Lead Opinion
OPINION
{1} Defendant Luis Rosales, Jr., appeals from a judgment and sentence entered following his convictions of both first-degree murder, contrary to NMSA 1978, § 30-2-1(A)(1) (1994) (deliberate intent murder), and conspiracy to commit tampering with evidence, contrary to NMSA 1978, §§ 30-22-5 (1963, prior to 2003 amendment) (tampering with evidence) and 30-28-2 (1979) (conspiracy). Defendant received a sentence of life imprisonment plus eighteen months. We have jurisdiction in this case pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA 2004. We hold, under the facts of this case, the district court did not abuse its discretion in excluding the testimony of two defense witnesses that may have established a third person’s motive to commit the murder for which Defendant was charged. While the evidence was relevant, Defendant’s insufficient offer of proof prevents us from determining on direct appeal whether the district court properly excluded the evidence as hearsay. Therefore, we affirm Defendant’s convictions.
I
{2} At Defendant’s trial, Sammy Martinez was an important witness for the prosecution. Martinez testified that he was at his auto shop on January 17, 2002. Also present at Martinez’s auto shop were Defendant, Gabriel Sedillo, Peter Aleorta, and Wayne Sharp (“the victim”). The victim wanted to borrow Martinez’s Chevrolet Blazer to go cheek on his unemployment payment. Martinez saw Defendant and the victim leave together, and he assumed Sedillo accompanied them because Sedillo was no longer around the shop. Defendant and Sedillo returned some time later, and Martinez noticed blood inside the vehicle. When Martinez asked about the blood and the victim, Sedillo said something to the effect that “[the victim] is not here anymore.”
{3} Martinez testified that the three men then left the shop, because Defendant and Sedillo wanted to go to the lake to clean the vehicle. In the vehicle, Defendant confessed to Martinez that he had killed the victim. After dropping Defendant off at a friend’s house, Martinez and Sedillo went to a car wash to clean the Blazer. Martinez cleaned the vehicle. Blood would not come off some of the upholstery, so later that night Sedillo, Aleorta, and Martinez cut the upholstery out of the Blazer. Sedillo put the upholstery in a plastic bag. The group left the shop and went to a creek where Sedillo appears to have disposed of the plastic bag and one of the seat cushions from the Blazer. A few days after the murder, Mаrtinez voluntarily went to the police and described what happened. Martinez ultimately pleaded guilty to two counts of tampering with evidence and was placed on probation for two years. As a condition of his probation, Martinez agreed to testify against Defendant and Sedillo.
{4} At trial, Defendant attempted to create reasonable doubt as to whether he committed murder by raising the possibility that it was Martinez who had killed the victim. The evidence showed the murder had taken place in Martinez’s vehicle. Martinez’s pocket knife was used to cut the upholstery out of the Blazer. The police suspected the knife used by Martinez could have also been the murder weapon that was never recovered. Martinez told the police he had thrown the knife out of his vehicle. At trial, however, Martinez testified that the knife was left in the Blazer when he brought the vehicle to the police to be searched. Also, Martinez actively participated in covering up the murder by helping clean the Blazer and assisting Sedillo in disposing of upholstery from the vehicle.
{5} In support of his theory that Martinez actually murdered the victim, Defendant presented the testimony of Leticia Rodriguez, a roommate of the victim at the time he was murdered. Rodriguez testified about Martinez’s relationship to the victim. She stated there was tension in the relationship and a couple of times she heard Martinez make threats against the victim’s life. A couple of weeks before the murder, Rodriguez recalled Martinez stating with respect to the victim, “One of these days I’m going to take that motherf-r for a ride.” Rodriguez understood this statement to be a threat because Martinez’s tone was serious and he appeared “pissed off’ when he made the statement. Rodriguez testified that Martinez had made similar remarks on several other occasions, such as “One of these days I’m going to get rid of that motherf-r.”
{6} Although the district court permitted Defendant to present evidence of the animosity between Martinez and the victim, the court excluded testimony from Rodriguez and Candace Campbell regarding statements they allegedly heard the victim make concerning a debt Martinez owed him. The State moved to exclude any testimony by either of those two witnesses pertaining to statements that the victim might have made a few weeks prior to the murder about Martinez owing him money and the reason for the supposed debt. The State argued the testimony was hеarsay and was not admissible under any exception. Defendant responded that the statements were not hearsay — they were not being offered to prove the existence of a debt, but were offered instead as evidence of a motive for Martinez to murder the victim. Defendant’s theory was that Martinez apparently found it more profitable to kill the victim than pay him back the money he owed him. The district court excluded the statements, because they were “too far removed” and “too remote.”
II
{7} On appeal, Defendant argues that the district court erred by refusing to allow Rodriguez and Campbell to testify to statements made by the victim concerning a debt Martinez owed him. Defendant argues that his constitutional right to present a defense was violated by the district court’s ruling. A criminal defendant has a fundamental right under the Due Process Clause of the United States Constitution “to present his own witnesses to establish a defense.” Washington v. Texas,
{8} Our traditional rules of relevancy and hearsay are designed to ensure reliability in the fact-finding process and are not arbitrary or disproportionate to this legitimate purpose. See State v. Sanders,
{9} We believe the district court might have excluded the evidence in this case because it apрeared to be hearsay and because no exception seemed to apply. That was the State’s argument, so it would be reasonable to believe the district court’s decision reflected that analysis. The words the district court used, however, the reference to “remoteness,” make us uncertain whether the ruling, at least in part, reflected a sense that, on balance, the probative value of the statements was outweighed by other considerations. We consider the latter possibility first, because “we may affirm on grounds upon which the trial court did not rely unless those grounds depend on facts that [the opposing party] did not have a fair opportunity to address in the proceedings below.” State v. Torres,
A
{10} A number of courts in other jurisdictions have held that the motive of a third person is not admissible, unless there is at least some other evidence to connect the third person to the offense. For example, the Alaska Supreme Court has held that evidence of a third party’s motive is only admissible if the defense produces other evidence that tends to directly connect the third person with the commission of the crime charged. Smithart v. State,
{11} We believe, though, that a special rule of admissibility is not required for evidence of a third person’s motive to commit the offense for which the defendant has been charged. Our general rules of relevancy are sufficient to decide the issue. Rule 11-402 NMRA 2004 provides that “[a]U relevant evidence is admissible, except as otherwise provided by the constitution, by statute, by these rules or by other rules adopted by the supreme court.” Evidence is “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 11-401 NMRA 2004. Dеfendant argues that any evidence implicating a third person in the victim’s murder has a tendency to make it less probable Defendant committed the murder. We agree. See Joyner v. State,
{12} However, even relevant evidence may be excluded under Rule 11-403 NMRA 2004. That rule addresses the concerns for admitting third person motive evidence expressed by the Alaska Supreme Court in Smithart. When determining whether the defendant’s evidence of a third person’s motive to commit the offense for which he or she is charged, the district court may properly conclude that the “probative value [of the evidence] is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Rule 11-403. The district court “is vested with great discretion in applying [Rule 11-403], and it will not be reversed absent an abuse of that discretion.” State v. Chamberlain,
{13} On one side of the Rule 11-403 balancing test, we consider the probative value of the evidence at issue. Evidence that Martinez had a motive to murder the victim to get out from under a debt is highly probative on the issue of Defendant’s guilt or innocence. The statements at issue appear to have occurred only a couple of weeks before the murder. At trial, other evidence showed that Martinez had recently threatened the life of the victim, the victim was killed in Martinez’s vehicle, and the murder weapon might have been a pocket knife owned by Martinez. The motive of Martinez to murder the victim, though, was a missing piece of evidence that undercut Defendant’s theory of the case. In its closing argument to the jury, the State seized upon the omission of a motive to refute Defendant’s theory:
[Tjhat was certainly a very eloquent closing by [Defendant’s attorney], but now let’s get back to the facts. [Martinez] had a motive. What motive was that? Anybody remember a motive [Martinez] had? Yeah, he was a little perturbed about his vehicle having been brought back in that condition but that was afterwards ladies and gentlemen. What motive did [Martinez] have beforehand that might have gоtten him involved in this or is that something else that was covered up in this apparent conspiracy between the Sheriffs Office and [Martinez] to frame this poor Defendant over here.
Are we to believe that [Martinez] killed [the victim] simply because that’s his vehicle? That is what [the defense] is asking you to believe ladies and gentlemen in all of this. All of that fancy talk, all that going round and round in circles, [the gist] of what the defense is saying is [Martinez] must have killed [the victim] because it’s his vehicle. That’s all they’re saying.
{14} On the other side of the Rule 11-403 balancing test, we consider whether other considerations substantially outweighed the probative value of the evidence. The other evidence of motive the district court permitted is an indication that additional evidence of motive would have been helpful, rather than confusing. Furthermore, we believe that testimony regarding Martinez’s motive would not have caused undue delay in the ease or have been a waste of time. The proffered testimony does not appear to be particularly complex or time-consuming to present. Under these circumstances, Rule 11-403 does not afford an opportunity to affirm the district court on an alternative ground.
B
{15} We next consider whether thе testimony was properly excluded as hearsay. Under Rule 11-802 NMRA 2004, “[h]earsay is not admissible except as provided by [the Rules of Evidence] or by other rules adopted by the supreme court or by statute.” “Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 11-801(0) NMRA 2004. “[I]f an out-of-court statement is offered in evidence merely for the purpose of establishing what was said at the time, and not for the truth of the matter, the testimony is not hearsay.” State v. Reyes,
{16} Defendant argues that the testimony of Rodriguez and Campbell was not offered for the truth of the matter asserted, that is, that Martinez actually owed the victim money. Rather, Defendant asserts that the testimony was being offered as evidence of Martinez’s motive to murder the victim. In State v. Johnson,
Extrajudicial statements or writings may properly be received into evidence, not for the truth of the assertions therein contained, or the veracity of the out-of-court declarant, but for such legitimate purposes as that of establishing knowledge, belief, good faith, reasonableness, motive, effect on the hearer or reader, and many others.
See also McCord v. Ashbaugh,
{17} If it had been shown that Martinez heard the victim’s statements, then Defendant’s theory that the evidence was not being offered for its truth would have been clearer. Evidence is not hearsay if admitted as circumstantial evidence of the motive of the listener. See 2 Kenneth S. Broun et al., McCormick on Evidence § 249, at 102 & n. 12 (John W. Strong ed., 5th ed.1999). If Martinez heard the victim’s statements, then the facts of this case would be remarkably similar to those in State v. Alvarez,
{18} However, the record does not clearly establish that Martinеz heard or was otherwise aware of the victim’s claim that Martinez owed him a debt. “Motive ... is the inducement which impels or leads the mind to indulge in a criminal act.” State v. Segotta,
{19} Rule 11-103(A)(2) NMRA 2004 provides that error may not be predicated on the exclusion of evidence unless “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” See also Williams v. Yellow Checker Cab Co.,
{20} The offer of proof in this case was insufficient because we cannot determine on appeal whether Martinez heard the victim’s statements or not. At trial, the State moved to exclude “any testimony by either Leticia Rodriguez or Candace Campbell pertaining to statements that [the victim] allegedly might have made about Sammy Martinez owing him money and the reason for Sammy Martinez owing him money.” Despite stating several grounds for the admission of the testimony, Defendant failed to adequately describe the proffered testimony. If the testimony would have been that Martinez heard the victim’s statements, then we believe the evidence should have been admitted because it was not offered to prove its truth and because its probative value appears to have been greater than other considerations. However, if only the witnesses heard the statements, then we believe the district court properly excluded the evidence because it must have been offered to prove its truth аnd, as the concurring opinion explains, no hearsay exception was applicable. Since the appellate record is unclear on this point, we cannot hold that the district court abused its discretion in excluding the testimony. In view of our disposition, we do not address the issue of whether exclusion of the evidence was harmless error.
Ill
{21} We hold that the district court in this case did not abuse its discretion in excluding the testimony of two defense witnesses that may have established a third person’s motive to commit the murder for which Defendant was charged. Thus, we affirm Defendant’s convictions.
{22} IT IS SO ORDERED.
Concurrence Opinion
(concurring in result).
{23} I concur in the result reached by the majority, as well as the majority’s conclusion that a new rule of admissibility for third party evidence is unnecessary and its holding that Defendant’s debt evidence must satisfy our relevancy and hearsay rules in order to be admitted. However, I respectfully disagree with the hearsay analysis and the application of Rule 11-403 NMRA 2004. I instead conclude, based on Defendant’s arguments at trial, that the trial court properly excluded the debt testimony as hearsay and properly rejected the argued exceptions to the hearsay rule.
{24} The majority holds, based on the assumption that Martinez did not hear Sharp’s statement, that the trial court did not abuse its discretion by excluding the evidence as hearsay. However, the majority also addresses whether the trial court should have excluded the evidence based on the Rule 11-403 balancing test and concludes that this rule “does not afford an opportunity to affirm the district court on an alternative ground.” Majority opinion, ¶ 14. We can conclude that the trial court was right for any reason, but we typically do not conclude that the trial court was wrong for alternative reasons when we have also determined that ruling was correct based on the trial court’s stated reason. E.g., Scott v. Murphy Corp.,
{25} I conclude that the trial court correctly determined that the testimony was hearsay based on Defendant’s offered use. The majority concludes that if Martinez heard the debt statements, then the testimony “should have been admitted” as “circumstantial evidence of the motive of the listener.” Majority opinion, ¶¶ 17, 20. The majority also concludes that if Martinez did not hear Sharp’s alleged debt statements, and “Martinez was unaware of the victim’s claim,” then “the truth of the testimony would be necessary to provide the motive” and the trial court properly excluded the statements as hearsay. Id. ¶ 18. The majority holds that Defendant’s offer of proof was insufficient bеcause it is not clear whether Martinez heard Sharp’s statements. I respectfully disagree.
{26} I do not believe we should determine whether the statements were hearsay based on who heard them; rather, the statements are hearsay if they were offered to prove the truth of the matter asserted. The majority’s analysis addressing whether Martinez heard the statements appears to presume that Defendant offered the testimony to show that Martinez was so affected or “excited [by] the emotion” caused by hearing the statement that he was impelled to kill the victim. Id. ¶ 18. However, Defendant did not preserve in the trial court or argue on appeal that the debt testimony should be admitted simply for its effect on Martinez as the listener. Defendant offered the testimony for its truth, to show that a debt existed and that Martinez would rather kill than repay the debt, and he made no argument as to any other proposed use of the statements, such as motive to kill based on injury to Martinez’s reputation or the inference that Martinez would have been so enraged by the accusation that he owed money that he would kill. Defendant had the opportunity, during the hearing and outside the presence of the jury, to make the arguments that the majority now contemplates could have been made and to present the statements themselves to the trial court. I do not believe his offer of proof as to who heard the statements affects the propriety of the trial court’s ruling with respect to the argument Defendant actually made at trial. Thus, I believe the majority is addressing a defective offer of proof for an argument that Defendant did not make. While I agree with the majority that his offer of proof would not have been sufficient to support motives such as injury to reputation or effect on the listener, Defendant did not assert these motives at trial or on appeal. At trial, Defendant argued that Martinez’s motive was that he “found it more profitable to kill Mr. Sharp than pay him back the $5,000;” on appeal, Defendant continues to argue that Martinez’s motive was “the large sum of money Martinez owed Sharp[ ],” and Defendant describes what his closing argument at trial could have been had evidence of motive been admitted: “a drug dealer who insists on collecting his money is not a welcome individual.” (Emphasis omitted.) I believe that Defendant’s offer of proof was sufficient to support his actual proposed use of the evidence, to show that Martinez wanted to get out from underneath a debt itself by killing the lender. I respectfully disagree with basing our decision on a defective offer of proof and alternative non-hearsay use of the debt testimony that Defendant neither preserved nor argued to this Court.
{27} The trial court held a hearing regarding the testimony of two defense witnesses, Rodriguez and Campbell. Their testimony involved a debt Martinez allegedly owed Sharp, threats Martinez made against Sharp, and drugs Martinez allegedly gave or sold to others. Argument on this proposed testimony was convoluted. The prosecutor “move[d] to exclude any testimony ... pertaining to statements that Wayne Sharp allegedly might have made about Sammy Martinez owing him money and the reason for Sammy Martinez owing him money.” The prosecutor objected that the debt testimony was hearsay and was not admissible under any exception. Defense counsel did not elaborate on the debt statements or the context in which Sharp made the statements, but asserted that “the evidence of the monetary involvement owed by Sammy to Wayne Sharp is something that will be very important and very interesting for the jury to hear.”
{28} In response to the prosecutor’s argument that the dеath threats were hearsay, defense counsel argued that the threats met the state-of-mind exception. See Rule 11-803(C) NMRA 2004. The prosecutor then argued that the threats were “too remote” for Rule 11-803(C). After the trial court asked whether the threat statements were close in time to the murder, defense counsel responded that the threats were made a few weeks before the murder and that Rule 11-803(C) did not require that the threats immediately precede the murder. The trial court then moved on to the debt issue and asked defense counsel how he “proposed to get the money issue in,” asking, “What’s your exception there? Obviously it’s hearsay.” (Emphasis added.) Defense counsel argued that the debt statements were not hearsay because they were not offered to prove the truth of the matter asserted. Defense counsel argued that the statements were offered for “[s]tate of mind.” The trial court asked, “Money owed is a state of mind?” Defense counsel explained,
The first [point is] that we’re not here on a collection matter, and if we were then that would be the issue in controversy. But I think the money issue, if it is hearsay is going to fall within the general exception for general liability under 8-035.1 It provides Mr. Martinez а motive to kill ... Mr. Sharp to get out from underneath a debt____
(Emphasis added.) Defense counsel argued that the victim’s statement about the debt was being offered to prove that Martinez “apparently found it more profitable to kill Mr. Sharp than pay him back the $5,000.” Defense counsel noted, in response to the trial court’s question as to when the debt allegation occurred, that the statements were made several weeks prior to the murder. The trial court excluded the drug sale statements and found that the debt issue was “too far removed” and “too remote,” but the court found that Martinez’s threats were admissible as a statement of the declarant’s then-existing state of mind. As discussed below, I believe that the trial court’s finding that the debt issue was too remote was made in response to Rule 11-803(C) and was not a finding related to unfair prejudice, jury confusion, waste of time, or other Rule 11-403 concerns.
{29} Rule 11-801(0) NMRA 2004 defines “ ‘hearsay’ ” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” “Hearsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute.” Rule 11-802 NMRA 2004.
{30} The testimony pеrtained to statements that Sharp allegedly made about Martinez owing him money. The testimony thus contains an out-of-court statement made by the declarant, Sharp, that Martinez owed him a debt. Defendant contends that the testimony is not hearsay because he did not offer it for the truth regarding the debt itself, asserting that this was not a trial to enforce the debt. I disagree. Defendant offered Sharp’s statement to prove that Martinez had a motive for killing Sharp: Martinez owed Sharp a debt, and Martinez would rather kill Sharp than repay the money. Defendant did not articulate another purpose for this testimony and explained in several different ways that the testimony could tend to establish that Martinez killed Sharp because of the debt itself; Martinez “wanted to get out from underneath a debt.” I agree with the trial court that the debt testimony was hearsay. Defendant wished to offer the testimony of Sharp’s statements to prove the truth of the matter asserted; if Martinez owed the victim money, he might have had a motive to kill the victim. As the State argues, the victim’s statements regarding the debt must first be believed in order to draw the inference of Martinez’s motive.
{31} Defendant argues that the testimony is admissible because he offered it to establish motive, rеlying on State v. Alberts,
Extrajudicial statements or writings may properly be received into evidence, not for the truth of the assertions therein contained, or the veracity of the out-of-court declarant, but for such legitimate purposes as that of establishing knowledge, belief, good faith, reasonableness, motive, effect on the hearer or reader, and many others.
I reject this argument. The principle in Alberts presupposes that the statement is not being offered for the truth of the matter asserted. Alberts did not articulate an exception to the hearsay rule but instead simply reiterated the legitimate uses of non-hearsay evidence. If Alberts permitted the admission of statements which were otherwise hearsay but also established knowledge, belief, good faith, reasonableness, motive, and effect on the hearer or reader, the Alberts principle would swallow the hearsay rule. The quotation from Alberts, upon which the majority also relies, immediately follows the Court’s reaffirmation that hearsay statements are inadmissible: “These authorities [relied upon by the proponent of the testimony] correctly state that the exclusionary effect of the hearsay rule is applicable only whеn the extrajudicial statements or writings are offered to prove the truth of the matter therein stated.”
{32} Thus, the debt statement is not admissible under Alberts because, even if it is also offered to demonstrate Martinez’s motive, Defendant clearly offered the statement for “the truth of the assertions therein contained.”
[t]he fact that the jury had to believe there was a debt in order to believed [sic] that Martinez had a motive to murder Sharp does not offend the rule. Even if Martinez and Sharp were mistaken about the existence of the debt, evidence of the argument would be admissible because it is the fact there was animosity between Martinez and Sharp that was at issue, not the legal status of the debt.
However, if Sharp was mistaken or lying, making his statements false, then Martinez would not in fact have owed him a debt, and Sharp’s statements that Martinez owed him money would no longer provide the motive for Martinez to kill him asserted by Defendant. Sharp’s statements that Martinez owed him a debt must be true in order to provide Martinez the motive of Wiling him rather than paying the debt. Thus, the truth of the matter asserted, that Martinez owed Sharp money, is critical to why Defendant offered the statements. If Defendant actually wished to offer them to show animosity, as he now argues for the first time on appeal, aside from the lack of preservation and the failure to make any offer of proof both that Martinez heard the statements and that, as the majority accepts, an argument even occurred, this use of the statements would clearly be cumulative to Rodriguez’s testimony that there was tension between the two men and that Martinez had threatened to kill Sharp. See State v. Marquez,
{33} The majority bases its hearsay analysis on whether Martinez heard the statements. The majority concludes that if Martinez heard the debt statements, then the testimony would be admissible as circumstantial evidence of the motive of the listener. First, as discussed above, I respectfully disagree that whether Martinez heard Sharp’s debt statements is determinative. Defendant did not offer the statements to show how Martinez reacted simply to hearing the statements themselves and did not argue that the testimony would be admissible as circumstantial evidence of the motive of the listener. Instead, Defendant’s sole articulated purpose for offering the statements was to explain why Martinez would have a motive to kill him: by killing the victim, Martinez would not have to repay the debt. Defendant argued that Martinez “apparently found it more profitable to kill Mr. Sharp than pay him back the $5,000.” As a result, if the debt existed, Martinez would be aware of it regardless of whether he heard Sharp’s statements. In addition, Martinez’s hearing the statements would not eliminate the primary .dangers of hearsay, which include a mistaken belief or a lie by the declarant. Even if Martinez heard the statements, he would still not have the motive to kill Sharp in order to avoid the debt if Sharp lied about the debt or mistakenly believed it existed. Unless the statements satisfy an exception to the hearsay rule, they are too unreliable to admit as evidence of their truth, that is, the debt, given the absence of adversarial testing, and the identity of the listener does not increase the statements’ reliability. Because the truth of the debt is inextricably intertwined with the asserted motive and the purpose for which the statements were offered, I believe that it is not dispositive whether Martinez heard the statement.
{34} My second difficulty with the majority’s conclusions is what I view to be an inconsistency with our precedent. In State v. Balderama,
{35} In contrast, in the ease before us, Defendant’s use of the statements to show Martinez’s motive is not, to me, dependent on whether Martinez heard Sharp make the statements but is instead dependent on whether Defendant offered them for their truth. Even if Martinez did not hear Sharp mention the debt to Campbell and Rodriguez, Martinez, as the alleged debtor who wished to kill rather than repay the money, would necessarily have been aware that he owеd Sharp money if the debt actually existed. However, if the debt did not actually exist, then Martinez would not have had the motive ascribed to him by Defendant even if he heard the statement. Defendant’s theory is not that, upon hearing the allegation that he owed Sharp money, Martinez killed Sharp to protect his reputation as one who does not borrow money, in which case it would not matter whether the debt was owed. Defendant does not argue that the accusation of the debt created a motive but that the debt itself did. Thus, if the debt existed, then even if Martinez did not hear Sharp say to Campbell and Rodriguez that Martinez owed him a debt, the motive to kill would still exist based on the debt itself. The hearsay problem is thus not based on who heard the statements but on the statements’ substantive trustworthiness. While in Balderama the State was not concerned with the truth of statement for its proposed use, Defendant’s reliance on the debt statements are wholly dependent on the truth, or existence, of the debt. Defendant wanted to have the jury to believe the assertions of a debt without any indicia of, or opportunity to examine, the reliability of the assertions. This is precisely the danger protected by the hearsay rule.
{36} The hearsay rulе prohibits extrajudicial statements offered for the truth of the matter asserted.
The reason for the general rule which excludes hearsay evidence unless it comes within one of the recognized exceptions is basically that the sanction of an oath and the test of cross-examination are absent; and the exceptions to the rule have been fashioned where the statements are made under conditions judged to render them equal in reliability and trustworthiness to those which are made under the sanctions described.
State v. Alvarez,
{37} I also respectfully disagree with the majority’s assertion that this case would mirror the facts in Alvarez if Martinez heard the statements. The problem in the present ease is greater than whether Martinez heard the statements; the problem is that Defendant never argued that he was offering the testimony to show the effect on the listener. In Alvarez, the dеclarant told the defendant that he wanted the victim killed because the victim owed the declarant money.
{38} Defendant argued to the trial court that even if the debt testimony was hearsay, the testimony falls under an exception to the hearsay rule under Rule 11-803(C), which allows admission of “[a] statement of the declarant’s then existing state of mind ... such as intent, plan, [or] motive.” The plain language of the rule allows admission of a statement by the declarant to show the declarant’s state of mind. I agree with the State’s contention that, while an extrajudicial statement cаn be used to establish motive, Defendant was instead improperly offering Sharp’s statement about a debt to prove Martinez’s state of mind, not Sharp’s. Sharp was the declarant, not Martinez, so the victim’s statement was not admissible to prove Martinez’s motive under this exception. See State v. Baca,
{39} Defendant argues that the trial court excluded the evidence because it fоund the evidence “too far removed” and “too remote” from the murder, not that it was inadmissible hearsay; thus, Defendant argues that the trial court implicitly found that the evidence was not hearsay. The State asks this Court, if we were to conclude that the trial court found the statement to be inadmissible just because it was too remote, rather than because it found the statement to be hearsay, to affirm the trial court as right for any reason, because the issue was addressed below. As stated above, I believe that the trial court was referring to the state-of-mind exception when it found that the testimony was
too far removed. The trial court explicitly stated that the debt testimony was hearsay, and because the trial court was addressing Defendant’s contention that the statement was admissible under Rule 11-803(C) as an exception to the hearsay rule, it necessarily found that the statement was hearsay. By finding that the issue was too remote, the trial court could have reasonably found that a statement by the victim concerning a debt was too far removed from demonstrating Martinez’s state of mind at the time of the murder. See United States v. Macey,
{40} Defendant argued at trial that if the debt statements were hearsay they were admissible under Rule 11-804(B)(5), which allows admission of a hearsay statement that has “equivalent circumstantial guarantees of trustworthiness” if the trial court determines that the statement is offered as evidence of a material fact, is more probative than other evidence which could be procured, and “the general purposes of the rules and the interests of justice will best be served by admission of the statement.” Defendant failed to meet the requirement in this rule to give notice of the statements’ use in advance of the trial along with the “particulars of’ the statements. Rule ll-804(B)(5)(c). Further, although Defendant had the opportunity to proffer the statements during the hearing and describe the specifics of the statements, he did not do so. Defendant did not argue to the trial court how Sharp’s debt statements had equivalent circumstantial guarantees of trustworthiness as required by Rule 11-804(B)(5), see State v. Coffin,
{41} Defendant asserts that the trial court’s exclusion of his witnesses’ testimony is similar to the denial of a defendant’s right to cross-examine a witness and argues that this denied him the right to challenge the prosecution’s main witness and east doubt on his motivation to testify truthfully. However, as the Stаte notes, Defendant never sought to cross-examine Martinez about any debt, and in any case, the right to cross-examine a witness to show bias or motive to lie is limited by the rules of evidence. See Chambers v. Mississippi,
{42} Defendant also characterizes his argument as whether he was allowed to present a defense. He contends that the evidence was relevant to prove the guilt of a third party, and relies on Rule 11-402 NMRA 2004 for the proposition that “[a]ll relevant evidence is admissible, except as otherwise provided by constitution, by statute, by these rules or by other rules adopted by the supreme court.” However, the hearsay rule provides otherwise in the present matter. Defendant appears to argue that, even if the statements are hearsay and do not fall under any exception to the hearsay rule, and are thus inadmissible, the statements should be admitted based on the constitutional right to a fair trial, relying on cases from other jurisdictions. His cases do not support the introduction of otherwise inadmissible evidence based on a defendant’s right to a defense; instead, the courts addressed evidence that was admissible. See, e.g., Moreno v. State,
{43} In Alvarez,
Evidence that showed that [a third party], and not the defendant, had shot the victim thus is relevant and would be admissible provided the evidence was not excluded by some other rule or principle of law. The determination that the proffered testimony is relevant, therefore, does not end the inquiry. Contrary to the defendant’s claim, the court must also determine whether the statement falls within any recognized exception to the hearsay rule. In the present case, the trial court determined that it did not.
We have long recognized that a hearsay statement is admissible only if it falls within an exception to the hearsay rule____
... We conclude that the trial court did not abuse its discretion by not admitting [the witness’s] proposed testimony as to [the declarant’s] hearsay statement merely because it was relevant.
Id. (footnote and citations omitted). I reject Defendant’s argument that the debt testimony should have been admitted based solely on relevancy when the statements were inadmissible hearsay.
{44} Defendant argues that the “admissibility of third-party evidence” is an issue of first impression and relies on several cases to support his claim that he hаs a “constitutional right to present a defense” involving third party evidence. As noted above, I agree with the majority’s rejection of this claim and note that the cases upon which Defendant relies do not support a constitutional right to present third party evidence which is otherwise inadmissible. See, e.g., Larimore v. State,
{45} The trial court properly allowed Defendant to present testimony supporting his defense theory that Martinez was the murderer by demonstrating the tense relationship between Sharp and Martinez, as well as statements that Martinez wanted to get rid of the victim. Thus, Defendant was properly allowed to present admissible evidence to support his theory of the ease based on Martinez’s death threats toward the victim, the fact that the victim was killed in Martinez’s car, and the fact that Martinez participated in concealing the crime afterward. The only evidence that the trial court excluded and Defendant complains of are the hearsay statements allegedly made by the victim concerning a debt Martinez owed him. As the majority notes, a right to present a defense is subject to the rules of evidence, and Rule 11-802 provides that hearsay is inadmissible.
{46} Finally, even if I agreed that the trial court erred by excluding the testimony, I respectfully believe such error would be harmless. The State presented Aleorta’s testimony that he was Defendant’s friend, acquainted with Martinez, and not acquainted with Sharp or Sedillo prior to January 17. Aleorta testified that he was present at Martinez’s shop on the day of the murder with Sharp, Defendant, Sedillo and Martinez. He stated that he did not see the victim, Defendant, and Sedillo leave the shop, but he testified that Defendant and Sedillo returned in the Blazer. Aleorta, in response to the prosecutor’s question regarding what Aleorta and Martinez did while Defendant, Sedillo and Sharp were gone, replied that he smoked some marijuana, corroborating Martinez’s testimony that he and Aleorta worked on a car briefly then smoked some marijuana together while the others were gone. From this testimony, provided by a friend of Defendant’s as independent evidence, the jury could reasonably draw the conclusion that Martinez was not present when the victim was murdered. Given that Defendant had the opportunity to present evidence that Martinez committed the crime, including death threats, which the jury rejected based on the strength of the State’s evidence against Defendant, I believe that Defendant has not demonstrated that there is a reasonable probability that the exclusion of the debt statements contributed to his conviction. See Rule 11-103(A) NMRA 2004; State v. Apodaca,
Notes
. It is assumed that defense counsel intended to refer to Rule 11-804(B)(5) NMRA 2004.
. Further, Sharp's debt statement would be inadmissible if it was offered as "a statement of memory or belief to prove the fact remembered or believed,” under Rule 11 — 803(C). See State v. Gallegos,