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Ed. 2d", "year": 1979, "opinion_index": 1 }, { "cite": "99 S.Ct. 2836", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1979, "opinion_index": 1 }, { "cite": "590 F.2d 575", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 823230 ], "pin_cites": [ { "page": "581" } ], "opinion_index": 1, "case_paths": [ "/f2d/590/0575-01" ] }, { "cite": "55 L.Ed.2d 515", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "opinion_index": 1 }, { "cite": "98 S.Ct. 1484", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1978, "opinion_index": 1 }, { "cite": "435 U.S. 922", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2848, 2852, 2952, 2762, 2380, 2732, 2446, 2675, 3062 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/us/435/0922-02", "/us/435/0922-04", "/us/435/0922-07", "/us/435/0922-06", "/us/435/0922-03", "/us/435/0922-08", "/us/435/0922-05", "/us/435/0922-09", "/us/435/0922-01" ] }, { "cite": "561 F.2d 406", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 882552 ], "pin_cites": [ { "page": "408, n. 2" } ], "opinion_index": 1, "case_paths": [ "/f2d/561/0406-01" ] }, { "cite": "94 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573156 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/94/0011-01" ] } ], "analysis": { "cardinality": 1639, "char_count": 41412, "ocr_confidence": 0.812, "pagerank": { "raw": 8.217601182506382e-08, "percentile": 0.4768592686291749 }, "sha256": "89068bd59d0752c13d38b3f503cc51ca33cbf084a0b89d3aeed6231a3551f58c", "simhash": "1:d8eebb3e6f6f1f6a", "word_count": 6773 }, "last_updated": "2023-07-14T15:27:22.270695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SCARBOROUGH, C.J., and RANSOM, J., concur.", "STOWERS, J., not participating.", "WALTERS, J., concurring on issues one and two, dissenting as to issue three." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Johnny Clifford ZINN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSOSA, Senior Justice.\nA jury convicted defendant Johnny Clifford Zinn (Zinn) of nineteen separate felonies, including murder, kidnapping, criminal sexual penetration, robbery, fraudulent use of a credit card, and extortion, along with conspiracy and solicitation to commit various of the above crimes. Zinn appeals the jury\u2019s verdict and the sentence \u2014 life plus ninety-six years. For the reasons stated below, we affirm.\nFACTS\nJames Scartaccini (Scartaccini) came to know Zinn through Randy Pierce (Pierce) when the latter asked Scartaccini to help find for Zinn a woman who would be willing to perform sexual acts in front of movie cameras for a supposed pornography ring in Farmington. Police investigation carried out subsequent to the course of events discussed herein turned up no pornography ring. Scartaccini had never met Zinn, but Pierce had been living for some time under Zinn\u2019s roof. Pierce had approached the seventeen-year old Scartaccini in early January 1986, holding out the offer of $1500 for any \u201csuitable\u201d woman Scartaccini could find. Scartaccini later told his cousin, Thomas Sliger (Sliger), of Zinn\u2019s offer, and the latter joined forces with Scartaccini in attempting to find a woman who would accept Zinn\u2019s proposal.\nScartaccini and Sliger were unsuccessful in procuring a woman for Zinn, principally because Zinn either frightened away or repulsed the women whom Scartaccini and Sliger did manage to introduce to Zinn. Because of this failure, Zinn threatened Scartaccini and Sliger with death if they did not locate a woman by the weekend beginning Friday, January 10. Testimony of other witnesses who observed Scartaccini and Sliger during this time confirmed that the' two men appeared terrified of Zinn. Upon Scartaccini\u2019s and Sliger\u2019s failure to find a woman by Saturday, January 11, Zinn instructed the two men to kidnap a woman, and thus Scartaccini and Sliger cooperated with Pierce in kidnapping a woman from an Albuquerque shopping center and taking her to a motel in Albuquerque, chosen by Zinn. After the victim had been brought to the motel, Zinn arrived and ordered the victim to disrobe. The four men then repeatedly raped and sodomized the victim while taking turns photographing her as she was being sexually assaulted. The photographs were later burned, and no record of them was found by the police. Zinn eventually left the room, placing Pierce in charge of the victim and of Scartaccini and Sliger. Scartaccini later contended that he had participated in the sexual assaults only at the behest of Zinn, but Sliger admitted voluntarily raping the victim on one occasion while his three accomplices were out of the room.\nZinn told Pierce to transport the victim out of Albuquerque. After loading the victim into Scartaccini\u2019s truck, Pierce drove the victim along with Scartaccini and Sliger to find Zinn in order to get further instructions. Following a meeting with Zinn at Jerry\u2019s Lounge, Pierce told Sliger and Scartaccini that Zinn had said to take the victim to the Jemez Mountains. During the drive to the Jemez Mountains, Pierce told Scartaccini and Sliger that \u201cthese girls don\u2019t come back to Albuquerque.\u201d Shortly after that statement, following a phone call from Pierce to Zinn, Pierce told Scartaccini and Sliger that Zinn had told him (Pierce) over the phone to \u201cget rid of her.\u201d Pierce found a culvert in a deserted area, led the victim to it, and shot her in the head with Scartaccini\u2019s gun. Immediately after the killing, Pierce expressed anger to Scartaccini and Sliger, telling them he had never killed a woman before, and that Zinn would \u201chave to pay\u201d for putting him in a situation in which he (Pierce) had to kill a woman.\nEarlier, while in the motel room, Zinn had taken the victim\u2019s \u201cAmigo\u201d bank card from her purse and had instructed Pierce and Sliger to take the card to a bank\u2019s automatic teller and withdraw funds. Their incompetent attempts to use the card put bank officials on notice, and at one \u201cAmigo\u201d station, a photograph was taken of Pierce. When the victim was reported as missing, Pierce\u2019s photograph was shown on television, and a former girlfriend of Scartaccini, who had seen Pierce, Sliger and Scarticcini together before the kidnapping, called the police. On Friday, January 17, 1987, Scartaccini and Sliger were arrested and placed in separate facilities \u2014 Sliger being taken to the county jail in Albuquerque and Scartaccini to the Juvenile Detention Center in the same city.\nThat Friday evening defense attorney Leon Taylor (Taylor) was retained by Scartaccini\u2019s and Sliger\u2019s parents to represent their sons, and thus Taylor went to interview Scartaccini and Sliger separately at the two detention facilities. On Sunday, January 19, Taylor returned to interview his clients more extensively, each man still being held in a separate facility. Taylor later testified that after the Sunday interview he realized that more than kidnapping was involved (the police at this point did not realize the victim had been murdered), and he requested and received a conference with the district attorney. Taylor\u2019s first offer to the district attorney was \u201ccomplete immunity \u2014 no holds barred, bottom line.\u201d After the district attorney considered Taylor\u2019s proposal, he responded, as Taylor recalls it, with a counteroffer requiring that Taylor\u2019s \u201cinformation * * * provide a conviction.\u201d Taylor and the district attorney then executed the following immunity agreement (Agreement # 1):\n1. Your clients (sic) no involvement in criminal activity other than [the case at bar].\n2. Provide us with all information indicated by Leon [Taylor], and information is truthful.\n3. Give us one of following:\nA. Return of [victim] alive\nor\nB. Conviction of her killers if [victim] is dead.\n4. Premised on your clients\u2019\nA. Not being the killers\nand\nB. Presenting reasonable evidence of duress or coersion (sic) in their involvement of the [victim\u2019s murder].\n5. Clients fully cooperate, including truthful testimony, in all cases of which they have knowledge.\nIf you agree to foregoing, we will agree not to prosecute your clients, [signatures of Taylor and district attorney] 1-19-86 (emphasis added).\nSubsequent to Agreement # 1, on February 28, 1986, another agreement was put into writing (Agreement # 2) that essentially presented the terms of Agreement # 1 in a more formal style, but which omitted any wording as to the conviction of the victim\u2019s killers. Further, whereas Agreement # 1 was executed by the attorneys for the parties without prior knowledge on the part of either Scartaccini or Sliger as to the terms, Agreement # 2 was executed by Scartaccini and Sliger along with Taylor and the district attorney.\nAfter the execution of Agreement # 1, Taylor\u2019s associate, Daniel Rakes, met with Scartaccini and Sliger. Rakes testified as to this meeting as follows:\nI met with the clients at the police substation and I informed them that we had a deal where they would be granted immunity if they would tell the truth and cooperate with the police as to their involvement in the * * * murder.\nWhen asked if Scartaccini and Sliger had understood the terms of the agreement, Rakes testified:\nWhether or not they understood, I really don\u2019t know. One of them had just been driving (sic) out of the detention center\u2014 he was asleep in the back of the police car and brought up and both of them were real hyper and excited and I tried to do my best to explain to them what was going on, but the main thrust of what I had told them was to tell the truth and cooperate with the police.\nShortly after Rakes met with Scartaccini and Sliger, at separate times and without the other present, each gave the police lengthy statements detailing the facts of the conspiracies, kidnapping, murder and sexual assaults. The statments were transcribed and later introduced into evidence. The statements, insofar as they pertained to Zinn\u2019s and Pierce\u2019s involvement in the crimes, did not deviate significantly from Scartaccini\u2019s and Sliger\u2019s later oral testimony presented both at the preliminary examination and at trial. Likewise, the statement of neither man differed significantly from the statement of the other.\nAt the preliminary hearing, when Taylor was asked by the trial court if it was his understanding that the absence of \u201cconviction of her killers\u201d from Agreement #2 meant that if the killers were acquitted Scartaccini and Sliger \u201cwould still have their immunity,\u201d Taylor answered, \u201cThat\u2019s correct. My clients walk whether these people get convicted or not.\u201d When Scartaceini and Sliger were questioned at the preliminary examination as to their understanding of Agreement # 1, Scartaccini said nothing about the conviction requirement, while Sliger acknowledged his awareness of that provision. Both men stated they understood they were to tell the truth.\nPierce and Zinn were joined as co-defendants, but Pierce eventually entered a guilty plea and was sentenced to life imprisonment plus thirty-six years. Pierce did not testify at Zinn\u2019s trial. The following issues are before us on appeal.\nI. DID THE IMMUNITY AGREEMENT AND RESULTING INCULPATORY TESTIMONY DEPRIVE ZINN OF A FAIR TRIAL?\nOn appeal, Zinn argues that Agreement # 1, premised as it was on \u201cReturn of [victim] alive or conviction of her killers,\u201d was an impermissible condition to the grant of immunity in that it coerced testimony calculated to return a guilty verdict against Zinn regardless of the actual facts. This is an issue of first impression in New Mexico, and the parties in their briefs rely on a substantial number of federal and other out-of-state authority. In doing so, the parties do not disagree as to what the law is. Rather, they disagree as to the applicability of the law to the facts of this case.\nThe leading federal authority is United States v. Dailey, 759 F.2d 192 (1st Cir. 1985), wherein the government granted accomplices an immunity agreement in which the government promised to recommend a specific term of imprisonment \u201cdepending principally upon the value to the Government\u201d of certain desired testimony. Id. at 194. The court held that the agreement did not deny the defendant\u2019s right to due process because the trial court had provided the following traditional safeguards: (1) informing the jury of the exact nature of the agreement; (2) permitting defense counsel to cross-examine the accomplices concerning the agreement; and (3) instructing the jury to weigh the accomplices\u2019 testimony carefully. By way of dictum the court stated, \u201c[W]e note that at present we can think of no instance in which the government would be justified in making a promised benefit contingent upon the return of an indictment or a guilty verdict.\u201d Id. at 201.\nThe court in United States v. Waterman, 732 F.2d 1527 (8th Cir.), vacated en banc by an equally divided court, 732 F.2d 1533 (8th Cir.1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2138, 85 L.Ed.2d 496 (1985) at first reversed the trial court\u2019s decision in a case where the government\u2019s immunity agreement was conditioned on an accomplice\u2019s giving testimony that would lead to further indictments. Without comment, the court then vacated its decision, so that Waterman stands for the proposition that the agreement under review did not deprive the defendant of a fair trial. The court in Dailey took notice of Waterman, but only to point out that the facts before it did not present as much of a risk to a defendant\u2019s right to fair trial as did the facts reviewed by the Eighth Circuit in Waterman. The dictum in Dailey doubtless was intended as a restrictive comment on Waterman.\nGenerally speaking, the rule in the federal circuits is as follows. So long as an immunity agreement falls short of requiring that an accomplice\u2019s testimony return a conviction against the defendant, and so long as the traditional safeguards outlined in Dailey are provided, the defendant is said not to have been denied a fair trial. See United States v. Miceli, 446 F.2d 256 (1st Cir.1971); United States v. Insana, 423 F.2d 1165 (2d Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970); United States v. Vida, 370 F.2d 759 (6th Cir.1966), cert. denied, 387 U.S. 910, 87 S.Ct. 1695, 18 L.Ed.2d 630 (1967); but see United States v. Valle-Ferrer, 739 F.2d 545 (11th Cir.1984), in which an agreement conditioned on testimony resulting in a conviction was said not to have deprived the defendant of a fair trial. Further, so long as permissible agreements as discussed above are involved, the federal circuits do not look upon an accomplice\u2019s testimony under an immunity agreement as a question of admissibility, but as a question of credibility, United States v. Evans, 697 F.2d 240 (8th Cir.), cert. denied, 460 U.S. 1086, 103 S.Ct. 1779, 76 L.Ed.2d 350 (1983), and as evidence to be weighed by the jury, United States v. Gomez, 810 F.2d 947 (10th Cir.), cert. denied, \u2014 U.S. -, 107 S.Ct. 2488, 96 L.Ed.2d 379 (1987).\nThe rule in the state courts is slightly stricter than in the federal circuits. In People v. Green, 102 Cal.App.2d 831, 228 P.2d 867 (1951), the court struck down a conviction where an immunity agreement was conditioned on an accomplice\u2019s testimony leading to the defendant\u2019s being bound over for trial. In People v. Medina, 41 Cal.App.3d 438, 116 Cal.Rptr. 133 (1974), the court reversed a conviction in a situation where the immunity agreement provided that the accomplice must not deviate in her testimony from her earlier recorded statement given to police. The court interpreted such an arrangement as meaning that the accomplice was placed \u201cunder a strong compulsion to testify in a particular fashion.\u201d 41 Cal.App.3d at 455, 116 Cal. Rptr. at 145. The decision in Medina, however, is limited by People v. Allen, 42 Cal. 3d 1222, 232 Cal.Rptr. 849, 729 P.2d 115 (1986), cert. denied, \u2014 U.S. -, 108 S.Ct. 202, 98 L.Ed.2d 153 (1987), where an immunity agreement was not executed until after an accomplice made a pre-trial statement. The accomplice then testified in accord with his earlier statement to the police. The court held that the accomplice was not, by the holding in Medina, placed \u201cunder a strong compulsion to testify in a particular fashion.\u201d 42 Cal.3d at 1255, 232 Cal.Rptr. at 867, 729 P.2d at 132. As in the federal circuits, so too in the state courts, the principal requirement for the validity of an immunity agreement is that the accomplice testify truthfully, People v. Lucev, 188 Cal.App.3d 551, 233 Cal.Rptr. 222 (1986); likewise, absent an agreement that induces an accomplice to testify in a certain fashion, the testimony of an accomplice goes to credibility, not to admissibility. State v. Blevins, 108 Idaho 239, 697 P.2d 1253 (App.1985), State v. Nerison, 136 Wis.2d 37, 401 N.W.2d 1 (1987).\nWe now turn to an analysis of Agreement # 1. It must be kept in mind that at the time the agreement was executed the district attorney did not yet know that the victim had been murdered or if she had been murdered, who her murderers were. The purpose of Agreement # 1 was to provide the district attorney with \u201cinformation\u201d leading either to the return of the victim alive or to the conviction of her killers if she was dead.\nIt is obvious then that Agreement # 1 focused on the State\u2019s attempt to investigate its gradually forming case, and not on the State\u2019s efforts to direct its prosecutorial gaze upon Zinn. This fact alone makes the agreement different from any agreement censured by the cases we have just discussed. Had the State known that Zinn was its principal defendant, then Agreement # 1 would conceivably have been suspect as conditioned upon the accomplices\u2019 giving the State a certain result directed against a certain defendant. As it was, however, the statements which Scartaccini and Sliger made to the police were just as inculpatory of Pierce (if not more so, since he pulled the trigger) than they were of Zinn.\nThe essential question to be asked here is what risk for perjury existed on the night that Scartaccini and Sliger gave their statements to the police. In answering that question, we must keep in mind that unlike the other immunity agreements we have reviewed in the cases above, this was an agreement negotiated between a defense attorney and a prosecuting attorney. The fact that Scartaccini and Sliger were not aware that the negotiations were going on, and had no opportunity to enter into them, greatly reduces the risk that they would perjure themselves in giving their statements. Zinn asks us to make a substantial leap of faith when he argues that once Scartaccini and Sliger learned that Taylor and the district attorney had concluded an agreement, Scartaccini and Sliger from different jail cells simultaneously concocted a false story that was the same in all essentials.\nEven given the possibility that Scartaccini and Sliger possessed the mental acumen to piece together a virtually identical story of the kidnapping and murder (which seems unlikely, since they initially had failed to construct a credible story placing them in Muleshoe, Texas on the weekend in question), it also must be remembered that it was not Agreement # 1 which was controlling by the time of trial, but Agreement # 2, and the latter agreement said nothing about Scartaccini and Sliger returning a conviction.\nFinally, Taylor\u2019s recollection of Agreement # 2, as meaning that his clients would be granted immunity regardless of the outcome of Zinn\u2019s trial, likewise demonstrates that the State had used Agreement # 1 not to make a case against Zinn, but simply to make a case. As such, Agreement # 1 was a proper inducement promoting the State\u2019s investigation and was not prejudicial to Zinn, either before or during his trial.\nII. DID CERTAIN COMMUNICATIONS BETWEEN THE COURT AND JURY PREVENT ZINN FROM RECEIVING A FAIR TRIAL?\nWhile the jury was deliberating, the jurors sent several written questions to the court. During the time that five of these questions were presented to and answered by the court, Zinn was not present because his attorney had waived his presence. On appeal, Zinn does not challenge the propriety of the court\u2019s answers. Instead, he challenges the State\u2019s attempted rebuttal of the prejudice presumed by his absence. On the day after the jury was excused (October 1, 1986), we issued our decision in Hovey v. State, 104 N.M. 667, 726 P.2d 344 (1986), in which we held that there is a presumption of prejudice in the precise situation which arose here, and that the State bears the burden of rebutting the prejudice by showing on the record that the communication did not affect the jury\u2019s verdict.\nThe State attempted to do just that, first by presenting testimony from the foreperson, and then by introducing two affidavits signed by all the jurors. In the first affidavit each juror swore as follows:\n1. None of the answers to any of the questions effected (sic) the deliberations concerning the murder counts or resulted in a conviction on those counts.\n2. No answers received on our questions resulted in the change of our vote on any count.\n3. None of the answers, except the definition of a credit card, contributed to or resulted in a conviction on any count and that definition effected (sic) only the Fraudulent (sic) use of a credit card count and not other counts.\nIn the second affidavit each juror swore as follows:\n1. None of the answers received resulted in any new discussion or any new areas of discussion.\n2. None of the answers received by us resulted in a revote on any of the counts.\n3. None of the answers to any questions were discussed during the deliberations on the murder counts.\nFor clarification, we note that the third statement in the first affidavit resulted from a required response to the jury\u2019s question concerning the definition of a credit card as provided in SCRA 1986, 14-1689. Zinn does not challenge the trial court\u2019s response as given. We' conclude that the court correctly ruled that Zinn did not effectively waive his right to be present during the various communications between the court and jury. This was in keeping with Hovey.\nThe next question is whether the State effectively rebutted the prejudice which arose. Zinn contends the State did not, on the strength of State v. McClure, 94 N.M. 440, 612 P.2d 232 (Ct.App.1980), arguing that because the State did not show \u201cthat the improper communication occurred after the jury was \u2018ready to return a verdict,\u2019 \u201d (citations omitted), id. at 442, 612 P.2d at 234, the State\u2019s affidavits avail nothing. We disagree. One method by which the State could have rebutted the prejudice would have been by doing as Zinn argues, but that was not the only method by which the State could have rebutted the prejudice. The underlying purpose of the court\u2019s ruling in McClure was to establish a situation in which the jury\u2019s verdict was not affected by the communication: \u201c[T]o overcome the presumption the State must show that the comunication did not affect the verdict.\u201d Id. at 442, 612 P.2d 234. Here, while the State did not show that the communication between court and jury occurred after the jury was ready to return a verdict, it nonetheless showed that the communication, except in the understandable instance of the credit card definition, did not affect the verdict.\nZinn argues further, however, that the testimony elicited from the foreperson, and the affidavits signed by all the jurors, were received into evidence contrary to the provisions of SCRA 1986, 11-606(B). That section reads as follows:\nUpon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury\u2019s deliberations or to the effect of anything upon his or any other juror\u2019s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury\u2019s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about what he would be precluded from testifying be received for these purposes.\nZinn would put the State in a double bind. He argues that the State must rebut the prejudice which arose as a result of the communications in question. Yet, if the State attempts to rebut that prejudice, even, let us assume, by showing that the jury had already agreed on its verdict, how is the State to meet its burden except by making an inquiry into the effect which the court\u2019s answers had on the jury? The purpose of SCRA 1986, 11-606(B) is to prevent tampering and harrassment of the jury and inquiry into its deliberations to the end of casting doubt on the jury\u2019s competence. State v. Barela, 91 N.M. 634, 578 P.2d 335 (Ct.App.), cert. denied, 91 N.M. 610, 577 P.2d 1256 (1978). The State did not contravene that purpose here.\nFurther, it should be kept in mind that SCRA 1986, 11-606(B) is a rule of evidence and not a rule of procedure taking on constitutional dimensions, as Zinn apparently would have it. Like any rule of evidence, this one too may be waived. Zinn raised no objection at trial either to the State\u2019s introduction of the foreperson\u2019s testimony or of the affidavits, and thus he may not be heard now to object to the introduction of that evidence.\nIII. WERE STATEMENTS BY PIERCE IMPROPERLY ADMITTED INTO EVIDENCE?\nZinn argues that the court improperly admitted into evidence Scartaccini\u2019s and Sliger\u2019s testimony of Pierce\u2019s statement to them on the way to the Jemez Mountains in which Zinn had told Pierce to \u201cget rid of\u201d the victim. We note that Zinn did not object to the introduction of this testimony when Scartaccini testified as to Pierce\u2019s statement. Six days after Scartaccini testified, Sliger testified to the same effect, and only then did Zinn object. It is obvious that by the time Sliger testified, the jury had had ample opportunity to reflect upon the substance of Scartaccini\u2019s testimony. It would have been of little effect for the trial court to have sustained Zinn\u2019s objection to Sliger\u2019s testimony, even assuming there had been grounds for doing so, because the statement objected to had already been planted \u2014 properly\u2014in the jurors\u2019 minds.\nNonetheless, we will undertake an analysis of Zinn\u2019s argument as to the introduction of Sliger\u2019s testimony. The admissibility of Pierce\u2019s statement is governed by SCRA 1986, ll-801(D)(2)(e), which allows into evidence a statement that otherwise would be hearsay when the statement is made \u201cby a co-conspirator of a party during the course and in furtherance of the conspiracy.\u201d Under prior decisions it was well-settled that \u201c[o]ut of court statements made by a co-conspirator about matters relating to the conspiracy are not admissible unless and until a prima facie case of conspiracy is shown by other independent evidence.\u201d State v. Harge, 94 N.M. 11, 17, 606 P.2d 1105, 1111 (Ct.App.1979), rev\u2019d sub nom., Buzbee v. Donnelly, 96 N.M. 692, 634 P.2d 1244 (1981). This decision, however, is qualified by that in State v. Mead, 100 N.M. 27, 665 P.2d 289 (Ct.App.), modified sub nom., State v. Segotta, 100 N.M. 498, 672 P.2d 1129 (1983), where the court of appeals held, \u201cWe have pointed out that the foundational requirement of proof of a conspiracy by independent evidence need not be met at the time the State offers the co-conspirator\u2019s statement. The trial court may rule conditionally.\u201d Id. 100 N.M. at 30, 665 P.2d at 292.\nHere the record provides abundant independent evidence to substantiate the testimony of Scartaccini and Sliger. While their testimony is the only evidence depicting what took place within the motel room, there is more than sufficient corroborating evidence as to the events leading up to the kidnapping and sexual assaults to render Scartaccini\u2019s and Sliger\u2019s testimony credible as to the kidnapping, sexual assaults and murder. Further, the events which took place after the victim was transported from the motel room until she was murdered strengthen both Scartaccini\u2019s and Sliger\u2019s story as well as the corroborating testimony provided by the other witnesses. \u201cThe gist of conspiracy is the agreement, and such agreements are rarely susceptible of direct proof. Consequently, circumstantial evidence is sufficient to support a conspiracy conviction.\u201d State v. Johnston, 98 N.M. 92, 95, 645 P.2d 448, 451 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982). From our reading of the record, there can be no reasonable doubt that Zinn, Pierce, Sliger and Scartaccini entered into agreements to kidnap and sexually assault the victim, and that at least Zinn and Pierce conspired to murder the victim. Independent evidence of a conspiracy to commit murder comes from the Zinn-Pierce meeting at Jerry\u2019s Lounge immediately before the trip to Jemez, and from the Zinn-Pierce telephone conversation immediately before the killing. It is this sequence of events, taken from Zinn\u2019s clear conspiratorial involvement to that point of time, that is independent evidence from which it could have been inferred beyond a reasonable doubt that Zinn conspired to transport the victim to Jemez and that he conspired in her death which followed immediately after his telephone call from Albuquerque to Jemez.\nThus, because substantial independent evidence appears in the record as to the conspiracies, the trial court did not err in admitting testimony as to Pierce\u2019s statement. Moreover, even if this were not the case, the Supreme Court has ruled recently that the trial court is not required to ignore the statement being offered if the content of the statement itself is reasonably supportive of a conspiracy when taken together with the other independent evidence of the conspiracy. Bourjaily v. United States, \u2014 U.S. -, 107 S.Ct. 2775, 95 L.Ed.2d 144 (1987).\nZinn makes the further argument that even if the testimony was properly admitted under the co-conspirator exception to the hearsay rule, the testimony was nonetheless prejudicial because the State did not show that Pierce was unavailable. Thus, Zinn argues, he was denied his constitutional right to confront a witness (Pierce) testifying against him. Zinn\u2019s argument as to this point is without merit. The Supreme Court has also recently ruled that there is no requirement under the Confrontation Clause for the prosecution to show that a nontestifying co-conspirator is unavailable to testify when his out-of-court statement is offered into evidence against the defendant/co-conspirator. United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986).\nZinn next argues that Pierce\u2019s other out-of-court statements and assertions were improperly admitted, such as his statements that he had never killed a woman before and he \u201cwould make Zinn pay\u201d for having been ordered to kill the victim. We conclude that the trial court properly admitted this statement as a present sense impression under SCRA 1986, 11-803(A). The remainder of Zinn\u2019s challenges to the evidence are without merit.\nFinally, we dispose of Zinn\u2019s last challenge on appeal in which he attacks the trial court\u2019s instructions to the jury as to the felony murder count. Zinn argues that because only Pierce\u2019s statements could have justified the instruction which the court gave, because only those statements could have served as a predicate for causality under the felony murder instruction, the felony murder verdict must be reversed. Since, however, we have ruled above that Pierce\u2019s statements were admissible, Zinn\u2019s argument as to this point is without merit.\nThe judgment and sentence of the trial court is affirmed in its entirety.\nIT IS SO ORDERED.\nSCARBOROUGH, C.J., and RANSOM, J., concur.\nSTOWERS, J., not participating.\nWALTERS, J., concurring on issues one and two, dissenting as to issue three.", "type": "majority", "author": "SOSA, Senior Justice." }, { "text": "WALTERS, Justice\n(concurring in part, dissenting in part).\nI concur in the majority\u2019s disposition of Issues I and II. I do not agree, for several reasons, with its decision regarding admission of the statements allegedly made by Pierce, Zinn\u2019s alleged co-conspirator in the counts related to first degree murder.\nThere was clearly sufficient evidence to link defendant with the several criminal counts of kidnapping and sexual assault. Sliger and Seartaccini were co-conspirators and co-actors in those acts of criminal conduct and, consequently, their testimony relating to those counts, insofar as it implicated defendant Zinn, patently was admissible under SCRA 1986, ll-801(D)(2)(e). But aside from Sliger\u2019s and Scartaccinni\u2019s telling the jury what they said Pierce told them that Zinn had said to Pierce, there was not a shred of evidence, nor an inference therefrom, that a conspiracy to murder the victim existed or was ongoing at the time the alleged statements of Zinn were said to have been made, as related by Pierce.\nThe evidence, to the point of Pierce\u2019s purported statement that Zinn had told him to \u201cget rid of\u201d the victim, was that some persons from Farmington were to come to Albuquerque to pick up the kidnapped woman; that those arrangements somehow aborted and Pierce told Seartaccini and Sliger that the three of them would have to take the victim out of Albuquerque; that they put her in Scartaccini\u2019s truck and drove to an Albuquerque location where Pierce met with Zinn and allegedly was told to drive her to the Jemez Mountains where they would be met by the Farmington persons to whom they would transfer the woman; that Pierce was to call Zinn from Jemez to find out the exact location for meeting with the contingent from Farming-ton, and that Pierce did attempt to call Zinn when the party reached Jemez. Zinn, not at home when Pierce telephoned, returned Pierce\u2019s call when he was told of it.\nThat is the total sum and substance of any evidence, to that point, of the criminal conduct engaged in by Zinn, Pierce, Sliger and Scartaccini on the day of the murder. But it is precisely at that point that Sliger and Scartaccini were permitted to repeat what they say Pierce told them that Zinn had told Pierce, which could be interpreted as directing the murder of the victim, and to relate what Pierce had commented following his shooting of the victim. If there was a conspiracy to murder, there was no independent evidence whatever that the conspiracy was formed before the Jemez telephone call. Thus, the only evidence of the existence of a conspiracy to murder is Pierce\u2019s statement itself, and it was only upon the allowance of the witnesses\u2019 statements of Pierce\u2019s comments that an inference of conspiracy to murder surfaced in the evidence.\nThe majority opinion recognizes, by its quotation from State v. Harge, 94 N.M. 11, 606 P.2d 1105 (Ct.App.1979), that a prima facie case of conspiracy must first be shown by independent evidence before a co-conspirator\u2019s statement regarding the conspiracy may be admitted. But in paying lip service to that rule, the majority then side-steps the crucial analysis of whether there was independent evidence of a conspiracy to murder by declaring there was \u201cabundant independent evidence\u201d to infer the truthfulness of Sliger\u2019s and Scartaccini\u2019s testimony. I respectfully submit that that is not the issue, nor is it the answer, nor is it independent evidence of the underlying fact of a conspiracy between Pierce and Zinn that would permit introduction of Pierce\u2019s statement implying a conspiracy to prove a conspiracy.\nThe independent evidence shows that Pierce committed the murder. Although there is overwhelming evidence of Zinn\u2019s participation in all of the criminal acts prior to the murder, there is absolutely no evidence, independent of Pierce\u2019s statements, that Zinn conspired with him to murder the young woman who was kidnapped and assaulted. The statements of Pierce cannot be used both to create the independent evidence necessary to permit the statements to be admitted, and to prove the conspiracy, too.\nThe trial court was obliged to first determine the admissibility of the twice-removed statements of Pierce. SCRA 1986, 11-104(A). In assessing admissibility of an alleged co-conspirator\u2019s statement, most federal jurisdictions accept the proposition that the evidence to be assessed to permit introduction of the statement must be independent of the statement itself. United States v. Martorano, 561 F.2d 406, 408, n. 2 (1st Cir.1977) (listing other circuits), cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978). The salubrity of that approach was articulated in United States v. James, 590 F.2d 575, 581 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979):\nAlthough Rule 104(a) provides that the court \u201cis not bound by the Rules of Evidence except those with respect to privileges\u201d we do not construe this language as permitting the court to rely upon the content of the very statement whose admissibility is at issue. We adhere to our requirement * * * that fulfillment of the condition of admissibility must be established by evidence independent of the co-conspirator statement itself * * *. [Admissibility must depend upon independent evidence in order to prevent this statement from \u201clifting] itself by its own boot straps to the level of competent evidence.\u201d Glasser v. United States, 315 U.S. 60 [62 S.Ct. 457, 86 L.Ed. 680] (1942).\n\u201cBootstrapping\u201d is exactly what was permitted in the instant case.\nHarge is not unique in requiring independent evidence before a co-conspirator\u2019s statement may be admitted. We said in State v. Sheets, 96 N.M. 75, 77, 628 P.2d 320, 322 (1981), in reversing the admission of statements under SCRA 1986, 11-801(D)(2)(e), that \u201c[o]nce the [co-conspirator\u2019s] \u2018statements\u2019 are eliminated, there is nothing that permits an inference of a conspiracy between [the co-conspirator] and defendant * * *. Lacking this proof * * * the trial court erred in admitting [the] * * * \u2018statements.\u2019 \u201d\nIn addition to James and the federal cases relied on in Harge, numerous other federal courts, as well, applying the identical rule, have held that lack of independent evidence of a conspiracy and defendant\u2019s participation in it prevent the admission of a co-conspirator\u2019s statement regarding the alleged conspiracy. See, e.g., Pink Supply Corp. v. Hiebert, Inc., 788 F.2d 1313 (8th Cir.1986); In re Japanese Electronic Products Litigation, 723 F.2d 238, 260-61 (3d Cir.1983), rev\u2019d on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Terry\u2019s Floor Fashions, Inc. v. Burlington Industries, Inc., 568 F.Supp. 205, 214 (E.D.N.C.1983), aff'd, 763 F.2d 604 (4th Cir.1985); United States v. Stanley, 765 F.2d 1224, 1243-44 (5th Cir.1985); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 77, 88 L.Ed.2d 63 (1985); United States v. Mankani, 738 F.2d 538, 547 (2d Cir.1984); United States v. Holloway, 731 F.2d 378, 381 (6th Cir.), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 366 (1984); United States v. Dahlstrom, 713 F.2d 1423, 1428 (9th Cir.1983), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984); United States v. Reynolds, 715 F.2d 99, 103 (3d Cir.1983); Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1267 (9th Cir.1983); United States v. Cambindo Valencia, 609 F.2d 603, 631 (2d Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980).\nThus, as a basic premise, the first statement of Pierce testified to by Scartaccini and Sliger regarding the alleged conspiracy to \u201cget rid of\u201d the kidnapped woman was inadmissible for lack of any evidence other than that statement itself to show the existence of such a conspiracy.\nSecondly, even if the co-conspirator evidence rule were applicable, it is not at all settled that defendant\u2019s constitutional right to confrontation of his accuser automatically has been met. See State v. Martinez, 99 N.M. 48, 51, 653 P.2d 879, 882 (Ct.App.), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982); United States v. Perez, 658 F.2d 654, 660-62 (9th Cir.1981). Pierce did not appear at trial and testify, and there was no showing that he was unavailable. Bourjaily v. United States (cited by the majority), notwithstanding, there was no evidence relied on by the State to show that anything Pierce had said at any time had any particular \u201cindicia of trustworthiness,\u201d United States v. Wright, 588 F.2d 31, 38 (2d Cir.1978), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 467 (1979), so as to avoid the confrontation clause infirmities attending admission of an alleged co-conspirator\u2019s statement. See Perez; see also State v. Earnest, 106 N.M. 411, 744 P.2d 539, (1987).\nFinally, the post-murder comments of Pierce were admitted under an exception to the hearsay rule, SCRA 1986, 11-803(A). Any exception to the rule is likewise subject to Sixth Amendment scrutiny. State v. Martinez, 99 N.M. at 51, 653 P.2d at 882. The United States Supreme Court said in Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970), that \u201cthe Sixth Amendment\u2019s Confrontation Clause and the evidentiary hearsay rule stems [sic] from the same roots. But this Court has never equated the two, and we decline to do so now.\u201d\nDespite a burgeoning number of cases permitting introduction of evidence under exceptions to the hearsay rule, or in accordance with the co-conspirator rule, it is beyond the pale of any honest, intellectual analysis that I am capable of performing to concede that any court might conscientiously arrive at a conclusion that a legislative- or judge-made rule of evidence can eradicate a constitutional right. See discussion at 4 Weinstein\u2019s Evidence \u00b6 800[04] (1987). If that is what the United States Supreme Court and federal courts have done with respect to federal constitutional rights, it surely is not a path the jurisprudence of New Mexico is required to or should follow insofar as the right to confrontation is protected by our state constitution. The New Mexico constitution is an independent document and it is \u201cour responsibility to separately define and protect the rights of [New Mexico] citizens despite conflicting decisions of the United States Supreme Court interpreting the federal Constitution.\u201d People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 (1976). Interpretations of rules of evidence which whittle away constitutional rights reflect an abdication by this court of its responsibility as \u201cthe ultimate arbiter of the law of New Mexico,\u201d State ex rel. Serna v. Hodges, 89 N.M. 351, 356, 552 P.2d 787, 794 (1976), and of our individual oaths to uphold the constitution of this state.\nI would affirm the convictions and sentences imposed in this case, except for those convictions and sentences respecting crimes of commission or related to first degree murder, which I would reverse for failure of proof by legally admissible evidence.", "type": "concurrence", "author": "WALTERS, Justice" } ], "attorneys": [ "Jacquelyn Robins, Chief Public Defender, Kerry Kiernan, Asst. Appellate Defender, Santa Fe, for defendant-appellant.", "Hank Farrah, Albuquerque, Trial Counsel.", "Hal Stratton, Atty. Gen., Patricia Fried-er, Asst. Atty. Gen., Santa Fe, for plaintiffappellee." ], "corrections": "", "head_matter": "746 P.2d 650\nSTATE of New Mexico, Plaintiff-Appellee, v. Johnny Clifford ZINN, Defendant-Appellant.\nNo. 16817.\nSupreme Court of New Mexico.\nDec. 2, 1987.\nJacquelyn Robins, Chief Public Defender, Kerry Kiernan, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\nHank Farrah, Albuquerque, Trial Counsel.\nHal Stratton, Atty. Gen., Patricia Fried-er, Asst. Atty. Gen., Santa Fe, for plaintiffappellee." }, "file_name": "0544-01", "first_page_order": 584, "last_page_order": 595 }