{
  "id": 1557216,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jimmy Lee WAITS, Defendant-Appellant",
  "name_abbreviation": "State v. Waits",
  "decision_date": "1978-11-07",
  "docket_number": "No. 3654",
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  "analysis": {
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  "last_updated": "2023-07-14T17:06:13.817562+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HERNANDEZ and LOPEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Jimmy Lee WAITS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nHENDLEY, Judge.\nConvicted of receiving stolen property contrary to \u00a7 40A-16-11(E), N.M.S.A.1953 (2d Repl.Vol. 6, 1972, Supp.1975), defendant appeals. He contends that:\n\u201cTHE TRIAL COURT ERRED IN ADMITTING THE PRELIMINARY HEARING TESTIMONY OF A CRITICAL WITNESS FOR THE STATE WHEN THERE WAS AN INSUFFICIENT SHOWING THAT THE WITNESS WAS UNAVAILABLE, THEREBY DENYING THE DEFENDANT HIS CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES AGAINST HIM AT TRIAL.\u201d\nOther issues listed in the docketing statement have been abandoned. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App.1977). We reverse.\nThe victim, Mr. Allen, appeared and testified at the preliminary hearing and was cross-examined by defendant. Approximately two months prior to trial, Allen was served with a New Mexico subpoena in Texas. The subpoena was not issued in accordance with the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings. See \u00a7\u00a7 41-12-13 through 18, N.M.S.A.1953 (2d Repl.Vol. 6, 1972). Allen did not appear at trial. Allen had not appeared the previous day in a related criminal case. The trial court concluded that since Allen had been served with a subpoena, the state had made a diligent effort to procure his attendance and over defendant\u2019s objection allowed the use of Allen\u2019s preliminary hearing testimony.\nThe state asserts that a proponent of evidence must meet the good faith and due diligence standards in determining whether process or other reasonable means has been employed in securing the attendance of a witness. We agree, but the definition of \u201cprocess or other reasonable means\u201d must first be determined before the question of unavailability can be decided.\nNew Mexico Rule of Evidence 804(a)(5) [\u00a7 20-4-804(a)(5), N.M.S.A.1953 (Repl.Vol. 4, 1970, Supp.1975)] states:\n\u201c(a) Definition of Unavailability. \u2018Unavailability as a witness\u2019 includes situations in which the declarant:\nu * * *\n\u201c(5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.\u201d\nProcess must be defined as legal process. That is, it must not only be fair on its face but also valid. Black\u2019s Law Dictionary, (4th Ed. 1957) p. 1370. New Mexico has no legal authority to compel a person living in Texas to appear in its courts by issuance of a New Mexico subpoena. See Rules of Crim.Proc. 48(a) and Rule Civ.Proc. 45(e). The subpoena issued in New Mexico- and served in Texas had no legal effect. Its issuance and service did not constitute good faith or due diligence on the part of the state in attempting to secure the attendance of Allen. The state did not meet its burden of showing unavailability.\nWhat were \u201cother reasonable means\u201d available to the state? The Uniform Act was available. See Tex.Code Crim.Proc.Annot., art. 24.28 (Vernon) as amended. The Uniform Act was a reasonable means. Compare State v. Lucero, 86 N.M. 686, 526 P.2d 1091 (1974); State v. Sibold, 83 N.M. 678, 496 P.2d 738 (Ct.App.1972); State v. Holly, 79 N.M. 516, 445 P.2d 393 (Ct.App.1968). Lucero, supra, held that where an action had been initiated under the Uniform Act for an out-of-state witness, absent an admission of facts, the trial court had no discretion in denying a request for a continuance when the out-of-state witness did not respond. The court went on to state that it should have been granted as a matter of right.\nThe ruling in the instant case that the witness was unavailable was error. It deprived defendant of his right of confrontation and cross-examination. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). Accordingly, we hold that under the facts of this case that before a witness can be declared unavailable the state must use the procedures of the Uniform Act. State v. Mann, 87 N.M. 427, 535 P.2d 70 (Ct.App.1975), special concurring opinion. Smith v. State, 546 P.2d 267 (Okl.Cr.App.1976).\nReversed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.",
        "type": "majority",
        "author": "HENDLEY, Judge."
      }
    ],
    "attorneys": [
      "Paquin M. Terrazas, Terrazas & Dorr, P. A., Santa Fe, for defendant-appellant.",
      "John Humphrey, Jr., Trial Counsel, Lovington.",
      "Toney Anaya, Atty. Gen., Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "587 P.2d 53\nSTATE of New Mexico, Plaintiff-Appellee, v. Jimmy Lee WAITS, Defendant-Appellant.\nNo. 3654.\nCourt of Appeals of New Mexico.\nNov. 7, 1978.\nPaquin M. Terrazas, Terrazas & Dorr, P. A., Santa Fe, for defendant-appellant.\nJohn Humphrey, Jr., Trial Counsel, Lovington.\nToney Anaya, Atty. Gen., Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0275-01",
  "first_page_order": 311,
  "last_page_order": 313
}