{ "id": 5332351, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jerry LUNN, Defendant-Appellant", "name_abbreviation": "State v. Lunn", "decision_date": "1971-04-09", "docket_number": "No. 576", "first_page": "526", "last_page": "531", "citations": [ { "type": "official", "cite": "82 N.M. 526" }, { "type": "parallel", "cite": "484 P.2d 368" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "3 P. 53", "category": "reporters:state_regional", "reporter": "P.", "year": 1884, "opinion_index": 0 }, { "cite": "3 N.M. (John) 134", "category": "reporters:state", "reporter": "N.M. (J.)", "year": 1884, "opinion_index": 0 }, { "cite": "3 N.M. (Gild.) 189", "category": "reporters:state", "reporter": "N.M. (Gild.)", "opinion_index": 0 }, { "cite": "380 U.S. 415", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525326 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0415-01" ] }, { "cite": "266 P. 917", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 4988085, 1554479 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nev/51/0005-01", "/nm/33/0334-01" ] }, { "cite": "33 N.M. 334", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1554479 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nm/33/0334-01" ] }, { "cite": "400 U.S. 74", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046557 ], "weight": 12, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0074-01" ] }, { "cite": "167 S.W.2d 1030", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10224883 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/sw2d/167/1030-01" ] }, { "cite": "145 Tex.Cr.R. 376", "category": "reporters:state", "reporter": "Tex. Crim.", "case_ids": [ 5295901 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/tex-crim/145/0376-01" ] }, { "cite": "32 N.M. 319", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1553013 ], "weight": 2, "year": 1927, "opinion_index": 0, "case_paths": [ "/nm/32/0319-01" ] }, { "cite": "79 N.M. 516", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737642 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0516-01" ] }, { "cite": "62 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2713082 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/62/0111-01" ] }, { "cite": "233 P. 49", "category": "reporters:state_regional", "reporter": "P.", "year": 1924, "opinion_index": 0 }, { "cite": "30 N.M. 309", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841828 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/nm/30/0309-01" ] }, { "cite": "390 U.S. 719", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177892 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/390/0719-01" ] }, { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 4, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "174 U.S. 47", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3606829 ], "weight": 3, "year": 1899, "opinion_index": 0, "case_paths": [ "/us/174/0047-01" ] }, { "cite": "176 P. 815", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "25 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4732311 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nm/25/0047-01" ] }, { "cite": "34 N.M. 223", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556021 ], "weight": 2, "year": 1929, "opinion_index": 0, "case_paths": [ "/nm/34/0223-01" ] }, { "cite": "53 N.M. 413", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580735 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/nm/53/0413-01" ] }, { "cite": "80 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358492 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0537-01" ] }, { "cite": "73 N. M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321598 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0307-01" ] }, { "cite": "28 L.Ed.2d 221", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "91 S.Ct. 943", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "401 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11732226, 11732130, 11732170, 11732620, 11732333, 11732559, 11732400, 11732496, 11732688, 11732275, 11732444, 11732062 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/401/0941-04", "/us/401/0941-02", "/us/401/0941-03", "/us/401/0941-11", "/us/401/0941-06", "/us/401/0941-10", "/us/401/0941-07", "/us/401/0941-09", "/us/401/0941-12", "/us/401/0941-05", "/us/401/0941-08", "/us/401/0941-01" ] }, { "cite": "81 N.M. 515", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365028 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/81/0515-01" ] }, { "cite": "80 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358342 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0383-01" ] } ], "analysis": { "cardinality": 769, "char_count": 16745, "ocr_confidence": 0.7, "pagerank": { "raw": 2.804002291830988e-07, "percentile": 0.8370520829592768 }, "sha256": "99a93c24567226923a8ec50f5849b06f967c35e9e510b88fba8915bab47b3512", "simhash": "1:9e83260e737f8d59", "word_count": 2683 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY, and SUTIN, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Jerry LUNN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nLunn was convicted of murder in the second degree, \u00a7 40A-2-1, N.M.S.A.1953(Repl.Vol. 6), and of an attempt to commit murder in the second degree, \u00a7 40A-28-1, N.M.S.A.1953 (Repl.Vol. 6). We reverse the convictions because hearsay testimony was admitted which deprived the defendant of his constitutional right to confront the witnesses against him. Sixth Amendment to the U. S. Constitution, N.M.Const. Art. 2, \u00a7 14. This confrontation issue involves, testimony admitted as part of the res gestae.\nThe killing of Nick Candelaria and the wounding of his wife, Gabriela Candelaria, occurred at their home in the nighttime. There is evidence that two young sons of the Candelarias were in their bedroom at the time of the shootings. Neither boy had been called as a witness at two prior trials of this case. The first resulted in a conviction which was reversed in State v. Lunn, 80 N.M. 383, 456 P.2d 216 (Ct.App.1969); the second resulted in a mistrial because the jury was deadlocked. According to defendant, he had never talked to the boys. The trial court ruled that if the boys were to be called as witnesses, the defense would be given an opportunity to interview them before they testified.\nThe State did not call the boys as witnesses; instead, it presented two witnesses who testified as to the statements made by the boys shortly after the shootings. The testimony as to the boys\u2019 statements was admitted, not for the purpose of showing that the boys made statements, but for the truth of the contents of those statements. Thus, the testimony as to what the boys said was hearsay. See McCormick, Evidence \u00a7 230, at 480 (1954); 6 Wigmore, Evidence \u00a7 1746, at 134 (3rd ed. 1940).\nThis hearsay testimony was admitted under an established exception to the hearsay rule. Wigmore, supra, \u00a7 1745, identifies this as an exception for spontaneous exclamations. New Mexico calls it the res gestae rule. New Mexico generally follows Wigmore in the definition and application of this exception. See State v. Gunthorpe, 81 N.M. 515, 469 P.2d 160 (Ct.App.1970), cert. denied 401 U.S. 941, 91 S.Ct. 943, 28 L.Ed.2d 221 (1971), and cases therein cited. Compare with Wigmore, supra, \u00a7\u00a7 1747-1751.\nThe res gestae statement is admissible as an exception to the hearsay rule because it is \u201cparticularly trustworthy,\u201d Wigmore, supra, \u00a7 1747, and because \u201c * * * the superior trustworthiness of * * * extrajudicial statements * * * [creates] a necessity or at least a desirability of resorting to them for unbiassed [sic] testimony. * * * \u201d Wigmore, supra, \u00a7 1748. Wig-more, supra, \u00a7 1750, recommends that application of the res gestae exception be left to the determination of the trial court. New Mexico held, in Garrett v. Howden, 73 N. M. 307, 387 P.2d 874 (1963) \u201c* * * that the determination of the admissibility of the testimony is a matter within the sound discretion of the trial court, and that that court\u2019s deteimination, in the absence of a clear abuse of discretion, will not be disturbed on appeal. * * * \u201d See also, State v. Gunthorpe, supra.\nBecause of the New Mexico res gestae decisions, we proceed on the assumption that the out of court statements of the boys were admissible under the res gestae exception to the rule excluding hearsay testimony. Objecting to the admission of testimony as to the boys\u2019 statements, defendant claimed he was being deprived of the right to cross-examine the boys.\nAlthough defendant\u2019s objection did not specifically mention the confrontation clause, the objection concerning cross-examination raised the confrontation issue. Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969) states: \u201c * * * The denial of the right of an accused to fully cross-examine a hostile witness deprives him of the right guaranteed by the constitution \u2018to be confronted with the witnesses against him.\u2019\u201d (citation omitted).\nThe New Mexico Supreme' Court held the constitutional right of confrontation was denied where a defendant was denied the right to cross-examine a co-defendant who gave damaging testimony against the defendant, State v. Martin, 53 N.M. 413, 209 P.2d 525 (1949); where testimony at a prior trial was admitted and cross-examination at the prior trial had been improperly restricted, State v. Halsey, 34 N.M. 223, 279 P. 945 (1929); and where a record of conviction of another person, for engaging in an unlawful game of chance, was admitted to prove that there had been gambling for money at defendant\u2019s \u25a0 trial for permitting the unlawful gambling on defendant\u2019s premises, State v. Martino, 25 N.M. 47, 176 P. 815 (1918). Compare Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899).\nAlthough the right of cross-examination is an aspect of the constitutional right of confrontation, defendant urges that \u201cconfrontation\u201d involves more than the right of cross-examination. He cites the U. S. Supreme Court decision of California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) which does appear to include more than the right of cross-examination in the confrontation clause. One item included in confrontation in California v. Green, supra, is the right of the jury to observe the demeanor of the witness in giving his testimony. This observation, of course, is denied where the out of court statement is admitted into evidence without the declarant testifying. Defendant urges this asserted \u201cdemeanor\u201d aspect of confrontation as a matter for consideration here.\n5 Wigmore, supra, \u00a7\u00a7 1395, 1396, takes the view that confrontation is satisfied if there has been cross-examination; that the observation of demeanor on the witness stand is a result of cross-examination but is not a part of the confrontation right. The U. S. Supreme Court has indicated there is no denial of the right of confrontation by the introduction of testimony given at a prior trial, if there has been cross-examination at the prior trial and the witness is unavailable. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). Where prior testimony has been properly admitted, the fact finder does not have the opportunity to observe the demeanor of that witness. Thus, it may he doubted that the U. S. Supreme Court holds that \u201cdemeanor\u201d is an aspect of the constitutional right of confrontation. New Mexico follows the Wigmore view. State v. Jackson, 30 N.M. 309, 233 P. 49 (1924). Compare State v. Bailey, 62 N.M. 111, 305 P.2d 725 (1957); State v. Holly, 79 N.M. 516, 445 P.2d 393 (Ct.App.1968). We do not consider the fact that the jury was unable to observe the demeanor of the hoys in considering the confrontation issue in this case. We consider the confrontation issue solely on the basis of the right of cross-examination.\nDefendant would have had the right to cross-examine the boys concerning their out of court statements if they had been-called as witnesses. Mascarenas v. State, supra; compare State v. Archer, 32 N.M. 319, 255 P. 396 (1927). Here, the boys-were not called as witnesses. Because the-boys did not testify, defendant was denied\u2019 his right to cross-examine as to statements of the boys admitted for the truth. Yet, the statements were admissible under New Mexico\u2019s res gestae rule. Thus, we have opposing concepts \u2014 the evidentiary rule which would admit the statements, and the constitutional right of confrontation which would deny admission of the statements because defendant was deprived of his right of cross-examination.\nWe found no New Mexico decisions discussing these concepts when they were in-opposition, and little authority outside of New Mexico. Vasquez v. State, 145 Tex.Cr.R. 376, 167 S.W.2d 1030 (1942) is similar to the factual situation in this appeal.. There it was held that the right of confrontation was denied by the admission of the child\u2019s statement made under circumstances which appear consistent with New Mexico\u2019s res gestae rule. In reaching this, result, the Texas court does not discuss a policy consideration involved in the res gestae rule \u2014 that of the trustworthiness of the hearsay statement. This aspect of trustworthiness was involved in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) where one of the issues discussed was an evidentiary rule of Georgia in opposition to the right of confrontation.\nDutton v. Evans, supra, involved a co-conspirator\u2019s out of court statement made during the concealment phase of the conspiracy. The statement was admissible under Georgia law. Dutton held the statement was admissible and a plurality held there was no violation of the right of confrontation.\nWe resolve the confrontation issue in this case on the basis of our analysis of Dutton v. Evans, supra. In that case, Evans, Williams and Truett were charged with murder. Truett was granted immunity from prosecution in return for his testimony. Truett testified at Evans\u2019 separate trial. His testimony was that Evans and Williams committed the murders. He was one of 20 prosecution witnesses.\nAnother prosecution witness was Shaw. He testified that he and Williams were fellow prisoners at the time Williams was arraigned on the murder charge. Shaw testified that when Williams returned from the arraignment he asked Williams how he made out in court and that Williams replied that if it hadn\u2019t been for Evans \u201cwe wouldn\u2019t be in this now.\u201d The defense objected to Shaw testifying as to Williams\u2019 remark about Evans on the ground that it violated Evans\u2019 right of confrontation. The prosecution did not call Williams to testify in Evans\u2019 trial.\nThe U. S. Supreme Court resolved the confrontation question without a majority opinion. Four justices, Marshall, Black, Douglas and Brennan, were of the opinion that the admission of Shaw\u2019s testimony, about Williams\u2019 remark, violated Evans\u2019 right of confrontation because there had been no opportunity to cross-examine Williams about his purported remark. Under this view, Lunn was denied his right of confrontation.\nOne justice, Harlan, did not view the issue in Dutton v. Evans, supra, as involving confrontation; rather, it was a due process question. Being of the opinion there was no denial of due process, Justice Harlan concurred in the result reached by the plurality opinion of Justices Stewart, White, Blackmun and Chief Justice Burger.\nThe plurality opinion in Dutton v. Evans, supra, states \u201c * * * the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth determining process in criminal trials * * and \u201c * * * the possibility that cross-examination of Williams could conceivably have shown the jury that the statement, though made, might have been unreliable was wholly unreal.\u201d Thus, the plurality opinion seems to find no confrontation violation if the hearsay testimony is reliable and advances the accuracy of the truth determining process. In reaching this view, the plurality opinion considers four \u201c * * * indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.\u201d We apply the indicia of the plurality opinion to the boys\u2019 statements, but in doing so express no opinion as to whether other indicia may also be considered.\nWhile all four of the indicia are directed to the trustworthiness of the out of court statement, the fourth seems nearest to New Mexico\u2019s res gestae rule. The fourth indicia is: \u201c * * * the circumstances under which Williams made the statement were such as to give reason to suppose that Williams did not misrepresent Evans\u2019 involvement in the crime. * * * His statement was spontaneous, and it was against his penal interest to make it. * * * \u201d Although we find nothing in the record indicating the boys\u2019 statements were against their interest, compare State v. Buck, 33 N.M. 334, 266 P. 917 (1927), nevertheless, we assume for this opinion only that the circumstances under which the boys made their statements meet this fourth indicia.\nIt is different as to the other three indicia discussed in the plurality opinion of Dutton v. Evans, supra.\nThe first indicia is: \u201c * * * the statement contained no express assertion about past fact, * * * \u201d The statements of the boys, James and Rocky, to the witnesses, Police Officer Smith and the boys\u2019 grandmother, contain expressions about past fact. Each of the boys identified Lunn as being present and James\u2019 statement to Officer Smith is that \" * * * he saw Jerry Lunn standing there with a gun in his hand.\u201d\nThe second indicia is: \u201c * * * Williams\u2019 personal knowledge of the identity and role of the other participants in the triple murder is abundantly established by Truett\u2019s testimony and by Williams\u2019 prior conviction. It is inconceivable that cross-examination could have shown that Williams was not in a position to know whether or not Evans was involved in the murder. . . .\u201d Here, it is conceivable that cross-examination could show that Rocky was not in a position to identify Lunn as the person who shot his parents. Nothing in the statements attributed to Rocky indicates Rocky personally observed what went on in connection with his parents. Rocky\u2019s statement identifies Lunn by what he heard and by looking through a window in his bedroom and seeing \u201cJerry\u2019s [Lunn\u2019s] new truck parked out front.\u201d Officer Smith, in his cross-examination, admitted that Rocky did not tell him that he saw Lunn.\nThe third indicia is: \u201c * * * the possibility that Williams\u2019 statement was founded on faulty recollection is remote in the extreme. * * * \u201d Here, however, possibilities of faulty recollection are established. Rocky purportedly told the officer that he awakened, overheard some conversation, looked out the window, then \u201cheard a bomb.\u201d According to the grandmother, Rocky said \u201che woke up when he heard an explosion.\u201d There may be no inconsistency because apparently two shots were fired. Yet, the opportunity to determine whether the statements were consistent did not exist because defendant did not have the opportunity to cross-examine.\nFurther, according to the officer, James \u201c * * * me t0 ggj, bis brother, that his brother knew everything in his statement, * * * \u201d According to the grandmother, after Rocky woke up from the \u201cexplosion,\u201d \u201cJames repeated what he had said to him.\u201d These quotations raise the question of whether Rocky\u2019s statements were, in part, based on what James told him or on what he overheard. They raise the question of whether Rocky\u2019s statements were properly res gestae statements.\nThe first three indicia of reliability relied on by the plurality opinion in Dutton v. Evans, supra, are not met in this case. Further, the plurality opinion is based on the premise that Dutton did not involve crucial or devastating evidence. We have no such premise here. Apart from Gabriela Candelaria, whose credibility is attacked, the only direct evidence that Lunn did the shootings is found in the boys\u2019 hearsay statements. Compare Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).\nUnder the criteria used in the plurality opinion in Dutton v. Evans, supra, we cannot say, on a practical basis, that the accuracy of the truth determining process was advanced by admitting the out of court statements of James and Rocky without giving the defendant an opportunity to cross-examine the boys. The possibility that cross-examination could have shown the unreliability of the statements is not \u201cwholly unreal\u201d in this case.\nWe hold that admission of the statements attributed to the boys was error because defendant was denied his constitutional right of confrontation, here, the right to cross-examine. We reach this result under both the four justice plurality opinion and the four justice dissenting opinion in Dutton v. Evans, supra. Our holding is limited to the circumstances of this case. Compare Territory v. Duran, 3 N.M. (Gild.) 189, 3 N.M. (John) 134, 3 P. 53 (1884). We announce no rule of general application when an established exception to the hearsay rule is opposed to the constitutional right of confrontation. When these concepts are opposed, their opposition must be resolved on a case by case basis. See plurality opinion in Dutton v. Evans, supra.\nThe judgments of conviction and sentences are reversed. The case is remanded with instructions to grant Lunn a new trial.\nIt is so ordered.\nHENDLEY, and SUTIN, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "William C. Marchiondo, McAtee, Marchiondo & Michael, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., John A. Darden, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "484 P.2d 368\nSTATE of New Mexico, Plaintiff-Appellee, v. Jerry LUNN, Defendant-Appellant.\nNo. 576.\nCourt of Appeals of New Mexico.\nApril 9, 1971.\nWilliam C. Marchiondo, McAtee, Marchiondo & Michael, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., John A. Darden, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0526-01", "first_page_order": 582, "last_page_order": 587 }