(dissenting).
For the reasons expressed below, I respectfully dissent.
The criminally accused’s right to proffer a defense is fundamental. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 312 (1973); United States v. Garner, 581 F.2d 481, 488 (5th Cir.1978); United States v. Ballesteros-Acuna, 527 F.2d 928, 930 (9th Cir. 1975); and United States v. Thomas, 488 F.2d 334, 335 (6th Cir.1973). This constitutional right to present evidence, and thus a defense, is grounded in the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, Chambers, and in S.D. Const. art. VI, §§ 2 and 7. Thus, the accused “is entitled to have the jury consider any theory of the defense which is supported by law and which has some foundation in the evidence, however tenuous. Tatum v. United States, 88 U.S.App.D.C. 386, 190 F.2d 612, 617 (D.C.Cir.1951); United States v. Phillips, 217 F.2d 435, 442-443 (7th Cir.1954).” United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir.1969). See also, United States v. Chatham, 568 F.2d 445, 450 (5th Cir.1978).
[I]f the evidence [offered by the accused] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt. A contrary rule is unfair to a really innocent accused.
1A Wigmore, Evidence § 139, at 1724 (Tillers rev. 1983). Perry v. Rushen, cited in the majority opinion, 713 F.2d at 1453, observes that the California rule for exclusion of third-party perpetrator evidence would violate constitutional principles in some situations. This is such a situation. Appellant has the right to create a reasonable doubt and he should not have been es-topped from doing so under these circumstances. Surely, a man with blood on him, just a half block from the crime scene, at or about the exact time of death, who was a felon and demonstrating hostility to the point he picked a fight with a security guard, is not “speculative” nor “fantastic” as 1A Wigmore, Evidence § 139, comments upon. It becomes particularly more relevant, later on, when this individual confesses or makes statements that he committed the murders. It is a fundamental standard of relevancy to require the admission of testimony which tends to prove that a person other than the defendant committed the crime, subject to the discretion of the court to exclude cumulative evidence and assure an orderly presentation of the case. United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980). Apparently, the federal authorities show a preference for the admission of third-party perpetrator evidence. Federal judges are given discretion, under FRE 403, in determining whether the evidence is admissible. I take the position that it is the jury which should make the determination whether the evidence is merely speculative or fantastic or if the evidence is of sufficient exculpatory nature. In short, I reject the California line of authority and adopt the federal case authority and Wigmore’s formulation of standards in admitting such evidence. The latter authorities are in line with federal constitutional requirements. Certainly, a defendant on trial for his life, or a lifetime of confinement, has the right to present a defense of facts which support his innocence. It is to be remembered, that in a criminal trial, South Dakota had the right to present rebuttal evidence; hence, South Dakota could have rebutted defendant’s defense of third-party perpetrator. SDCL 23A-24-2(4) provides: “The parties may then, respectively, offer rebutting evidence only, unless the court, for good reason, in furtherance of justice or to correct an evident oversight, permits them to offer evi*240dence upon their original case[.]” Under this fair and orderly presentation of facts, the jury, rather than the trial court, should have tested and weighed the evidence.
In the case at bar, Luna, the criminally accused, sought to present evidence— present a defense — that another, a third-party perpetrator, committed the murders. This evidence, as noted in the majority opinion, is that: (1) Leonard, a violent drunk, entered a store with blood on his hands and shirt, shortly after the crime and a half block therefrom; that Leonard confessed to a drinking companion that he was a killer for hire and had committed the murders; and that two metal bars had disappeared from the residence of the person he was staying with; (2) that Thomas, a relative of the victims and a beneficiary of a life insurance policy and a taker under a will, violently threatened one of the victims 18 months prior to the crime; had not seen the victims for a year prior to the murders and then suddenly showed up at the crime scene shortly after the bodies were discovered. The coroner fixed the time of the victims’ death at or about 2:30 a.m.; Leonard was seen in the convenience store at or about 2:30 a.m. with blood on his hands. If the jurors wish to reject this evidence, they may do so. The credibility, under these circumstances, was exclusively within the province of the jury and not the trial court. Even under the South Dakota evidentiary rule, concerning the admission of evidence that a third party has confessed to the crime, as found in SDCL 19-16-32 (FRE 804(b)(3)), there appears to be sufficient evidence to establish “corroborating circumstances.” That statute states, inter alia, that “a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” The immediate neighborhood — almost the crime scene itself — the blood, the missing metal bars, the wildness and anger displayed at the convenience store, are all corroborating circumstances of the third-party perpetrator confession. It was certainly enough to place it before the jury and let the jury decide if it was true or false.
The trial court, however, excluded all of this evidence because it determined, inter alia, that it was inconsistent with Luna’s theories of Leonard’s and/or Thomas’ guilt. The trial court, however, did not specifically determine that such evidence was irrelevant, SDCL 19-12-1, or if relevant, that its probative value was “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.” SDCL 19-12-3. This evidence was relevant evidence, not excludable under SDCL 19-12-3, supported by the law and had more than a tenuous foundation; thus, Luna was entitled to have the jury consider his theory of the defense. Grimes. The trial court, however, determined the credibility and consistency of Luna’s defense and withheld the proffered evidence from the jury. This violated Luna’s due process rights to present a defense in a fair trial. As this issue is dispositive, I do not address the other claimed errors below. Repeatedly, appellant’s counsel advocated before this Court that the trial court had emasculated the defendant’s defense. Under the above authorities, I am compelled to agree. I therefore would reverse and remand for retrial which would permit the defendant to defend upon the basis that a third-party perpetrator was involved. Let, then, the jury, not the trial court, determine the facts. In my opinion, the exclusion of this evidence, based upon rationale such as “to avoid confusion and unduly tying up the court process and to insure that the jury is able to focus on the facts of the case itself ...,” as expressed by the trial court, is vaulting the orderly administration of justice and efficiency over cherished constitutional protections.