specially concurring.
I concur with the result reached by this Court, but write separately to emphasize that we do not condone defective grants of immunity. In State v. Boeglin, 100 N.M. 470, 471, 672 P.2d 643, 644 (1983), this Court held that implicit in every grant of immunity in return for testimony is the condition that the witness testify truthfully or be subject to prosecution for perjury or contempt. The Legislature clearly intended to impose that condition when it enacted NMSA 1978, Section 31-6-15 (Repl.Pamp. 1984), just as this Court intended when it promulgated NMSA 1978, Evid. Rule 412 (Repl.Pamp.1983). The district court’s authority under NMSA 1978, Crim.P. Rule 58 (Repl.Pamp.1985) is limited to the issuance of orders of immunity that properly embody this principle, and defective grants of immunity should not be permitted or approved.
The plain error rule, however, should be applied with caution and invoked only to avoid a miscarriage of justice. State v. Marquez, 87 N.M. 57, 61, 529 P.2d 283, 287 (Ct.App.), cert. denied, 87 N.M. 47, 529 P.2d 273 (1974) (quoting United States v. Robinson, 419 F.2d 1109, 1111 (8th Cir.1969). The Court of Appeals here held that it was plain error to give Barela “a license to lie” and a miscarriage of justice to allow a conviction “possibly based on court-authorized perjury” to stand. State v. Summerall, 25 SBB 556, 560 (Ct.App.1986). A review of the record indicates that Barela’s testimony was exculpatory of defendant. This Court concluded Barela’s testimony could not possibly have formed the basis for defendant’s conviction, which was supported by the other evidence in the record.
I agree with the majority of the Court that, under the extraordinary circumstances of this case, although the order of immunity was erroneous the testimony presented under the defective grant of immunity in no way contributed to a miscarriage of justice. The plain error rule therefore should not be invoked here, and I concur in the Court’s decision to reverse the Court of Appeals decision and to affirm defendant’s conviction.