to by Boeglin as
“Rod or Rob,” and then as “Rob” throughout the remainder
of the statement. Counsel clearly developed this weakness in the
use of the statement on re-cross, where witness DeLuche admit-
ted that the statement included Boeglin’s comment that he was
not sure what “his” name was. (Tape 16/37, 88-166). While
DeLuche did testify that he knew Defendant as “Rod” or
“Rodney,” there was no independent testimony that Boeglin
had ever identified Defendant as the individual to whom he
made reference in the statement. (Tape 16/46).
For these reasons, the trial court abused its discretion in
overruling the defense objection to admission of the statement.
(Tape 16/230). The statement was not sufficiently reliable in
terms of either the declarant’s motivation in making it, or in
terms of its relevance in Defendant’s trial, to justify admission
under Rule 804, even assuming the trial court’s declaration of
Boeglin’s unavailability under subsection (a) (2) was correct.
(Tape 13/215).
The statement of co-defendant Boeglin was improperly ad-
mitted, in violation of Defendant’s right of confrontation under
both the federal and state constitutions, and in violation of the
New Mexico Rules of Evidence. The admission of this testi-
mony, central to the State’s case against Defendant cannot be
deemed harmless under the mule of Chapman vy. California,
386 U.S. 18 (1967), and consequently, the error in its admis-
sion requires reversal.
37
POINT III, PETITIONER STATE OF
NEW MEXICO’S ANSWER BRIEF TO
THE NEW MEXICO SUPREME COURT.
IN THE SUPREME COURT OF THE
STATE OF NEW MEXICO
STATE OF NEW MEXICO,
Plaintiff-Appellee,
VS. No. 15-162
RALPH R. EARNEST,
Defendant-Appellant.
POINT III
(Filed June 22, 1984)
STATE’S EXHIBIT 39, THE STATEMENT OF
PHILLIP BOEGLIN, WAS PROPERLY ADMITTED
INTO EVIDENCE BECAUSE BOEGLIN WAS UN-
AVAILABLE TO TESTIFY AND THE STATEMENT
WAS SHOWN TO HAVE SUFFICIENT INDICIA OF
RELIABILITY.
Defendant argues that the trial court abused its discretion
and denied him his rights of confrontation and cross-ex amina-
tion by admitting the statement of Phillip Boeglin into evi-
dence. The State disagrees, and argues that Boeglin’s statement
was properly admitted against Defendant under the standards
of Ohio v. Roberts, 448 U.S. 56 (1980). Roberts held that the
Sixth Amendment is not violated by the introduction of a
statement inculpatory of a defendant if the declarant is unavail-
able to testify and the statement bears sufficient indicia of
reliability. Sufficient indicia of reliability are present if the
statement falls into one of the firmly rooted exceptions - > the
hearsay rule, or if the statement is found to contain particular-
ized guarantees of trustworthiness. Ohio v. Roberts, supra,
448 U.S. at 65-66.
It appears to be undisputed that Phillip Boeglin was un-
available to testify. He was called to the stand, but refused to
38
answer questions concerning his activities on February 11,
1982, on the basis that it might tend to incriminate him. (Tape
11, 428-469). The State tendered a use immunity order to the
trial court, which was signed. (Tape 11, 470-513). Boeglin still
refused to testify concerning his activities on February 11,
1982, again citing his right to refuse to incriminate himself.
(Tape 11, 528-540). The trial court explained to Boeglin that
he had no privilege to refuse to testify on the basis of self-
incrimination, warned Boeglin that further refusals would lead
to citations for contempt and ordered him to answer. (Tape 11,
540-560). Boeglin again refused to testify as to his activities
on the night in question. (Tape 11, 560-574). The jury was
excused, and Boeglin’s attorney argued that he should not be
compelled to answer. (Tape 11, 574-end; Tape 12, 3-347).
The trial court ordered Boeglin to testify, offered to purge any
previous citations if he did so, and stated that he would allow
a jury trial and would sentence Boeglin as if it were a first
degree felony if he again refused to testify. (Tape 12, 385-484).
A recess was taken so that Boeglin could confer with his at-
torney. (Tape 12, 503-521). Upon returning from recess,
Boeglin again refused to answer the question previously asked,
citing his privilege against self-incrimination. (Tape 12, 526-
545). The trial court warned him that he faced contempt
proceedings, noted the immunity order, and ordered him to
answer. (Tape 12, 545-570). Boeglin again refused, citing his
privilege against self-incrimination. (Tape 12, 570-578). The
trial court cited him for contempt, referred the matter to
the District Attorney’s office for action, and remanded Boeglin
to the custody of the Sheriff's Office. (Tape 12, 578-592).
The State moved to declare Boeglin unavailable, under Rule
804(a) (2), New Mexico Rules of Evidence. (Tape 12, 601-606).
After argument by counsel, the court declared Boeglin unavail-
able. (Tape 13, 143-145). The trial court’s action clearly com-
ported with the standards of Rule 804(a)(2). Boeglin re-
fused to testify as to the subject matter of his statement,
despite an immunity order, an order to testify and a citation
39
for contempt of court. State v. Martinez, 99 N.M. 353, 658
P.2d 428 (1983).
Boeglin’s statement also demonstrated the requisite indicia
of reliability. In Ohio v. Roberts, supra, the United States
Supreme Court noted that indicia of reliability may be shown in
one of two ways. First, if the statement falis within a “‘firmly
rooted exception” to the hearsay rule, its reliability may be
inferred with no further showing, 448 U.S. at 66. Secondly,
that reliability may be shown through “‘particularized guar-
antees of trustworthiness.” /d. The State believes that Boeglin’s
statement adequately met both of those standards.
The State sought admission of the statement as a statement
against interest, pursuant to Rule 804(b)(4), New Mexico
Rules of Evidence. (Tape 2, 63-95; Tape 12, 601-606; Tape 13,
270-274). The trial court apparently admitted the statement
on that basis, noting that this was a statement which put the
declarant in jeopardy of his life and was therefore reliable.
(Tape 13, 170-191). The trial court also noted. during the
hearing on a motion in limine relative to the statement, that
this was a case where Boeglin came in and said that he had
helped to commit first degree murder and had backed up that
statement with facts, a gun and a body. The court felt that
made the hearsay reliable, and took notice of the physical
evidence and testimony from Defendant’s first trial, which
independently corroborared Boeglin’s statement (Tape 2,
718-738).
Ohio v. Roberts, supra, did not specifically address
whether or not a statement against interest was to be consid-
ered a “firmly rooted exception’’ to the hearsay mle. That
Court did note that dying declarations, prior testimony, busi-
ness and public record exceptions were to be considered as
such. 448 U.S. at 66 N.8. Subsequent cases have held that
the statement against interest exception is to be considered
a firmly-rooted exception to the hearsay rule, for purposes
40
of Sixth Amendment analysis. See, e.g., United States v. Kat-
sougrakis, 715 F.2d 769, (CA2, (1983) cert. denied, 104 S.Ct.
704 (1984): United States v. Robinson, 635 F.2d 363 (CAS,
1981): State v. Parris, 654 P.2d 77 (Wash., 1982).
Thus, Boeglin’s statement was admitted pursuant to a “‘firmly
rooted exception’’ to the hearsay rule, as required by Ohio y.
Roberts, supra. \t is clear that the statement qualified as a state-
ment against interest. Rule 804(b) (4), New Mexico Rules of
Evidence, requires that such a statement must have “so far
tended to subject him to. . .criminal liability. . .that a reason-
able man would not have made the statement unless he believed
it to be true.” Boeglin’s statement meets those requirements.
As the trial court noted, Boeglin’s statement amounted to a
confession to first degree murder, in addition to implicating
Defendant. In addition, Boeglin’s statement amounted to a
confession to kidnapping, conspiracy to commit murder, con-
spiracy to commit kidnapping and possession of marijuana.
(See p.p. 4-6, 9-10, State Exhibit #39). The murder to which
Boeglin confessed being a principal participant was planned
through the night, and was undertaken to prevent the victim
from informing as to the drug deal conducted earlier that
day. (See p.p. 4-6, State Exhibit #39). Thus, Boeglin could
receive the death penalty as a result of his statement. (See
31-20A-5SG, N.M.S.A., 1978 Comp., 1978 Rpl. Pamp.). It is
difficult to imagine a statement more thoroughly against one’s
penal interests. Moreover, this Court has ruled that the state-
ment is admissible against Boeglin. (See, Decision in Staée vy.
Boeglin, No. 15, 243, Feb. 23, 1984). Thus the statement
apparently meets the Rule’s requirement that it “tend” to
subject him to criminal liability. United States v. Layton,
720 F.2d 548, (CA9) cert. denied, 104 S.Ct. 1423 (1984);
State v. Parris, supra.
Defendant argues that the statement is unreliable because
Boeglin attempted to mitigate his own involvement in the
41
matter, and attempted to gain his freedom at the expense of
his codefendants. (BIC at 27). The State disagrees with these
characterizations of the statement. Boeglin admited his active
participation in all phases of the crime. He admitted partici-
pating in the vote to kill Eastman. (P.5, State Exhibit #39),
He admitted kicking Eastman, apparently as part of the interro-
gation process. (P.5, State Exhibit #39). He admitted partici-
pating in moving Eastman, who was bound at the time, from
the shed to the house. (P.5, State Exhibit #39; compare 30-4-1,
N.M.S.A., 1978 Comp., definition of kidnapping). He admitted
participating in placing the victim in a car and driving him to a
remote area to kill him. (P.6, State Exhibit #39). He admitted
cutting Eastman’s throat twice while Eastman was still alive
after Eastman had received a gunshot wound to the head. (p.6,
State Exhibit #39). The State is unable to see how it could be
said that such admissions are an attempt to mitigate his involve-
ment in the crime. It would be more accurately characterized
as a brutally frank, totally inculpatory statement. Had Boeglin
wished to mitigate his involvement, he could easily have de-
scribed himself as an unwilling participant, responding to
threats from his codefendants. He did not do so. He could have
claimed that he sat passively while Earnest or Conner cut the
victim’s throat. Yet he admitted wielding the knife. Defendant
asserts that the statement is “exculpatory as to his involvement
in the fatal wounding of the victim.’ (BIC at 27). That argu-
ment does not bear close examination. It is true that expert
testimony at trial from the pathologist showed that Eastman
died from the gunshot wounds to the head, and not from the
knife wounds to the throat. (Tape 19, 498-501). However, it
is highly unlikely that Boeglin would be aware of such technical
niceties a few hours after the homicide, and one day before the
autopsy was performed. (Tape 19, 285-304). An examination
of State’s Exhibits 12 and 13 shows what would appear to a
layman to be extremely serious cuts on the victim’s throat.
The police at that time seemed to believe that the victim had
died from the throat wounds. (P.3, State Exhibit #39). As
42
stated earlier, Boeglin believed Eastman was still alive when he
cut his throat. (P.6, State Exhibit #39).
It is true that case law indicates that statements to the
police should be carefully scrutinized before being admitted as
statements against interest, to discover if the declarant was
attempting to “‘curry favor” with authorities. See, e.g., United
States v. Katsougrakis, supra; State v. Parris, supra. However,
the present case is free from any such indications of unrelia-
bility. Though Boeglin at first attempted to bargain for his
freedom, the investigator quickly made it clear that he could
not do so.
“Well, I am not going to offer you your freedom.
1 can’t offer you your freedom.”’ P.3, State Exhibit
#39.
DeLuche, the investigator then referred to his earlier statements
that he could only tell the district attorney what information
Boeglin had provided. (/d.). He repeatedly stressed that he
could not offer any deals or make any promises. (P.2, State
Exhibit #39). Boeglin was reminded, just before beginning
his confession, that this was not a matter which would be taken
lightly:
Detective Carrasco: ‘Do you understand that’s
a homicide, it’s not just a petty thing, man?”’
Boeglin: Yeah, | know it.
Boeglin then confessed. (P.4, State Exhibit #39). Perhaps
most striking is the warning DeLuche gave Boeglin shortly
before he began his confession:
“Now for example, you-you say ‘okay, I’m going
to tell you the truth if you'll let me go,’ and I say,
‘Fine. Mr. Boeglin, we’ve got a deal,’ and you tell
me ‘Okay, I was the one that cut his throat.” Now
what kind of a deal is that? That’s stupid, isn’t it?”’
(P.3, State Exhibit #39).
43
Yet, within minutes of being told that he would be in serious
jeopardy if he admitted cutting Eastman’s throat, Boeglin
admitted cutting Eastman’s throat. (P.6, State Exhibit #39).
This cannot be portrayed as a situation where Boeglin could
have believed that he would “‘curry favor’ by his confession.
To the contrary, Boeglin was well aware that he faced the
most serious of consequences, and yet admitted the very
details which he knew would place him in the worst of posi-
tions. See, United States v. Robinson, supra.
Defendant also argues that the circumstances of the state-
ment, such as Boeglin’s apparent drug use, the custodial nature
of the statement and the lack of an attorney demonstrates its
unreliability. This Court has already held that the statement in
question was made voluntarily, and that Boeglin freely and
intelligently waived his right to silence and counsel. (Deci-
sion, State v. Boeglin, No. 25, 243, Feb. 23, 1984). Those issues
should not be relitigated. It should also be noted that all of
those factors were made known to the jury, and were presum-
ably used in determining what weight to give to the statement.
(Tape 13, 281-691, Tape 15, 54-550). Also, the jury heard
the actual tape of Boeglin’s statement. (Tape 14, 280-850).
Thus, the jury was in a better than usual position to judge
Boeglin’s mental state when he gave the statement. United
States v. Layton, supra.
Defendant last contends that Boeglin’s statement is unreli-
able because it fails to sufficiently identify Defendant as the
third person in the group that committed the crimes. The State
disagrees. When Boeglin first mentioned the third person, he
said:
**. sme and Rod or Rob, whatever his name is
Red went over to the Eastman’s house... .”’ (P.5,
State Exhibit #39).
From that point on, he refered to his two companions as *“‘Rob
and Red.”’ (‘‘Rea”’ is codefendant Perry Conner’s nickname.
44
(Tape 21, 545-582.) Boeglin said that ““Rob and Red and me
was there’’ when Eastman was taken for his last ride, and des-
cribed where all four sat in the car. (P.6, State Exhibit #39).
He then described how “we” hid the evidence, went to Red’s
house, cleaned up, and went to Boeglin’s house. He then said
that ‘“‘we’’ got arrested. (P.6, State Exhibit #39). It is clear
from his account that the two people with Boeglin when they
were arrested were the two with whom he had committed the
crimes. When Boeglin was arrested, he was with Perry Conner
and Defendant. (Tape 10, 178-248; Tape 16, 114-116).
Throughout the trial, Defendant was constantly referred to
as “Rod,” (Tape 10, 554-574, Tape 16, 30-38) or “Rodney”
(Tape 16, 184-192). (It is also interesting to note that DeLuche
could not tell whether Conner referred to Defendant as *‘Rob”’
or ‘“‘Roy”’ during Conner’s statement. Conner clarified that it
was “Rodney” to whom he referred. (P.6, State Exhibit #43.)
Eastman’s roommate, Michaei Blount, also saw the trio at a
convenience store shortly after the murder and shortiy before
their arrest. Blount stated that the three he saw driving his
roommate’s car were Conner, Boeglin and Defendant. Blount
came upon Eastman’s body moments later. (Tape 10, 766-889).
Based upon these facts the State does not believe that there
was any ambiguity as to who “‘Rod or Rob,” the third person
involved in the crimes, was. It was clearly Defendant.
The State would last note that Boeglin’s statement was
corroborated by a wealth of evidence. Boeglin said that Red
Conner was in the process of completing a drug deal with
Eastman and that they wanted Eastman’s roommate’s motor-
cycle as collateral. The roommate refused, so Eastman’s El
Camino automobile was used as collateral instead. (P. 4-5,
State Exhibit #39). All those matters were corroborated by
the testimony of Eastman’s roommate, Michael Blount. (Tape
10, 593-614, 637-653). The deal involved 14 grams of the drug,
according to Boeglin. (P.9, State Exhibit #39). This was cor-
roborated by Blount’s testimony. (Tape 10, 637-653).
45
Boeglin states that they began to believe Eastman was a
“narc’’ or informant, and that led to the murder. This is cor-
roborated in several ways. Dana Boeglin, Boeglin’s wife, testi-
fied that she saw the men that night with a stranger, whom
Defendant said was a “‘narc’’. (Tape 16, 325-434). Dana Boeglin
testified that Red Conner said that the man was a “‘narc”’ and
that they were going to kill him. (Tape 16, 343-369, 373-381).
Boeglin, in his statement, said that he and his companions
shot Eastman and cut his throat. (P.6, State Exhibit #39).
Dr. Sweeney, the pathologist, testified that Eastman had cuts
across his throat, and bullet wounds. (Tape 19, 332-347, 406-
418). Dana Boeglin testified that Red Conner said they would
“blow him away” or cut his throat. (Tape 16, 408-410).
Boeglin’s statement reflects that the three first attempted
to overdose Eastman on several grams of speed or “‘crystal,”’
but that it only made him sick. (P. 5-6, State Exhibit #39).
Valerie Knight, a toxicologist, testified that Eastman’s blood
showed enough methamphetamine to kill a person, but that
some people can build enough tolerance to survive such an
amount. (Tape 19, 119-145). Dana Boeglin testified that Red
said they would overdose the ‘‘narc’’. (Tape 16, 413-416).
Boeglin said that Eastman was beaien before they killed
him. (P. 5-6, State Exhibit #39). Dr. Sweeney found bruises
on Eastmans face, arms and legs, made before his death. (Tape
19, 353-357).
Boeglin stated that the first bullet fired hit Eastman between
the eyes. (p.6 State Exhibit #39). Dr. Sweeney testified that
Eastman had a bullet wound between the eyes. (Tape 19,
332-347).
Boeglin described in his statement how the gun jammed when
they tried to shoot Eastman. (P.6, State Exhibit #39). Nelson
Welch, a firearms expert, testified that State’s Exhibit #19, the
gun recovered with Boeglin’s aid, jammed and malfunctioned
46
more than any similar pistol he had ever seen. (Tape 18, 61-
77).
Boeglin said that he cut Eastman’s throat twice, but that
the knife did not seem to cut well. (P.6, State Exhibit #39).
Dr. Sweeney testified that Eastman had two cuts across his
throat, one major and the other smaller. Dr. Sweeney stated
that the cuts did not go deep enough to sever the major veins
and arteries. (Tape 19, 347-353, 406-418).
Boeglin stated that it was still dark, but before dawn when
they left with Eastman to kill him. (P.8, State Exhibit #39).
Marilyn Sullivan, the deputy medical examiner, testified that
she examined Eastman at about 7:15 a.m., and that he had
been killed within the previous four hours. (Tape 9, 684-705;
Tape 10, 50-56).
Boeglin said that they killed Eastman next to the road, on
the Loving Highway. (P.6, State Exhibit #39). Deputy Rodri-
guez testified that Eastman’s body was found next to the road
between Loving and Otis. (Tape 7, 175-199).
Boeglin said in his statement that the gun and knife used
were hidden by a road near Black River under a rock. (P.7,
State Exhibit #39). Deputy Carrasco testified that he recov-
ered a gun, State Exhibit #19, and a knife, State’s Exhibit
#20, near Black River under a rock. (Tape 9, 57-178). Dr.
Sweeney testified that he recovered State’s Exhibits #27 and
#28 from Eastman’s head. (Tape 19, 447-480). Nelson Welch
testified that Siate’s Exhibits #27 and #28 were bullets that
had been fired by State’s Exhibit #19. (Tape 18, 81-97).
This corroboration underscores the reliability of Boeglin’s
statement. This corroboration clearly satisfies the standard of
“particularized guarantees of trustworthiness’’ which is used
as the alternative test for reliability in Ohio v. Roberts, supra.
In summary, Boeglin was unavailable to testify, and his
statement was admissible as a statement against interest, a
47
‘firmly rooted exception” to the hearsay rule. In addition,
the statement, by virtue of its self-incriminatory nature and
thorough corroboration, had ‘‘particularized guarantees of trust-
worthiness”. Defendant’s Sixth Amendment right of con-
frontation and cross-examination were not violated by its
introduction. Ohio v. Roberts, supra.
48
OPINION OF THE NEW MEXICO SUPREME COURT IN
STATE v. EARNEST, 703 P.2d 872 (1985)
IN THE SUPREME COURT OF THE
STATE OF NEW MEXICO
STATE OF NEW MEXICO,
Plaintiff-Appellee,
V No. 15,162
RALPH R. EARNEST,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Harvey W. Fort, District Judge
(Filed March 4, 1985)
Janet Clow, Chief Public Defender
J. Thomas Sullivan, Appellate Defender
Santa Fe, New Mexico For Appellant
Gary C. Mitchell
Ruidoso, New Mexico Trial Counsel
Paul Bardacke, Attorney General
William McEuen, Assistant
Attorney General
Santa Fe, New Mexico For Appellee
OPINION
RIORDAN, Justice.
Ralph Rodney Earnest (defendant), Phillip Boeglin (Boeglin),
and Perry Connor (Connor) were charged with murder, conspir-
acy to commit murder, kidnapping, conspiracy to distribute a
controlled substance (methamphetamines), and possession of a
controlled substance (methamphetamines). Defendant, Boeglin,
and Connor were each tried separately. During the course of
defendant’s trial before a jury, a mistrial was declared. Defend-
ant was subsequently retried, convicted on all counts and sen-
tenced to life imprisonmment for the murder, eighteen years
for conspiracy to commit murder (with nine years suspended),
49
nine years for kidnapping, eighteen months for conspiracy to
distribute a controlled substance and three years for possession
of a controlled substance. All of these sentences were to run
consecutively to each other and consecutively to the life sen-
tence. From this judgment and sentence defendant appeals. We
reverse and remand for a new trial.
The issues we address are:
I. Whether the trial court erred in subjecting
defendant to a retrial after defendant’s first
trial ended in a mistrial.
Il. Whether the tria! court erred in refusing de-
fendant’s request for a hearing on his motion
to dismiss the indictment on double jeopardy
grounds or refusing to grant an interlocutory
appeal on this issue.
Ill. Whether admission of the prior statement of
co-defendant Boeglin violated defendant’s
right to confront the witness against him.
IV. Whether the prosecutor’s reference to defend-
ant’s post-arrest silence deprived defendant of
a fair trial. .
V. Whether the trial court erred in allowing the
district attorney’s investigator to testify as to
co-defendant Boeglin’s behavior at the time of
his confession.
VI. Whether the trial court erred in ordering the
attorney for co-defendant Connor to testify in
rebuttal to Connor’s testimony where the
attorney/client privilege was never waived.
We find it unnecessary to address a seventh issue raised on
appeal since it is unlikely to become a factor on retrial.
Facts.
The offenses charged were committed on the night of Febru-
ary 11,1982 and the early morning hours of February 12, 1982.
50
Defendant and his two co-defendants were arrested on the
morning of February 12, 1982. On that same day, co-defendants
Boeglin and Connor both gave statements to police officers.
Each of these statements was tape recorded and subsequently
transcribed. Boeglin’s statement describes the events leading up
to and including the murder. It incriminates defendant, Boeglin,
and Connor.
I. Declaration of Mistrial.
Defendant’s first trial ended when the trial court declared a
mistrial. The order declaring mistrial indicates the mistrial was
granted pursuant to defendant’s motion and a finding that
“manifest necessity” existed for a mistrial. In declaring a mis-
trial in this manner, the court retained jurisdiction to retry
defendant.
Defense counsel, prior to the declaration of mistrial, had
twice moved for mistrial. The trial court had reserved ruling and
had taken these motions under advisement. After defendant’s
first motion for mistrial, the trial court cautioned defense
counsel that defendant would be better off continuing with the
trial and seeking a directed verdict, instead of moving for
mistrial and facing a retrial. Despite this advice, defense counsel
chose to stand on the motion. Later in the proceedings, defense
counsel again moved for mistrial, and again the trial court
noted that defense counsel was placing defendant in a situation
where he could be retried rather than acquitted and dismissed
if a directed verdict was granted. Despite these repeated warn-
ings from the bench, defense counsel made no attempt to with-
draw either of the motions for mistrial. Later, when the trial
court announced that it was declaring a mistrial based on de-
fense counsel’s previous motions, defense counsel attempted to
withdraw the previous mistrial motions. Defense counsel argued
that a mistrial was inappropriate in light of the state of the
evidence and reminded the trial court that it had previously
indicated the appropriateness of directing a verdict. The trial
51
court responded that defense counsel had been warned that
the outstanding motions for mistrial were not in defendant's
best interest because, at the time when they were made, the
State had not shown all of the elements of any of the offenses
charged. 4
It is the general rule that “[{a] mistrial not moved for or con-
sented to by the defendant must be based upon a manifest
necessity or jeopardy attaches preventing retrial.’ State v. Cas-
trillo, 90 N.M. 608, 613, 566 P.2d 1146, 1151 (1977). “Differ-
ent considerations obtain, however, when the mistrial has been
declared at the defendant’s request.”’ U.S. v. Dinitz, 424 U.S.
600, 607 (1976). In this event, *‘a motion by the defendant for
mistrial is ordinarily assumed to remove any barrier to reprose-
cution.”’ U.S. v. Jorn, 400 U.S. 470, 485 (1971). In the instant
case, defense counsel had made two motions for mistrial prior
to the time the trial court declared a mistrial. Therefore, it was
not error to subject defendant to a second trial.
On appeal, defendant asserts that defense counsel effectively
withdrew the two motions for mistrial. We disagree. Defense
counsel knew that a directed verdict and acquittal were possible
for defendant. Defense counsel was twice warned of the results
if the mistrial motions were maintained. Yet, having persisted in
his requests for mistrial, defendant now complains of the results
obtaining from such motions. We hold that defense counsel
was given ample opportunity prior to the declaration of mis-
trial to withdraw the motions and failed to do so. See U.S. vy.
Crouch, 566 F.2d 1311 (Sth Cir.1978).!
Defendant asserts that no manifest necessity existed. Again
we disagree. “It is a well settled rule . . . that the requisite mani-
fest necessity which prevents a declaration of mistrial from
barring reprosecution will generally be found where the mistriai
is declared at the request of the defendant.’’ MacPherson vy.
State, 533 P.2d 1103, 1104 (Alaska), cert. denied, 423 U.S. 871
(1975). In the instant case, defense counsel twice moved for
mistrial, twice ignored warnings from the bench regarding the
52
effects of such motions, and failed to withdraw those motions.
Defense counsel’s motions provided the “manifest necessity”
required to declare a mistrial. Thus, defendant was properly
subjected to retrial.
Il. Failure to Grant Hearing or Interlocutory Appeal.
Defendant asserts that he was entitled, prior to his retrial, to
a hearing or an interlocutory appeal regarding his motion to
dismiss on double jeopardy grounds. State v. Mestas, 93 N.M.
765, 605 P.2d 1164 (Ct.App.1980), demonstrates that the
Court of Appeals has authority to accept such an application
for interlocutory appeal. Therefore, defendant could have filed
an interlocutory appeal with the Court of Appeals following the
trial court’s denial of his motion to dismiss. However, the
record does not show that defendant ever made such an at-
tempt. Thus, defendant waived any right he may have had to
an interlocutory appeal on this issue. Regardless, we hold that it
was not error to retry the defendant.
Ill. Admission of Co-defendant’s Statement.
The State called co-defendant Boeglin to testify against de-
fendant. Boeglin refused to testify on Fifth Amendment
grounds, and the trial court granted him use immunity for his
testimony. However, despite this grant of immunity, Boeglin
still refused to testify and was .ound in direct contempt by the
trial court. The State then moved to have Boeglin declared
unavailable as a witness. This motion was granted over defense
objettion. The trial court then allowed Boeglin’s taped state-
ment to be played before the jury and allowed the jury to use
individual transcripts of the statement to better follow the
taped statement. Defendant objected that the use of the state-
ment was a violation of defendant’s right to confront the
witness and engage in meaningful cross-examination. Over this
objection, the statement was presented to the jury.
It is clear in the instant case that Boeglin was unavailable to
testify. NMSA 1978, Evid.R. 804(a) (2) (Repl.Pamp.1983).
53
Defendant relies on Douglas v. Alabama, 380 U.S. 415
(1965), in support of his claim that admission of Boeglin’s
statement violated his right to confront and cross-examine the
witness. We find Douglas v. Alabama directly on point. There,
an accomplice was called as a state’s witness and refused to
testify on Fifth Amendment grounds. The accomplice had
previously confessed to the crime, and such confession impli-
cated Douglas. The state was allowed, in the jury’s presence, to
read the confession. Douglas was found guilty. On appeal, it
was held that Douglas’ right to confront and cross-examine the
witness against him had been violated.
In support of the admission of Boeglin’s prior statement, the
State relies on Ohio v. Roberts, 448 U.S. 56 (1980). There, the
Supreme Court fashioned a test whereby prior statements
could be admitted if: (1) the witness is unavailable, and (2) the
prior statement bears adequate indicia of reliability, in that it
falls within one of the “‘firmly rooted”’ exceptions to the hear-
say rule, or the statement has particularized guarantees of trust-
worthiness. /d. at 66. Under the facts of Ohio v. Roberts, the
prior statement sought to be introduced had been made at a
preliminary hearing where an opportunity to cross-examine the
witness existed. It is in this sense that the instant case (and
Douglas v. Alabama) are distinguishable from Ohio v. Roberts.
Two 10th Circuit Court of Appeals’ opinions help to clarify
this distinction.
In U.S. v. Allen, 409 F.2d 511 (10th Cir.1969), it was deter-
mined that the proper test in deciding whether transcripts of
preliminary hearing testimony could be properly admitted at
trial (where the witness refused to testify) was opportunity
for full and complete cross-examination of that witness at the
preliminary hearing. /d. at 613. Thus, it can be logically inferred
that where no such opportunity to cross-examine the witness
existed, then admission of a prior statement is a denial of a
defendant’s confrontation rights.
54
Further, in U.S. v. Rothbart, 653 F.2d 462, 465 (10th Cir.
1981), the Court, in discussing the Ohio v. Roberts test for
admission of prior statements, limits its application to state-
ments and/or testimony made at an earlier judicial proceeding.
In the instant case, Boeglin’s prior statement made to police
officers shortly after his arrest was not made during the course
of any judicial proceeding and defendant was in no way af-
forded an opportunity to cross-examine Boeglin. We therefore
determine that admission of Boeglin’s prior statement was
highly prejudicial, violated defendant’s confrontation rights,
and deprived defendant of meaningul cross-examination.
Defendant’s conviction is therefore reversed and the case
remanded for a new trial.
In so holding, we adopt the 10th Circuit Court of Appeals’
interpretation in Rothbart of Ohio v. Roberts, which limits
admission of prior statements to those that were made at an
earlier judicial proceeding where the defendant was given the
opportunity to fully cross-examine the witness against him.
IV. Prosecutor’s Reference to Defendant’s Silence.
As his fourth contention on appeal, defendant argues that
he was denied a fair trial in that the prosecutor erroneously
inquired into detendant’s post-arrest silence while cross-examin-
ing the defendant. We disagree.
The evidence indicates that the prosecutor’s references to
defendant’s silence were prompted by earlier implications made
by defense counsel that defendant had always maintained his
innocence. This being the case, there was no error. State vy.
Molina, 101 N.M. 146, 679 P.2d 814 (1984).
V. Admission of Investigator’s Testimony.
Boeglin’s statement was admitted through an investigator
for the Eddy County District Attorney’s office who was present
at the time Boeglin made the statement. The prosecution asked
the investigator if he had formed an opinion as to Boeglin’s
55
state of mind at the time Boeglin made the statement. Defense
counsel objected on the ground that the witness was not pro-
perly qualified as an expert. The objection was overruled. The
investigator then testified that Boeglin had appeared ‘‘hyper.”
On appeal, defendant asserts that the investigator was un-
qualified under NMSA 1978, Evid. Rule 702 (Repl.Pamp.1983),
to give an expert opinion regarding Boeglin’s state of mind.
However, defendant ignores the effect of NMSA 1978, Evid.
Rule 701 (Repl.Pamp.1983). That Rule allows admission of lay
testimony in the form of opinions that are rationally based
upon the witness’s perceptions. Thus, the investigator’s testi-
mony was properly admitted.
VI. Waiver of Attorney-Client Privilege.
As the last point of error, defendant asserts that the trial
court erred in ordering the attorney for co-defendant Connor
to give rebuttal testimony to Connor’s testimony. NMSA 1978,
Evid. Rule 503(c) (Repl.Pamp.1983), bars defendant’s claim.
Connor waived the privilege when he testified regarding what
he did not tell his attorney. Defendant may not assert another’s
privilege.
Conclusion.
We determine that admission of co-defendant Boeglin’s prior
statement constitutes reversible error, and defendant’s con-
victions for murder, conspiracy to commit murder, and kid-
napping are set aside and he is granted a new trial.
IT IS SO ORDERED.
/s/ William Riordan
WILLIAM RIORDAN, Justice
WE CONCUR:
DAN SOSA, JR., Senior Justice
/s/ Mary C. Walters
MARY C. WALTERS, Justice
56
FOOTNOTES
| We in no way create a rule requiring the trial court to inquire of defense
counsel whether they wish to stand on their previous mistrial motions
or requiring the trial court to warn defense counsel of the effects of their
previous mistrial motions.
2 State v. Martinez, 99 N.M. 353, 658 P.2d 428 (1983) (a case similar to
the instant case), is distinguishable on its facts since the witness against
Martinez later testified at trial, and Martinez was given an opportunity to
cross-examine the witness.
ethno
UST nt
57
PETITIONER STATE OF NEW MEXICO’S MOTION FOR
REHEARING IN THE NEW MEXICO SUPREME COURT.
IN THE SUPREME COURT OF THE
STATE OF NEW MEXICO
STATE OF NEW MEXICO,
Plaintiff-Appellee,
VS. No. 15,162
RALPH R. EARNEST,
Defendant-Appellant.
MOTION FOR REHEARING
(Filed March 14, 1985)
The State of New Mexico, through its appellate counsel,
William McEuen, Assistant Attorney General, respectfully
moves for a rehearing in the above referenced matter, pursuant
to Rule 602, Rules of Appellate Procedure for Criminal Chil-
dren’s Court, Domestic Relations and Workman’s Compensation
Cases. As grounds, the State submits the following:
1. The Opinion was filed on March 4, 1985, and reverses
Defendant’s conviction because of the introduction of the con-
fession of a non-testifying co-defendant, Phillip Boeglin.
2. The Opinion rejects the State’s argument on this point
by interpreting Ohio v. Roberts, 448 U.S. 56 (1980) as being
applicable only to the admission of testimony or statements
from a previous judicial proceeding in which there was a full
opportunity for cross-examination, and thus being inapplicable
to the admission of Boeglin’s extra-judicial confession.
3. The State believes that this Court has misapprehended
the extent of the holding in Ohio v. Roberts, that Roberts is
applicable to the introduction of extra-judicial statements,
and that Roberts’ standards justify the admission of Boeglin’s
statement against Defendant.
58
4. The argument on this matter is contained in the Brief in
Support of this Motion, attached hereto.
WHEREFORE, the State respectfully requests that this Court
reconsider its Opinion herein as to the admissibility of Boeglin’s
statement, apply the standards of Ohio yv. Roberts to the
question of its admissibility, rule that the statement is admis-
sible under those standards, and affirm Defendant’s convictions.
Respectfully submitted,
PAUL BARDACKE
Attorney General
/s/ William McEuen
WILLIAM McEUEN
Assistant Attorney General
Attorney for Plaintiff-Appellee
Post Office Drawer 1508
Santa Fe, New Mexico 87504-1508
(505) 827-6932
CERTIFICATE OF SERVICE
I hereby certify that a true
copy of the foregoing was
mailed to opposing counsel
of record this 14th day of
March _, 1985.
/s/ William McEuen
Assistant Attorney General
LORD Dt ID. ot
Miieeer se. (dee eh
59
NEW MEXICO SUPREME COURT’S ORDER
DENYING PETITIONER’S MOTION FOR REHEARING
IN THE SUPREME COURT OF THE
STATE OF NEW MEXICO
Thursday, March 21, 1985
NO. 15,162
STATE OF NEW MEXICO,
Plaintiff-Appellee,
vs
RALPH R. EARNEST,
Defendant-Appellant.
This matter coming on for consideration by the Court upon
Motion of Appellee for rehearing, and the Court having con-
sidered said motion and being sufficiently advised;
NOW, THEREFORE, IT IS ORDERED that Motion of
Appe
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