OPINION
WOOD, Chief Judge.Defendant was convicted of second degree murder. We summarily reversed the conviction by memorandum decision in State v. Slayton, (Ct.App.) No. 2584, decided July 20, 1976. We reversed because the showing before this Court was that an arrangement between counsel for defendant and the prosecutor prevented the defendant from having a meaningful trial. See State v. Romero, 86 N.M. 244, 522 P.2d 579 (1974).
After the reversal by this Court, defendant was given a new trial. A witness who testified at the first trial died prior to the new trial. At the new trial, over defendant’s objection, the State introduced the testimony given at the first trial by the deceased witness. Defendant has again been convicted of second degree murder. We again reverse. In doing so we consider only one of the issues presented by defendant. That issue, which is dispositive, is the fairness of using the testimony of a deceased witness given at a trial conducted by counsel pursuant to an arrangement between counsel which deprived the trial of meaning.
Having reviewed (a) the proceedings at the first trial, (b) the showing before this Court in connection with the appeal from the first conviction, and (c) the showing made at the evidentiary hearing prior to the new trial which sought to suppress the deceased witness’s prior testimony, we agree with the defendant. “ . [T]he role the State played in depriving defendant of a fair trial at the first trial bars admission” of the testimony of the deceased witness. See State v. Halsey, 34 N.M. 223, 279 P. 945 (1929); State v. Plant, 86 N.M. 2, 518 P.2d 961 (Ct.App.1973).
What was the role played by the State?
The showing to this Court in the first appeal was that Solsbery, the defense attorney, had represented defendant’s father in civil matters for at least fifteen years. After the killing, the father contacted Solsbery, who in turn contacted District Attorney Cathey and informed Cathey that defendant was undergoing psychiatric evaluation at a hospital in Dallas, Texas.
On April 17, 1976, Solsbery and Cathey took the deposition of the psychiatrist. After the deposition, Cathey agreed with Solsbery that defendant was insane. Cathey supplied Solsbery with a form of judgment used in another case in which the defendant was found not guilty by reason of insanity at the time of commission of the offense.' Cathey advised Solsbery that Cathey was agreeable to entry of a similar judgment in defendant’s case.
Solsbery and the father had discussed employing an attorney experienced in criminal law. After the April 17th agreement nothing was done about such a lawyer. In light of the agreement it was not necessary.
Three times subsequent to April 17, 1976, Cathey assured Solsbery that a judgment of insanity would be entered. 1. In early May, 1976 Cathey advised Solsbery by telephone that Cathey had discussed the case with Judge Snead and Judge Snead was agreeable to a judgment along the lines Solsbery and Cathey had discussed. (We interject that the record does not show Judge Snead agreed to anything; our concern is with Cathey’s representation that Judge Snead had agreed to an insanity judgment.) 2. On May 13 or 14, 1976 after an informal pretrial conference before Judge Snead, Cathey told Solsbery not to worry, that Judge Snead would sign the proposed judgment. 3. On May 20, 1976 Cathey advised Solsbery that because of political commitments, Cathey would not appear for the hearing scheduled on May 21, 1976. Solsbery was advised that Assistant District Attorney Stagner would appear. However, “ ‘the name of the game is still the same’ ”.
Various exhibits supported the credibility of the above information which was presented to this Court by affidavit. One exhibit was the form of judgment supplied by Cathey, another was the form of judgment that Solsbery prepared, still another was an “outline” of the procedure Solsbery was to follow on May 21, 1976. Because of Solsbery’s lack of recent experience in the criminal law, Solsbery obtained the assistance of attorney Fleming in preparing the outline. The outline listed various rights that were to be waived. The outline was shown to Stagner prior to the hearing. Stagner advised that arraignment could not be waived; Solsbery crossed off of the outline the notation to waive arraignment.
The first trial was on May 21, 1976. Judge Snead rejected the insanity defense and found defendant guilty. Defendant moved for a new trial, relying on the matters discussed above. Asserting that an agreed judgment was to be entered, defendant claimed he had been denied a fair trial because the agreement had not been kept. Although Cathey filed a written “consent” to a new trial, the motion was denied.
On the basis of the foregoing, this Court proposed summary reversal. The State filed a memorandum opposing summary reversal, contending we should not reverse before examining the record of proceedings before the trial court. However, the State did not contest the accuracy of any of the factual representations made to this Court. Accordingly, we summarily reversed. After the reversal, Judge Snead granted a new trial and recused himself.
Judge Reese was the judge for the new trial. Defendant moved to suppress use, at the new trial, of the testimony given by the deceased witness at the first trial. An evidentiary hearing was held; both Solsbery and Cathey testified.
Solsbery’s testimony is entirely consistent with his affidavit to this Court. The evidentiary hearing developed additional information. The deposition of the deceased witness was taken on April 19, 1976. Solsbery neither prepared for the deposition nor cross-examined the witness. He did not do so because of the agreement with Cathey. The form of judgment which Solsbery prepared contained a provision that defendant would remain out of the state for a year. According to Solsbery, Cathey stated the provision “would take some of the heat off of him.” Solsbery testified that after April 17, 1976 he engaged in no trial preparation and interviewed no witnesses. When Solsbery went to court on May 21, 1976, he went with the understanding that the only issue to be tried was defendant’s sanity at the time of commission of the offense. Consistent with that understanding the only defense evidence at trial was the father’s testimony and the deposition of the psychiatrist. Both went to the insanity defense.
Cathey’s testimony varies somewhat from that of Solsbery. Cathey would not characterize his understanding with Solsbery as an agreement that a judgment of insanity would be entered. Cathey admitted that he thought Judge Snead would find defendant insane and admitted he would not have opposed such a judgment. Cathey agreed that he handed over the form of judgment which Solsbery used, but disagreed as to the reason he supplied the form. Cathey affirmed that after contacting Judge Snead in early May, 1976, he had the impression that Judge Snead would find defendant not guilty by reason of insanity but admitted that Judge Snead never made such a statement. Cathey failed to answer when asked whether, in early May, 1976, he advised Solsbery that Judge Snead would sign the proposed judgment. Cathey could not remember whether he assured Solsbery after the pretrial conference that Judge Snead would sign the proposed judgment. Cathey could not remember what he told Solsbery on May 20, 1976.
Cathey agreed that he was not to put on any expert testimony at the trial on May 21, 1976 and in fact did not. Cathey could not remember whether Solsbery told him that Solsbery would only prepare on the insanity issue. Cathey admitted he was shocked when Judge Snead rejected the insanity defense and found defendant guilty.
Although Cathey and Solsbery disagree as to an “agreed” judgment, the showing was uncontradicted that both counsel proceeded on the basis that a judgment of insanity would be entered and that counsel cooperated in the preparation of the judgment. It is uncontradicted that Solsbery did nothing toward preparing a defense. Cathey did not contradict Solsbery’s testimony that after April 17, 1976 Cathey assured Solsbery three times that an insanity judgment would be entered.
Does the record of the trial on May 21, 1976 cast a different light on the dealings between Solsbery and Cathey? No. The State called ten witnesses; Solsbery did not cross-examine six of them. Cross-examination of one witness went only to the type of pickup truck in which a shell was found. Cross-examination of another witness brought out that on the evening prior to the killing the defendant was “irrational”. Cross-examination of still another witness brought out that defendant and the deceased had a fight during the evening before the killing and the deceased got the best of the fight.
The most extensive cross-examination was of the deceased witness. This examination touches on a variety of topics — defendant’s drinking, his fight with the deceased, defendant’s temper, the State’s grant of immunity to this witness, the witness’s memory problems. Although various topics were touched on, none were developed. The cross-examination at best was cursory and consistent with Solsbery’s asserted role-playing prior to a judgment finding defendant insane at the time of the offense.
N.M.Const., Art. II, § 18 states that no person shall be deprived of liberty without due process of law. Use of the deceased witness’s first trial testimony at the new trial violated this constitutional provision. The violation is established by the uncontradicted showing that at the first trial counsel proceeded under an arrangement which considered only the question of defendant’s sanity, an arrangement that gave no consideration to defendant’s guilt or innocence. To use the deceased witness’s testimony concerning guilt would be fundamentally unfair because under the arrangement between counsel there was to be no meaningful inquiry concerning guilt. Such fundamental unfairness violates due process.
The conviction and sentence are reversed. The cause is remanded for a new trial. At this new trial, neither the deposition of the deceased witness nor the deceased’s testimony is to be admitted as evidence.
IT IS SO ORDERED
H END LEY, J., concurs. SUTIN, J., specially concurs.