OPINION
Lunn wаs convicted of murder in the second degree, § 40A-2-1, N.M.S.A.1953(Repl.Vol. 6), and of an attempt to commit murder in the second degree, § 40A-28-1, N.M.S.A.1953 (Repl.Vol. 6). We reverse the convictions because hearsay testimony was admitted which deprived the defendant of his constitutional right to confront the witnesses against him. Sixth Amendmеnt to the U. S. Constitution, N.M.Const. Art. 2, § 14. This confrontation issue involves, testimony admitted as part of the res gestae.
The killing of Nick Candelaria and the wounding of his wife, Gabriela Candelaria, occurred at their home in the nighttime. There is evidence that two young sons of the Candelarias were in their bedroom at the time of the shootings. Neither boy had been called as a witness at two prior trials of this case. The first resulted in a conviction which was reversed in State v. Lunn,
The State did not call the boys as witnesses; instead, it presented two witnesses who testified as to the statements made by the boys shortly after the shootings. The testimony as to the bоys’ statements was admitted, not for the purpose of showing that the boys made statements, but for the truth of the contents of those statements. Thus, the testimony as to what the boys said was hearsay. See McCormick, Evidence § 230, at 480 (1954); 6 Wigmore, Evidence § 1746, at 134 (3rd ed. 1940).
This hearsay testimony was admitted under an established exception to the hearsay rule. Wigmore, supra, § 1745, identifies this as an exception for spontaneous exclamations. New Mexico calls it the res gestae rule. New Mexico generally follows Wigmore in the definition and application of this exception. See State v. Gunthorpe,
The res gestae statement is admissible as an exception to the hearsay rule because it is “particularly trustworthy,” Wigmore, supra, § 1747, and because “ * * * the superior trustworthiness of * * * extrajudicial statements * * * [creates] a necessity or at least a desirability of resorting to them for unbiassed [sic] testimony. * * * ” Wigmore, supra, § 1748. Wig-more, supra, § 1750, recommends that application of the res gestae exception be left to the determination of the trial court. New Mexico held, in Garrett v. Howden, 73 N. M. 307,
Because of the New Mexico res gestae decisions, we proceed on the assumption that the out of court statements of the boys were admissible under the res gestae exception to the rule excluding hearsay testimony. Objecting to the admission of testimony as to the boys’ statements, defendant claimed he was being deprived of the right to cross-examine the boys.
Although defendаnt’s objection did not specifically mention the confrontation clause, the objection concerning cross-examination raised the confrontation issue. Mascarenas v. State,
The New Mexico Supreme' Court held the constitutional right of confrontation was denied where a defendant was denied the right to cross-examine a co-defendant who gave damaging testimony against the defеndant, State v. Martin,
Although the right of cross-examination is an aspect of the constitutional right of confrontation, defendant urges that “confrontation” involves more than the right of cross-examination. Hе cites the U. S. Supreme Court decision of California v. Green,
5 Wigmore, supra, §§ 1395, 1396, takes the view that confrontation is satisfied if there has been cross-examination; that the observation of demeanor on the witness stand is a result of cross-examination but is not a part of the confrontation right. The U. S. Supreme Court has indicated there is no denial of the right of confrontation by the introduction of testimony given at a priоr trial, if there has been cross-examination at the prior trial and the witness is unavailable. See Pointer v. Texas,
Defendant would have had the right to cross-examine the boys concerning their out of court statements if they had been-called as witnesses. Mascarenas v. State, supra; compare State v. Archer,
We found no New Mexico decisions discussing these concepts when they were in-opposition, and little authority outside of New Mexico. Vasquez v. State,
Dutton v. Evans, supra, invоlved a co-conspirator’s out of court statement made during the concealment phase of the conspiracy. The statement was admissible under Georgia law. Dutton held the statement was admissible and a plurality held there was no violation of the right of confrontation.
We resolve the confrontation issue in this case on the basis of our analysis of Dutton v. Evans, supra. In that case, Evans, Williams and Truett were charged with murder. Truett was granted immunity from prosecution in return for his testimony. Truett testified at Evans’ separate trial. His testimony was that Evans and Williams committed the murders. He was one of 20 prosecution witnesses.
Another prosecution witness was Shaw. He testified that he and Williams were fellow prisoners at the time Williams was arraigned on the murder charge. Shaw testified that when Williams returned from the arraignment he asked Williams how he made out in court and that Williams replied that if it hadn’t been for Evans “we wouldn’t be in this now.” The defense objected to Shaw testifying as to Williams’ remark about Evans on the ground that it violated Evans’ right of confrontation. The prosecution did not call Williams to testify in Evans’ trial.
The U. S. Supreme Court resolved the confrontation question without a majority opinion. Four justices, Marshall, Black, Douglas and Brеnnan, were of the opinion that the admission of Shaw’s testimony, about Williams’ remark, violated Evans’ right of confrontation because there had been no opportunity to cross-examine Williams about his purported remark. Under this view, Lunn was denied his right of confrontation.
One justice, Harlan, did not view the issue in Dutton v. Evans, supra, as involving confrontation; rather, it was a due process question. Being of the opinion there was no denial of due process, Justice Harlan concurred in the result reached by the plurality opinion of Justices Stewart, White, Blackmun and Chief Justice Burger.
The plurality opinion in Dutton v. Evans, supra, states “ * * * the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth determining process in criminal trials * * and “ * * * the possibility that cross-examination of Williams could conceivably have shown the jury that the statement, though made, might have been unreliable was wholly unreal.” Thus, the plurality opinion seems to find no confrontation violation if the hearsay testimony is reliable and advances the accuracy of the truth determining process. In reaching this view, the plurality opinion considers four “ * * * indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.” We apply the indicia of the plurality opinion to the boys’ statements, but in doing so express no opinion as to whether other indicia may also be considеred.
While all four of the indicia are directed to the trustworthiness of the out of court statement, the fourth seems nearest to New Mexico’s res gestae rule. The fourth indicia is: “ * * * the circumstances under which Williams made the statement were such as to give reason to suppose that Williams did not misrepresent Evans’ involvement in the crime. * * * His statement was spontaneous, and it was against his penal interest to make it. * * * ” Although we find nothing in the record indicating the boys’ statements were against their interest, compare State v. Buck,
It is different as to the other three indicia discussed in the plurality opinion of Dutton v. Evans, supra.
The first indicia is: “ * * * the statement contained no express assertion about past fact, * * * ” The statements of the boys, James and Rocky, to the witnesses, Police Officer Smith and the boys’ grandmother, contain expressions about past fact. Each of the boys identified Lunn as being present and James’ statement to Officer Smith is that " * * * he saw Jerry Lunn standing there with a gun in his hand.”
The second indicia is: “ * * * Williams’ personal knowledge of the identity and role of the other participants in the triple murder is abundantly established by Truett’s testimony and by Williams’ prior conviction. It is inconceivable that cross-examination could have shown that Williams was not in a position to know whether or not Evans was involved in the murder. . . .” Here, it is conceivable that cross-examination could show that Rocky was not in a pоsition to identify Lunn as the person who shot his parents. Nothing in the statements attributed to Rocky indicates Rocky personally observed what went on in connection with his parents. Rocky’s statement identifies Lunn by what he heard and by looking through a window in his bedroom and seeing “Jerry’s [Lunn’s] new truck parked out front.” Officer Smith, in his crоss-examination, admitted that Rocky did not tell him that he saw Lunn.
The third indicia is: “ * * * the possibility that Williams’ statement was founded on faulty recollection is remote in the extreme. * * * ” Here, however, possibilities of faulty recollection are established. Rocky purportedly told the officer that he awakenеd, overheard some conversation, looked out the window, then “heard a bomb.” According to the grandmother, Rocky said “he woke up when he heard an explosion.” There may be no inconsistency because apparently two shots were fired. Yet, the opportunity to determine whether the statements were consistent did not exist because defendant did not have the opportunity to cross-examine.
Further, according to the officer, James “ * * * me t0 ggj, bis brother, that his brother knew everything in his statement, * * * ” According to the grandmother, after Rocky woke up from the “explosion,” “James reрeated what he had said to him.” These quotations raise the question of whether Rocky’s statements were, in part, based on what James told him or on what he overheard. They raise the question of whether Rocky’s statements were properly res gestae statements.
The first three indicia of reliability rеlied on by the plurality opinion in Dutton v. Evans, supra, are not met in this case. Further, the plurality opinion is based on the premise that Dutton did not involve crucial or devastating evidence. We have no such premise here. Apart from Gabriela Candelaria, whose credibility is attacked, the only direct evidence that Lunn did the shootings is found in the boys’ hearsay statements. Compare Douglas v. Alabama,
Under the criteria used in the plurality opinion in Dutton v. Evans, supra, we cannot say, on a practical basis, that the accuracy of the truth determining process was advanced by admitting the out of cоurt statements of James and Rocky without giving the defendant an opportunity to cross-examine the boys. The possibility that cross-examination could have shown the unreliability of the statements is not “wholly unreal” in this case.
We hold that admission of the statements attributed to the boys was error because defеndant was denied his constitutional right of confrontation, here, the right to cross-examine. We reach this result under both the four justice plurality opinion and the four justice dissenting opinion in Dutton v. Evans, supra. Our holding is limited to the circumstances of this case. Compare Territory v. Duran,
The judgments of conviction and sentences are reversed. The case is remanded with instructions to grant Lunn a new trial.
It is so ordered.