STATE V. MANN, 1975-NMCA-045, 87 N.M.
427, 535 P.2d 70 (Ct. App. 1975)
STATE of New Mexico, Plaintiff-Appellee,
vs.
Lowada Ann MANN, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1975-NMCA-045, 87 N.M. 427, 535 P.2d 70
Chester H. Walter, Jr., Chief Public
Defender, Bruce L. Herr, Appellate Defender, Sarah Singleton, Associate
Appellate Defender, Santa Fe, for defendant-appellant.
Toney Anaya, Atty. Gen., Santa Fe, Ralph
W. Muxlow II, Asst. Atty. Gen., for plaintiff-appellee.
SUTIN, J., wrote the opinion. HENDLEY, J.,
specially concurs. HERNANDEZ, J., dissents.
{1} Defendant was convicted
of receiving stolen property of over $100 but under $2,500. Section 40A-16-11,
N.M.S.A. 1953
{*429} (2d Repl. Vol. 6).
Defendant appeals. We reverse.
{2} In brief, our decision to
reverse rests on the following analysis of the issues.
{3} (1) Admission into
evidence of the preliminary hearing testimony of the absent material witness
was error.
{4} (2) That testimony was
cumulative of the testimony of other witnesses, which fact might render the
error harmless.
{5} (3) However, admission
into evidence of the preliminary hearing testimony denied to the defendant her
right to confrontation.
{6} (4) Denial of the right
of confrontation, a fundamental constitutional right, is never harmless error.
{7} The defendant was
convicted of receiving stolen property owned by Jake Hargrove. At the time of
trial, Hargrove was in Montana. The State attempted to subpoena Hargrove and
learned of his absence two days before trial. He was declared to be a material
witness. The record shows that the State exercised no effort to bring Mr.
Hargrove to the trial. In fact, the State hesitated to announce ready for trial
until such time as the Court determined that the preliminary hearing testimony
was admissible. Over objection, the court allowed the State to introduce into
evidence a transcript of Hargrove's preliminary hearing testimony.
A. Hargrove's former testimony was inadmissible under the
Rules of Evidence.
{8} We are confronted with
Rule 804 of our Rules of Evidence [§ 20-4-804, N.M.S.A. 1953 (Repl. Vol. 4,
1973 Supp.)].
{9} Rule 804(b)(1) permits
the admission of Hargrove's former testimony as an exception to the hearsay
rule of Hargrove "is unavailable as a witness". At the preliminary
hearing, Hargrove was examined by the State and cross-examined by the defendant
in compliance with this rule.
{10} Was Hargrove available
as a witness? Rule 804(a)(5) reads:
(a) Definition of Unavailability .
"Unavailability as a witness" includes situations in which the
declarant:
(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. [Emphasis added]
{11} On the morning of the
trial, the State, in laying its foundation for introducing the preliminary
hearing testimony of the absent witness, stated to the court:
Please the Court, the State's attempted to serve Subpoena
upon Jake Hargrove. We received information today -- or day before yesterday,
rather, that he is in the State of Montana. He is a material witness in the
case, being the owner of the property involved in the case.
{12} The State contends that
this foundation is sufficient to constitute "unavailability". We
disagree.
{13} The district attorney's
statements are no more than bare recitals unsupported by factual elaboration.
Heretofore, we have expressed doubt that such statements sufficiently
demonstrate a party's inability to procure the attendance of a witness at
trial. State v. Berry,
86 N.M. 138,
520 P.2d 558 (Ct. App.1974). In the present
case, we declare the statements to be insufficient because there was no
compliance with the rule.
{14} State v. Berry and State
v. Barela,
86 N.M. 104,
519 P.2d 1185 (Ct. App.1974) guide us in determining
the issue. These cases involve the admission into evidence of the deposition of
an absent witness.
{15} Rule 29(n) of the Rules
of Criminal Procedure [§ 41-23-29(n), N.M.S.A. 1953 (2d Repl. Vol. 6, 1973
Supp.)] provides that a deposition is admissible at trial:
(3) If the party offering the deposition has been unable to
procure the attendance of the witness by subpoena;
(4) If the witness is out of the state, his presence cannot
be secured by subpoena or other lawful means, and his absence {*430} was not procured by the party offering
the deposition; * * *
{16} This rule is comparable
to Rule 804. In
Barela, supra, and
Berry, supra, we held that
there must be strict compliance with Rule 29(n); that a showing must be made
that the witness' presence could not have been secured by subpoena or other
lawful means; and that due to failure to comply, the depositions were not
admissible in evidence.
{17} The criminal information
was filed April 16, 1974. Trial by jury was held June 26, 1974. We have no information
as to when the State took any action to require the presence of Hargrove before
trial.
{18} Rule 45(e) of the Rules
of Civil Procedure [§ 21-1-1(45)(e), N.M.S.A. 1953 (Repl. Vol. 4)] governs the
issuance and service of subpoenas for trial in criminal cases. Section
41-23-48(a), N.M.S.A. 1953 (2d Repl. Vol. 6, 1973 Supp.).
{19} The subpoena is not a
matter of record. The issuance and attempt to serve the subpoena, as well as
the time and place of the attempted service are not a matter of record. There
is no evidence to show what inquiry, if any, the State made to locate Hargrove
before trial. Nor is there evidence to establish when Hargrove left New Mexico.
{20} In short, the record
contains no evidence as to the circumstances of the State's alleged attempt and
inability to subpoena the witness. Speculation, conjecture or surmise by an
appellate court is sheer imprudence when a person's freedom is at stake.
{21} We hold that a witness
is available for trial unless the proponent of the former testimony makes a
showing in court that the proponent was unable to procure the attendance of the
witness by subpoena. The State failed to do so. See State v. Holly,
79 N.M.
516,
445 P.2d 393 (Ct. App.1968).
{22} Under Rule 804,
Hargrove's preliminary hearing testimony was not admissible in evidence.
B. The former testimony was cumulative of the testimony of
other witnesses.
{23} The State contends the
testimony of Hargrove was harmless error because it was cumulative of the
testimony of three other witnesses. The defendant's answer is that this
contention is inconsistent with the position taken by the State at the trial
that Hargrove "is a material witness in the case, being the owner of the
property involved in the case." Defendant's position is untenable because
no authority or facts are presented in support.
{24} In State v. Berry and
State v. Barela, it was unnecessary to deal with the question of harmless
error. In each case, the deposition testimony of the doctor was essential to a
conviction, because it was the only evidence which proved that the substance in
the defendant's possession was heroin. The deposition testimony was not
cumulative of any other testimony. Therefore, the admission of the deposition
testimony was prejudicial error. It infringed on the defendant's
"substantial rights", and violated "substantial justice".
See §§ 21-1-1(61) Harmless Error), 21-2-1(17)(10), N.M.S.A. 1953 (Repl. Vol.
4).
{25} Having reviewed the
whole record in the instant case, we hold that the Hargrove preliminary hearing
testimony was not prejudicial. It was cumulative. The testimony of Hargrove's
sister-in-law and two police officers established the essential elements of
receiving stolen property under § 40A-16-11.
{26} "A trial court may
in its discretion permit cumulative testimony." State v. Miller, 2 Or.
App. 353, 467 P.2d 683, 685 (1970), "and error cannot be predicated on its
admission where there is no abuse of discretion." Buckles v. State, 500
P.2d 518 (Wyo.), cert, denied, 409 U.S. 1026, 93 S. Ct. 475, 34 L. Ed. 2d 320
(1972); See 23 C.J.S. Criminal Law § 1041, at 1175-77. We find no abuse of
discretion in the instant case.
{*431} C. Denial of
the right of confrontation was reversible error.
{27} Defendant objected to
the admission of Hargrove's preliminary hearing testimony, because it denied
defendant the right to confront this witness at the trial. The objection was
overruled.
{28} Article II, § 14 of the
New Mexico Constitution provides that "In all criminal prosecutions, the
accused shall have the right * * * to be confronted with the witnesses against
him; * * *"
{29} In State v. Bailey,
62
N.M. 111,
305 P.2d 725 (1956), a situation identical to the one in the instant
case was presented to the trial court. Over objection, the court admitted into
evidence the testimony of a witness taken at a preliminary hearing. In
reversing the case, the court said:
We conclude that in allowing the testimony of the witness to
be read, the accused was denied his constitutional right of being confronted by
the witnesses against him. The mere fact that the witness was absent from the
jurisdiction of the court, was not enough. The exercise of due diligence on the
part of the officers, in an effort to secure his attendance, was essential to
the admission of the testimony of the absent witness. 62 N.M. at 113, 305 P.2d
at 726.
{30} The essential ingredient
of this rule is the exercise of due diligence by the State to secure the
attendance of the witness. State v. Bailey, supra; State v. Barela, supra;
State v. Mitchell,
86 N.M. 343,
524 P.2d 206 (Ct. App.1974); State v. Jackson,
30 N.M. 309,
233 P. 49 (1924). See, also, State v. Kirk, 211 Kan. 165, 505 P.2d
619 (1973), in which admission of prior recorded testimony by an absent witness
was held to be error because of the denial of the right of confrontation, even
though the testimony was cumulative of the testimony of other witnesses.
{31} If the State makes such
diligent effort to secure the attendance of an absent witness, and fails in
this effort, the admission of the former testimony rests in the discretion of
the trial court. State v. Holly, supra; v. Jackson, supra. The record does not
show any effort by the State to bring Hargrove from Montana to defendant's
trial.
{32} In State v. Barela,
supra, we said:
The State contends the error in the admission of the
deposition is harmless. We disagree. The violation of a defendant's constitutional
right is never harmless. 519 P.2d at 1187.
{33} It is never harmless,
unless (a) there has been a waiver of the right of confrontation, or (b) the
witness is unavailable.
{34} On the right of
confrontation, the United States Supreme Court has stated the following:
There are new subjects, perhaps, upon which this Court and
other courts have been more nearly unanimous than in their expressions of
belief that the right of confrontation and cross-examination is an essential
and fundamental requirement for the kind of fair trial which is this country's
constitutional goal. Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 1068,
13 L. Ed. 2d 923, 927 (1965).
Unless there has been a waiver of the right of confrontation,
or it has been shown that the witness is unavailable after due diligence has
been used by the State to attempt to produce him at trial, admission of a
witness's prior recorded testimony violates a defendant's right of
confrontation. Infringement of that right cannot be harmless error. It is a
right that is "so basic to a fair trial that [its] infraction can never be
treated as harmless error." Chapman v. California, 386 U.S. 18, 23, 87 S.
Ct. 824, 827-28, 17 L. Ed. 2d 705, 710 (1967).
{35} Here, there was no
showing of due diligence by the State in attempting to produce Hargrove at
trial. Therefore, admission of Hargrove's preliminary hearing testimony
violated defendant's right to be confronted by this witness. Such error
necessitates reversal.
{36} Defendant's conviction
is reversed, and defendant is granted a new trial.
{*432} HENDLEY, J.,
specially concurs.
HENDLEY, Judge (specially concurring).
{38} I concur in Judge
Sutin's result that defendant be awarded a new trial but for different reasons.
{39} First, Hargrove's
testimony was inadmissible because the state made no attempt, other than the
issuance of a subpoena, to secure the attendance of Hargrove. Both New Mexico
and Montana have adopted the "Uniform Act to Secure the Attendance of
Witnesses from without a State in Criminal Proceedings." Sections 41-12-13
through 41-12-19, N.M.S.A. 1953 (2d Repl. Vol. 6, 1972); §§ 94-9001 through
94-9007, Repl. Vol. 8, Revised Codes of Montana, 1947. I would require, under the
circumstances of this case, the state to use the procedures in the Uniform Act
before a witness could be declared unavailable. Section 20-4-804, N.M.S.A. 1953
(Repl. Vol. 4, 1970, Supp.1973).
{40} Second, the state
contends the error was harmless since Mr. Hargrove's testimony was
corroborative of the testimony of three other witnesses. It is true that Mr.
Hargrove's testimony with regard to the unauthorized taking and the identity of
the property was repetitious of that of the other witnesses. However, the
testimony of the other witnesses as to these two elements was hearsay although
no objection was made to its admission. Our Supreme Court in State v. Romero,
67 N.M. 82,
352 P.2d 781 (1960) stated:
"* * * hearsay evidence may have sufficient probative
worth to support a verdict * * * However, this rule does not operate to make
objectionable testimony conclusive proof of the matter asserted therein. The
fact that it was hearsay does not prevent its use as proof so far as it has
probative value, but this is limited to the extent of whatever rational
persuasive power it may have. * * *"
But compare Pitcock v. State, 168 Tex.Cr.R. 223, 324 S.W.2d
866 (1959) and Nesbit v. State, 71 Ga. App. 744, 32 S.E.2d 207 (1944), both
standing for the proposition that hearsay admitted without objection is of no
probative value whatsoever.
{41} As I cannot say that the
hearsay testimony of the other witnesses was conclusive proof of two elements of
the crime, State v. Romero, supra, and as I do not know what rational
persuasive power it had in the eyes of the jury, we cannot say that the
improperly received prior hearing testimony did not contribute to the
conviction. See State v. Thurman,
84 N.M. 5,
498 P.2d 697 (Ct. App.1972); State
v. Lopez,
80 N.M. 599,
458 P.2d 851 (Ct. App.1969). Thus, not being able to
determine whether or not the error was harmless, I agree the defendant is
entitled to a new trial.
{42} I need not reach the
confrontation issue.
HERNANDEZ, Judge (dissenting).
{43} The preliminary hearing
testimony complained of, made by Mr. Hargrove alleges, in essence, (1) that
various items of household furniture were removed from his home without
authority during a period of his absence, and (2) that the same items were
discovered and subsequently identified by him in the defendant's home.
{44} The prosecution
established these two facts by independent sources. In my opinion, the trial
testimony of detective Brewton establishes that the furniture found in the
defendant's home was identified by Mr. Hargrove as his. Brewton testified that
he, Mr. Hargrove, and second Roswell City Police Officer went to the
defendant's home to determine whether the missing furniture could be located
there. The defendant permitted their entry, and Mr. Hargrove identified the
furniture. I do not agree that this testimony was hearsay. In similar
circumstances, the Nevada Supreme Court has quoted approvingly from 20 Am.
Jur., Evidence, § 555, p. 467, as follows:
"'An objection that a statement is hearsay is not
available as to a statement {*433} made
in the presence of the party against whom the statement is offered in evidence
and in a conversation in which he took part.'" Beasley v. State, 81 Nev.
431, 404 P.2d 911 (1965).
And our Rule of Evidence, Section 20-4-801(d) provides:
"a statement is not hearsay if -- * * *
(2) The statement is offered against a party and is * * * (B)
a statement of which he has manifested his adoption or belief in its truth * *
*."
The defendant did not challenge Mr. Hargrove's statement that
the furniture was his.
{45} On the question of
whether the furniture belonged to Mr. Hargrove and was taken from his home
without authorization, I believe the testimony adduced at trial from Mr.
Hargrove's sister-in-law serves as an independent source. On direct examination
she testified as follows:
"Q. And, to your knowledge, did Jake Hargrove come up
missing some furniture?
This testimony came in without objection, and nothing
elicited by defense counsel on cross-examination served to undermine it.
{46} I would therefore hold
that the preliminary hearing testimony read at trial was merely cumulative and
that owing to the absence of proof of any prejudice suffered by the defendant
as a result of its admission, what error there may have been in the trial
court's failure to exact documentation from the prosecution on its claim that
Mr. Hargrove was unavailable to repeat his testimony at the trial should be
viewed as harmless.
{47} "Cumulative
evidence has repeatedly been defined to be additional evidence of the same kind
to the same point." State v. Funderburke, 251 S.C. 536, 164 S.E.2d 309
(1968). "* * * [W]hether cumulative evidence will be permitted is in the
area of the court's discretion and the ruling thereon will not be disturbed on
appeal unless it is made to appear that such discretion was abused." State
v. Steinkraus,
76 N.M. 617,
417 P.2d 431 (1966).
{48} For the reasons stated,
I do, therefore, respectfully register my dissent.