 1       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 2 Opinion Number:______________

 3 Filing Date: September 10, 2015

 4 NO. 34,411

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 DONOVAN KING,

 9       Defendant-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
11 John A. Dean, Jr. District Judge


12 Jorge A. Alvarado, Chief Public Defender
13 J.K. Theodosia Johnson, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16 Hector H. Balderas, Attorney General
17 Kenneth H. Stalter, Assistant Attorney General
18 Santa Fe, NM

19 for Appellee
 1                                      OPINION

 2 BOSSON, Justice.

 3   {1}   Relying on Santobello v. New York, 404 U.S. 257 (1971), this Court has

 4 previously held that a plea-bargained sentence must be fulfilled by the prosecution,

 5 and if not, will be enforced by the courts. See State v. Miller, 2013-NMSC-048, ¶¶ 29,

 6 31, 314 P.3d 655. In this first-degree murder appeal, we apply that principle of law

 7 to a prosecutorial promise to dismiss a tampering-with-evidence charge if the accused

 8 would locate and produce the murder weapon. Here, Defendant Donovan King

 9 produced the weapon, but the prosecutor did not drop the charge as promised and

10 Defendant was convicted of tampering with evidence. Accordingly, we reverse the

11 tampering conviction. Affirming all remaining convictions, including first-degree

12 murder, we remand for resentencing.

13 BACKGROUND

14   {2}   Defendant and Justin Mark arrived at Kevin Lossiah’s apartment the morning

15 of May 29, 2011. Initially, Lossiah’s neighbors saw Defendant and Mark outside

16 Lossiah’s apartment. Neighbor Wesley Gray talked to Defendant briefly before

17 returning to his apartment. Moments later Gray and his wife Nicole Beyale heard

18 banging coming from Lossiah’s apartment and someone yelling “Please stop! Shut

19 up!” Beyale immediately called the police, who were dispatched to the apartment and
 1 found Lossiah severely beaten but still breathing. Officers called for paramedics and

 2 Lossiah was rushed to the hospital.

 3   {3}   Farmington police officers, having the descriptions of both Defendant and

 4 Mark, began canvassing the area. Shortly after the incident, Detective Paul Martinez

 5 and Officer Frank Dart came into contact with Mark and Defendant. Detective

 6 Martinez testified that Mark was shirtless and had fresh scratches on his back, and

 7 that the clothing on both men was wet and muddy. Detective Martinez also testified

 8 that both individuals looked like they had been involved in a struggle. DNA testing

 9 later revealed Lossiah’s blood on their clothing. While being questioned by Officer

10 Dart, Defendant stated that Lossiah “came at him with a sword.” Both Mark and

11 Defendant were arrested and taken to the Farmington Police Department. Lossiah

12 died later that night.

13   {4}   Ultimately, Defendant was charged with and convicted of first-degree murder,

14 conspiracy to commit first-degree murder, armed robbery, conspiracy to commit

15 armed robbery, and tampering with evidence. The district court sentenced Defendant

16 to life imprisonment plus 18 years. Recently this Court upheld Mark’s conviction for

17 first-degree murder for his participation in Lossiah’s murder. See State v. Mark, No.

18 34,025, dec., ¶¶ 1, 48 (N.M. Sup. Ct. Apr. 13, 2015) (non-precedential). Defendant


                                             2
 1 appeals directly to this Court. See Rule12-102(A)(1) NMRA.

 2 DISCUSSION

 3   {5}   On direct appeal to this Court, Defendant raises five issues. The principal issue

 4 is whether the prosecutor made a promise to Defendant to dismiss one of the charges

 5 if Defendant would locate and turn over the murder weapon. If such a promise was

 6 made, we must decide the appropriate remedy, if any. To establish necessary context,

 7 we begin with Defendant’s custodial interrogations.

 8   {6}   Officers questioned Defendant on May 29, 2011, the day of the arrest, and

 9 again on May 30, 2011. This Court previously upheld the district court’s

10 determination that Defendant’s interrogation on May 29, 2011, violated Defendant’s

11 constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966), making

12 Defendant’s incriminating statements from that interview inadmissible at trial. State

13 v. King, 2013-NMSC-014, ¶¶ 1-2, 13, 300 P.3d 732. When Detective Martinez

14 questioned Defendant the next day, he properly advised Defendant of his Miranda

15 rights and Defendant signed a waiver, consenting to questioning without an attorney.

16   {7}   After being advised of his Miranda rights, Defendant asked the detective for

17 his paperwork. Defendant indicated that he did not want to talk about the events of




                                               3
 1 the previous day because he wanted to speak to his family first.1 Detective Martinez

 2 asked Defendant if there was anything he did want to talk about, to which Defendant

 3 replied “[t]hat’s why I asked [you] to bring the papers.” Defendant then indicated that

 4 he would like to see some charges dropped. The following exchange took place:

 5         Detective Martinez: Well, what would you like to see dropped and
 6         why?

 7         Donovan King: The tampering with evidence.

 8         Detective Martinez: And how would you like that one to get dropped?

 9         Donovan King: If I show you personally what I did with what I had?

10         Detective Martinez: Look, I can’t make that promise, but if you . . . tell
11         me now where you [put it] I can talk to the [district attorney] but I
12         cannot make you a promise. But I can tell you that if you cooperate and
13         tell me where everything you guys did and where it went well, yeah,
14         that’s going to help in the tampering because then it would no longer
15         have, . . . I’m sure the [district attorney] would be willing to work with
16         us.

17   {8}   During the discussion, Defendant admitted that he and Mark had taken a

           1
18           Defendant sought to suppress the statements and any physical evidence that
19   resulted from the second interview. The district court found that the second interview
20   did not include a valid waiver of Defendant’s right against self-incrimination because
21   of Defendant’s stated reluctance to speak with the detective before talking with his
22   family. The court, however, also found that the statements were voluntarily given.
23   Consistent with the U.S. v. Patane, 542 U.S. 630 (2004) standard, the district court
24   held that the physical fruits of those statements—in this case the murder
25   weapon—could be admitted at trial.

                                               4
 1 wooden branch into Lossiah’s apartment and that Defendant later hid it. This branch

 2 is what Defendant was referring to when he offered to show the detective “what I did

 3 with what I had” if the tampering charge was dropped. The tampering charge was

 4 based on Defendant having hidden the branch.

 5   {9}    Because Detective Martinez did not have the authority to drop the charge, he

 6 called his supervisor. After the supervisor returned Detective Martinez’s telephone

 7 call, the detective had this exchange with Defendant:

 8          Detective Martinez: Here is what I was told word for word. We just
 9          talked with the district attorney that is actually charging you. The district
10          attorney is willing to talk dismissal of the charge of tampering if we go
11          today and actually find the weapon where you hid it. Is that what you
12          want to do?

13          Donovan King: Yeah.

14          Detective Martinez: Okay, let me make arrangements and I got
15          somebody meeting us and we will go right now.

16 Defendant then went with the officers to the location of the wooden branch Defendant

17 had hidden. At trial the prosecution used the branch as evidence of a murder weapon.

18   {10}   The exchange between Defendant and Detective Martinez is significant

19 because the assistant district attorney, speaking through Detective Martinez, appears

20 to have promised to dismiss the tampering charge in exchange for Defendant locating



                                                 5
 1 the murder weapon. Yet, Defendant was in fact charged with and convicted of that

 2 same tampering charge pertaining to that same branch. Based on this exchange, we

 3 requested supplemental briefing to address the voluntariness of Defendant’s

 4 statements and subsequent production of the branch in reliance on a promise of

 5 leniency—dismissal of the tampering charge.

 6   {11}   Normally, we would analyze custodial statements made to a police officer in

 7 reliance on a promise of leniency in terms of whether the individual’s “‘will has been

 8 overborne and his capacity for self-determination critically impaired.’” State v.

 9 Munoz, 1998-NMSC-048, ¶ 20, 126 N.M. 535, 972 P.2d 847 (quoting Culombe v.

10 Connecticut, 367 U.S. 568, 602 (1961)). The analysis differs, however, when

11 examining a plea agreement entered into with a prosecutor. See Miller, 2013-NMSC-

12 048, ¶ 9. (“Upon review, appellate courts construe the terms of the plea agreement

13 according to what Defendant reasonably understood when he entered the plea.”

14 (internal alteration omitted) (internal quotation marks and citation omitted)). The

15 distinction exists in part because “[t]he police have no authority to make prosecutorial

16 decisions.” State v. Reed, 879 P.2d 1000, 1002 (Wash. Ct. App. 1994). The district

17 attorney obviously does have such authority.

18   {12}   Notably, this appeal presents a kind of hybrid of custodial statements made to


                                               6
 1 a police officer and a plea agreement negotiated with a prosecutor. Defendant only

 2 talked with Detective Martinez. However, the level of participation by the prosecutor

 3 is significant and cannot be overlooked. In the initial discussion with Defendant,

 4 Detective Martinez was very careful not to promise dismissal because he had no

 5 authority to make such an offer (“Look, I can’t make that promise, but . . . .”). But the

 6 prosecutor did have the authority, which appears to be exactly why the detective then

 7 conferred with the one person who could “make that promise”: “the district attorney

 8 that is actually charging you.”

 9   {13}   After talking directly with the prosecutor, Detective Martinez, acting as a kind

10 of proxy, relayed the prosecutor’s offer—not the detective’s offer—that the

11 prosecutor would dismiss the tampering charge if Defendant showed the police where

12 the tampered-with evidence—the hidden murder weapon—was located. Importantly,

13 there is no claim here that the detective misunderstood or misrepresented the

14 prosecutor’s offer. At the suppression hearing, the same prosecutor who made the

15 offer played the audio interview between Detective Martinez and Defendant without

16 any contradiction, objection, or claim of inaccuracy.

17   {14}   The fundamental problem is not the officer’s willingness to participate in the

18 discussion Defendant initiated, but the prosecutor’s failure to follow through on his


                                                7
 1 offer. Had the prosecutor dismissed the tampering charge, Defendant would be in no

 2 position to complain about having given the statement or produced the murder

 3 weapon; he would have received the benefit of his bargain. Thus, it is the level of

 4 participation by the prosecutor that places this case into the realm of a plea

 5 agreement. As such, “[w]e examine the language in the plea agreement to evaluate the

 6 reasonableness of Defendant’s understanding.” Miller, 2013-NMSC-048, ¶ 16

 7 (emphasis added).

 8   {15}   A literal, finely-parsed reading of the exchange might suggest that the

 9 prosecutor promised only to “talk dismissal” of the tampering charge, but not

10 necessarily to dismiss the charge. The State makes such a claim on appeal. A fair

11 reading of this exchange, however, leads ineluctably to a different conclusion. If

12 Defendant showed the branch to Detective Martinez, then the tampering charge really

13 would be dismissed; they would not just “talk” about it. Clearly, that is what

14 Defendant believed and reasonably so. Why else would he locate the branch for

15 Detective Martinez if not in reliance on such an agreement? Defendant performed on

16 his promise; the prosecutor did not. Accordingly, we must consider the appropriate

17 remedy for the prosecutor’s unfulfilled promise.

18 Specific performance is the appropriate remedy for an unfulfilled promise made


                                            8
 1 by the prosecutor in the context of this case

 2   {16}   Santobello, 404 U.S. 257, provides a helpful framework for this issue. In

 3 Santobello, the prosecutor permitted the accused to plead guilty to a lesser-included

 4 offense and agreed not to recommend any sentence to the court. Id. at 258. After a

 5 series of delays, a new prosecutor who took over the case failed to adhere to the

 6 original plea agreement and recommended the maximum sentence, which the

 7 defendant received. Id. at 259. The U.S. Supreme Court reversed, saying that “when

 8 a plea rests in any significant degree on a promise or agreement of the prosecutor, so

 9 that it can be said to be part of the inducement or consideration, such promise must

10 be fulfilled.” Id. at 262. Declining to decide categorically how that promise should

11 be enforced, the Court remanded, stating “[t]he ultimate relief to which petitioner is

12 entitled we leave to the discretion of the state court” because the state court is in a

13 better position to choose the remedy. Id. at 263. The Court did suggest specific

14 performance of the original plea agreement as one alternative. Id.

15   {17}   Citing Santobello, this Court granted specific performance in Miller, 2013-

16 NMSC-048, ¶¶ 30-31, as a proper remedy for a broken plea agreement. In Miller, the

17 defendant and the prosecutor had agreed that the defendant would receive a maximum

18 sentence of forty years. Id. ¶ 3. The district court then proceeded to sentence the


                                              9
 1 defendant to forty-two years and suspended nine years of the sentence. Id. ¶ 4. This

 2 Court held “that the forty-two-year sentence violate[d] the plea agreement.” Id. ¶ 8.

 3 We remanded the case to the district court “to sentence [the defendant] according to

 4 his reasonable understanding of the plea agreement, requiring that his sentence

 5 contain a total period of incarceration between ten and forty years.” Id.

 6   {18}   In the present case, Defendant voluntarily presented a potential plea agreement

 7 to the State, saying essentially: “If you dismiss the tampering charge, I will find the

 8 branch.” While the deal may not have been in Defendant’s best interest, it is the deal

 9 he freely proposed; it was not coerced or extracted unfairly. The prosecutor’s

10 response, through Detective Martinez and his conduct thereafter, led Defendant

11 reasonably to understand that they had an agreement. There was no apparent reason

12 for the prosecutor not to keep his end of the bargain. We strongly favor the language

13 from Santobello quoted earlier that “when a plea rests in any significant degree on a

14 promise or agreement of the prosecutor, so that it can be said to be part of the

15 inducement or consideration, such promise must be fulfilled.” Santobello, 404 U.S.

16 at 262. See State v. Unga, 196 P.3d 645, 651 (Wash. 2008) (en banc) (charge

17 dismissed when confession was based on a promise not to prosecute for that crime;

18 other charges were upheld).


                                              10
 1   {19}   In the interest of fundamental fairness, we conclude that Defendant is entitled

 2 to specific performance of the agreement he made with the prosecutor. As a result, we

 3 vacate Defendant’s tampering with evidence conviction and remand for resentencing.

 4 We continue with the remaining issues Defendant raises on appeal.

 5 Defendant was on notice that he could be convicted as an accessory even though
 6 he was only charged as a principal

 7   {20}   Defendant failed to preserve his challenge to the jury instruction on accessory

 8 liability, which we now review for fundamental error. See Rule 12-216(B)(2) NMRA

 9 (providing that an appellate court may review, “in its discretion, [unpreserved]

10 questions involving . . . fundamental error”). Fundamental error “‘must go to the

11 foundation of the case or take from the defendant a right which was essential to his

12 defense and which no court could or ought to permit him to waive.’” State v. Barber,

13 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633 (quoting State v. Garcia, 1942-

14 NMSC-030, ¶ 25, 46 N.M. 302, 128 P.2d 459). “The exacting standard of review for

15 reversal for fundamental error requires the question of guilt be so doubtful that it

16 would shock the conscience of the court to permit the verdict to stand.” State v.

17 Samora, 2013-NMSC-038, ¶ 17, 307 P.3d 328 (internal alterations omitted) (internal

18 quotation marks and citation omitted). Defendant claims for the first time that



                                              11
 1 “[i]nstructing the jury on accessory liability when the State failed to charge

 2 [Defendant] at any point with accessory liability deprived [Defendant] of his

 3 fundamental rights to notice of the charges against him and the opportunity to prepare

 4 a defense.” We are not persuaded.

 5   {21}   Defendant is correct that the State did not initially charge Defendant with

 6 accessory liability. However, New Mexico long ago abolished the distinction between

 7 accessory and principal liability. See State v. Wall, 1980-NMSC-034, ¶ 10, 94 N.M.

 8 169, 608 P.2d 145 (“The Legislature and our courts have abolished the distinction

 9 between a principal and an accessory.”), overruled on other grounds by State v.

10 Lucero, 1993-NMSC-064, ¶ 13, 116 N.M. 450, 863 P.2d 1071. See also State v.

11 Nance, 1966-NMSC-207, ¶ 18, 77 N.M. 39, 419 P.2d 242 (“The purpose of the

12 [L]egislature to authorize charging and convicting an accessory as a principal is made

13 evident when we consider that no different penalty is provided by law for one who

14 aids and abets.”), abrogated on other grounds by State v. Wilson, 2011-NMSC-001,

15 ¶¶ 14-15, 149 N.M. 273, 248 P.3d 315; Tapia v. Tansy, 926 F.2d 1554, 1561 (10th

16 Cir. 1991) (“New Mexico, like many other states, long ago abolished the distinction

17 between conviction as a principal and an accessory, so that the charge as principal

18 includes a corresponding accessory charge.”). The charge against Defendant as a


                                             12
 1 principal included “a corresponding accessory charge,” assuming the evidence at trial

 2 supported the charge. Accordingly, Defendant “was on notice that he could be

 3 charged as a principal and convicted as an accessory or vice-a-versa.” See Wall, 1980-

 4 NMSC-034, ¶ 10. After Defendant was charged as a principal, the district court

 5 correctly instructed the jury on accessory liability.

 6 Defendant’s statements were hearsay not falling within any recognized exception

 7   {22}   Defendant, in reliance on his Fifth Amendment privilege against compelled

 8 self-incrimination, declined to testify at trial. Defense counsel, trying to lay an

 9 evidentiary foundation for Defendant’s claim of self-defense, sought to question

10 Officer Dart about certain statements Defendant had made to him. The State made a

11 hearsay objection. Defense counsel called Officer Dart outside the presence of the

12 jury to make a proffer of evidence. During the proffer, Officer Dart acknowledged

13 being told by Defendant that “Lossiah came at him with a sword.” The court granted

14 the State’s hearsay objection.

15   {23}   Defendant maintains on appeal that his statement to Officer Dart was

16 admissible either as a nonhearsay statement or, in the alternative, as a statement that

17 satisfied one or more exceptions to the hearsay rule. “We review the admission of

18 hearsay evidence for an abuse of discretion.” State v. Sisneros, 2013-NMSC-049, ¶


                                             13
 1 18, 314 P.3d 665. We begin by asking whether Defendant’s statement to Officer Dart

 2 was hearsay.

 3   {24}   “Hearsay is an out-of-court statement offered to prove the truth of the matter

 4 asserted.” Id.; see also Rule 11–801(C) NMRA. Defendant argues that his statement

 5 to Officer Dart was not hearsay because it was not offered to prove the truth of the

 6 matter asserted—that Lossiah actually threatened Defendant with a sword—but only

 7 to show how Defendant felt as a result, his fearful state of mind. Defendant argues

 8 that excluding this statement effectively denied him a defense, that he believed he

 9 was threatened with a sword and reacted accordingly.

10   {25}   This Court has stated: “The purpose of recognizing self-defense as a complete

11 justification to homicide is the reasonable belief in the necessity for the use of deadly

12 force to repel an attack in order to save oneself or another from death or great bodily

13 harm.” State v. Coffin, 1999-NMSC-038, ¶ 12, 128 N.M. 192, 991 P.2d 477

14 (emphasis added). We agree with the State’s analysis that “[Defendant’s] statement

15 only shows a reasonable belief of imminent danger if the statement is true. If the

16 statement is false, then it shows no such thing.” Defendant cannot use this statement

17 to demonstrate a reasonable belief in the necessity of his use of force for self-defense

18 unless he stated truthfully to Officer Dart that the victim came at him with a sword.


                                              14
 1 Accordingly, the statement in fact was being offered for the truth of the matter stated,

 2 and the district court correctly denied its admission.

 3   {26}   Defendant also argues for various recognized exceptions to the hearsay rule.

 4 He first proposes that his statement was admissible under Rule 11-803(3) NMRA as

 5 a then-existing mental, emotional or physical condition. This exception to the hearsay

 6 rule applies to “[a] statement of the declarant’s then-existing state of mind (such as

 7 motive, intent, or plan) or emotional, sensory, or physical condition (such as mental

 8 feeling, pain, or bodily health), but not including a statement of memory or belief to

 9 prove the fact remembered or believed.” Id. “The exception is limited to statements

10 showing the mental state, not its cause.” State v. Leyba, 2012-NMSC-037, ¶ 13, 289

11 P.3d 1215 (emphasis added).

12   {27}   Defendant’s statement that “Lossiah came at him with a sword” does not show

13 Defendant’s mental state, only its cause. This Court has held that “the rule does not

14 permit evidence explaining why the declarant held a particular state of mind.” State

15 v. Baca, 1995-NMSC-045, ¶ 19, 120 N.M. 383, 902 P.2d 65. Even if Defendant had

16 told the officer that he was afraid because of Lossiah’s conduct, that would not have

17 been his state of mind at the time he made the out-of-court statement, only his

18 previous state of mind at the time of the alleged incident. Therefore, the district court


                                              15
 1 did not abuse its discretion by rejecting Defendant’s statement under Rule 11-803(3).

 2   {28}   Defendant next argues for the first time on appeal that this was an exception

 3 to hearsay as a statement against interest under Rule 11-804(B)(3) NMRA. We

 4 review for plain error. See Lucero, 1993-NMSC-064, ¶ 13 (“To establish plain error,

 5 the error complained of must have affected substantial rights although the plain errors

 6 were not brought to the attention of the judge.” (internal alterations omitted) (internal

 7 quotation marks and citation omitted)). Defendant first must show he is unavailable

 8 to testify to meet any exception under Rule 11-804. Rule 11-804(A)(1) states that a

 9 declarant is unavailable if he “is exempted from testifying about the subject matter

10 of the declarant’s statement because the court rules that a privilege applies.” Here,

11 Defendant chose to exercise his Fifth Amendment privilege against compulsory self-

12 incrimination. By doing so, he made himself unavailable to the State, but he remained

13 free to change his mind and testify. See United States v. Peterson, 100 F.3d 7, 13 (2d

14 Cir. 1996) (“When the defendant invokes his Fifth Amendment privilege, he has

15 made himself unavailable to any other party, but he is not unavailable to himself.”).

16 See also United States v. Kimball, 15 F.3d 54, 56 (5th Cir. 1994) (holding that a

17 declarant cannot cause his own unavailability by invoking his Fifth Amendment

18 privilege against self-incrimination); United States v. Hughes, 535 F.3d 880, 882 (8th


                                              16
 1 Cir. 2008).

 2   {29}   Defendant was not unavailable as contemplated by Rule 11-804(A)(1). Even

 3 if Defendant were unavailable, however, his claim still fails under Rule 11-804(B)(3).

 4 A statement against interest is defined as a “statement . . . so far contrary to the

 5 declarant’s penal interest that a reasonable person in the declarant’s position would

 6 not have made the statement unless believing it to be true.” State v. Torres, 1998-

 7 NMSC-052, ¶ 14, 126 N.M. 477, 971 P.2d 1267 (internal quotation marks and

 8 citation omitted), overruled by State v. Alvarez-Lopez, 2004-NMSC-030, ¶¶ 17, 23,

 9 136 N.M. 309, 98 P.3d 699 (overruling Torres “to the extent [that Torres] held

10 custodial confessions implicating the accused fall with a firmly rooted hearsay

11 exception and do not violate the federal Confrontation Clause”). The advisory

12 committee’s note to Fed. R. Evid. 804(b)(3) states that “a statement admitting guilt

13 and implicating another person, made while in custody, may well be motivated by a

14 desire to curry favor with the authorities and hence fail to qualify as against interest.”

15 Fed. R. Evid. 804(b)(3) advisory committee’s note to 1972 amendment.

16   {30}   Defendant argues that since his statement (“Lossiah came at [me] with a

17 sword”) exposed him to criminal liability, it was “an inculpatory statement with an

18 aspect of self-defense.” We disagree. Defendant gave the statement to Officer Dart


                                               17
 1 when he was covered in Lossiah’s blood and had Lossiah’s possessions on his person.

 2 While this statement did not implicate another person, it could well have been

 3 “motivated by a desire to curry favor” with Officer Dart and explain his actions. The

 4 statement was not “so far contrary” to Defendant’s penal interest. It actually was in

 5 Defendant’s interest to make the statement. The district court correctly rejected

 6 Defendant’s argument under Rule 11-804(B)(3).

 7   {31}   Defendant also argues for the first time on appeal that the statement should fall

 8 under Rule 11-807 NMRA. Again we review for plain error. This hearsay exception

 9 is available if

10          (1) the statement has equivalent circumstantial guarantees of
11          trustworthiness; (2) it is offered as evidence of a material fact; (3) it is
12          more probative on the point for which it is offered than any other
13          evidence that the proponent can obtain through reasonable efforts; and
14          (4) admitting it will best serve the purposes of these rules and the
15          interests of justice.

16 Rule 11-807(A). This Court has observed that “[t]his exception is to be used

17 sparingly, however, especially in criminal cases.” Leyba, 2012-NMSC-037, ¶ 20.

18 “The test under the catch-all rules is whether the out-of-court statement—not the

19 witness’s testimony—has circumstantial guarantees of trustworthiness.” State v.

20 Trujillo, 2002-NMSC-005, ¶ 17, 131 N.M. 709, 42 P.3d 814.



                                                18
 1   {32}   Defendant made no effort at trial to demonstrate that his statement shows

 2 “indicia of trustworthiness equivalent to those other specific exceptions.” Leyba,

 3 2012-NMSC-037, ¶ 20 (internal quotation marks and citation omitted). Defendant

 4 made the statement two hours after the incident took place while he had Lossiah’s

 5 blood on his clothes. He was offering the officer self-serving testimony to mitigate

 6 or explain his actions. Moreover, Defendant failed to comply with Rule 11-807(B)

 7 that “[t]he statement is admissible only if, before the trial or hearing, the proponent

 8 gives an adverse party reasonable notice of the intent to offer the statement and its

 9 particulars . . . so that the party has a fair opportunity to meet it.” Therefore, we hold

10 that it was not plain error for the district court to deny admission of Defendant’s

11 statements under Rule 11-807.

12 Ineffective assistance of counsel

13   {33}   Defendant argues that he received ineffective assistance of counsel. This Court

14 has repeatedly stated that ineffective assistance of counsel claims are best served

15 through habeas corpus proceedings so that an evidentiary hearing can take place on

16 the record. See State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776

17 (“A record on appeal that provides a basis for remanding to the trial court for an

18 evidentiary hearing on ineffective assistance of counsel is rare. Ordinarily, such


                                               19
 1 claims are heard on petition for writ of habeas corpus.”). See also State v. Telles,

 2 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (“[The] proper avenue of relief

 3 [from ineffective assistance of counsel] is a post-conviction proceeding that can

 4 develop a proper record.”). Generally, only an evidentiary hearing can provide a court

 5 with sufficient information to make an informed determination about the

 6 effectiveness of counsel. Accordingly, we reject Defendant’s ineffective assistance

 7 of counsel claim on appeal without prejudice to his ability to bring such a claim by

 8 way of habeas corpus.

 9   {34}   Because we have vacated Defendant’s conviction of tampering while

10 concluding that three other issues he raises are without merit, the fifth issue in which

11 Defendant claims cumulative error is moot.

12 CONCLUSION

13   {35}   We vacate Defendant’s tampering with evidence conviction and remand for

14 resentencing. We affirm Defendant’s remaining convictions.

15   {36}   IT IS SO ORDERED.



16                                          ______________________________
17                                          RICHARD C. BOSSON, Justice



                                              20
1 WE CONCUR:



2 ___________________________________
3 BARBARA J. VIGIL, Chief Justice



4 ___________________________________
5 PETRA JIMENEZ MAES, Justice



6 ___________________________________
7 EDWARD L. CHÁVEZ, Justice



8 ___________________________________
9 CHARLES W. DANIELS, Justice




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