(concurring in part, dissenting in part).
I agree with the majority that the district court erred in excluding the proffered testimony on hearsay grounds. I further agree that, under the circumstances of this case, it would be inappropriate for this court to affirm, as requested by the state, under the “right for any reason” doctrine. Unlike the majority, however, I think it also would be inappropriate for this court to hold the evidence admissible as a matter of law, thereby depriving the district court of the power to exercise its discretion as to whether to admit or exclude that evidence. Thus, in lieu of reversing and remanding for a new trial, as ordered by the majority, I would conditionally affirm and remand to allow the district court to exercise its discretion.
On direct examination, counsel asked defendant if he was familiar with people who knew Sam Romero. Defendant responded that he was, indicating that “he had friends that had worked for Romero and also a brother who knew him.” When asked what he had heard these people say about Romero, the state objected on the ground of improper character assassination without proper foundation, indicating that the defense would have to call witnesses to testify as to what they knew about Romero rather than to allow defendant to repeat what he had heard. In response to that objection, defense counsel advised the court that he wanted to offer testimony that defendant “had heard that Mr. Romero was a man not to be trifled with.” Counsel indicated defendant had heard that Romero had threatened to shoot young men who were dating his daughters, and that he had also heard that Romero bragged about certain incidents in Vietnam, such as “carrying the ears of people around his neck.” The district court ruled that “without those other parties, this is strictly a hearsay allegation,” and sustained the objection. Defendant then requested and was granted leave to make a tender of proof.
Outside the presence of the jury, defendant testified that he had talked to people in the community who knew Sam Romero. When asked if Romero’s reputation for violence was good or bad, defendant responded “Well, it’s sort of bad I would say.” When asked to explain his answer, defendant related hearing “[tjhings like when he was in Vietnam, that’s [sic] he’s [sic] cut people’s ears off and wore [sic] them around his neck.” He also related hearing from this same friend that “if they ever messed around that he (Romero) had a bullet for them and anybody else.” When asked who “they” were, defendant indicated he meant his “friend and his brothers and anybody else I guess that would be involved, I guess.” Where character evidence is offered to establish a defendant’s reasonable apprehension of danger, defendant must show that he knew of the reputation or conduct at the time of the incident. State v. Ewing, 97 N.M. 235, 237, 638 P.2d 1080, 1082 (1982).
I find nothing in the tender itself that defendant was aware of Romero’s reputation for violence or the alleged Vietnam incident prior to the time of the shooting. While it may be that defendant had been aware of Romero’s reputation before he went over to Romero’s house, I find it impossible to infer that from the tender of proof. The majority relies on a statement made by defense counsel in response to the state’s objection. Apparently referring to the threats to young men dating Romero's daughters and the Vietnam incident, counsel did indicate that defendant did have Romero’s reputation in mind, and that “I’m trying to show that he had some reason for reacting with the force that he reacted with.” This was not a part of a tender because the district court had not ruled at that point. It was after the court ruled that defendant requested and was granted leave to make his tender of proof. Defense counsel did not include any testimony from defendant regarding prior knowledge of Romero’s reputation in the tender. See SCRA 1986, 11-103(A)(2).
Even if we could consider defense counsel’s earlier statement to the court, made prior to the tender, the majority’s reliance on that statement becomes less certain when one reviews the cross-examination by the state following, the tender of proof. Referring to testimony defendant gave at a prior proceeding, the following exchange took place between the prosecutor and defendant:
Q. Do you recall at that time you were asked:
“Question: Did you know Mr. Romero prior to that? Had you ever met him prior to that day?”
A. Talking about the day of the incident.
Q. Your answer:
“Answer: Well, I had met him just once.
“Question: Did you know him” “Answer: No.”
Q. But the time when you testified before, you said you didn’t know the man; is that correct?
A. Yes, sir.
The above exchange points out the danger of a reviewing court usurping the authority of the district court to exercise its discretion. Appellate review is myopic at best. We do not always review the entire record of a trial and even if we did, it is virtually impossible to gain the insight of a trial judge who presides over the case from beginning to end. The reviewing court may only be required to look at a limited portion of the record in order to resolve an issue presented, such as the evidentiary question raised in this appeal. When that review focuses only on the dialogue relating to the question presented, we may fail to note other testimony, as demonstrated above, which bears upon the district court’s exercise of discretion.
Moreover, it is not altogether clear that an episode that occurred some twenty years earlier during wartime necessarily requires a ruling as a matter of law that such testimony has to be admitted so as to deprive the district court of its right to exclude evidence in the exercise of its discretion. Even if defendant heard about the Vietnam incident prior to the day of the shooting, the district court might consider it too remote in time, and the circumstances so different, that exclusion could not be said to constitute an abuse of discretion. After all, the district court, having heard all of the testimony, was certainly aware that it was defendant who went to Romero’s house armed with the weapon; not the reverse.
My primary objection to reversal for a new trial, as opposed to remand, centers on what I consider to be dangerous precedent: A reviewing court taking away from a trial court the right to exercise its discretion. After all, it is the exercise of that discretion by the trial court that we review. If we indulge in the exercise of discretion for the trial court, then review is lost. I would conditionally affirm and remand so the district court could exercise its discretion in ruling on the evidentiary question. If the court decides the evidence should have been admitted, a new trial should be granted; if not, the judgment should be affirmed.