# Record and brief — New Mexico v. Earnest > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0874%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1986 - **Citation:** 477 U.S. 648 ## Text 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 te [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0874%3A0. Public record. Not legal advice.