(concurring in part, dissenting in part).
I concur in the majority’s disposition of Issues I and II. I do not agree, for several reasons, with its decision regarding admission of the statements allegedly made by Pierce, Zinn’s alleged co-conspirator in the counts related to first degree murder.
There was clearly sufficient evidence to link defendant with the several criminal counts of kidnapping and sexual assault. Sliger and Seartaccini were co-conspirators and co-actors in those acts of criminal conduct and, consequently, their testimony relating to those counts, insofar as it implicated defendant Zinn, patently was admissible under SCRA 1986, ll-801(D)(2)(e). But aside from Sliger’s and Scartaccinni’s telling the jury what they said Pierce told them that Zinn had said to Pierce, there was not a shred of evidence, nor an inference therefrom, that a conspiracy to murder the victim existed or was ongoing at the time the alleged statements of Zinn were said to have been made, as related by Pierce.
The evidence, to the point of Pierce’s purported statement that Zinn had told him to “get rid of” the victim, was that some persons from Farmington were to come to Albuquerque to pick up the kidnapped woman; that those arrangements somehow aborted and Pierce told Seartaccini and Sliger that the three of them would have to take the victim out of Albuquerque; that they put her in Scartaccini’s truck and drove to an Albuquerque location where Pierce met with Zinn and allegedly was told to drive her to the Jemez Mountains where they would be met by the Farmington persons to whom they would transfer the woman; that Pierce was to call Zinn from Jemez to find out the exact location for meeting with the contingent from Farming-ton, and that Pierce did attempt to call Zinn when the party reached Jemez. Zinn, not at home when Pierce telephoned, returned Pierce’s call when he was told of it.
That is the total sum and substance of any evidence, to that point, of the criminal conduct engaged in by Zinn, Pierce, Sliger and Scartaccini on the day of the murder. But it is precisely at that point that Sliger and Scartaccini were permitted to repeat what they say Pierce told them that Zinn had told Pierce, which could be interpreted as directing the murder of the victim, and to relate what Pierce had commented following his shooting of the victim. If there was a conspiracy to murder, there was no independent evidence whatever that the conspiracy was formed before the Jemez telephone call. Thus, the only evidence of the existence of a conspiracy to murder is Pierce’s statement itself, and it was only upon the allowance of the witnesses’ statements of Pierce’s comments that an inference of conspiracy to murder surfaced in the evidence.
The majority opinion recognizes, by its quotation from State v. Harge, 94 N.M. 11, 606 P.2d 1105 (Ct.App.1979), that a prima facie case of conspiracy must first be shown by independent evidence before a co-conspirator’s statement regarding the conspiracy may be admitted. But in paying lip service to that rule, the majority then side-steps the crucial analysis of whether there was independent evidence of a conspiracy to murder by declaring there was “abundant independent evidence” to infer the truthfulness of Sliger’s and Scartaccini’s testimony. I respectfully submit that that is not the issue, nor is it the answer, nor is it independent evidence of the underlying fact of a conspiracy between Pierce and Zinn that would permit introduction of Pierce’s statement implying a conspiracy to prove a conspiracy.
The independent evidence shows that Pierce committed the murder. Although there is overwhelming evidence of Zinn’s participation in all of the criminal acts prior to the murder, there is absolutely no evidence, independent of Pierce’s statements, that Zinn conspired with him to murder the young woman who was kidnapped and assaulted. The statements of Pierce cannot be used both to create the independent evidence necessary to permit the statements to be admitted, and to prove the conspiracy, too.
The trial court was obliged to first determine the admissibility of the twice-removed statements of Pierce. SCRA 1986, 11-104(A). In assessing admissibility of an alleged co-conspirator’s statement, most federal jurisdictions accept the proposition that the evidence to be assessed to permit introduction of the statement must be independent of the statement itself. United States v. Martorano, 561 F.2d 406, 408, n. 2 (1st Cir.1977) (listing other circuits), cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978). The salubrity of that approach was articulated in United States v. James, 590 F.2d 575, 581 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979):
Although Rule 104(a) provides that the court “is not bound by the Rules of Evidence except those with respect to privileges” we do not construe this language as permitting the court to rely upon the content of the very statement whose admissibility is at issue. We adhere to our requirement * * * that fulfillment of the condition of admissibility must be established by evidence independent of the co-conspirator statement itself * * *. [Admissibility must depend upon independent evidence in order to prevent this statement from “lifting] itself by its own boot straps to the level of competent evidence.” Glasser v. United States, 315 U.S. 60 [62 S.Ct. 457, 86 L.Ed. 680] (1942).
“Bootstrapping” is exactly what was permitted in the instant case.
Harge is not unique in requiring independent evidence before a co-conspirator’s statement may be admitted. We said in State v. Sheets, 96 N.M. 75, 77, 628 P.2d 320, 322 (1981), in reversing the admission of statements under SCRA 1986, 11-801(D)(2)(e), that “[o]nce the [co-conspirator’s] ‘statements’ are eliminated, there is nothing that permits an inference of a conspiracy between [the co-conspirator] and defendant * * *. Lacking this proof * * * the trial court erred in admitting [the] * * * ‘statements.’ ”
In addition to James and the federal cases relied on in Harge, numerous other federal courts, as well, applying the identical rule, have held that lack of independent evidence of a conspiracy and defendant’s participation in it prevent the admission of a co-conspirator’s statement regarding the alleged conspiracy. See, e.g., Pink Supply Corp. v. Hiebert, Inc., 788 F.2d 1313 (8th Cir.1986); In re Japanese Electronic Products Litigation, 723 F.2d 238, 260-61 (3d Cir.1983), rev’d on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Terry’s Floor Fashions, Inc. v. Burlington Industries, Inc., 568 F.Supp. 205, 214 (E.D.N.C.1983), aff'd, 763 F.2d 604 (4th Cir.1985); United States v. Stanley, 765 F.2d 1224, 1243-44 (5th Cir.1985); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 77, 88 L.Ed.2d 63 (1985); United States v. Mankani, 738 F.2d 538, 547 (2d Cir.1984); United States v. Holloway, 731 F.2d 378, 381 (6th Cir.), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 366 (1984); United States v. Dahlstrom, 713 F.2d 1423, 1428 (9th Cir.1983), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984); United States v. Reynolds, 715 F.2d 99, 103 (3d Cir.1983); Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1267 (9th Cir.1983); United States v. Cambindo Valencia, 609 F.2d 603, 631 (2d Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980).
Thus, as a basic premise, the first statement of Pierce testified to by Scartaccini and Sliger regarding the alleged conspiracy to “get rid of” the kidnapped woman was inadmissible for lack of any evidence other than that statement itself to show the existence of such a conspiracy.
Secondly, even if the co-conspirator evidence rule were applicable, it is not at all settled that defendant’s constitutional right to confrontation of his accuser automatically has been met. See State v. Martinez, 99 N.M. 48, 51, 653 P.2d 879, 882 (Ct.App.), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982); United States v. Perez, 658 F.2d 654, 660-62 (9th Cir.1981). Pierce did not appear at trial and testify, and there was no showing that he was unavailable. Bourjaily v. United States (cited by the majority), notwithstanding, there was no evidence relied on by the State to show that anything Pierce had said at any time had any particular “indicia of trustworthiness,” United States v. Wright, 588 F.2d 31, 38 (2d Cir.1978), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 467 (1979), so as to avoid the confrontation clause infirmities attending admission of an alleged co-conspirator’s statement. See Perez; see also State v. Earnest, 106 N.M. 411, 744 P.2d 539, (1987).
Finally, the post-murder comments of Pierce were admitted under an exception to the hearsay rule, SCRA 1986, 11-803(A). Any exception to the rule is likewise subject to Sixth Amendment scrutiny. State v. Martinez, 99 N.M. at 51, 653 P.2d at 882. The United States Supreme Court said in Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970), that “the Sixth Amendment’s Confrontation Clause and the evidentiary hearsay rule stems [sic] from the same roots. But this Court has never equated the two, and we decline to do so now.”
Despite a burgeoning number of cases permitting introduction of evidence under exceptions to the hearsay rule, or in accordance with the co-conspirator rule, it is beyond the pale of any honest, intellectual analysis that I am capable of performing to concede that any court might conscientiously arrive at a conclusion that a legislative- or judge-made rule of evidence can eradicate a constitutional right. See discussion at 4 Weinstein’s Evidence ¶ 800[04] (1987). If that is what the United States Supreme Court and federal courts have done with respect to federal constitutional rights, it surely is not a path the jurisprudence of New Mexico is required to or should follow insofar as the right to confrontation is protected by our state constitution. The New Mexico constitution is an independent document and it is “our responsibility to separately define and protect the rights of [New Mexico] citizens despite conflicting decisions of the United States Supreme Court interpreting the federal Constitution.” People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 (1976). Interpretations of rules of evidence which whittle away constitutional rights reflect an abdication by this court of its responsibility as “the ultimate arbiter of the law of New Mexico,” State ex rel. Serna v. Hodges, 89 N.M. 351, 356, 552 P.2d 787, 794 (1976), and of our individual oaths to uphold the constitution of this state.
I would affirm the convictions and sentences imposed in this case, except for those convictions and sentences respecting crimes of commission or related to first degree murder, which I would reverse for failure of proof by legally admissible evidence.