dissenting.
I respectfully dissent from that part of the majority opinion, (1) (e), relating to the admission of testimony regarding the carnival incident. I would grant the motion for rehearing. I will repeat my views as previously expressed in the first opinion which the majority have withdrawn.
During cross-examination, the trial court over defendant’s objection, allowed the state to question defendant about a shooting incident. At the end of cross-examination defendant’s motion for a mistrial was denied.
The cross-examination disclosed that, two nights before the shooting in question, defendant attended a carnival carrying the same gun used in the shooting of decedent and Tafoya. The carnival manager made threats of attack, cursed and pushed defendant against a car. Defendant testified he did not have an intent to injure or kill the manager for he shot “four or five feet away in the ground” to keep the manager away. Defendant and a friend then ran away and tried to hide under a bridge. The manager and others caught defendant’s friend and beat him up.
Section 20-4-607, relied on by the majority does not answer the question. Certainly the credibility of a witness may be impeached. However, I fail to see how the carnival incident had anything to do with credibility.
In the federal commentary to § 20-4-404(b), it states that the determination to be made by the trial court is “whether the danger of undue prejudice outweighs the probative value of the evidence.” See also § 20-4-^403. Our review is to determine whether the trial court abused its discretion. State v. Valdez, 83 N.M. 632, 49S P. 2d 1079 (Ct.App.1972). I would hold the trial court abused its discretion.
The prejudice in this case is obvious. The carnival incident casts the defendant . in the role of a “bad guy” who is completely reckless with a gun. The probative value in the instant case is non-existent. The testimony admitted has nothing to do with credibility. Neither does it go to “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Section 20-4-404 (b).
I would reverse for the foregoing reasons.