{ "id": 2827602, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Mary Frances BARELA, a/k/a Frances Sanchez, Defendant-Appellant", "name_abbreviation": "State v. Barela", "decision_date": "1974-02-20", "docket_number": "No. 1256", "first_page": "104", "last_page": "106", "citations": [ { "type": "official", "cite": "86 N.M. 104" }, { "type": "parallel", "cite": "519 P.2d 1185" } ], "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": "245 F.Supp. 116", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 388422 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f-supp/245/0116-01" ] }, { "cite": "303 F.Supp. 210", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3015052 ], "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/f-supp/303/0210-01" ] }, { "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": "82 N.M. 526", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332351 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0526-01" ] }, { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "928" } ], "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "1935" } ], "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "230 S.C. 164", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2102264 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/sc/230/0164-01" ] }, { "cite": "288 A.2d 163", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1972, "opinion_index": 0 }, { "cite": "265 Md. 70", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1899621 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/md/265/0070-01" ] }, { "cite": "202 Kan. 68", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 547248 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/kan/202/0068-01" ] }, { "cite": "380 U.S. 415", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525326 ], "weight": 4, "year": 1965, "pin_cites": [ { "page": "937" } ], "opinion_index": 0, "case_paths": [ "/us/380/0415-01" ] }, { "cite": "520 P.2d 558", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2826817 ], "opinion_index": 1, "case_paths": [ "/nm/86/0138-01" ] } ], "analysis": { "cardinality": 432, "char_count": 6455, "ocr_confidence": 0.81, "pagerank": { "raw": 1.3159797977896055e-07, "percentile": 0.6255604091203772 }, "sha256": "921c7f9092136b8c23720b3e5ce07b7ad66dc481e53241e958550402afb046c8", "simhash": "1:a29b5f1a378c696d", "word_count": 1086 }, "last_updated": "2023-07-14T22:44:27.328252+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Lopez, J., concurred in result.", "HERNANDEZ, J., concurs." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Mary Frances BARELA, a/k/a Frances Sanchez, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nDefendant was convicted of distributing heroin. Section 54-11-20, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, 1973 Supp.) She appeals. We reverse.\nDefendant contends: (1) The deposition of Dr. Robert G. Schoenfeld was inadmissible at trial under Rule 29(n) of the Rules of Criminal Procedure. (2) There was insufficient evidence to support the conviction.\n(1)The deposition was inadmissible at trial.\nOn the morning of trial, defendant objected to the State\u2019s use of the deposition of Dr. Robert G. Schoenfeld because of non-compliance with Rule 29(a), (e) and (n) of the Rules of Criminal Procedure [\u00a7 41-23-29(a), (e), (n), N.M.S.A.1953 (2d Repl.Vol. 6, 1973 Supp.)]. On appeal, defendant limited her contention to a violation of Rule 29 (n), supra.\nAt the pre-appeal hearing, the defendant relied upon error in the court ordering the taking of the deposition, but on appeal, the defendant relied only on error in admitting the deposition of Dr. Schoenfeld.\nThis opinion will be limited only to the admissibility of the deposition.\nRule 29 (n), supra, reads as follows:\nUSE OF DEPOSITIONS. At the trial, or at any hearing, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used:\n(1) If the witness is dead ;\n(2) If the witness is unable to attend to testify because of illness or infirmity;\n(3) If the party offering the deposition has been unable to procure the attendance of the witness by subpoena;\n(4) If the witness is out of the state, his presence cannot be secured by subpoena or other lawful means, and his absence was not procured by the party offering the deposition; and\n(5) To contradict or impeach the witness.\nThe record is silent (1) as to the whereabouts of Dr. Schoenfeld at the time of trial; (2) whether he was unable to attend because he was ill or infirm; (3) whether he was in the State or out of the State. The district attorney did not attempt to procure the attendance at trial of Dr. Schoenfeld by subpoena or otherwise. The district attorney said:\nWe do not have to subpoena witnesses, because they would be annoyed ....\nIf the State\u2019s position were upheld, a defendant could be tried by deposition and not by testimony of witnesses.\nThe Sixth Amendment to the Constitution of the United States provides that \u201cIn all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.\u201d\nUnless there is a waiver of the right to confrontation, the State is not permitted to introduce depositions of an absent or a deceased witness against accused at his trial. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, 937 (1965); State v. Hooks, 202 Kan. 68, 446 P.2d 770 (1968); State v. Collins, 265 Md. 70, 288 A.2d 163 (1972); State v. Smith, 230 S.C. 164, 94 S.E.2d 886 (1956); 23 C.J.S. Criminal Law \u00a7 1001.\nDouglas v. Alabama, supra, quoted the following:\n\u201cThe 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.\u201d\nThis quotation was affirmed in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970) as a literal right to confront the witness at the time of trial.\nFor the importance of confrontation and cross-examination of witnesses at trial, see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, 928 (1965); State v. Lunn, 82 N.M. 526, 484 P.2d 368 (Ct.App.1971).\nWe hold that there must be strict compliance with Rule 29(n), supra. State v. Collins, supra. Prior to the adoption of the rule, the State had the duty to exercise due diligence to secure the attendance of a witness, even though absent from the jurisdiction of the court, to permit the admission of the testimony of the absent witness at a preliminary examination. Otherwise, the accused is denied his constitutional right of being confronted by the witness against him. State v. Bailey, 62 N.M. 111, 305 P.2d 725 (1957).\nIn criminal cases, depositions are to be used only in exceptional circumstances. United States v. Rosenstein, 303 F.Supp. 210, 212 (S.D.N.Y.1969).\nRule 15(a) of the Federal Rules of Criminal Procedure, after which our Rule 29(a) was patterned, requires some kind of factual showing that the witness will be unable to attend trial. A federal court in interpreting Rule 15(a) stated:\nThe exception to the general rule concerning confrontation and cross-examination of the witness is based upon considerations of public policy. The exception, however, . . . must be used only in such a manner as to guarantee due process by the laying of a proper predicate to show that the witness is in fact unavailable.\nWashington v. Holman, D.C., 245 F.Supp. 116 (1965).\nThe State contends the error in admission of the deposition is harmless. We disagree. The violation of a defendant\u2019s constitutional right is never harmless.\nThe trial court erred in allowing the deposition of Dr. Schoenfeld to be read into evidence.\n(2) The question of insufficiency of the evidence to support a conviction is not reviewable.\nAt the pre-appeal hearing, the defendant did not require that the testimony of witnesses be included in the appeal transcript. It was not so ordered by the trial court. Without the record of testimony, we cannot determine whether the evidence is insufficient to support the conviction.\nThis cause is reversed and defendant is granted a new trial.\nIt is so ordered.\nHERNANDEZ, J., concurs.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "LOPEZ, Judge\n(specially concurring).\nI concur only in the result. I base my decision on the views expressed in State v. Berry (Ct.App.), 520 P.2d 558 decided February 20, 1974.", "type": "concurrence", "author": "LOPEZ, Judge" } ], "attorneys": [ "John M. Wells, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., Agustin T. Gurule, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "519 P.2d 1185\nSTATE of New Mexico, Plaintiff-Appellee, v. Mary Frances BARELA, a/k/a Frances Sanchez, Defendant-Appellant.\nNo. 1256.\nCourt of Appeals of New Mexico.\nFeb. 20, 1974.\nLopez, J., concurred in result.\nJohn M. Wells, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Agustin T. Gurule, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0104-01", "first_page_order": 134, "last_page_order": 136 }