MILLICAN V. STATE, 1978-NMSC-061, 91
N.M. 792, 581 P.2d 1287 (S. Ct. 1978)
Edgar W. MILLICAN, Petitioner,
vs.
STATE of New Mexico, Respondent.
SUPREME COURT OF NEW MEXICO
1978-NMSC-061, 91 N.M. 792, 581 P.2d 1287
Whitney Johnson, Santa Fe, for
petitioner.
Toney Anaya, Atty. Gen., Lawrence A.
Gamble, Asst. Atty. Gen., Santa Fe, for respondent.
PAYNE, J., wrote the opinion. McMANUS,
C.J., and SOSA and FEDERICI, JJ., concur. EASLEY, J., not participating.
{1} Defendant was convicted
by a jury of intentionally obtaining a controlled substance by forgery in that
he used a forged prescription purportedly signed by a Dr. Sims. He claims that
the trial court erred in admitting a tape recording of a stipulation made by
defense counsel at the preliminary hearing. Defendant appealed to the Court of
Appeals which affirmed the trial court. He then petitioned for a writ of
certiorari, we granted certiorari and reverse the decision and remand the case
for a new trial.
{2} At the preliminary
hearing, in Lovington, the State subpoenaed Dr. Sims, but due to an emergency
in Eunice the doctor was unable to attend. The prosecutor and defense counsel
agreed to recess the hearing and go to Eunice to take Dr. Sims' deposition. The
deposition was recorded on a tape recorder but the tape recorder malfunctioned
and the recording was inaudible. The parties, not wishing to further delay the
hearing, entered into a stipulation summarizing Dr. Sims' testimony at the
deposition. Defendant was bound over for trial. At the trial the State once
again subpoenaed Dr. Sims but was again unable to secure his attendance because
he had moved from the state. The State offered into evidence the tape recording
of the stipulation from the preliminary hearing. Defendant objected on the
grounds that it denied him the right to confront and cross-examine Dr. Sims.
The court ruled that since Dr. Sims was unavailable to testify, the recording
of the stipulation would be received into evidence. On review the Court of
Appeals upheld the conviction and held that the stipulation would have been
admissible even if the doctor had been available. We do not agree.
{3} It is important to
understand the purpose and the extent of the stipulation. Defense counsel did
not stipulate to the truthfulness of Dr. Sims' deposition testimony, he merely
acknowledged what Dr. Sims testified at the deposition.
{4} If Dr. Sims had testified
at the preliminary hearing and had been unavailable for the trial, the
transcript of his testimony
{*793} would
have been admissible. N.M.R. Evid. 804(b)(1) [§ 20-4-804(b)(1), N.M.S.A. 1953
(Supp.1975)].
{5} If the stipulation had
been that Dr. Sims did not sign the prescription, then defendant would have been
bound by the stipulation.
See State v. Plant,
86 N.M. 2,
518 P.2d 961
(Ct. App.1973); Annot., 100 A.L.R. 775 (1936). If defendant had stipulated to
the truthfulness of the doctor's statements the trial judge could have
instructed the jury on the point and no further evidence would have been
necessary. Such is not the case. All defendant stipulated was that Dr. Sims
said he did not sign the prescription and rarely prescribed the drug in
question. The stipulation had no other effect.
{6} The accused's right to
confront the witnesses against him is basic to both the United States and the
New Mexico Constitutions. U.S. Const. Amend. VI;
N.M. Const. art. II, § 14. The
purpose of the guarantee is explained in
State v. James,
76 N.M. 376,
380,
415 P.2d 350, 352 (1966):
The purposes of confrontation are to secure to the accused
the right of cross-examination; the right of the accused, the court and the
jury to observe the deportment and conduct of the witness while testifying; and
the moral effect produced upon the witness by requiring him to testify at the
trial.
{7} Under the facts presented
in this case we hold that defendant was deprived of his constitutional right to
confront Dr. Sims. We therefore reverse the case and remand it for a new trial.
McMANUS, C.J., and SOSA and FEDERICI, JJ., concur.
EASLEY, J., not participating.