OPINION
{1} Defendant was charged and convicted of the first degree murder of Ray Campbell. He was sentenced to life imprisonment, and we therefore have jurisdiction over his appeal under Article VI, Section 2 of thе New Mexico Constitution. On appeal Defendant contends the trial court erred in rejecting his instruction on self-defense. We hold that
FACTS AND ISSUES
{2} October 14, 1997, Campbell was stabbed and killed outside the Arbor Apartments in Albuquerque. He had just been arguing with his sometime friend, Defendant. The encounter was witnessed in part by several people, and there is no discrepancy in their testimony that Defendant was the apparent aggressor throughout. The testimony of Cora Wyatt, however, was that she saw the victim “[try] to give another man [Defendant] somеthing in his hand and he kicked it away,” or that she saw the victim drop something. This happened at a time and place prior to, and other than, where the actual death occurred. Marvin Barnes, criminalistics deteсtive with the Albuquerque crime scene unit, testified that an object, identified as a small knife, was found in a grassy area just north of the apartment office building and around the corner of the building from where the body was found. The knife appeared to have had blood on it. Other witnesses included Lindsey and Amy Brown, two sisters who lived in Phoenix where Defendant went after the killing. Lindsey, Defendant’s ex-girlfriend, testified that Defendant told her he had killed a man in self-defensе. He told Amy basically the same thing. Defendant tendered a self-defense jury instruction based on UJI 14-5171 NMRA 2001. The court refused to give an instruction on self-defense.
STANDARD OF REVIEW
{3} On appeal Defendant contends that he was entitled to an instruсtion on self-defense, because he had told the Brown sisters he acted in self-defense and because there was evidence of a dropped object, based on Wyatt’s testimony, and of a small knife found nеar the crime scene. We address this evidence in two sections, because none of the evidence provides a basis for a self-defense instruction, but for different reasons.
{4} There are two different standаrds which must be articulated and then used to analyze the issues in this case. First is the standard of appellate review. The propriety of denying a jury instruction is a mixed question of law and fact that we review de novo. Seе State v. Salazar, 1997 NMSC 044, ¶ 49,
{5} The second standard that applies is the substantive standard: what is the quality and quantity of evidence that Defendant must show existed at trial in order to demonstrate to this Court that the instruction on self-defense should have been given? It has been said that “even where there is only slight evidence to establish self-defense, the trial court must give such an instruction.” State v. Lara,
{6} The United States Supreme Court has said that generally, a criminal defendant is entitled to an instruction as to any defense, provided the instruction has an evidentiary foundation and accurately states thе law. Mathews v. United States,
STATEMENTS TO THE BROWN SISTERS
{7}- With respect to the statements he made to the Brown sisters, Defendant argues they constitute sufficient evidence to have warranted an instruction on self-defense. We are to look at the еvidence from Defendant’s point of view:
The significance of the difference in viewing circumstances from the standpoint of the “defendant alone” rather than from the standpoint of a “reasonably cautiоus person” is that the jury’s consideration of the unique physical and psychological characteristics of an accused allows the jury to judge the reasonableness of the accused’s actions agаinst the accused’s subjective impressions of the need to use force rather than against those impressions which a jury determines that a hypothetical reasonably cautious person would have under similar circumstances.
State v. Leidholm,
{8} In this analysis of whether the statements to the Browns were slight but adequately substantial evidence, we find useful an analogy to Rule ll-801(D)(l)(b) NMRA 2001 on prior consistent statements in order to assess the probative value of the stаtements in issue. An excellent discussion of that rule was provided in State v. Casaus,
The drafters [of Rule 801(D)(1)(b)], by permitting prior consistent statements to be used to rebut a charge of recent fabrication or improper influеnce or motive as nonhearsay, do so under the premise that these statements, if made before the improper influence or motive is alleged to have originated, are inherently reliable. 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 406, at 188 (2d ed.1994) (an impeaching effort that suggests fabrication, influence, or motive makes prior consistent statements relevant only if they were uttered before such corrupting forces came into play); 4 Jack B. Weinstein et al., Weinstein’s Evidence ¶ 801(d)(l)(b)[01], at 188-89 (1995) (“Evidence that merely shows that the witness said the same thing on other occasions when his motive was the same does not have much рrobative force, ‘for the simple reason that mere repetition does not imply veracity.’ ”) (quoting United States v. McPartlin,595 F.2d 1321 , 1351 (7th Cir. ... 1979)) ... Thus, if a prior consistent statement is to be classified as nonhearsay as a result of its reliаbility, it must be made before the alleged motive to fabricate arises to be admissible under the rule. Michael H. Graham, Handbook of Federal Evidence § 801.12, at 752-58 (3d ed.1991).
Defendant’s point of view becomes less probаtive with the passage of time, but here not much time had elapsed. Nonetheless, Defendant had a strong motivation to lie to the Brown sisters, and his conclusory statement that he acted in self-defense would not in any event be sufficient to warrant an instruction. See State v. Lopez,
THE DROPPED OBJECT AND THE SMALL KNIFE
{9} There are two other facts which bear on the possibility that Defendant acted in self-defense when he stabbed the victim. The first is the testimony of Cora Wyatt that while the two men were arguing she saw the victim drop an object that Defendant kicked away. This took place, however, before and at a place other than where the ultimate altercation occurred. It did not happen within
CONCLUSION
{10} Defendant has argued that the self-serving, thоroughly non-probative oral statements to the Brown sisters, made long after the killing, must be the basis for giving an instruction on self-defense. We reject the argument. We also reject Defendant’s argument regarding an object thаt one witness says was dropped by the victim well before the altercation, and the unrelated discovery of a small knife a good distance away from the victim’s body. We hold these could not be the basis for an instruction on self-defense. The judgment of the district court is affirmed.
{11} IT IS SO ORDERED.