Felix Martinez v. George Sullivan ( 1989 )

HOLLOWAY, Chief Judge.

Petitioner Felix Martinez appeals from the district court’s order dismissing his petition for a writ of habeas corpus. We affirm.

I

On the evening of August 1, 1981, Scott Thompson, a prisoner at Camp Sierra Blanca in New Mexico, was stabbed and beaten to death. Fellow prisoners Lujan, Sedillo, and petitioner Martinez were charged by the State of New Mexico with capital murder. Martinez was twice tried alone. Both trials resulted in mistrials. At his third trial, Lujan and Martinez were tried together. Sedillo, who had previously plead guilty to second degree murder, testified for the defense that he alone was responsible for Thompson’s murder. Martinez also testified. He admitted only having a minor fracas with Thompson in their dorm and pushing him out the back door; he denied having anything to do with Thompson’s death. Lujan was acquitted. Martinez was found guilty of second degree murder.

The New Mexico Court of Appeals affirmed Martinez’ conviction. State v. Martinez, 102 N.M. 94, 691 P.2d 887 (Ct.App.1984). The New Mexico Supreme Court denied certiorari. Martinez v. State, 102 N.M. 88, 691 P.2d 881 (1984). Martinez then petitioned the United States District Court for the District of New Mexico for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court adopted the magistrate’s proposed findings and recommended disposition and dismissed with prejudice Martinez’ petition. Martinez appeals.

In this appeal Martinez raises the same constitutional issues he presented in the New Mexico courts and in the federal district court by his habeas petition. He claims: (1) admission of Sam Love’s preliminary hearing testimony violated his Sixth and Fourteenth Amendment right to confront witnesses against him because Love was not unavailable; (2) admission of code-fendant Lujan’s out-of-court declarations under the excited utterance and present sense impression exceptions to the hearsay rule violated his Sixth and Fourteenth Amendment right to confront Lujan; (3) admission of codefendant Lujan’s out-of-court declarations under the co-conspirator exception to the hearsay rule also violated his right to confront Lujan because there was insufficient evidence of a conspiracy; (4) a conflict of interest under which his attorney labored deprived him of his Sixth and Fourteenth Amendment right to effective assistance of counsel; (5) exclusion of jurors who under no circumstances would impose the penalty of death violated his Sixth and Fourteenth Amendment right to a jury selected from a fair cross-section of the community; and (6) denial of severance of his trial from Lujan’s violated his Fourteenth Amendment right to due process of law.

II

1. Unavailability of Witness Love

Sam Love, a witness to Thompson’s murder, testified for the prosecution at Martinez’ preliminary hearing and second trial. II R. 70-209; V R. Transcript of Testimony of Sam Love, Jr. At the preliminary hearing, Love testified he saw Martinez, Lujan, and Sedillo “whipping on another dude.” II R. 75. Shortly afterwards, Love looked out his bathroom window and saw someone lying face down. Sedillo was hitting the person in the head with a pool cue and Martinez was kicking him. II R. 80-82. Later, Love saw Martinez enter the lodge with blood on his forearm. II R. 87. When Love failed to appear at Martinez’ third trial, the prosecution introduced his preliminary hearing testimony. VI R. 1366.

Martinez contends that admission of Love’s preliminary hearing testimony violated his Sixth and Fourteenth Amendment right to confront Love. The Sixth Amendment’s Confrontation Clause, made applicable to the States through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403-06, 85 S.Ct. 1065, 1067-69, 13 L.Ed.2d 923 (1965), provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” If applied literally, the Confrontation Clause would require the exclusion of any statement made by a declarant not present at trial. Nevertheless, an out-of-court statement by a de-clarant who does not testify at trial is admissible against an accused if two conditions are satisfied. “[WJhen a hearsay de-clarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). As with other evidentiary proponents, the prosecution bears the burden of establishing the predicate of unavailability. Id. at 74-75, 100 S.Ct. at 2543-44.

Martinez contends the prosecution did not establish the first predicate; he asserts it failed to show Love was unavailable. “[A] witness is not ‘unavailable’ for purposes of the ... exception to the confrontation requirement unless the prosecu-torial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968). “The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” Ohio v. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543 (quoting California v. Green, 399 U.S. 149, 189 n. 22, 90 S.Ct. 1930, 1951 n. 22, 26 L.Ed.2d 489 (1970) (Harlan, J., concurring)).¹

Love was to have arrived in New Mexico on September 8 when Martinez’ trial began. VI R. 1291. The state trial court held a hearing on September 15 to determine whether Love was unavailable. VI R. 1287-1348. The prosecution presented testimony that it had employed the same procedure to obtain Love’s appearance that had proved successful at Martinez’ two previous trials. VI R. 1290. First, the prosecution served Love with a witness subpoena, through his Oklahoma parole officer, approximately one month before trial. VI R. 1290-91, 1316. Although the New Mexico subpoena had no legal authority in Oklahoma, where Love resided, he had twice responded to similar subpoenas. VI R. 1290, 1313. Second, the prosecution purchased an airplane ticket to New Mexico for Love and mailed him a travel itinerary. VI R. 1291. Finally, the prosecution telephoned Love twice, once approximately eleven days before trial and again the day before trial. VI R. 1290-91. Love confirmed he would appear to testify.

Love, however, did not appear. As the New Mexico prosecution in Martinez’ trial was aware, Love had been released on bond in Oklahoma pending his trial on an unrelated criminal charge. Unknown to them, however, Love’s trial was scheduled to begin in Oklahoma on September 8, the same day he was to testify at Martinez’ trial in New Mexico. But the Oklahoma authorities were aware that Love was scheduled to testify at Martinez’ trial in New Mexico, and so had anticipated they would obtain a continuance of Love’s trial. VI R. 1292. Nevertheless, at Love’s request his trial in Oklahoma began oh September 8. VI R. 1292. Love was present at his trial during the morning session, but he did not return in the afternoon. VI R. 1293. When the prosecution in Martinez’ trial learned Love had disappeared, it procured a subpoena that same day pursuant to the New Mexico version of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, N.M.Stat.Annot. § 31-8-3. VI R. 1293-1294. Three certified copies of the request for Love to be detained and held for a New Mexico officer to bring him to the trial were sent to the Clerk of the Oklahoma City District Court and three certified copies were likewise sent to the Sheriff’s Department, all by Federal Express overnight service. VI R. 1294. Oklahoma has adopted the Act and so enforces such subpoenas. 22 Okla.Stat.An-not. § 722. Although seven days passed between September 8, when the New Mexico prosecution learned Love had disappeared, and September 15, when the New Mexico trial court held the hearing on his unavailability, the record contains no evidence that the New Mexico prosecution took further steps to locate Love during that time. As of September 15, when the state trial court held the hearing on his unavailability, Love had not been located.

The state trial court found “that the State has made a reasonable good faith effort to procure the attendance of the witness Sam Love_ I find that the unavailability of the witness, and the reasonable good faith efforts to procure his attendance, creates an exception to the sixth amendment right.” VI R. 1346. The court further ruled that Martinez could introduce extrinsic evidence of Love’s conviction in the Oklahoma trial mentioned above and of an alleged incident in which Love stole some jewelry. These events occurred after Martinez’ second trial and so the court felt “there would be fundamental unfairness in the presentation of the ... transcript without allowing this extrinsic evidence.” VI R. 1347. The court also allowed Martinez to introduce the transcript of Love’s testimony at Martinez’ second trial to establish prior inconsistent statements. VI R. 1347.

The New Mexico Court of Appeals ruled that the prosecution had exercised due diligence in attempting to obtain Love’s presence and that he was unavailable as a witness. Martinez, 691 P.2d at 888-890. In federal habeas proceedings we must presume factual determinations by state courts to be correct, unless an enumerated exception applies. 28 U.S.C. § 2254(d); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). However, here we are concerned with both the factual determinations of the New Mexico courts and their ultimate conclusion that Love was unavailable for Confrontation Clause purposes. Unavailability has been viewed as a mixed question of fact and law. Burns v. Clusen, 798 F.2d 931, 941-42 (7th Cir.1986). This court has discussed the issue of unavailability under the rubric of § 2254(d). See Ewing v. Winans, 749 F.2d 607, 609 (10th Cir.1984); Valenzuela v. Griffin, 654 F.2d 707, 710-11 (10th Cir.1981). In these cases, however, it does not appear that we were presented with the issue whether unavailability of a witness and a good faith effort to obtain his attendance at trial are factual determinations under. § 2254(d) or mixed question of law and fact.²

In the instant case the parties agree that the question is a mixed question of fact and law, reviewable de novo. We are persuaded by the analysis of the Seventh Circuit in Burns v. Clusen, 798 F.2d at 940-942, that this position is correct. Burns held that while the presumption of correctness applies to the basic, primary, or historical facts, the ultimate issue of unavailability for purposes of the Confrontation Clause is a mixed question of fact and law, reviewable de novo. See also Dres v. Campoy, 784 F.2d 996, 998 (9th Cir.1986); Rosario v. Kuhlman, 839 F.2d 918, 923 n. 3 (2d Cir.1988). This rationale follows the reasoning in Cuyler v. Sullivan, 446 U.S. 335, 341, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980), which treated basic, primary, and historical facts as determinations entitled to the § 2254(d) presumption, but viewed an ultimate holding on multiple representation and effectiveness of counsel as a mixed determination of law and fact open to plenary federal review on collateral attack. Id. at 342, 100 S.Ct. at 1714. Thus, the determinations of a good faith effort to obtain a witness’ presence and his unavailability, Barber v. Page, 390 U.S. at 724-25, 88 S.Ct. at 1321-22, are mixed questions of fact and law, reviewable de novo.

Considered in this light, we think the factual determinations that Love was absent, that the New Mexico prosecution took several steps to obtain his presence at trial, and that he failed to appear at the New Mexico trial are fairly supported by the record. VI R. 1345-1348. The ultimate conclusion of the New Mexico Court of Appeals of due diligence by the prosecution and of Love’s unavailability, Martinez, 691 P.2d at 888-90, we likewise accept. Viewing this as a ruling on a mixed question, we hold it is correct under the constitutional requirements of the Confrontation Clause.³ The indicia of reliability of the prior testimony are not challenged, and the determination of unavailability was proper; thus the requirements of the Confrontation Clause were met. Mancusi v. Stubbs, 408 U.S. 204, 216, 92 S.Ct. 2308, 2314, 33 L.Ed.2d 293 (1972).

2. Excited Utterance

Fellow inmate Garza testified regarding the events leading up to Thompsons’s murder. VI R. 844-914. Early on the day of Thompson’s murder, Martinez asked Garza if he knew who Martinez’ new roomate was. Garza replied, “It’s a white man.” Martinez said, “I don’t want him here. I’m going to take him out.” VI R. 879. Later about 10:00 p.m., Garza entered the lounge of the building where he lived with Thompson and Martinez. VI R. 847. Garza sat down next to Thompson and the two began talking. VI R. 847, 870. Lujan was also present. VI R. 875. Soon Martinez entered and approached Thompson saying, “I told you I don’t want you in my room. You punk.” VI R. 871.

Martinez and Thompson began arguing. VI R. 872. Sedillo arrived and asked Garza, “What’s happening?” Sedillo urged Martinez, “Do something if you’re going to do it.” VI R. 873. Sedillo then approached Thompson and poked him twice in the shoulder with a laundry pin and kicked him. VI R. 858. Martinez hit Thompson. VI R. 896. Thompson covered himself and began crying and said, “Please don’t hit me.” VI R. 912. Sedillo ordered Garza to watch the door, but Garza slipped out of the lounge and into his room. VI R. 875.

About five minutes later Lujan entered Garza’s room. Garza testified: “[Lujan] said, ‘They’re going to rape him.’ That they had taken him outside. And then I said, ‘No, they’re going to kill him.’ And then he [Lujan] added, T believe so.’ ” VI R. 892. Martinez contends that through Garza’s testimony, Lujan became a witness against him. Martinez asserts that admission of Lujan’s statements violated his Sixth and Fourteenth Amendment right to confront witnesses against him because Lu-jan exercised his Fifth Amendment privilege not to testify.

At trial Lujan’s statement was admitted over Martinez’ timely objection, directly against Martinez. It was admitted under the New Mexico hearsay rule’s⁴ present sense impression and excited utterance exceptions.⁵ Martinez’ attorney objected when the prosecution asked Garza to repeat what Lujan said. VI. R. 879-880. At the request of Martinez’ attorney, Garza was questioned outside the presence of the jury regarding the foundation for the hearsay exceptions. VI R. 881, 884-891. Finally, the state trial judge ruled: “The court finds that the matter falls within the exceptions set forth in 803(1) or (2) [sic].... ” VI R. 891. These exceptions are the present sense impression and excited utterance exceptions to the hearsay rule. N.M. R.Evid. 803.

The New Mexico Court of Appeals, however, concluded that Lujan’s statement had been admitted only against Lujan, not against Martinez. It held that because Lu-jan’s statement did not explicitly name Martinez, an instruction admonishing the jury to consider the statement only against Lujan, and not against Martinez, would have adequately protected Martinez from prejudice. The New Mexico Court of Appeals held that “[h]aving failed to request [a limiting jury instruction], defendant cannot now be heard to complain.” Martinez, 691 P.2d at 893.

The New Mexico Court of Appeals’ determination that Lujan’s statement was admitted only against Lujan, and not against Martinez, cannot be reconciled with the trial record. The state trial judge seems clearly to have intended the admission of Lujan’s statement to be against Martinez, as well as Lujan, due to his express reliance on the excited utterance and present sense impression hearsay exceptions. If Lujan’s statement was admitted only against Lujan, it was not hearsay. N.M. R.Evid. 801 provides, among other things, that “[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... his own statement_” Thus the only possible reason for the state trial court’s reliance on the hearsay exceptions is that Lujan’s statement was being admitted against Martinez. Moreover, because Lujan’s statement was being admitted directly against Martinez, it made no sense for his attorney to request an instruction limiting the statement to Lujan. Therefore, we cannot follow the analysis of the New Mexico Court of Appeals that there was a procedural default by Martinez’ attorney.

The federal district court also presumed that Lujan’s statement had been admitted only against Lujan, not against Martinez. The court held that admission of Lujan’s statement did not violate Martinez’ confrontation right because the statement was only “linkage evidence.”⁶

While we agree that admission of Lujan’s statement did not violate Martinez’ rights under the Confrontation Clause, our reasons differ. As noted, admission of a hearsay statement is permissible under the Confrontation Clause if the declarant is unavailable and the statement bears adequate indicia of reliability. We hold that both conditions were met here. First, Lu-jan was unavailable within the meaning of the Confrontation Clause because he invoked his right not to testify. Second, although the statement must bear adequate indicia of reliability, “[reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Ohio v. Roberts, 446 U.S. at 66, 100 S.Ct. at 2539.⁷

The admissibility of spontaneous utterances — one ground relied on by the state trial court — was recognized by the Supreme Court over a century ago in Insurance Co. v. Mosley, 75 U.S. (8 Wall.) 397, 406-07, 19 L.Ed. 437 (1869) (decedent’s spontaneous utterances shortly after injury part of res gestae and admissible to show cause of death). Wigmore documents the evolution of the spontaneous exclamation as a separate exception to the rule against hearsay. Wigmore on Evidence, §§ 1745-1757 (Chadbourn ed. 1976). The Advisory Committee’s notes on the proposed Federal Rules of Evidence remark that “it finds support in cases without number.” Fed.R. Evid. 803 Advisory Committee’s notes. We are persuaded that the “excited utterance” exception to the hearsay rule is firmly enough rooted in our jurisprudence so that reliability can be inferred within the rationale of Roberts.

We agree with the state trial court’s determination here that Lujan’s statement was admissible against Martinez as an excited utterance. Garza had previously testified about the fracas he and Lujan witnessed in the lounge approximately five minutes before Lujan entered Garza’s room. Garza further testified that when Lujan entered his room “he seemed like he was scared.” VI. R. 890. In light of this testimony, we think the state trial judge’s determination that Lujan’s statement was admissible as an excited utterance was fairly supported by the record. Thus both the unavailability of the declarant and the indi-cia of reliability of his statement were established.

We hold that the admission of Lujan’s statement did not violate Martinez’ rights under the Confrontation Clause.

3. Co-conspirator’s Statement

During his trial testimony, fellow inmate Andrew Mitchell recounted a conversation he had with Lujan and Martinez about preparing a false affidavit to exculpate them. The state trial court admitted Lujan’s statements during this conversation directly against Martinez under the co-conspirator exception to the hearsay rule.⁸ VI R. 1206.

The state trial court found: “Under the proffer, the State has established, for evi-dentiary purposes, a common scheme or plan, a conspiracy to prepare and publish that affidavit.” VI R. 1206. The New Mexico Court of Appeals affirmed. It summarized the evidence and found: “This evidence, particularly defendant’s statement that the three should not get together to execute the statement, shows a combination between defendant, Lujan, and Mitchell to create and execute the false statement.” Martinez, 691 P.2d at 891.

Martinez does not contend that admission of Lujan’s statement under the co-conspirator exception would have violated his rights under the Confrontation Clause if these findings by the state courts were correct. As discussed above, out-of-court statements are admissible against the accused if the declarant is unavailable and the statements bear adequate “indicia of reliability.” Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. Unavailability is not required, however, when the statement is the out-of-court declaration of a co-eonspir-ator. United States v. Inadi, 475 U.S. 387, 399-400, 106 S.Ct. 1121, 1128-29, 89 L.Ed.2d 390 (1986). Further, no independent inquiry into reliability is required when the statement falls within the co-conspirator exception to the rule against hearsay. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987).

Martinez contends, however, that admission of Lujan’s statement violated his rights under the Confrontation Clause because the state courts’ findings were incorrect. Martinez says that we should not presume these factual determinations to be correct because they are not fairly supported by the record. See 28 U.S.C. § 2254(d)(8). We disagree.

The New Mexico Court of Appeals summarized the evidence that it thought was sufficient to establish a conspiracy between Martinez, Lujan, and Mitchell. Martinez, 691 P.2d at 891. The summary is an accurate reflection of the record and fairly supports the determination that there was sufficient evidence of a conspiracy between Martinez, Lujan, and Mitchell to admit Lu-jan’s statements against Martinez under the co-conspirator exeption to the hearsay rule. Thus the admission of Lujan’s out-of-court statements did not violate Martinez’ rights under the Confrontation Clause.

4- Effectiveness of Assistance of Counsel

Martinez contends he was denied his Sixth and Fourteenth Amendment right to effective assistance of counsel because his attorney labored under a conflict of interest.

Martinez asserts that his and Lujan’s attorneys should be considered as one attorney. Mitchell represented Martinez; Wall represented Lujan. Ill R. 41. Before trial, Mitchell and Wall became law partners. Ill R. 41-42. They cooperated in preparing their clients’ defenses. Ill R. 42-43. During the hearing on Martinez’ motion for a new trial Mitchell testified:

After the motion to consolidate [Martinez’ and Lujan’s] trials, we proceeded to prepare. Everything was open. Wall brought his files over. I had all our files. They were all combined. We went through them time and time again, and interviewed witnesses, read transcripts, the whole works, together....

Ill R. 42-43. Under these circumstances, we will assume without deciding that the two law partners are appropriately considered as one attorney. Cf. Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 3120, 97 L.Ed.2d 638 (1987).

The Sixth Amendment’s right to counsel, made applicable to the States through the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), provides: “In all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence.’’ This guaranty includes the right to counsel’s effective assistance. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court adopted a two-part test for determining whether a criminal defendant’s representation was constitutionally ineffective. First, the defendant must show that counsel’s performance was deficient — that is, “that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Second, he must show this deficiency prejudiced his defense — that is, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068; Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987).

However, because it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests, prejudice is presumed if “the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance.” Kemp, 483 U.S. at 783, 107 S.Ct. at 3120. If, therefore, Martinez can demonstrate Mitchell and Wall actively represented conflicting interests, and that an actual conflict of interest adversely affected his counsel’s conduct of his defense, we must presume he was thereby prejudiced. To this end, Martinez refers to two situations which arose during trial in which he asserts his and Lujan’s interests conflicted.

First, as discussed above, Sam Love’s preliminary hearing testimony was admitted against Martinez. That testimony was in some ways inconsistent with Love’s testimony at Martinez’ second trial. VI R. 1357-1358. Therefore, Mitchell, representing Martinez, wanted to introduce Love’s trial testimony to impeach Love’s credibility. VI R. 1357-1358. Wall, representing Lujan, on the other hand, did not want Love’s trial testimony admitted. VI R. 1357-1358. At this juncture Martinez’ and Lujan’s interests conflicted, and Mitchell and Wall actively represented those conflicting interests. This was obviously a serious conflict of interest problem under the Sixth Amendment. Moreover, if Lujan had been convicted and raised the conflict issue, he would have a very serious claim of constitutional error.

However, Mitchell’s representation of Martinez was not actually adversely affected. He urged the admission of Love’s trial testimony and after argument for and against admission by the two attorneys the state trial judge ruled in favor of Mitchell. He allowed Mitchell to introduce Love’s trial testimony; Martinez’ interests prevailed. VI R. 1347. Thus, any loyalty that Mitchell felt toward Lujan did not adversely affect his representation of Martinez under the Kemp test.

Second, as discussed above, Lujan’s out-of-court statements were admitted against Martinez. Martinez argues that admission of Lujan’s statements created for his attorney a conflict of interest. Mitchell wanted Lujan to testify and subject himself to cross-examination regarding the statements; Wall advised Lujan not to testify because it would allow introduction of his prior crimes to impeach his credibility. Ill R. 29. In the end, Lujan exercised his right not to testify.

Martinez asserts Mitchell and Wall actively represented his and Lujan’s conflicting interests in the process of Lujan’s decision. Lujan however was entitled to invoke his right not to testify. The magistrate’s finding adopted by the district court, stated “once Lujan had decided not to testify, there was no way that [Martinez] could have required [Lujan] to testify, separate counsel or not.” We agree.

Martinez has failed to establish grounds for a presumption of prejudice because he has not shown that his attorney actively represented conflicting interests which adversely affected his performance. He also has failed to establish actual prejudice. Consequently, his ineffective assistance of counsel claim fails.

5. The Witherspoon Excludables

Martinez’ claim that removal for cause of “ Mi/ierspoow-excludables” violated his Sixth and Fourteenth Amendment right to a jury selected from a fair cross-section of the community is foreclosed by Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Coleman v. Brown, 802 F.2d at 1233.

6. Denial of Severance

Martinez’ claim that denial of severance of his trial from that of Lujan violated his right to due process of law under the Fourteenth Amendment is based upon his arguments that Lujan’s out-of-court statements were improperly admitted. We have rejected those arguments. The joint trial did not violate Martinez’ right to due process.

Accordingly the judgment is

AFFIRMED.

1 . The dissent would adopt a per se rule requiring use of the Uniform Act in all cases as a necessary prerequisite to a finding of unavailability for purposes of the Confrontation Clause. We think this rule would be contrary to decisions of the Supreme Court. The Court has said that "a witness is not ‘unavailable’ ... unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968). The Court has also said that "[t]he lengths to which the prosecution must go to produce a witness ... is a question of reasonableness." Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980). We think that deciding whether a prosecutor’s efforts are "reasonable" and in “good-faith” requires us to consider all the circumstances rather than to apply a per se rule.

2 . Insofar as our holding below may modify recognition of a rule adopted under § 2254(d) in Ewing and Valenzuela, we are authorized to state that the full court approves our holding today that the determinations of unavailability of a witness and a good faith effort to obtain his attendance at trial are mixed questions of fact and law, reviewable de novo.

3 . The dissent would hold that under the totality of the circumstances of this case the prosecution’s efforts to obtain Love's presence at trial were not reasonable and in good faith. The dissent primarily relies on three factors to reach this conclusion: (1) Love had been arrested in Oklahoma after the second trial; (2) Love had skipped bond before; and (3) Love had a reputation and history of dishonesty.

Regarding Love’s arrest, it is significant that the Oklahoma authorities had full knowledge of Love’s prior acts and the consequences to him of the Oklahoma charge. Nevertheless, they allowed him to remain free on bond. We think this undercuts the notion that the New Mexico authorities should have suspected Love would skip bond in Oklahoma. As to Love’s prior bond skipping and unsavory reputation, we think it is significant that these factors were present before the first and second trials. Love, nevertheless, appeared voluntarily. Finally, we stress that the issue before us is not whether the New Mexico authorities made a mistake. With hindsight, we know that is true. The issue is whether they made a reasonable and good-faith effort to obtain Love's presence at trial. We think that considering all the circumstances, we canot say there was not a reasonable effort, in good faith. See State v. Chapman, 655 P.2d 1119, 1123-24 (Utah 1982).

4 . N.M. R.Evid. 802 provides: Hearsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute.

5 . N.M. R.Evid. 803 provides in part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(A) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(B) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

6 . The New Mexico Court of Appeals and the federal district court used the reasoning that Lujan's statement was merely linkage evidence, not involving the risks of directly incriminating statements coming within Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Linkage evidence is evidence admitted against one codefendant which only indirectly implicates a codefendant against whom the evidence was neither admissible nor admitted. Cf. Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 1707-08, 95 L.Ed.2d 176 (1987); United States v. Markopoulos, 848 F.2d 1036, 1038-39 (10th Cir.1988). However here Lujan’s statement was directly admitted against Martinez, and the linkage analysis is improper. Moreover, we do not decide whether the statement in question merely indirectly incriminated Martinez.

7 . See e.g., Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 2783, 97 L.Ed.2d 144 (1987) (co-conspirator’s statements); Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892) (dying declarations); Mancusi v. Stubbs, 408 U.S. 204, 213-16, 92 S.Ct. 2308, 2313-15, 33 L.Ed.2d 293 (1972) (cross-examined prior-trial testimony); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (cross-examined preliminary hearing testimony of deceased witness).

8 . N.M. R.Evid. 801(D) provides:

A statement is not hearsay if:

(2) The statement is offered against a party and is

(e) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.