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State v. Torres12/3/1998
alifornia v. Green, 399 U.S. 149, 153-64 (1970), the United States Supreme Court evaluated under the Confrontation Clause the admission of a witness's prior statement incriminating the accused following the witness's inability to remember details about events discussed in the prior statement. The Court held that "the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." Id. at 158. The Court reasoned that the witness's presence on the stand sufficiently satisfies the protections afforded by confrontation: the witness testifying under oath, the defendant having the opportunity to cross-examine the witness, and the jury having the opportunity to observe the witness's demeanor. Id. Nevertheless, the Court remanded on the issue whether the witness's "apparent lapse of memory so affected [the defendant's] right to cross-examine as to make a critical difference in the application of the Confrontation Clause," id. at 168, seemingly leaving open the question presented by Torres.
{23} Since Green, however, the United States Supreme Court has definitively resolved this issue for purposes of the federal Confrontation Clause. In United States v. Owens, 484 U.S. 554, 556 (1988), the accused attacked the use of a witness's out-of-court statement in response to the witness's failed memory. The Court held that "when a hearsay declarant is present at trial and subject to unrestricted cross-examination" then "the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness's demeanor satisfy the constitutional requirements." Id. at 560. The Court concluded that the witness's lack of memory, while changing the focus of cross-examination away from the foundation for the past belief, did not prevent the accused from using "other means of impugning the belief." Id. at 559. Thus, the admission of the out-of-court statement did not violate the Confrontation Clause of the Sixth Amendment. Id. at 564.
{24} In this case, Barnett testified at trial and was subject to unrestricted cross-examination by Torres. Torres had the opportunity to question Barnett concerning his testimony that he fired a shotgun, as well as concerning Barnett's lack of memory, but chose not to do so based on a claim of futility. In addition, the jury had the opportunity to observe Barnett's demeanor with respect to the substance of his testimony and with respect to his claim that he did not remember who accompanied him during the shooting. Under these circumstances, it is clear that Barnett's out-of-court statement did not infringe upon Torres's right of confrontation under the Sixth Amendment to the United States Constitution. See Owens, 484 U.S. at 557-61. Under Owens, further inquiry into the reliability of Barnett's statement for purposes of the federal Confrontation Clause is unnecessary. 484 U.S. at 560.
{25} Although the analysis in Owens resolves Torres's claim under the federal Confrontation Clause, we note that New Mexico has not previously addressed the declarant's presence on the witness stand and availability for unrestricted cross-examination in relation to the right of confrontation contained in Article II, Section 14 of the New Mexico Constitution. See generally (adopting the interstitial approach to state constitutional law under which the court first resolves whether the right being asserted is protected under the federal constitution and " f it is not, then the state constitution is examined"). Although we are inclined to follow Green and hold that the Confrontation Clause in the New Mexico Constitution is satisfied by an effective oppo
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