State v. Forbes

• Decision Date: 30 June 2005
• Docket Number: No. 29,111.,29,111.
• Citation: 2005 NMSC 027,119 P.3d 144
• Parties: STATE of New Mexico, Petitioner, v. Hon. Jay W. FORBES, District Judge, Respondent, and Ralph Rodney Earnest, Real Party in Interest.
• Court: New Mexico Supreme Court

Page 144

119 P.3d 144

2005 NMSC 027

STATE of New Mexico, Petitioner, v. Hon. Jay W. FORBES, District Judge, Respondent, and Ralph Rodney Earnest, Real Party in Interest.

No. 29,111.

Supreme Court of New Mexico.

June 30, 2005.

Rehearing Denied August 26, 2005.

Patricia A. Madrid, Attorney General, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Petitioner.

Patricia A. Madrid, Attorney General, David K. Thomson, Assistant Attorney General, Santa Fe, NM, for Respondent.

Gary C. Mitchell, Ruidoso, NM, J. Thomas Sullivan, Little Rock, AR, John Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Real Party in Interest.

OPINION

CHÁVEZ, Justice.

{1} On March 8, 2004, the United States Supreme Court issued Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), holding that "[w]here testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 68, 124 S.Ct. 1354. We applied this principle in State v. Johnson, 2004-NMSC-029, ¶¶ 2, 7, 136 N.M. 348, 98 P.3d 998. Respondent, Ralph Rodney Earnest (Earnest), who in 1985 was convicted of murder, conspiracy to commit murder, kidnaping, conspiracy to distribute a controlled substance, and possession of a controlled substance, filed a Petition for Writ of Habeas Corpus seeking a new trial based on the holding in Crawford. The facts and posture of Earnest's case present a unique reason for granting him a new trial on his convictions now over two decades old. In 1985 this Court, relying on existing United States Supreme Court precedent, reversed his convictions for the very rationale stated by the United States Supreme Court in Crawford: that the admission of a prior statement by an alleged accomplice violated Defendant's rights under the Confrontation Clause¹ because it deprived Defendant of meaningful cross-examination. State v. Earnest, 103 N.M. 95, 99, 703 P.2d 872, 876 (1985) (Earnest I). However, our holding in Earnest I was vacated by the United States Supreme Court with instructions that we apply the reliability analysis in Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), a case decided more than one year after we decided Earnest I. New Mexico v. Earnest, 477 U.S. 648, 106 S.Ct. 2734, 91 L.Ed.2d 539 (1986) (Earnest II). We subsequently applied the reliability analysis and affirmed Earnest's convictions. State v. Earnest, 106 N.M. 411, 411, 744 P.2d 539, 539 (1987) (Earnest III).

{2} After a hearing on Earnest's habeas corpus petition, following Crawford, the district court concluded that Crawford did not announce a new rule of constitutional criminal procedure and that Earnest was entitled to its application. Accordingly, the district court granted Earnest's petition and issued a Writ of Habeas Corpus for the release of Earnest unless the State elected to retry him. The State filed a Verified Petition for Stay of Order Granting Petition for Writ of Habeas Corpus with this Court. We treated the Petition as one for superintending control, entered an order staying the district court action pending further order of this Court, and set the matter for oral argument. We also recognize our jurisdiction under Rule 5-802 NMRA 2005. Because of the unique circumstances of Earnest's case, and our belief that the United States Supreme Court legal precedent at the time we decided Earnest I required the exclusion of the alleged accomplice statement, as Crawford suggests that it always has, we affirm the district court and remand for proceedings consistent with this opinion.

PROCEDURAL HISTORY

{3} The events leading to Earnest's convictions were alleged to have occurred on February 11 and 12, 1982. During Earnest's trial, information from two eyewitnesses, Conner and Boeglin, was provided to the jury. Conner took an oath and testified that while he and Boeglin committed the crimes, Earnest was not involved. The prosecution was given a full and fair opportunity to cross-examine Conner and challenge the reliability of his testimony. Boeglin, however, refused to take an oath and testify, despite having been granted use immunity, and was held in contempt of court. Over objection of defense counsel, the trial court declared Boeglin unavailable and admitted a tape recording and transcript of a statement Boeglin gave officers the day of his arrest. In his statement, Boeglin admitted that it was he who attempted to cut the victim's throat but he went on to implicate both Conner and Earnest, stating Earnest shot the victim in the head. Earnest III, 106 N.M. at 412, 744 P.2d at 540. Unlike the prosecution, which had a full and fair opportunity to cross-examine Conner, Earnest was deprived of the opportunity to cross-examine Boeglin to challenge the reliability of his statement. Boeglin's unsworn statement was admitted to the jury as substantive evidence of Earnest's guilt. A jury found Earnest guilty of all charges.²

{4} On March 4, 1985, we reversed Earnest's convictions and remanded for a new trial, holding that Earnest's confrontation rights had been violated. Earnest I, 103 N.M. at 96, 703 P.2d at 873. We concluded that admission of this prior statement by the alleged accomplice "was highly prejudicial, violated defendant's confrontation rights, and deprived defendant of meaningful cross-examination," relying on Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) (holding that a confession of an alleged accomplice who implicated Douglas violated Douglas's right to confront and cross-examine the witness against him and was inadmissible because he did not have the opportunity to cross examine the alleged accomplice). Earnest I, 103 N.M. at 99, 703 P.2d at 876. We did not believe Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which held that hearsay statements are admissible if the statements bear adequate "indicia of reliability," applied since the statement at issue in Roberts was a statement at a preliminary hearing where Roberts had the opportunity to cross-examine the declarant. Earnest I, 103 N.M. at 99, 703 P.2d at 876. The State appealed to the United States Supreme Court. On June 27, 1986, the United States Supreme Court entered a per curiam decision which vacated Earnest I and remanded for "further proceedings not inconsistent with" Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), an opinion decided more than one year after the New Mexico Supreme Court decided Earnest I. Earnest II, 477 U.S. at 648, 106 S.Ct. 2734.

{5} On remand we interpreted the United States Supreme Court order as requiring us to give the State "an opportunity to overcome the weighty presumption of unreliability attaching to codefendant statements by demonstrating that the particular statement at issue bears sufficient `indicia of reliability' to satisfy Confrontation Clause concerns." Earnest III, 106 N.M. at 412, 744 P.2d at 540 (quoted authority omitted). We concluded that the accomplice statement at issue had sufficient indicia of reliability to satisfy the Confrontation Clause. Id. Thus, we held that the trial court had not erred in admitting the statement and affirmed Earnest's convictions. Id.

Earnest is Entitled to a New Trial

{6} From Earnest II up until Johnson, New Mexico courts continually applied the Roberts reliability test ("indicia of reliability") to accomplice statements, regardless of whether there had been an opportunity to cross-examine. See, e.g., State v. Desnoyers, 2002-NMSC-031, 132 N.M. 756, 55 P.3d 968; State v. Martinez-Rodriguez, 2001-NMSC-029, 131 N.M. 47, 33 P.3d 267; State v. Torres, 1998-NMSC-052, 126 N.M. 477, 971 P.2d 1267. It is beyond dispute that since Crawford, the rest of the nation knows now what the New Mexico Supreme Court announced in 1985: under the Sixth Amendment, statements from an alleged accomplice to an officer are inadmissible unless the declarant is unavailable and the defendant had an opportunity to cross-examine the declarant. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

{7} Whether Earnest should now benefit from the holding in Crawford initially turns on whether Crawford announces a new constitutional procedural rule. State v. Mascarenas, 2000-NMSC-017, ¶ 24, 129 N.M. 230, 4 P.3d 1221 ("An appellate court's consideration of whether a rule should be retroactively or prospectively applied is invoked only when the rule at issue is in fact a `new rule.'"). In Crawford, the United States Supreme Court did not expressly state it was announcing a new rule. In Johnson, wherein we applied Crawford, we also did not state we were announcing a new rule. We analyze this issue by exercising our inherent power to decide whether rulings announce a new rule, and if so, whether the new rule is to be given prospective or retroactive application. See State v. Ulibarri, 1999-NMCA-142, ¶ 22, 128 N.M. 546, 994 P.2d 1164, aff'd, 2000-NMSC-007, 128 N.M. 686, 997 P.2d 818. In Mascarenas, we recognized the difficulty of determining when a case announces a new rule but looked to Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), for guidance:

[W]e do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.

Mascarenas, 2000-NMSC-017, ¶ 24, 129 N.M. 230, 4 P.3d 1221 (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060).

{8} Applying the Teague analysis to this case, we conclude that as to the unique facts and procedural posture of Earnest's case, Crawford does not announce a new rule because the result was "dictated by precedent existing at the...