Felix Martinez v. George Sullivan

921 above, beyond a reasonable referred to find the defen- trustworthiness establish knowingly pos- the defendant doubt dant’s admissions. a firearm. sessed Timmy’s argues that The defendant of conviction is AF- judgment The hearsay and 2 statements November FIRMED. into evidence introduction their is incorrect. contention improper. This offi the undercover Timmy met with

When he indicated that on November

cer agent. The acting the defendant’s as made on No

defendant, by his statements prior conduct. agent's ratified

vember catego fall within

Timmy’s statements party offered ry of statements MARTINEZ, Petitioner-Appellant, Felix party’s agent as by the are made which v. 801(d)(2)(D). As by Fed.R.Evid. described SULLIVAN, George hearsay. are not such, Timmy’s statements Respondent-Appellee. Id. No. 87-1534. the suffi challenge to defendant’s The unavailing. also ciency the evidence is Appeals, States United suffi assessing the evidence In whether Tenth Circuit. conviction, the defendant’s support cient Aug. cir direct and consider both the we must evidence, including the reason cumstantial drawn, in the can be

able inferences prosecution. to the

light most favorable 832 F.2d Taylor, v. States

United Cir.1987). then deter (10th We must find jury could a reasonable whether

mine beyond a reasonable guilty

the defendant Hooks, F.2d United States

doubt. denied, Cir.), (10th

1526, 1531 cert. L.Ed.2d 199 pos crime of

The elements felon as by a convicted of a firearm

session 922(g)(1) are as U.S.C.

described §

follows: of a fel-

(1) defendant was convicted The

ony; knowingly

(2) Thereafter defendant firearm;

possessed possession of the defendant’s affecting com- was in or

firearm

merce. Dancy, 861 F.2d States

See United Cir.1988). stipulated (5th The defendant element and of the first

to the existence government’s show- challenge the

does believe third element. We

ing as to the could, upon jury based a reasonable statements, Timmy’s defendant’s and Mexico,was stabbed and

ca in New beaten Sedillo, Lujan, prisoners Fellow to death. chаrged by Martinez were petitioner capital Mexico with mur- the State New tried alone. was twice Both der. Martinez in mistrials. At his third trials resulted trial, togeth- Lujan Martinez were tried and Sedillo, plead previously who had er. murder, degree testified guilty to second respon- he was alone for defense murder. Martinez Thompson’s for sible only having a He admitted also testified. Thompson in their dorm minor fracas with door; him out the back pushing Thomp- having anything to do with denied acquitted. Lujan was Mar- son’s death. degree guilty of second tinez was found murder. Appeals af

The New Court Mexico v. Mar conviction. State firmed Martinez’ (Ct.App. P.2d 887 tinez, 102 N.M. Supreme 1984). Court Mexico New State, certiorari. Martinez denied Martinez P.2d 881 N.M. States District the United petitioned then Mexico for District of New for the to 28 corpus pursuant writ of habeas adopted court The district U.S.C. § Public Schoenburg, Asst. Federal Peter findings and rec proposed magistrate’s (Tova In- Defender, Albuquerque, N.M. dismissed with disposition and ommended Defender, Albuquer- dritz, Public Federal ap petition. Martinez’ prejudice brief), N.M., peti- for also on the que, peals. tioner-appellant. Gen., Zinn, Santa Atty. Asst. Katherine appeal raises the In this same Gen., Stratton, (Hal Atty. Santa

Fe, N.M. presented in issues he constitutional brief), respon- Fe, N.M., was аlso on and in the federal New Mexico courts dis- dent-appellee. petition. by trict court his habeas He (1) prelim- claims: admission Sam HOLLOWAY, Judge, Chief Before inary hearing testimony violated his Sixth EBEL, Circuit and SEYMOUR right to Amendment con- Fourteenth Judges. against witnesses him because Love front unavailable; (2) admission of was not code- Judge. HOLLOWAY, Chief Lujan’s out-of-court declarations fendant present utterance and under the excited from appeals Felix Martinez Petitioner hearsay impression exceptions to the sense pe- dismissing his court’s order the district his Sixth and Fourteenth rule violated corpus. We habeas for a writ tition (3) right Lujan; Amendment to confront affirm. Lujan’s admission of codefendant out-of- co-conspirator court declarations under the exception hearsay to the rule also violated right to confront because there evening August Scott On conspiracy; evidence of a insufficient prisoner Camp Blan- Thompson, a Sierra (1965), provides: “In all 13 L.Ed.2d (4) a conflict of interest under which his prosecutions, criminal en- accused shall attorney deprived him of his labored Sixth joy right ... to be confronted with the right to effec- and Fourteenth Amendment applied witnesses him....” If lit- counsel; (5) tive assistance of exclusion erally, the Confrontation Clause would re- jurors no who under circumstances would quire any the exclusion of statement made impose penalty of death violated his by present a declarant not at trial. Never- Sixth Fourteenth Amendment theless, an out-of-court a de- statement jury a fair selected from cross-section of clarant testify who does not community; denial severance admissible an accused if two condi- Lujan’s his of his trial from violated Four- tions are satisfied. hearsay a de- right process Amendment “[WJhen teenth to due present clarant is not for cross-examination law. trial, the Confrontation normally Clause requires showing a that he is unavailable. II then, Even his only statement is admissible if it adequate bears ‘indicia reliability.’ Love Unavailability Witness 1. Reliability can be inferred more in without Love, Thompson’s a to mur- Sam witness a case where the evidence falls within a der, prosecution at Mar- testified for firmly exception.” rooted hearsay Ohio v. preliminary hearing tinez’ and second trial. Roberts, 66, 56, 2531, U.S. 100 S.Ct. 70-209; Transcript Testimony V R. 2539, II R. (1980). 65 L.Ed.2d 597 As with other Love, preliminary At the hear- Sam Jr. proponents, evidentiary prosecution Martinez, ing, Lujan, Love he saw testified bears predi- the burden of establishing the “whipping ‍​‌‌​‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌‌‌​​​​​​‌‌‌‌​‌​​‌‌‌‌‌​​‍and Sedillo on another dude.” 74-75, cate of unavailability. Id. at afterwards, Shortly II 75. Lоve R. looked S.Ct. at 2543-44. out his bathroom window and saw someone hitting face

lying down. Sedillo was person pool prosecution the head with a cue and Martinez contends the did kicking predicate; R. not establish first Martinez was him. II 80-82. Later, asserts it failed to lodge Love saw Martinez enter the show Love was unavail able. with blood on his forearm. II R. 87. witness is not ‘unavailable’ for “[A] purposes appear exception Love of the When failed at Martinez’ ... to the con trial, requirement frontation prosecution prosecu- third introduced his unless the preliminary hearing testimony. torial authorities good-faith VI R. have made a effort to obtain presence 1366. his trial.”

Barber Page, 719, 724-25, v. 390 U.S. 1318, 1322, (1968). 20 L.Ed.2d 255 Martinez contends that admission lengths “The prosecution which the preliminary hearing Love’s testimony vi go produce must a witness is a ... his olated Sixth and Fourteenth Amend question of reasonableness.” Ohio v. Rob ment to confront Love. The erts, Sixth 74, 448 U.S. at 100 S.Ct. at 2543 Clause, Amendment’s Confrontation made (quoting Green, v. 399 U.S. California applicable to the through States 149, 22, Four 189 n. 90 S.Ct. 1951 n. Amendment, Texas, (1970) (Harlan, teenth Pointer J., 380 L.Ed.2d 489 concurr 400, 403-06, ing)).1 85 S.Ct. U.S. adopt per

1. requir- The dissent would se rule presence faith effort obtain Bar- trial.” ing use the Uniform Act in all cases Page, as a ber v. 88 S.Ct. necessary prerequisite finding to a (1968). of unavaila- 20 L.Ed.2d 255 The Court has also bility purposes for of the lengths Confrontation Clause. said prosecution that "[t]he to which the contrary We think this rule would be go produce to deci- must question a witness ... is a Supreme sions of the Court. Roberts, The Court has said of reasonableness." 56, 74, Ohio that "a witness is not ‘unavailable’ ... unless 65 L.Ed.2d 597 prosecutorial authorities have made a deciding pros- We think that whether a copies Three certified 1293-1294. in New Mexico arrived was to have Love began. detained and held request Martinez’ trial for Love to be 8 when September on bring held a him to trial court a New Mexico officer to The state R. 1291. VI September 15 to determine hearing trial were sent to the Clerk of VI R. was unavailable. City Love and three whether District Court Oklahoma tes- prosecution presented copies 1287-1348. sent to the certified likewise pro- employed had the same timony that it Department, all Federal Ex- Sheriff’s appearance to obtain cedure overnight service. VI R. 1294. press pre- two at Martinez’ proved had successful adopted en- has the Act and so Oklahoma First, prose- R. 1290. vious trials. VI subpoenas. 22 forces such Okla.Stat.An- subpoe- Love with witness cution served Although passed days seven not. § officer, na, parole through his Oklahoma September when the New Mexi- between trial. VI month before approximately one disap- learned Love had co Mexi- Although the New R. the New peared, September authority in legal Okla- subpoena had no co hearing on his Mexico trial court held resided, twice homa, he had where Love evi- unavailability, the record contains no R. subpoenas. VI responded to similar prosecution the New Mexico dence Second, pur- prosecution the steps during took further to locate Love New Mexico airplane ticket to chased an September when the that time. As of itinerary. him a travel for Love and mailed hearing held the on his state trial court prosecution tele- Finally, the VI R. 1291. unavailability, Love had not been located. twice, approximately once phoned Love “that The state trial court found day again days before trial eleven good a reasonable faith State has made con- R. 1290-91. Love trial. VI before procure to the attendance effort testify. appear to firmed he would Love_ I find that the una- Sam witness Love, however, appear. As did not witness, and the reason- vailability of trial prosecution in Martinez’ New Mexico procure his at- good efforts to able faith aware, released on Love had been tendance, exception an to the sixth creates an pending his trial on in Oklahoma bond right.” VI R. 1346. The court amendment charge. to criminal Unknown unrelated Martinez could introduce further ruled that however, them, Love’s trial was scheduled in conviction evidence of Love’s extrinsic September in on begin to Oklahoma and of trial mentioned above the Oklahoma day testify at Martinez’ same he was Love stole alleged incident in which an But the in New Mexico. Oklahoma trial events occurred after jewelry. These some that Love was authorities were aware felt trial and so the court Martinez’ second in testify Martinez’ trial at scheduled in unfairness fundamental “there would be Mexico, anticipated New and so had transcript of the ... with- presentation of Love’s trial. a continuance obtain VI allowing this extrinsic evidence.” out Nevertheless, re- R. 1292. at Love’s VI The court also allowed R. 1347. Sep- began in oh quest his trial Oklahoma transcript of Love’s testi- introduce the present R. 1292. Love was tember VI second trial to establish mony at Martinez’ session, morning but during trial at his VI R. 1347. prior statements. inconsistent in R. not return the afternoon. VI he did Appeals ruled The New Mexico Court of in prosecution Martinez’ 1293. When due dil- prosecution had exercised that the pro- disappeared, had it trial learned Love pres- attempting in to obtain igence subpoena day pursuant cured a that same unavailable as that he was ence and New Mexico version of the Uniform to the Martinez, P.2d at 888-890. witness. of Witnesses Act to Secure the Attendance pre- proceedings we must In federal habeas Proceed- from Without a State Criminal by state determinations R. sume factual ings, 31-8-3. VI N.M.Stat.Annot. § apply per se rule. “good- rather than to and in stances ecutor’s efforts are "reasonable" requires us to consider all the circum- faith” courts correct, (2d be an Cir.1988). unless enumerated This rationale follows exception applies. 2254(d); 28 U.S.C. Sullivan, reasoning in Cuyler v. § 446 U.S. Mata, Sumner v. 455 U.S. 102 S.Ct. 335, 341, 100 S.Ct. 64 L.Ed.2d 1303, 71 (1982). However, L.Ed.2d 480 (1980), which basic, primary, treated here we are concerned both the factu and historical facts as determinations enti- al determinations of the New Mexico courts 2254(d) tled to the presumption, but § and their ultimate conclusion that Love was viewed an holding ultimate rep- on multiple unavailable for Confrontation pur Clause resentation and effectiveness of counsel as poses. Unavailability has been viewed as a a mixed determination of open law and fact question mixed of fact and law. Burns v. to plenary federal review collateral at- Clusen, (7th Cir.1986). F.2d 941-42 Id. tack. at Thus, at 1714. This court has discussed the issue of una good determinations of a faith effort to vailability under the 2254(d). rubric of § obtain a presence witness’ and his unavaila- Ewing Winans, See v. 749 F.2d 609 bility, Barber Page, (10th Cir.1984); Griffin, Valenzuela questions are mixed (10th F.2d Cir.1981). 710-11 In these law, of fact and reviewable de novo. cases, however, it does not appear we presented with the issue whether una light, Considered we think vailability of a witness and a faith the factual determinations that Love was effort to obtain his attendance at are absent, New Mexico 2254(d) or factual determinations § under. steps took several presence obtain question mixed of law fact.2 and trial, and appear that failed to at the

In Mexico the New fairly instant case trial are parties supported by the agree question that the the record. VI R. is question mixed 1345-1348. of The ulti law, fact and reviewable de mate of novo. conclusion the New Mexico We are Court persuaded by of Appeals analysis diligence the of due of the prosecu the Seventh in Clusen, Burns v. Circuit tion and of Love’s unavailability, Martinez, 798 F.2d at position 691 this is P.2d at correct. accept. we likewise Burns held that Viewing while presumption the ruling of aas on a ques mixed applies tion, correctness basic, to the we hold it primary, or is correct under the consti facts, historical the requirements ultimate issue of tutional una of the Confrontation vailability for purposes of the Confronta Clause.3 The indicia of reliability of the tion is a question Clause mixed prior of fact and testimony are not challenged, and the law, reviewable de novo. also See Dres v. determination of unavailability proper; was Campoy, (9th F.2d Cir.1986); requirements thus the of the Confrontation Kuhlman, Rosario v. 839 F.2d 923 n. Clause were Stubbs, met. Mancusi holding Insofar as our may modify 2. below rec- prior Love’s consequences acts and the to him ognition of adopted 2254(d) a rule under § in of charge. Nevertheless, the Oklahoma they Valenzuela, Ewing and we are authorized to allowed him to remain free on bond. thinkWe state that the approves full court holding our this undercuts the notion New Mexico today that the unavailability of determinations authorities suspected should have Love would good of a witness and a faith effort obtain his skip bond in Oklahoma. prior As to Love’s attendance at questions are trial mixed fact skipping unsavory reputation, bond and we law, and reviewable de novо. significant think it is that these factors present Love, before the first and second The dissent trials. would hold that 3. totality under the nevertheless, appeared voluntarily. Finally, prosecu- circumstances of this case the we tion’s efforts to stress that the presence obtain issue before us is not Love's trial whether were not good reasonable and New Mexico in faith. authorities made mistake. With primarily hindsight, dissent relies on three we factors to know that reach true. is The issue is (1) this conclusion: Love had been in whether good-faith arrested made a reasonable and trial; (2) Oklahoma after the second had Love presence effort to obtain Love's We trial. before; skipped (3) bond repu- Love had a considering circumstances, think that all the we history tation and dishonesty. say effort, canot there was not a reasonable Regarding arrest, significant it faith. Chapman, State See P.2d the Oklahoma authorities had knowledge full (Utah 1982). 1123-24 right to Amendment and Fourteenth Sixth Lu- against him because witnesses confront L.Ed.2d privi- Amendment his Fifth jan exercised testify. lege not to Excited Utterance 2. admitted Lujan’s was At trial statement regarding Garza testified inmate Fellow directly timely objection, over Martinez’ mur- Thompsons’s leading up to events under was admitted agаinst Martinez. It day of Early on R. 844-914. VI der. present hearsay rule’s4 Mexico the New murder, Garza Martinez asked

Thompson’s ex- excited utterance impression and sense roomate new Martinez’ who he knew if objected attorney Martinez’ ceptions.5 man.” “It’s a white replied, was. Garza to re- asked Garza when the I’m said, him here. want “I don’t Martinez At R. 879-880. Lujan VI. peat said. what Later VI R. 879. him out.” take going to attorney, Garza Martinez’ request lounge entered p.m., Garza 10:00 about presence questioned outside Thomp- he lived building where for the hear- the foundation jury regarding sat R. 847. Garza VI and Martinez. son Final- 884-891. exceptions. VI say R. began two Thompson and next to down court judge ruled: “The ly, the state also 870. R. talking. VI excep- falls within the the matter finds that en- 875. Soon VI R. present. ” 803(1) VI or forth tions set [sic].... saying, “I Thompson approached tered present exceptions are These R. 891. You my room. you in want you don’t told ex- utterance impression excited sense VI R. punk.” R.Evid. hearsay rule. N.M. to the ceptions arguing. began Thompson asked arrived Sedillo R. 872. VI Appeals, how- Mexico The New urged Sedillo Garza, happening?” “What’s had Lujan’s statement ever, concluded you’re going Martinez, something if “Do Lujan, not only against been admitted approached then 873. Sedillo it.” VI R. do Lu- because held that Martinez. It in the twice poked him Thompson and explicitly name not did jan’s statement and kicked laundry pin awith shoulder admonishing the Martinez, an instruction Thompson. hit R. 858. him. VI only against the statement consider jury to himself and Thompson covered R. 896. VI Martinez, would against not Lujan, and hit said, don’t “Please crying and began from protected adequately to Garza Sedillo ordered VI R. me.” Ap- Mexico Court The prejudice. New door, slipped out but Garza watch request “[h]aving failed to that peals held R. his VI lounge into room. instruction], can- defendant limiting jury [a Lujan entered minutes later About five Martinez, complain.” to be heard not now “[Lujan] testified: room. Garza Garza’s at 893. P.2d rape him.’ That said, to ‘They’re going Appeals’ Mexico Court The New And then him outside. they had taken was Lujan’s statement that determination kill him.’ And said, ‘No, going they’re ” and not Lujan, only against added, VI admitted T so.’ [Lujan] believe then Martinez, be reconciled cannot against through that contends R. 892. Martinez judge state trial record. The the trial a witness testimony, Lujan became Garza’s admis clearly intended the to have seems that admis- against him. Martinez asserts against to be Lujan’s statement sion of violated Lujan’s statements sion of impression. (A) statement A Present sense Hearsay provides: is not 4. N.M. R.Evid. explaining event condition by describing or an or except provided these or rules as admissible by supreme perceiving or adopted by court rules while the declarant other made condition, by immediately statute. thereafter. or or event relating (B) A statement utterance. Excited provides part: 5. N.M. R.Evid. while startling condition made or event hearsay by following are not excluded The excite- under the stress the declarant rule, as though is available the declarant even by or event condition. caused ment a witness: Martinez, well Lujan, as as right Second, due his ex- voked his testify. not to press reliance on the although excited utterance and the statement must bear ade- present impression sense hearsay excep- quate reliability, “[reliability indicia of can Lujan’s If tions. statement was admitted be inferred without more a case where only against Lujan, hearsay. it was not firmly evidence falls within a rooted N.M. provides, among R.Evid. 801 hearsay exception.” Roberts, other Ohio things, hearsay statement is not if 100 S.Ct. at 2539.7 “[a] ... against statement is offered [t]he admissibility The spontaneous ut statement_” party and is ... his own ground by terances—one relied on the state only possible Thus the reason for the state recognized by court—was ‍​‌‌​‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌‌‌​​​​​​‌‌‌‌​‌​​‌‌‌‌‌​​‍the Su trial court’s reliance hearsay excep- on the preme century ago Court over a in Insur Lujan’s tions is being statement was (8 Wall.) Mosley, ance Co. v. Moreover, against admitted Martinez. be- 406-07, (1869) (decedent’s 19 L.Ed. 437 Lujan’s cause being statement was admit- spontaneous shortly utterances injury after directly against Martinez, ted it made no part of gestae res admissible show attorney request sense for his an in- death). cause of Wigmore documents the limiting struction Lujan. statement to spontaneous evolution of the exclamation Therefore, we analysis cannot follow the separate exception as a against to the rule the New Mexico Appeals Court of hearsay. Wigmore Evidence, 1745- §§ there procedural was a default Mar- (Chadbourn 1976). ed. Advisory attorney. tinez’ proposed Committee’s notes on the Federal The federal presumed district court also Rules of Evidence remark that “it finds Lujan’s statement had been admitted support in cases without number.” Fed.R. only against Lujan, against Martinez. Advisory Evid. 803 Committee’s notes. We The court held Lujan’s that admission of persuaded are that the “excited utterance” statement did not violate Martinez’ con- exception to the hearsay firmly rule is frontation because the statement was enough roоted in jurisprudence our so that only “linkage evidence.”6 reliability can be inferred within the ratio nale of Roberts. agree we that admission

While Lujan’s statement did not violate Martinez’ agree We with the state trial court’s rights Clause, under the Confrontation our determination Lujan’s here that statement noted, reasons differ. As admission of a was admissible Martinez as an ex hearsay permissible statement is under the cited utterance. previously Garza had tes Confrontation Clause if the declarant is tified about the Lujan he and fracas wit unavailable and the statement bears ade nessed in lounge approximately five quate reliability. indicia of We hold that Lujan minutes before entered Garza’s both First, conditions were met here. Lu- room. Garza further testified that when jan was unavailable within the meaning Lujan of entered his room “he seemed like he the Confrontation Clause because he in- was scared.” VI. R. In light 890. of this Moreover, 6. The Appeals New Mexico Court of and the we do not decide whether the state- federal Lujan's reasoning district court used the question indirectly ment in merely incriminated merely evidence, linkage statement was Martinez. involving directly not of incriminating risks coming statements States, within Bruton v. United e.g., States, Bourjaily 7. See v. United 483 U.S. 123, 391 U.S. 88 S.Ct. 20 L.Ed.2d 171, 183, 2775, 2783, 107 S.Ct. 97 L.Ed.2d 144 (1968). Linkage 476 evidence is evidence ad (1987) statements); (co-conspirator’s Mattox v. against mitted only one codefendant which indi States, 140, 151, United 146 U.S. 13 S.Ct. rectly implicates against a codefendant whom declarations); 36 (dying L.Ed. 917 Man the evidence was neither admissible nor admit Stubbs, cusi 408 U.S. 92 S.Ct. Marsh, ted. Richardson v. 481 U.S. Cf. 2308, 2313-15, (1972) (cross- 33 L.Ed.2d 293 1702, 1707-08, (1987); 95 L.Ed.2d 176 prior-trial testimony); examined Mattox v. Unit United Markopoulos, States v. 848 F.2d States, ed 156 U.S. 15 S.Ct. 39 L.Ed. (10th Cir.1988). 1038-39 Lujan’s However here (1895) (cross-examined preliminary hearing directly against statement was tinez, admitted Mar testimony witness). of deceased linkage analysis and the improper. is Inadi, judge’s ator. United States v. testimony, think the state we 1121, 1128-29, 106 S.Ct. Lujan’s statement was determination (1986). was fair- Further, indepen excited utterance L.Ed.2d no admissible as an Thus both the reliability is ly supported inquiry required record. dent into indi- declarant unavailability of the within the co-con the statement falls his statement es- reliability against spirator exception cia the rule hear States, say. tablished. Bourjaily v. United 2782, 97 L.Ed.2d Lujan’s the admission We hold that rights violate Martinez’ did not statement Clause. the Confrontation under contends, however, Martinez Lujan’s admission of statement violated his Co-conspirator’s Statement rights under Confrontation Clause be testimony, fellow inmate During his trial findings cause the courts’ were incor state recounted a conversаtion Andrew Mitchell says rect. Martinez that we should not pre- about had Martinez presume factual these determinations to be exculpate them. a false affidavit to paring fairly sup correct not because are Lujan’s court admitted The state trial ported by the record. 28 U.S.C. See during this conversation direct- statements 2254(d)(8). disagree. We § co-conspira- ly against Martinez under Appeals The Mexico sum- New hearsay to the rule.8 VI R. exception tor thought marized the evidence that it conspiracy sufficient establish a between “Under the The state trial court found: Martinez, Martinez, Lujan, Mitchell. established, has for evi- proffer, the State summary The 691 P.2d at 891. an accu- dentiary purposes, a scheme or common fairly sup- rate reflection record publish plan, conspiracy prepare ports that there was suf- the determination that affidavit.” VI R. 1206. New a conspiracy ficient evidence of between Appeals It MexicoCourt of affirmed. sum- Martinez, Lujan, and Mitchell admit Lu- marized found: evi- the evidence and “This jan’s statements under dence, particularly defendant’s statement co-conspirator exeption hearsay to the get together to that the three should not Lujan’s rule. Thus the out-of- admission statement, execute the shows combina- did violate Martinez’ court statements defendant, Lujan, tion and Mitch- between rights the Confrontation Clause. under the false ell to create and execute state- Martinez, ment.” 691 P.2d at 891. Assistance Counsel 4- Effectiveness of does not contend that ad he was denied Martinez contends Lujan’s mission under the co- statement Amendment his Sixth and Fourteenth conspirator exception have violated assistance of counsel because effective rights under Confrontation Clause attorney his labored under a conflict of findings by courts if these the state interest. above, correct. discussed out-of-court As Lujan’s and against Martinez asserts that his statements are admissible the ac attorneys if be as one at- cused the declarant is unavailable and should considered Martinez; torney. adequate represented Mitchell the statements bear “indicia of Roberts, Lujan. Ill R. 41. Before represented v. 448 at Wall reliability.” Ohio U.S. trial, 66, Unavailability part- and 100 at 2539. is not Mitchell Wall became law S.Ct. however, cooperated They R. 41-42. required, when the statement is ners. Ill preparing a their defenses. Ill R. co-eonspir- the out-of-court declaration of clients’ 801(D) provides: 8. N.M. R.Evid. (e) by co-conspirator party a a of a hеarsay statement A statement is if: during the course and in furtherance against party a conspiracy. The statement offered and is 930

42-43. During hearing represented conflicting Martinez’ interests and that motion for a new trial Mitchell testified: an actual conflict of adversely interest af- lawyer's performance.” fected his

After Kemp, the motion to consolidate [Mar- 783, If, 483 trials, tinez’ U.S. 107 S.Ct. Lujan’s] proceeded we therefore, Martinez can prepare. Mitch- Everything open. demonstrate was Wall actively ell Wall brought represented his conflict- files over. had all our interests, ing and that They files. an actual conflict were all combined. We went adversely interest through them time and affected again, time counsel’s defense, witnesses, conduct of his presume we must interviewed transcripts, read thereby works, prejudiced. was together.... end, whole To this Martinez refers to two situations which Ill R. circumstances, 42-43. Under these during arose trial in which he asserts his we will deciding assume without that the Lujan’s interests conflicted. partners two law appropriately are con- sidered attorney. as one Burger First, v. above, as discussed Sam Love’s Cf. Kemp, 483 3114, U.S. 107 S.Ct. preliminary hearing testimony was admit- 3120, (1987). 97 L.Ed.2d 638 against ted Martinez. testimony That was ways some inconsistent with Love’s tes- right cоunsel, Sixth Amendment’s timony at Martinez’ applicable made second to the trial. VI R. through States Therefore, Mitchell, 1357-1358. Amendment, Fourteenth represent- Gideon Wain- Martinez, ing wright, 335, 792, 372 wanted to U.S. 83 introduce Love’s 9 trial (1963), testimony impeach L.Ed.2d provides: 799 “In all crimi- credibili- ty. nal prosecutions, Wall, R. VI 1357-1358. accused enjoy representing shall right Lujan, hand, on the other ... did Assistance of not want Counsel for his Love’s trial testimony defence.’’ This guaranty admitted. VI R. includes the juncture counsel’s 1357-1358. At effective as- Martinez’ and sistance. Richardson, Lujan’s conflicted, McMann interests and Mitchell n. 90 S.Ct. actively Wall represented n. those con- 25 L.Ed.2d 763 flicting interests. This obviously was serious conflict of problem interest under In Strickland v. Washington, 466 U.S. the Sixth Moreover, Amendment. Lujan if (1984), L.Ed.2d 674 had been convicted and raised the conflict adopted two-part test for deter issue, he would very have a serious claim mining whether a criminal rep defendant’s of constitutional error. resentation was constitutionally ineffective. First, the defendant must show that However, coun representation Mitchell’s performance sel’s is, deficient—that not actually adversely affect- “that representation counsel’s fell below an urged ed. He the admission of Love’s trial objective standard of testimony reasonablenеss.” Id. and after argument for and Second, S.Ct. at 2064. he must admission attorneys two show this deficiency prejudiced his de state judge trial ruled in favor of Mitchell. is, fense—that “that there is a reasonable He allowed Mitchell to introduce Love’s that, probability but for unprofes counsel’s testimony; pre- Martinez’ interests errors, sional the result of the proceeding vailed. Thus, VI R. 1347. any loyalty that would have been different.” Id. at felt Mitchell toward did not adverse- 104 S.Ct. at 2068; Brown, Coleman v. ly representation affect his of Martinez ‍​‌‌​‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌‌‌​​​​​​‌‌‌‌​‌​​‌‌‌‌‌​​‍(10th F.2d Cir.1986), cert. de under Kemp test. nied, Second, above, as discussed Lujan’s out- L.Ed.2d 383 of-court statements were admitted However, because it is difficult to mea- Martinez. argues Martinez that admission precise sure the effect on the defense of of Lujan’s statements created for his attor- representation corrupted by conflicting in- ney a conflict of interest. Mitchell wanted terests, prejudice presumed is if “the de- Lujan to testify subject himself to fendant demonstrates that counsel actively cross-examination regarding the state- SEYMOUR, Judge, dissenting. Circuit testify not to Lujan ments; Wall advised of his introduction allow it would because in majority the all agree I Although credibility. Ill impeach his to crimes from prior respectfully I dissent respects, other end, his Lujan exercised in prosecution In the acted R. 29. view that its presence testify. attempting in to secure faith right not to Love, was and that Love Sam of witness ac- Wall Mitchell and Martinez asserts Felix I am convinced “unavailable.” Lujan’s conflict- his and represented tively his impermissibly deprived of was deci- Lujan’s process of in the ing interests right, and confrontation Sixth Amendment to in- entitled was Lujan sion. however contin- petition habeas grant his magis- testify. The right to his not voke deci- of New Mexico’s gent upon the State by the district adopted finding trate’s a new trial. sion conduct decided not Lujan had court, “once stated majority’s treat- about the My concern way that no testify, there was [Mar- unavailability is twofold. issue ment [Lujan] to testi- required could have tinez] does not First, of the facts presentation its agree. We or not.” counsel fy, separate demonstrating evidence include record grounds to establish has failed Mar- unreliability supporting Love’s prejudice because presumption for a prosecution argument tinez’ actively attorney his has not shown coop- prior Love’s not have relied on should ad- conflicting interests which coop- represented of continued his assurances eration or He also performance. оf all his was aware versely prosecution affected The eration. prejudice. critically, no reference actual Most establish evidence. failed to has testimony opinion in the is made Love’s ineffective assistance Consequently, his skipped trial that he second at Martinez’ fails. claim counsel awaiting for for- trial in while bond Rec., Albuquerque, New Mexico.1 gery in Excludables Witherspoon 5. The Transcript V, Transcripts, vol. State for that removal (hereinafter claim Love, Martinez’ Jr. Testimony of Sam “ violat Mi/ierspoow-excludables” This testimo- Testimony”), cause of at 38-39. “Love Atkins, prosecu- Amendment by Fourteenth Bert ny his Sixth and was elicited ed for responsibility both primary a cross- from fair tor with jury selected right to New Mexico Mexico v. Martinez and New community is foreclosed section investigation and throughout the v. McCree, Lockhart Rec., vol. of the two cases. prosecution (1986); Coleman 90 L.Ed.2d (herein- Proceedings VIII, Transcript Brown, F.2d at 1289. In “Proceedings”), vol. after mentions addition, opinion although the 6. Denial Severance Oklahoma, awaiting trial that Love indicate of sev it does majority op. claim that denial Martinez’ officer, Elaine Har- probation Lujan vio from that of his trial erance of of Love’s proseсution grove, under notified process of right due law lated his larceny Oklahoma grand arrest for upon Amendment is based the Fourteenth 9, 1982. dated June by letter May out-of-court Lujan’s arguments that 5, at 1298. VIII, Proceedings, Rec., vol. vol. We improperly admitted. statements stated that whether letter It is unclear joint arguments. rejected those twenty year sentence receive Love could due Martinez’ did not violate knew that convicted, prosecution if but process. proba- possible Love faced Accordingly judgment result, id. as a in New Mexico tion violation charge and the nature of AFFIRMED. Thompson. inmate serving der this for- fellow Ironically, time for Love mur- allegedly gery witnessed 932 clearly put the on notice that witness is view, unavailable. In my the

he faced the possibility of receiving a sub- reasoning of Page, 719, Barber v. 390 U.S. jail stantial term 1318, as well. 88 S.Ct. 1321-22, 20 L.Ed. 2d (1968), 255 and Mancusi Stubbs, Nor does the majority any signifi- accord 204, 408 2308, 92 S.Ct. 2311- cance to the fact that the prosecution 14, 33 (1972), L.Ed.2d 293 support this worked closely with probation Love’s offi- position, although opinion neither expressly cer to arrangements make for his various so holds.2 Barber identified the Uniform trips Mexico, 1299, New id. at although Act as one of contemporary several proce it acknowledges prоbation that the officer responsible dures "largely depriving] served Love with the invalid State of New any of ... continuing validity” the tradi subpoena Mexico 8, for the September tional rule that a witness’ absence from a 1982, trial, id. at Despite jurisdiction supports finding a of “unavaila- this close working relationship, prose- the bility.” Barber, 4, 390 U.S. at 723 & n. 88 cution apparently asked, never alleg- S.Ct. at 1321 n.& 4. More importantly, edly discover, did when Love was announcing good-faith standard, the the scheduled for trial in until Sep- Oklahoma Court outlined the parameters standard’s 8, 1982, tember day the first of the Mar- by juxtaposing against it position a it clear- tinez trial. Id. at 1300. These circum- ly indicated fell parameters: outside those stances suggest the state had a rather appellate court’s reasoning that it is cavalier attitude securing about unnecessary to particular invoke a proce- presence trial, at the third especially con- requests dure if thereunder might be re- sidering significance of Love’s testimo- 724, fused. Id. at 88 S.Ct. at In so ny and the fact capital a offense was doing, the Court effectively held that the Similarly, involved. majority attaches potential proce- ineffectiveness available no significance to prosecution’s knowl- process dural is not a valid basis under the edge that Oklahoma authorities had re- good-faith standard for not invoking that leased Love on pending bond his criminal process. Mancusi reinforced impor- trial there. placed by tance the Court on the invocation I also am concerned about the majority’s of the Uniform Act and other available resolution of the unavailability issue. I predicate methods aas to finding a good agree questions that the related of whether faith. 212, 408 See U.S. at 92 S.Ct. at 2312. a party good acted in faith to secure a Numerous state courts adopted a witness’ attendance at trial and whether per se relying rule Mancusi, Barber and witness unavailable are ques- mixed albeit without analysis. e.g., See State v. tions of fact and law reviewable de novo Gray, 102, 616 S.W.2d 105 (Mo.App.1981) I disagree, however, court. with the (characterizing per approach se as the evaluation of these questions under what I “majority rule”); Hills, State v. 379 So.2d understand to be a “totality of the circum- 740, (La.1980); 743-44 State Ray, 123 standard, stances” and also out- Ariz. 990, 598 (1979)(en P.2d come of this evaluation. banc); Ormound v. Sheriff, Clark Coun- adopt per a se rule requiring use ty, 173, 95 Nev. 258, P.2d of the Act, Uniform when available and (per curiam); Kim, State v. 55 Haw. applicable, as a precedent condition to find- 519 P.2d (1974); 1244-45 In Terry, re ings a party good-faith made a at- 4 Cal.3d Cal.Rptr. 484 P.2d tempt witness, to secure a and that (1971); 1389-90 State, Brooks v. cf. majority 2. The adoption asserts per of a se Majority sonableness” op. standard. at 924 n. rule Supreme would contravene the Court’s de 1. The only legally Uniform Act offers the ef- Page, cisions in Barber v. 390 U.S. 88 S.Ct. fective securing presence means of of an (1968), 20 L.Ed.2d and Ohio v. Rob out-of-state witness. dealing In the context erts, witness, L.Ed.2d therefore, with an out-of-state (1980), because these prose cases hold that the faith and necessarily require reasonableness use cution’s efforts presence secure witness’ procedures are available under Act. to be “good measured faith" and “rea-

933 trial, yet nev- second date of the scheduled 674, 678 A.2d 371 Md.App. 35 procedures established to the resorted is not er position this support for court State pros- the It construed by the Uniform Act. v. See, unanimous, e.g., Utah however. legitimate response a (Utah actions as ecution’s 1122-23 P.2d 655 Chapman, subpoena the wit- dilemma: majority to a tactical is 1982) approach (noting per se Act and risk her the Uniform ness under it); declining Wisconsin rule, to follow but preliminary (as the fleeing she had before N.W.2d 301 Zellmer, Wis.2d 100 v. and risk method hearing), or use another Barber as (declining to read 209, 214 In good faith.4 finding a lack of Act). the court the Uniform requiring use case, a state court distinguishing California cases, East court district federal Two stated that expressly the court 1278, 1281 Johnson, F.Supp. v. ham have to prosecution should not “[t]he Turner, 353 v. Poe (E.D.Mi.1972), and of the Uni- procedures the comply with 1972), read (D.Utah 672, 674 F.Supp. that an out-of- appears it form Act when conjunction in standing alone or Barber, more like- cooperative or state witness is the Uniform Mancusi, require that to informal of an ly testify the basis appar is Ninth Circuit The utilized. Act be compulsion of under the agreement than con court that has only circuit ently the subpoena.” a the use mandates Barber whether sidered prece Id. at Act as a condition the Uniform In Daboul good faith.3 finding of to a dent majority’s the persuaded I am not Cir.1970), (9th Craven, F.2d there As the reasoning in Dres. dissent “indicating] that as Barber the court read out, assumption that majority’s points the the use of fails make prosecution if the likely to flee when more the witness was re not made the it has Act ... Uniform than appear order to a court faced with ” effort_’ prece- The ‘good faith quired promise her mother’s faced with limited, however, is of Daboul dential value Id. far-fetched at best. produce her seems petitioner’s found the the court because specious dissenting). The (Hug, J. at 1002 to this is- as unexhausted remedies state readily appar- assumption is of this nature In merits. sue, not reach the and so did that the of the lack evidence ent because (9th Craven, 465 F.2d Gorum subpoena caused the wit- issuance of the Cir.1972), acknowledged DabouVs court the hearing. preliminary flee ness to before reading of Barber. likely it, far it seems more the face of On having to prospect of attend that the vitality Daboul precedential Whatever itself, subpoena hearing, not by impending question called into possessed once assuming that her to flee. Even caused holding of Dres v. Cam reasoning to the subpoena pursuant (9th Cir.1986). The the issuance 996, 999 poy, F.2d like- have increased Act would Uniform to Daboul court’s reference context of the fleeing, possibili- of the witness lihood case bind it considered the suggests that by the fact ty must be counterbalanced because inapplicable ing precedent, but compel her legally could that California cur not know the witness’ prosecution did Act means of a Uniform only by However, presence re the court also rent location. used analytical framework subpoena. argument that the petitioner’s jected in thus majority is defective by the Dres good faith efforts were not prosecution’s poten- holding terms of Barber’s the witness’ prosecution knew because procedural of available tial ineffectiveness before the for months previous address detaining Procunier, witness for 4. The alternative in Mechler v. The Fifth Circuit was not avail- pursuant Uniform Act to the (5th Cir.1984), held that F.2d according California to the court. The able attempting faith in acted Constitu- interpreted the California courts have witness of an presence secure the when, out-of-state material amount of time tion to limit the alia, subpoenas pur- obtained inter it two approximately for trial can be held witness Act, authorities but suant to the Uniform Illinois weeks, weeks fled three and the witness two locate the were unable to witness. the trial. before process cannot be justify relied on to the Love to New Mexico for Martinez’ third failure to process invoke that under the trial occurred “under the same set of cir- good-faith sum, standard. In I believe that cumstances” prior as the occasions. Pro- the circumstances of present precisely Dres ceedings, vol. at 1296. On these other the type of situation in which use of the occasions, Love was not facing criminal Uniform Act required should be as a condi- charges with the possibility of receiving a tion precedent good to a finding of faith. twenty year sentence and/or having his probation

In revoked. addition to the support per for a se rule law, found in the case policy considera- The most critical fact is prosecution’s tions militate in favor of such a rule. As knowledge that Love once before had both Dres and demonstrate, this case skipped awaiting bond while This trial. application “totality of a of the circum- knowledge standing alone casts doubt on approach stances” lends itself to attempts prosecution’s assertion that it had “[n]o to manipulate the determination of the una- reason suspect whatsoever” to that Love vailability question. There likely will al- would not appear as scheduled. Id. Com- ways be some circumstances to justify a bined with its awareness of Love’s in arrest party asserting acted in good Oklahoma, this knowledge of previ- Love’s faith in using the Uniform Act: ous behavior completely undermines the appeared witness to be cooperative, or had prosecution’s claim. could been рast, so the party faced a not but have been aware that Love’s arrest dilemma, tactical etc. Parties are encour- likely to dramatically alter his assess- aged to be less rigorous than in securing ment of whether to continue cooperating. witnesses’ attendance argu- where such Returning to New Mexico any could not might ments prove possibili- effective. The longer have advantageous seemed Love, ty of such manipulation tactical espe- is though even he had received considera- cially where, here, offensive as the testimo- tion for his earlier cooperation, rec., vol. ny of the out-of-state witness central to VIII, Proceedings, vol. at Adopting per case. se rule re- 1326; rec., V, vol. Love Testimony, at 72- quires timely resort Act, the Uniform 75, he could not have expected such consid- applicable available, would dis- eration to extend to protecting him from courage this kind tactical maneuvering. prosecution for such a probation serious view, In my drawing the line use of the violation, an event he knew could result in Uniform Act makes sense because Act reincarceration, his id. at 76. And reincar- provides the only means issuing legally ceration meant Love likely bе the process effective against an out-of-state target reprisals because he had testified witness. facts, fellow inmates. These com- We adopt need not per rule, se how- bined with reputation Love's prison ever, in order to conclude prosecu- that the man,” officials rec., as a “con IX, vol. Pro- tion failed to establish its faith ceedings, vol. history attempting to presence secure the of wit- criminal activity involving dishonesty and ness Love. On review, de novo this court misrepresentation, V, rec. vol. Love Testi- must make an independent determination mony, made unreasonable the it, the issues before reviewing the record state’s reliance on previous coopera- in light of its independent own judgment. tion and his assurances of coop- continued Oil Corp. Ocelot v. Sparrow Indus., 847 eration. F.2d (10th Cir.1988). This record amply demonstrates that These under a circumstances are closely analo- “totality of the test, gous circumstances” to those Case, in State v. 752 P.2d 356 state should employed (Utah App.1987). Uniform Case, In the state sub- Act. significant It is that Love poenaed was arrest- to a preliminary hearing a victim- ed in after Oklahoma the second hospitalized trial. witness in-state. The victim- This fact clearly prоsecu- undercuts the witness subsequently left the state but tion’s contention that its efforts to bring gave the prosecuting attorney’s office a beneficiary if the error is harmless tional ac- She in Alabama. forwarding address beyond a reasonable prove error can of the sub- Utah a State of receipt of knowledged ver- the it did not contribute to that prose- the doubt trial, and contacted the for poena 24, The harm- S.Ct. at 828. Id. at 87 dict. secretary approximately attorney’s cuting the un- rule thus less error indicating “focus[es] her will- times, time each other 8 than on the trial rather of derlying fairness the morn- On trial. the to attend ingness immate- presence of virtually inevitable the the inform trial, called she ing of the Arsdall, 475 v. Van rial error.” Delaware appear. As not would she 1431, 1436, 89 673, 681, 106 S.Ct. to the case. U.S. central here, testimony was her (1986). 674 Supreme L.Ed.2d Court’s Utah noted the The court isAct the Uniform of holding that use rule, the Notwithstanding general the the victim- concluded that permissive, but that constitu- recognized some has Court habits “lifestyle and nomadic witness’ per- and “so fundamental errors are tional po- the possessed that she it clear ma[d]e require without reversal vasive that appear at refuse to disappear or tential or circumstancеs regard to the facts potential light In of her Id. at trial.” type case.” Id. Errors of this particular prose- held that unreliability, court con- a coerced the introduction include tele- on the victim-witness’ reliance Arkansas, 560, cution’s Payne v. fession, 356 U.S. and was unreasonable assurances phoned (1958) (cited 844, in 975 2 L.Ed.2d 78 S.Ct. procedures invoked the 8, that it should 23 n. S.Ct. Chapman, 386 87 U.S. Similarly, Love’s Act. Id. the Uniform 8); complete denial of the n. 828 bond, his arrest skipping history Wainwright, 372 prior v. counsel, Gideon trial, his ex- and (1963); the second subsequent 792, 335, 9 L.Ed.2d 799 83 S.Ct. U.S. potential record made arraign- tensive criminal counsel from an the absence clear, my unmistakably unreliability so results in the irretrievable that ment when for v. Ma defenses, was unreasonable that it White opinion, loss of unasserted 1050, to the Uniform 59, to resort 10 prosecution not 83 S.Ct. ryland, 373 U.S. coopera- prior Act, notwithstanding Love’s of a (1963); adjudication 193 L.Ed.2d Ohio, coopera- judge, Tumey v. of continued and assurances tion before a biased case 437, 510, 749 71 L.Ed. S.Ct. tion.5 U.S. 47 273 of a the existence conflict (1927); and de- the trial court that My conclusion pro throughout a representation interest in Amendment his Sixth petitioner of prived Arkansas, 435 U.S. ceeding, Holloway v. by finding Sam confront witnesses right to (1978). 1173, L.Ed.2d 426 475, 55 S.Ct. 98 pre- admitting his by Love unavailable presupposes analysis thus “Harmless-error end testimony does not hearing liminary defendant, represented trial, at which the constitu- all errors of inquiry, for argu counsel, evidence may present errors. See are reversible tional dimension jury.” impartial judge an before ment 249, Texas, 108 v. 486 U.S. Satterwhite 570, 578, 106 S.Ct. Clark, U.S. Rose 478 (1988); 1797, 284 100 L.Ed.2d S.Ct. 92 L.Ed.2d (10th Wilson, 828 F.2d Graham that addition, has indicated In the Court California, Chapman v. Cir.1987); apply- appropriateness assessing the 17 in S.Ct. specific analysis to a ing harmless-error (1967). The Supreme L.Ed.2d 705 error, it is concerned a constitu- constitutional general rule that held as a has a crucial Love was independent significance assessment. majority disputes of facts 5. The rely Mexico, an trial in New Majority witness in murder reaching this conclusion. on in major- The important consideration. argument, additional majority’s op. first n. at 926 contention, incident ity’s second Love on decision to release that Oklahoma’s prior to the skipping had occurred Love bond that it supports New Mexico’s contention bond yet bond, appeared vol- skip first and second trials untarily, disregards suspect Love reason to had no changed circumstances assuming Oklahoma Even is misfocused. trial; namely, Love the third equally well before authorities were and New Mexico Oklahoma, likely facing rеliability, prose- reincarceration equipped to assess probation in New Mexico. making revocation its own responsibility for had cution ensuring that the record contains infor- dants’ confessions in ); violation of Bruton mation necessary reviewing courts Florida, to Schneble v. determine whether the error was harmless. (1972) (same); 31 L.Ed.2d 340 Van Thus, the Court in Satterwhite observed Arsdall, 475 U.S. at (“the constitutionally improper of a denial “ the normal case where a ‘[i]n harmless- opportunity ‍​‌‌​‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌‌‌​​​​​​‌‌‌‌​‌​​‌‌‌‌‌​​‍defendant’s impeach a wit- applied, error rule is the error occurs at bias, like other Confrontation ness for trial and scope readily its indentifiable. errors, Clause subject is to Chapman Accordingly, reviewing court can un- analysis”) harmless-error (emphasis added). dertake with some its confidence relative- review is de novo. Gra- Harmless-error ly narrow assessing task of the likelihood ham, 659; see also Harring- 828 F.2d at that the error materially affected the ton, 254, 395 U.S. at 89 S.Ct. at 1728. deliberations of jury_ [A]ny in- Applying the harmless-error doctrine to quiry into a claim of harmless error ... this case convinces me that the admission a violation such as deprivation [for of of preliminary Love’s hearing testimony the right to representation conflict-free was not harmless. The State of New Mexi- which cannot be from discerned co primarily relied the testimony on of six require, cases, unlike most record] men ” were who inmates Camp at Sierra unguided speculation.’ night Blanca the Wayne Scott Thomp- Satterwhite, at S.Ct. 1797 (quoting death, August 1, son’s 1981. Five of these Holloway, 435 U.S. at 98 S.Ct. at men, Garza, Martin Keener, Robert Billy 1173). If a Sixth Amendment violation Ray Hughes, Mitchell, Andrew and Thomas process” basic “abort[s] or “de- Hayward, lived in Lodge, Bonito the resi- Rose, altogether,” it nie[s] 478 U.S. at 578 dence of defendant Martinez and the victim 6,n. (citations 106 S.Ct. at 3106 n. 6 omit- Thompson. individual, The sixth Sam ted), or is of a kind contaminates the Love, resided in Lodge, Desert the front of whole proceeding, leaving easily no identifi- which faced the back of Lodge. Bonito able trace in the record and necessitating The testimony of all the witnesses was inquiries “difficult concerning matters that impeached greater to and degrees, lesser might been, not, but were placed in primarily on the prior basis inconsistent evidence,” id. at 579 n. 7, at receipt statements their early parole n. then harmless-error analysis inap- or parole shortened periods. addition, In propriate. the reliability of their testimony was called The trial court’s admission of pre question into by the numerous conflicts liminary hearing testimony based on it’s between their versions of the events. erroneous conclusion that he was unavail Garza able does testified not fall that earlier in any day within on of these cate gories. August Moreover, Martinez told although I “I him don’t have found no want him directly [Thompson] point, case on there. going am Court’s re liance Rec., on the take him VII, out.” harmless-error vol. standard in Proceedings, closely analagous vol. cases at 879. clear Later makes that evening, Garza applies standard here as saw Sat well. Martinez hit Thompson once when Cf. terwhite, (harmless S.Ct. 1792 room, id. at error the t.v. rule applies to admission of expert psychi heard Martinez ask Thompson if he wanted testimony atric based on go examination con fight, outside and id. at 912. He ducted in violation of Sixth Amendment never saw Martinez take Thompson out- counsel); Harrington side, id. at 903, because he went his Califor nia, 23 L.Ed.2d room trying after to dissuade David Sedil- (applying harmless analy error lo getting involved, from id. at 875. Be- sis to admission of non-testifying co-defen- fore leaving room, the t.v. Garza witnessed original 6. The complaint criminal Thomp- pled 10. guilty pursuant Sedillo plea agree- to a Sedillo, son’s murder named David as well as ment with the State June Id. at 1982. Rec., IV, Mаrtinez. Record, vol. State Court happen, outside' anything anybody, or in the shoulder Thompson poke Sedillo Id. evening. Lodge that Bonito pocket, his pulled out he had safety pin testi- Garza him. Id. at 872-73. kick Mitchell Hughes, Andrew Billy Ray Like room, he returning to his standing that after fied he saw testified he heard bleeding window Thompson his looked out Thompson, over direction of from Mitchell Id. at 1175-76. “very loud” screams the face. from players run pool kick- asserted, saw Martinez was though, he Lodge, and Desert Id. Lodge. Desert in the face while Sedillo ing Thompson the back door out Id. at 1174-75. Some- to the fol- testified stood watch. Finally, Garza 876-77. Thomp- tell Rich- later he heard co-defendant what interchange with lowing set outside, more than one go heard room son Lujan came into Lujan when ard outside, heard the and then footsteps go to it: after returned minutes 5-10 about Yet still Id. at 1178. close. door screen rape him.’ said, ‘They’re going to “Lujan was later, Lujan as claimed that Mitchell And him taken outside. had That floor, room the t.v. wiping up blood from ‘No, to kill said, they’re going then Lujan the window and rattled someone added, ‘I be- [Lujan] then he And him.’ per- talked to the and went to the window ” lieve so.’ and both of Martinez Lujan got then son. Id. at 892.7 Id. at 1179-80. went outside. them see- testified to similarly Keenеr Robert although testified that Hayward Thomas room, Thompson in t.v. the ing hit Martinez Lodge, in fight going on Bonito heard a he on blood to seen he claimed but Lujan anything because he did not see VII, Rec., Proceed- vol. Thompson’s face. Swint, Joey him and inmates stopped fellow stated Keener 920. further ings, vol. at Shaw, Billy Ray Mitchell, Robert Andrew re- verbally hearing Thompson that after Keener, entering from Hughes, and Robert outside, screen he the go heard to fuse VIII, Proceedings, Rec., vol. t.v. room. the slam, id. at but Lodge Bonito door of fight heard the He also 1216-18. vol. scuffling any commotion or heard he never out outside, he later looked and when move Although never outside, Keener id. at 957. window, hitting, and Sed- saw Martinez his Bonito leave he saw Martinez that testified con- bloody-faced but still kicking, a illo Martinez that he Lodge, he saw asserted lay ground the he Thompson as scious 20- about Lodge’s back door Bonito enter Id. Lodge. at 1218- Bonito six feet behind door heard the screen he 30 minutes after weapons any not see Hayward 20. did Id. at 937. slam. Id. at his window. out he looked he saw Hughes testified that Billy Ray standing over room in testi- in t.v. the conflicts the Disregarding

Martinez the all bleeding from his of the witness- Thompson, impeachment was mony who and the nose, Lujan prevented weigh- es, jury thаt for the in or but are mouth which matters evidence, Id. at He testi- intervening. credibility 996-97. of the ing him from up pick eyewitnesses have seen Martinez of the state’s mony claimed of five also Martinez, Sedillo, and end of the couch the other that pool cue indicated from in he re- an altercation Id. Thompson at 1117. were involved that time. When at night of Lodge’s Robert t.v. room fellow inmates Bonito later with turned Mar- August Mar- l.8 The altercation included Hayward, he saw Shaw and Thomas kicking hitting and and and Sedillo Thompson his face tinez hitting about tinez Thompson poking area, kicking Thompson Thompson, and Sedillo Sedillo chest and an safety pin, to such extent Hughes never saw with Id. at 998. the face. statement, yelled hit "I believe 8. Martinez testified this last 7. The sentence Rec., IX, Pro- Thompson room. vol. in the t.v. so,” at the sec- into was not evidence admitted re- ceedings, also vol. 2138-40. Sedillo VII, Rec., Proceedings, vol. trial. vol. ond between Martinez counted the altercation 910-11. Thompson. Id. at Thompson bleeding. Only context, one wit- the critical nature of Sam Love’s ness’ testimony linked and Sedillo testimony readily apparent. Prior Thompson later the same evening in Love’s testimony, only Hay- Mitchell and back of Lodge. Bonito placed ward Martinez out of dоors the night August only Hayward con- Against evidentiary backdrop, nected Thompson Martinez with outside of state witness, called its final inmate Lodge. Bonito Love only corroborated “unavailable” Sam Love. The state read Hayward’s testimony by linking Martinez into the record substantially pre all of his beating of someone outside of Bonito liminary hearing testimony.9 Love testi Lodge, he also linked carry- fied moaning groaning sounds ing of person from behind Bonito from the direction of Lodge Bonito prompt Lodge to behind Desert Lodge, and the ed him to turn just around as he was beating further person in back of entering Desert Lodge. When he turned Desert Lodge Thompson’s where body ulti- Martinez, Sedillo, he saw “whip mately was discovered. testimony ping on Rec., another II, dude.” vol. Pre thus was only actually evidence liminary con- Hearing Transcript, at 75. Love necting Martinez person to a wearing person unable to see being beaten clothes identical to him, Thompson to identify during a but se- description quence of person's events out of night clothes doors matched Thompson those August placing had and body when his at the was loca- Id. discovered. tion where at later, Thompson’s body 137-138. stated, Sometime Love was discover- ed. The looked out the еven acknowledged front door and saw Mar tinez, Sedillo, that Love was Lujan only and carrying state’s per witness who son would so testify. Rec., had been beating VIII, towards vol. Desert Proceed- Id. at 78. Lodge. ings, later, vol. Still at Moreover, 1328-29. Sedillo, Love looked out the pled bathroom who had guilty window and degree Mar to second saw mur- der, tinez person kick the couple times, testified that he alone responsible saw Sedillo hit him with pool once, for Rec., cue the murder. IX, and vol. Proceedings, saw watching vol. Id. at events. at 2030-32. In the trial, second 79-83, 165-66. Five to ten jury where the minutes after assessed Love’s credibility, he looked out the window, bathroom the vote Love was 10-2 acquittal. for Rec., vol. saw Martinez enter VIII, Desert Lodge say Proceedings, vol. at 1329. Conse- something someone, and saw quently, Sedillo en I cannot “confidently say, on the ter Lodge Desert and heard him showering. record, whole that the constitutional error Id. at 84-87. As Sedillo left bathroom, beyond harmless [here] a reasonable Love saw him sticking something in his Arsdall, doubt.” Van 475 U.S. at pocket, imprint of which looked like a “shank” or homemade knife 3 4to inches in I persuaded am by my review of the case length, awith blade 1 to 1 & lh inches wide. law that use of Act, the Uniform Id. 190-91. applicable available, should be a condi- question we face is whether we can precedent tion to a finding of good faith be sure “beyond a reasonable doubt and unavailability. Because prosecu- complained error admission of [the tion failed to employ the Act’s procedures, prior testimony] did not contribute I conclude that it did not act in faith to the verdict obtained.” Chapman, and that Love therefore was not unavail- U.S. at 828; 87 S.Ct. at see also Satter My able. review of the record under the white, 108 S.Ct. at 1798. Viewed in this majority’s “totality of the circumstances” testimony Sam trial, rec., Love's at the second 1376-86. Love testified to the same basic V, vol. State Transcripts, Transcript of trial, events at the second but numerous details Testimony Love, (Love of Sam Jr. Testimony), differed such as his claim that he saw Martinez record, was also read into primarily "shank," awith Rec., or homemade knife. vol. purposes impeachment by defense counsel. V, Love Testimony, at 19-20. Rec., vol., VII, Proceedings, vol. prose- convinces me also standard good faith were not in efforts

cution’s not unavailable. therefore was Love court’s the state I conclude that

Because is not finding Love unavailable

error petition

harmless, grant Martinez’ contingent on the State corpus

for habeas a new to conduct decision Mexico’s

of New

trial. Jensen, Cheyenne, Wyo., for debt-

Georg ors-appellants. S.D., Brodowicz, City, ‍​‌‌​‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌‌‌​​​​​​‌‌‌‌​‌​​‌‌‌‌‌​​‍Rapid Ronald E. HOLMES, Carolyn Sue

Gary Dean Hecox, Cheyenne, Wyo., for and Debra doing Holmes as business Holmes creditor-appellee. Debtors-Appellants, Welding, TACHA, EBEL, McKAY, Before Judges. Circuit AVIATION, INC., WINGS SILVER Creditor-Appellee. McKAY, Judge. Circuit appellate examining briefs After No. 88-1092. record, unani- panel determined this has Appeals, Court of States United not mate- argument would mously that oral Tenth Circuit. ap- this rially assist the determination 34(a); 10th Cir.R. Fed.R.App.P. peal. See Aug. sub- The ordered 34.1.9. cause therefore argument. oral without mitted Gary Carolyn debtor-appellants The the dis- the order of appeal from Holmes February court entered on trict of the bank- affirmed the decision which creditor-appellee ruptcy court to award Aviation, attorney’s Wings Inc. fees Silver Because expense. we an administrative as Holmeses lack determined that matter, we dismiss standing appeal this appeal. Chapter originally filed a Holmeses bankruptcy petition in the United States Wyo- District of Bankruptcy for the Wings ob- ming on March Silver the Holmeses' jected to the confirmation grounds Chapter plan and un- their assets undervalued Holmeses Wings’ ob- their income. Silver derstated discovery of undisclosed jection led to the As a result of this and income. assets filed an amended discovery, the debtors

Case Details

Case Name: Felix Martinez v. George Sullivan

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 4, 1989

Citation: 881 F.2d 921

Docket Number: 87-1534

Court Abbreviation: 10th Cir.