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State v. Torres12/3/1998
rtunity to cross-examine the declarant at trial, we decline to address the impact of a declarant's lack of memory on the effectiveness of a defendant's right to cross-examination as was discussed by the United States Supreme Court in Owens. The parties in this case did not brief this issue under the New Mexico Constitution, and the trial court did not address this issue in resolving Torres's Confrontation Clause claims. Thus, we instead assume, without deciding, that Barnett's lack of memory "so affected [Torres's] right to cross-examine [Barnett] as to make a critical difference in the application of the Confrontation Clause" of the New Mexico Constitution. Green, 399 U.S. at 168. Even assuming that Torres did not have an effective opportunity to cross-examine Barnett, we nonetheless conclude that Barnett's statement bears adequate indicia of reliability to satisfy the dictates of the Confrontation Clause of the New Mexico Constitution.
{26} The ability to cross-examine adverse witnesses is the primary means of securing an accused's right of confrontation. As a result, the admission of an out-of-court statement generally survives constitutional scrutiny only if "the prosecution . . . either produce , or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant," Ohio v. Roberts, 448 U.S. 56, 65 (1980), and the statement "bears `adequate indicia of reliability,'" so as to neutralize any potential harm from the lack of cross-examination, id. at 66. Torres contends that Barnett's statement is not sufficiently reliable to satisfy the Confrontation Clause. We disagree.
{27} The Confrontation Clause sometimes requires the exclusion of evidence that would otherwise be admissible under an exception to the hearsay rule, depending upon the degree of reliability generally secured by the particular exception at issue. See Idaho v. Wright, 497 U.S. 805, 814-15 (1990). "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66. In our analysis of the Confrontation Clause, we first distinguish earlier precedent that addresses hearsay statements of accomplices and that might tend to suggest that such statements are inherently unreliable. We then conclude that the hearsay exception for declarations against penal interests is firmly rooted.
{28} The United States Supreme Court has previously addressed the applicability of the Confrontation Clause to out-of-court statements implicating the accused made by an accomplice while in custody. "Over the years since Douglas [v. Alabama, 380 U.S. 415 (1965)], the Court has spoken with one voice in declaring presumptively unreliable accomplices' confessions that incriminate defendants." Lee v. Illinois, 476 U.S. 530, 541 (1986). In Lee, the trial court admitted a statement by an accomplice even though the statement was made while the declarant "not only had a theoretical motive to distort the facts to [the defendant's] detriment, but [while] he also was actively considering the possibility of becoming her adversary." Id. at 544. The Court deemed the portions of the statement inculpating the accused inherently unreliable "because those passages may well be the product of the co-defendant's desire to shift or spread blame, curry favor, avenge himself, or divert attention to another." Id. at 545. The Court concluded that admission of the statement violated the Confrontation Clause because there were not "sufficient `indicia of reliability'" to rebut "the weighty presumption against the admission of such uncross-exami
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