STATE of Arizona, Appellee,
v.
Glenn Edward MARTIN, Appellant.
Supreme Court of Arizona, En Banc.
*468 Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Asst. Atty. Gen., Phoenix, for appellee.
*469 Hirsh & Bayles by Robert J. Hirsh, L. Anthony Fines, Michael B. Bernays, Tucson, for appellant.
FELDMAN, Justice.
Glenn Edward Martin (defendant) was convicted of three counts of unlawful sale of a narcotic drug (cocaine) valued at not less than $250.00 and one count of conspiracy in connection with these sales. Martin appeals these convictions on several grounds. In order to consider three questions of constitutional dimension, we took jurisdiction by a transfer order. Rules of the Supreme Court, Rule 47(e)(1), 17A A.R.S.
The facts concern cocaine sales on three separate days in the spring of 1980, the warrantless entry of defendant's home by Department of Public Safety (DPS) officers following the arrest of the defendant and certain pretrial matters. The major issues we address are:
1. Was the defendant convicted of a crime with which he was not charged?
2. Should evidence seized under warrant from defendant's home be suppressed because his home was initially entered without a warrant?
3. Did the trial court commit prejudicial error in admitting co-conspirator statements in violation of defendant's rights under the confrontation clause?
FACTS
DPS case agent Richard Lindback met Lorretta Hamm at a topless bar in Tucson in April, 1980, and arranged to purchase a quantity of cocaine from her. On April 9, 1980, Lindback went to a shopping center in Tucson to meet Hamm. She arrived accompanied by James Phelps, who went to an area near the stores. Hamm met with Lindback in the parking lot. Lindback gave Hamm $700. She walked toward the area where Phelps had gone, disappeared from view, and then returned to deliver a quantity of cocaine to Lindback. Phelps then left the area in a maroon Chrysler driven by a third person.
Interested in determining Hamm's supplier, DPS arranged a second buy to take place at the same shopping center on April 25. This time Lindback purchased the cocaine directly from Phelps in a divided sale. Phelps took half the money from Lindback, disappeared for a time and returned with half the agreed upon cocaine. He then received the remainder of the money, again disappeared from Lindback's view and later returned with the remainder of the cocaine. Between the times Phelps met with Lindback, Phelps was observed consorting with the occupants of a dark Chrysler (not the maroon Chrysler noted in the previous transaction).
The DPS investigation now focused on Phelps and sought to determine his source of cocaine, so another buy was arranged for May 28. On the morning of May 28, Phelps arrived at the shopping center in the same dark Chrysler observed during the April 25 transactions. The car was driven by a woman; Phelps and an unidentified male were passengers. Phelps got out at the shopping center. The car left the area and was followed to defendant's residence. Meanwhile, at the shopping center, Phelps again sold cocaine to Lindback. Lindback and Phelps arranged for a second sale to take place later in the day and Phelps left the area.
That evening, the dark Chrysler, this time occupied by two men, stopped at the shopping center and Phelps got in the car. The three men then drove briefly through a nearby residential area and returned to the shopping center. There Phelps left the car, made a phone call, drove in another car to a nearby residence and then to a drugstore where he met Lindback and was arrested. Meanwhile, the occupants of the dark Chrysler drove to another part of the shopping center. The driver, David Kautenberger (a housemate of defendant), emerged from the car and was arrested as he was about to enter a pharmacy. The passenger, who turned out to be the defendant, moved to the driver's seat and sped out of the parking lot. He was pursued by DPS agents and arrested several blocks away. *470 Although no money or contraband was found on either the defendant or Kautenberger at the time of arrest, the defendant did have a pager on which he could receive 10-second phone messages. After the arrest, several phone messages directed to the defendant were overheard by at least two DPS agents. Each message was from a female who was described as becoming increasingly upset as her periodic messages to "call home" went unanswered.
The DPS agents relayed this information to case agent Lindback, who ordered that defendant's residence be "secured." At about 9:40 p.m., several officers came to the door, knocked, announced that they would enter and proceeded to conduct a "protective sweep" of the house.
Present in the house at the time of this invasion were defendant's daughter, his fiancee (Linda Joynes), and Kautenberger's wife and two small children. The names of the occupants were relayed to Lindback, who had been interrogating Phelps. Lindback then prepared an affidavit for a search warrant which included the names of the persons present in the house as well as conclusions drawn from his questioning of Phelps. A telephonic warrant was issued and a search of defendant's house began at about midnight. In the two and one-half hours between the time that the house was "secured" and the warrant was issued, many DPS agents had crossed the threshold of the house and two or three were apparently stationed in the house at all times. No items within the house were seized at this time. The occupants were held virtually incommunicado for over two hours.[1]
The search under the warrant revealed a safe in a bedroom (the one apparently occupied by the defendant). Upon opening the safe, the DPS discovered a quantity of cocaine and the $1,900 that Lindback had given to Phelps in the cocaine buy on the morning of May 28.
On June 13, 1980, a five-count indictment, CR-03616, was issued by the Pima County Grand Jury charging defendant and Phelps[2] with four counts of "unlawful sale of a narcotic drug valued at not less than $250" in violation of (former) A.R.S. § 36-1002.02(A) and (B), and conspiracy to commit a class two felony. The buyer was not named in the indictment. Defendant argues that prior to trial the prosecution in this case was less than cooperative. It failed to give defense counsel a list of tangible evidence to be produced at trial despite a court order. It did not offer a plea bargain. In addition, the case agent refused to submit to a memorialized deposition requested by the defense counsel. There were numerous pretrial motions and an omnibus hearing on the suppression of the evidence held in January 1981.
A lengthy trial eventually took place in April 1982. Defendant was present, but Phelps, the codefendant, never appeared at the trial and was tried in absentia. Numerous statements made by both Hamm and Phelps were admitted over the continuing objection of the defense that the procedure violated the confrontation clause.
Finally, at the end of all the evidence, the prosecutor revealed his intention to propose alternative theories of defendant's culpability in closing argument that defendant was guilty of the substantive offenses charged if he either (1) aided Phelps in selling cocaine to Lindback or (2) sold the cocaine directly to Phelps without regard to the subsequent sale of that cocaine by Phelps to Lindback. Apparently, the reason for this form of argument was the lack of evidence linking the defendant directly to the ultimate purchaser (Lindback) and the presence of circumstantial evidence linking defendant to Phelps. *471 Defense counsel objected because the indictment had charged, in each substantive count, that defendant and Phelps had sold the cocaine, implying a joint act consistent with the conspiracy count, and not that defendant sold to Phelps. Hence, defendant argued that he had been given no notice that he was charged with the separate and distinct sale of cocaine to his named codefendant, Phelps. The defense objection was overruled and the prosecutor argued both theories to the jury. The trial court further refused defense jury instructions which would have tempered the prosecution's dual liability theory. The jury found the defendant guilty of conspiracy and three of the four counts of unlawful sale.
WAS DEFENDANT CONVICTED OF A CRIME NOT CHARGED?
Defendant claims that by allowing the prosecution to argue alternate theories of culpability, he was tried and convicted of a crime with which he had not been charged. He protests that a theory of culpability based on sale from defendant to codefendant Phelps cannot be fairly inferred from the indictment charging sale by defendant and Phelps.
"Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused." Dunn v. United States,
The state argues, citing State v. Tison,
We believe that by charging defendant and Phelps with selling, the indictment contemplates a sale to some third party. It would not seem to be in the contemplation of the indictment that Phelps could be both a seller and a purchaser in a transaction. State v. Dwyer,
The state argues that defendant could have resolved any ambiguity by motion. However, the problem in this case does not arise from the nature of the indictment itself.[4] The indictment clearly charges both Martin and Phelps with the sale of cocaine to an unnamed buyer. The problem arose at the close of evidence, when the indictment was interpreted by the prosecution and the trial court to allow the argument that the defendant could be convicted for sale of cocaine to Phelps. This allowed the prosecutor to argue to the jury that a verdict of guilty could be returned even if that verdict were based on a transaction with which the defendant had not been charged. One cannot tell whether the verdict of guilty is based on defendant's sales of the cocaine to Phelps (an offense for which he was not charged) or for his role as an accomplice in Phelps' sales of the cocaine to Lindback (the crime for which defendant had notice that he was being tried).
The state contends that any error on this issue is harmless because there has been no prejudice to the defendant. Here the jury returned a verdict of guilty after the prosecution had argued a theory of guilt based on acts not charged. It is inconceiveable that such an error could be harmless. See State v. Hensley,
THE WARRANTLESS ENTRY OF THE HOUSE AND SUBSEQUENT SEARCH UNDER WARRANT
The defendant moved to suppress the evidence obtained at his house on several theories. His first contention is that the affidavit in support of the search warrant was defective because it included "misleading" statements which, if excised, rendered the warrant unsupported by probable cause. See, Franks v. Delaware,
Probable Cause
In preparing his affidavit for the search warrant, agent Lindback included certain inferences he had drawn from his interrogation of Phelps. These inferences, which implicated defendant, were characterized as direct statements attributable to Phelps. Because a warrant must inform a neutral magistrate of the underlying facts which are needed to make a determination of probable cause, Franks v. Delaware, supra, Lindback's carelessness in preparing the affidavit made portions of the affidavit of questionable validity. The trial court recognized this problem and asked both the defense and the prosecution to prepare amended affidavits excluding the questionable material. The trial court found that the remaining portions of the affidavit provided sufficient information to support a determination of probable cause. While we believe the evidence in the record on this issue is close, we defer to the trial judge, see State v. Will,
The pattern of association between defendant, Phelps and the two Chryslers in three drug sales made it probable that defendant supplied cocaine to Phelps for sale to Lindback. Surveillance at defendant's house for several hours suggested that defendant may have transported the cocaine from his house to his rendezvous with Phelps. There was no cocaine in the car when it was stopped and defendant apprehended. The final step in this chain was the deduction that defendant, as Phelps' likely supplier of cocaine, retained some quantity of that contraband in his house. Thus, the facts set forth in the amended affidavits would supply a basis for the magistrate to conclude that it was reasonable to search defendant's house for evidence of his alleged drug dealings. See, e.g., United States v. Dubrofsky,
The Warrantless Entry of the House
At the time the DPS arrested defendant and found no contraband on his person or in his car, they had developed the requisite probable cause to obtain a warrant to search defendant's house. Prior to obtaining the warrant, however, the DPS entered the home. The warrant was issued about two hours after the initial entry and served about thirty minutes later.
"It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York,
Exigent Circumstances
The State asserts that there were exigent circumstances (i.e., the potential for the destruction of evidence) justifying a warrantless entry into defendant's home. According to the state the exigency was based on the following. (1) Agents overheard several short messages on the defendant's pager requesting him to "call home." (2) The caller was a female who sounded "very upset." (3) A woman had been driving the Chrysler at the time of the morning cocaine transaction. From these facts agent Lindback concluded "there was a possibility that that female was involved in the transaction." He believed that this same woman was at defendant's house making the calls. He apparently assumed that she would guess that defendant had been arrested. Piecing these facts, beliefs and inferences together, Lindback reached the ultimate conclusion that "there was a possibility that evidence of narcotics or other type of evidence was being destroyed in the residence." Therefore, he ordered the defendant's house "secured" while he prepared an affidavit in support of a search warrant.
The "exigency" in the case at bench turns upon Lindback's tenuous inference connecting the unidentified female caller with the drug transaction. The female driver of the Chrysler in the morning transaction was not identified. There was nothing to indicate that the woman suspected that her friend, the defendant, had been arrested. The DPS agents waited over an hour after the arrest of the defendant before beginning to prepare an affidavit in support of the warrant. It took two hours to prepare that affidavit even though the relevant information supporting probable cause was known to the agents prior to the time the defendant was arrested. The house had been under surveillance most of the day and no suspicious activity had been noted. Even after defendant's arrest, agents waited outside his house for over two hours before the warrantless entry. Evidently those on the scene did not believe that exigency was great. We conclude that Agent Lindback's belief that there was such an exigency was an "inchoate and unparticularized suspicion or `hunch'," Terry v. Ohio,
The facts known to agent Lindback were "simply too slender a reed to support the seizure in this case." Reid v. Georgia,
One of the more relevant factors in determining the existence of exigent circumstances is "a clear showing of probable cause." United States v. Reed,
To allow a warrantless search based on the equivocal grounds asserted in the case at bench would seriously impair the protection given to homes by our state constitution. We are not inclined to create a broad exception to the constitutional sanctity of homes based on the subjective hunches of law enforcement officials.
The state argues there was no search or seizure, only a "securing" of the premises. The term "secure" has no precise meaning as applied to the police procedures at issue here. See State v. Hansen,
The Relationship between the Warrantless Entry and the Suppression of Evidence Discovered after the Warrant Issued
Having established the illegality of the initial warrantless entry into the defendant's house, we are squarely confronted with the issue of whether this violation of the defendant's constitutional rights requires the suppression of evidence subsequently found when the house was searched pursuant to a warrant based on knowledge derived independently of the illegal entry.
Defendant argues that the evidence legally obtained must be suppressed as a deterrent made necessary by the previous illegal entry.[6] We recently had reason to *476 "strongly recommend that warrants always be sought when possible to prevent unjustified incursions into the private affairs of our citizens and to prevent the exclusionary rule from negating the fruits of otherwise proper police investigation." State v. McGann,
There is a three-way split of authority regarding the application of the exclusionary rule to cases in which an initial illegal entry is followed by a search pursuant to a valid warrant. Several jurisdictions have decided that the evidence seized under warrant must be suppressed as a deterrent to police conduct, reasoning that the evidence within the house is actually seized at the moment the house is entered (or "secured"). United States v. Lomas,
Some jurisdictions have taken the opposite view. New York has held that the search of a residence "pursuant to a valid search warrant based on information obtained prior to and independent of the illegal entry was reasonable and the evidence seized should not be suppressed." People v. Arnau,
The Supreme Court of Oregon has enunciated a standard which seeks to deter the police from undertaking illegal invasions of citizens' homes by denying them only the evidence they seek to secure by that invasion (but not evidence of other crimes) when a subsequent warrant is issued on an independent showing of probable cause. State v. Hansen,
ADMISSIBILITY OF CO-CONSPIRATOR'S STATEMENTS
Out-of-court statements of co-conspirators Hamm and Phelps were related by Agent Lindback at trial over the continuing objection of the defendant. The objection was overruled and the trial court judge informed the jury that a conspiracy had been charged and the jury was ultimately to decide if the alleged conspiracy took place. He then said that he would instruct the jury at the end of trial on the proper way to treat this testimony. Later, the trial judge, prefacing his remarks with a similar reference to the alleged conspiracy and the jury's ultimate responsibility in determining whether there was a conspiracy, stated:
I admit this evidence at this time with the caution that if you do not find a conspiracy as alleged in the Complaint, then the statement that may be admitted cannot be considered by you regarding the person against whom it's sought to be introduced at this time; for example, Mr. Martin in this particular case.
* * * * * *
With that caveat and precautionary statement to the jury, you may proceed.
(Emphasis supplied.)
Defendant objects that the trial court's comments were not sufficient or specific enough to "conditionally admit" the evidence and that the trial court improperly left the ultimate admissibility of the statements to the jury. We do not agree. While the trial court may not have expressed itself well on this issue, its precautionary statements to the jury coupled with the final jury instructions indicate that the evidence was conditionally admitted (over a continuing objection) and that the trial court retained ultimate control over the admissibility of the statements. There was sufficient independent proof of the conspiracy[8] and the trial court did not abuse its discretion by varying the order of proof. State v. Ferrari,
Defendant next argues that the admission of the statements made by Hamm and Phelps violated his rights under the Confrontation Clause of the Sixth Amendment. Relying on Ohio v. Roberts,
Roberts does hold that the confrontation clause is usually violated by admission of extrajudicial statements where the declarant is not produced for confrontation and cross-examination. It holds further that there is no violation of the confrontation clause when the State is able to show that the declarant is truly unavailable and that the statement falls within a well *478 recognized hearsay exception and therefore bears indicia of reliability. Insisting that a co-conspirator's statement is hearsay, defendant invites us to follow Roberts and disapprove a holding to the contrary by our court of appeals in State v. Politte,
The court of appeals is correct in its holding (State v. Politte, supra) that under the present rules co-conspirator's statements are not hearsay; defendant is equally correct in arguing that in the past the admissibility of co-conspirator's statements have generally been considered under the hearsay rule and its exceptions. We think, however, that the controversy is not truly relevant to the question of admissibility of such statements. Roberts does not equate the Sixth Amendment with the hearsay rule, nor does it hold that a statement is admissible simply because it is within a hearsay exception. It does hold that "the confrontation clause reflects a preference for face-to-face confrontation at trial." Roberts,
Logically, therefore, out-of-court statements which are non-hearsay may be admitted if there are sufficient indicia of reliability, and statements which are within a particular hearsay exception may be excluded absent sufficient indicia of reliability. California v. Green,
*479 Farber states that most of the federal circuits have concluded that case by case examination should be made to determine whether the confrontation right has been infringed by admission of co-conspirator statements. State v. Farber,
Although not purporting to enumerate all potentially relevant factors, the Court in Dutton tested the reliability of a co-conspirator's statements under four indicia: (1) whether the declaration contained assertions of past fact; (2) whether the declarant had personal knowledge of the identity and role of the participants in the crime; (3) whether it was possible that the declarant was relying upon faulty recollection; and (4) whether the circumstances under which the statements were made provided reason to believe that the declarant had misrepresented the defendant's involvement in the crime. Dutton,400 U.S. at 88-89 ,91 S.Ct. at 219-220 . All four elements need not be present in order to satisfy the confrontation clause. In some circumstances, a statement may be admitted over confrontation clause objections even if it does not pass scrutiny under each prong of the Dutton test.
United States v. Perez,
We believe that another important factor which should be considered is the importance of the evidence. If the statement is not "crucial" to the state or "devestating" to the defense its use is less likely to violate the Sixth Amendment. State v. Farber,
We return, then, to the question of availability. The state refused the trial court's invitation to disclose whether Ms. Hamm was truly unavailable and it did not produce her for cross examination, instead offering her statements under the co-conspirator rule. The state urges us to hold that a showing of true unavailability need not be made in order to warrant the introduction of co-conspirator's statements. It again relies on the court of appeals' decision in State v. Politte, supra. The court of appeals held there that "there is no unavailability requirement in the [evidence] rule and we find none in those decisions which permit a co-conspirator's statements [to be admitted despite the confrontation clause]," Politte,
*480 The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case .. . the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.
Roberts,
The court followed that comment with a footnote which reads as follows:
A demonstration of unavailability however is not always required. In Dutton v. Evans ..., for example, the court found the utility of trial confrontations so remote that it did not require the prosecution to produce a seemingly unavailable witness.
Id., n. 7. We are unable to determine whether the note means that co-conspirator's statements (the subject of the Dutton opinion) are an exception to the Roberts requirement that a showing of unavailability usually must be made, or whether the footnote means that a showing of unavailability may be dispensed with where the indicia of reliability analysis indicates that there would have been little purpose in confrontation. Until the court clarifies its position on these points, we adopt for Arizona the same type of analysis on the availability showing as is to be used on the reliability issue. If the analysis shows the utility of confrontation would be insignificant, the statement may be admitted even without a showing of unavailability. If, however, the statement was made under circumstances which show doubt as to its accuracy or reliability, the witness should be produced for cross examination or a showing of inability to do so made. See State v. Edwards,
Turning now to the facts in the case at bench, it may be presumed that Phelps, who was tried and convicted in absentia, was "unavailable" and could not be produced by the state. Even assuming that the state failed to show Phelps' unavailability, we see no error. The statements admitted are those pertaining to the background of the transactions between Phelps, Hamm and Lindback. No statements inculpatory of defendant were offered or introduced. The statements were neither crucial to the state's case nor devastating to the defense. They did no more than provide the jury with the words used prior to and during the cocaine transactions, thus helping the state prove that narcotics had been sold from Hamm to Lindback and helping the jury understand the manner in which transactions between Phelps, Hamm and Lindback took place. The primary contested issue in the case at bench was whether Martin was the supplier who provided the narcotics to Phelps; none of the statements was probative on this point. On the present record, we conclude that the court did not err in admitting the statements.
As indicated, however, the exact statements complained of are not specified. Because we are reversing on other grounds and because complete foundation for admissibility was not made, we need not decide what confrontation clause problems may inhere in the statements on retrial. On remand, the trial court should seek to clarify and resolve the issue in a manner consistent with this opinion.
*481 OTHER ISSUES
The defendant raises three other issues on appeal. Since we are remanding on other grounds we treat these issues briefly.
1. Prior to a new trial, case agent Lindback should submit to a memorialized deposition. State ex rel. Baumert v. Superior Court,
2. The failure of the county attorney's office to comply with the initial court order to turn over a list of tangible evidence should not be tolerated. Such conduct does not comport with the Rules of Criminal Procedure, Rule 15.1(a)(4), 17 A.R.S., nor with the ABA Code of Professional Responsibility, EC 7-13. Before trial, the prosecution must make such disclosure. See State v. Stewart,
3. The defendant raises a strong claim that the refusal of the county attorney to offer a plea bargain was based on animus towards the defendant's attorney and therefore discriminatory[10] and that the county attorney's office lacks policies concerning plea bargains. The state justifies the refusal by stating that the county attorney does have "some policies" on plea bargaining but that "[w]e simply don't know whether they cover the situation in this case or not...."
A potential for abuses in the realm of plea bargaining is well recognized. See Bordenkircher v. Hayes,
Thus, while a prosecutor may refuse to plea bargain with alleged criminal violators, he may not do so solely because defendant has selected a particular defense counsel. The county attorney may not refuse to plea bargain out of animus toward the defendant's attorney. He may plea bargain or not, depending on how this case fits the policies and standards of his office. For instance, he may properly decide, as a matter of policy, that there will be no plea bargains with those accused of selling cocaine, or he may plea bargain only in cases in which there exists substantial doubt of guilt. He must, however, have some valid reason; animus toward defense counsel is not a proper reason.
The judgment of the superior court is reversed and the case remanded for a new trial.
HOLOHAN, C.J., GORDON, Jr., V.C.J., and HAYS and CAMERON, JJ., concur.
NOTES
Notes
[1] The testimony at the omnibus hearing was strictly limited to the facts pertaining to the warrantless entry itself. Defendant has no standing to object to the treatment of the occupants of the house. What little evidence there is of the nature of the occupation indicates that those in the house were not free to leave nor were they allowed to make or receive phone calls.
[2] Hamm was also charged but apparently was dropped from the indictment prior to the trial of codefendants Martin and Phelps.
[3] Ariz.Const., art. 2, § 24 provides, in part, that "[i]n criminal prosecutions, the accused shall have the right to ... demand the nature and cause of the accusation against him, to have a copy thereof, ...." Ariz.Const., art. 2, § 30 states: "No person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; ...."
[4] The state's contention that Ariz.Rules of Crim. Proc. 12.9 and 13.5(c) govern this case is without merit. The defense had no reason to believe the indictment was "defective" until they learned, just prior to closing argument, that the state would seek a conviction for transactions not contemplated by the indictment. Hence, the defense had no reason to pursue remedies under these two rules. There is a strong analogy here to cases which have been reversed on grounds of duplicity. State v. Kuhnley,
[5] The trial court relied on Smith in ruling that the warrantless entry did not require the suppression of the evidence, not in plain view, that was later uncovered in the search under warrant. The cases that we have decided which mention this issue, including Smith, were decided before Payton and Mincey and their precedential value is rather limited. An examination of State v. Broadfoot,
[6] Cases such as this provide strong support for the deterrence view. The officers apparently had little, if any, knowledge of the number and age of the occupants present in the house. The entry by the undercover agents carried a potential for danger to both the officers and the innocent occupants of the house. A number of officers entered and took possession of this house, herded the two women and their children into the living room, held them there for over two hours, did not allow them to use the phone to seek legal advice and, in effect, held them incommunicado. The state argues that the police "acted in good faith" and did nothing "outside the norm of police procedures." The objective facts and circumstances cannot support the good faith claim. We assume counsel for the State is engaging in rhetorical overstatement in attempting to assure us that such warrantless intrusions are "normal procedures." If we truly believed this, we might adopt a different rule today to deter such "normal" practices.
[7] This issue was argued before the United States Supreme Court on November 9, 1983 in Segura v. U.S.,
[8] This is true unless it were determined that two small conspiracies (Hamm-Phelps) (Phelps-Martin) were involved, rather than one large conspiracy. See Weinstein's Evidence at 801-179 ¶ 801(d)(2)(E)[01]. See generally, Note, "Single vs. Multiple" Criminal Conspiracies: A Uniform Method of Inquiry for Due Process and Double Jeopardy Purposes, 65 Minn.L.Rev. 295 (1980).
[9] We believe that in this way the framer's intent with regard to the purpose of the confrontation clause would be best served. As Justice Harlan points out in his concurrence in Dutton v. Evans, supra, the clause was not intended to freeze the law of evidence or the hearsay rule as it existed in 1787 or 1789. It was intended to give the defendant a right to attend his own trial, to cross-examine the witnesses who were called against him and to give the jury an opportunity to evaluate those witnesses on a personal, face-to-face basis. It was intended, in effect, to subject the defendant to trial under whatever rules of evidence might obtain from time to time, but to prevent trials held entirely or primarily on the basis of affidavit.
[10] We have recently discussed the importance of the right to counsel of one's choosing. State v. Hein,