(concurring in part, dissenting in part).
{57} I concur with the majority’s application of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) to Young’s out-of-court testimonial statement. I also concur with remanding for a new trial on Defendant’s conviction of felon in possession of a firearm and with affirming Defendant’s conviction of tampering with evidence. However, I respectfully disagree with the discussion of harmless error. Applying the harmless error standard articulated by the United States Supreme Court, I would affirm Defendant’s convictions of felony murder1 and conspiracy.
{58} The majority discusses at length the meaning of cumulative evidence in the context of harmless error. The majority modifies this Court’s prior understanding of cumulative evidence by concluding that, in order to be cumulative, evidence must have no corroborative effect, or only a “negligible” effect, on other evidence of guilt. I respectfully disagree with this analysis. The United States Supreme Court has explained that one factor relevant to a constitutional harmless error inquiry is whether the erroneously admitted evidence is cumulative to properly admitted evidence. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). New Mexico courts have repeatedly adhered to the general rule that the erroneous admission of cumulative evidence does not prejudice the defendant and is harmless beyond a reasonable doubt. State v. Woodward, 121 N.M. 1, 10, 908 P.2d 231, 240 (1995); accord, e.g., State v. Lopez, 2000-NMSC-003, ¶ 20, 128 N.M. 410, 993 P.2d 727 (applying Woodward to a Confrontation Clause violation); State v. Martinez, 1999-NMSC-018, ¶ 25, 127 N.M. 207, 979 P.2d 718 (applying Woodward to a constitutional violation); State v. Martinez, 1996-NMCA-109, ¶¶ 19-20, 122 N.M. 476, 927 P.2d 31 (applying Van Arsdall and Woodward to a Confrontation Clause violation and noting the cumulative nature of the evidence). I am unable to find any indication in Van Arsdall, or subsequent cases, that the Supreme Court’s reference to cumulative evidence meant that, in order to be harmless, the evidence must be cumulative to evidence that is itself already cumulative. As the majority notes, the term cumulative simply means additional evidence of a similar character as existing evidence. The definition of this term requires duplication; it does not, in my view, require triplication or quadruplication, as the majority seems to suggest. I agree that not every instance of cumulative evidence can be considered harmless, but I respectfully disagree that harmlessness based on cumulative evidence is limited to “very clear instances of accumulated evidence.” Majority opinion, ¶ 39. I respectfully do not believe this to have been the Supreme Court’s intended meaning of cumulative evidence.
{59} Our cases have uniformly accepted the rationale that cumulative evidence does not cause prejudice. The majority rejects this principle based on the possibility that the erroneously admitted evidence may have had a corroborative effect on the properly admitted evidence. I respectfully believe that this rationale conflicts with the harmless error standard established by the Supreme Court, which is binding on this Court in our application of the Confrontation Clause. Under Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), appellate courts faced with a Confrontation Clause violation must answer the following question in assessing whether the error was harmless as a matter of federal constitutional law: “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” This standard establishes an objective measure of harmless error under which we must evaluate the effect of a constitutional error by looking to a rational jury’s evaluation of the properly admitted evidence. This standard does not contemplate an appellate reconstruction of the jury’s deliberations to determine whether the jury based its decision on a particular piece of evidence. As a result, it is not necessary to speculate about a potential corroborative effect that the improperly admitted evidence had on the properly admitted evidence. By requiring inquiry “into the effect that evidence might have had on the jury’s verdict,” Majority opinion, ¶37, the majority applies a harmless error approach that has been specifically rejected by the Supreme Court.
{60} Under the Neder standard, the notion of corroboration has a different significance. If the improperly admitted evidence is corroborated by properly admitted evidence, then the importance of the improperly admitted evidence is diminished; the corroborating evidence supports the same verdict by a rational jury without reference to the improperly admitted evidence as the verdict reached by the actual jury with the improperly admitted evidence. Thus, contrary to the use of the notion of corroboration in the majority opinion, the existence of evidence corroborating the improperly admitted evidence makes it more likely that the error will be deemed harmless. See Idaho v. Wright, 497 U.S. 805, 823, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; see also State v. Ross, 1996— NMSC-031, 122 N.M. 15, 27, 919 P.2d 1080, 1092.
{61} Relying on what I believe to be a mistaken view of corroboration in the context of harmless error, and focusing on the impact of the impugned evidence on the jury’s actual deliberations, the majority determines that harmless error effectively requires that the improper evidence not strengthen or corroborate other evidence of guilt “[rjegardless of whether there exists other properly admitted evidence to support the same factual finding.” Majority opinion, ¶ 40. Not only does this new description of harmless error conflict with Heder, I believe it also requires the State to prove the impossible. All evidence offered by the prosecution in a criminal trial, if properly admitted by the trial court, will to some degree strengthen or corroborate the evidence of guilt. In order to be admissible, the prosecution’s evidence must be relevant, and by definition, relevant evidence has a “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. In my view, this new standard adopted by the majority effectively creates a rule of automatic reversal for Crawford-type errors, contrary to binding precedent from the United States Supreme Court.
{62} In this case, there is no question that Young’s statement was important to the prosecution. However, most of Young’s statement was cumulative to or corroborated by other evidence, much of which came from Defendant himself. The only part of Young’s statement that was neither cumulative to nor corroborated by other evidence is the assertion that Defendant held the gun at some point during the robbery. This part of the statement was critical for the conviction of felon in possession of a firearm, making the error prejudicial with respect to this count, but it was simply not necessary to Defendant’s culpability for felony murder as an accessory. The State did not have to prove that Defendant shot the gun, held the gun, or even wielded the tire iron in order for the jury to find that Defendant helped, encouraged, or caused the crime to be committed. Young’s statements that Defendant and Coley Ingram went into the bathroom in the victim’s house prior to the robbery, that Coley asked Hoff whether he was in or out, that Hoff left in response to this question, and that a tire iron and gun were both used in the robbery are cumulative to Hoffs testimony, Defendant’s testimony, and the physical evidence from the victims’ autopsies. This evidence establishes that Defendant discussed the robbery with Coley, that he had prior knowledge of Coley’s intent to commit a robbery, and that, like Hoff, he had an opportunity to extricate himself from the robbery prior to its commission and after he became aware that Coley had a gun. The use of two weapons also supports a reasonable inference that there were multiple perpetrators of the crime.
{63} Other portions of Young’s statement, those more generally implicating Defendant as a participant in the robbery and killing, in contrast to the specific statement that Defendant held the gun, are cumulative to some evidence and corroborated by a great deal of other evidence. Most significantly, Young’s statement implicating Defendant as a participant in the crime is cumulative to Defendant’s confession to Hoff. Although the majority describes Young’s statement as “the only direct evidence that Defendant ... participated as an accomplice in the crimes,” Majority opinion, ¶ 6, Defendant’s confession to Hoff is direct evidence of guilt. Defendant’s confession was properly admitted evidence that was before the jury in this case. Hoff testified that Defendant told him either that Defendant or Defendant and Coley together “smoke[d]” the victims and that Defendant bragged about being a gangster as a result of the killings. Hoff further testified that, at the time of the killings, he and Defendant were friends and Coley was merely an associate of two of his friends, Defendant and Young. Hoff also testified that he remembered the incident clearly and, on rebuttal, that he was certain Defendant had not said that Coley was the one who had killed the victims. A confession of guilt by the defendant has “a profound impact” on the jury. Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
{64} Other evidence also corroborated Defendant’s participation in the crime. In his testimony before the jury, Defendant conceded that, a short time after the crime, he untruthfully told police officers that he was not at the victims’ house at the time of the robbery and murder. This admitted lie to the police not only served to undermine Defendant’s credibility but also constituted substantive evidence of a consciousness of guilt. See State v. Faubion, 1998-NMCA-095, ¶ 13, 125 N.M. 670, 964 P.2d 834 (stating that lies to the police are evidence of consciousness of guilt); State v. Lujan, 103 N.M. 667, 674, 712 P.2d 13, 20 (Ct.App.1985) (similar). As with Defendant’s confession to Hoff, this admission to the police containing false information regarding the details of the crime and manifesting a consciousness of guilt is direct evidence of Defendant’s participation in the crime aside from Young’s statement. See State v. Wheeler, 802 S.W.2d 517, 519 (Mo.Ct. App.1989). The jury also had a second, independent evidentiary basis to find a consciousness of guilt. The jury found beyond a reasonable doubt that Defendant tampered with evidence of the robbery, and this Court has determined that this conviction is supported by substantial evidence and is not tainted by Young’s statement. Tampering with evidence after the fact constitutes evidence of a consciousness of guilt for the earlier crime. State v. Martinez-Rodriguez, 2001-NMSC-029, ¶ 24, 131 N.M. 47, 33 P.3d 267. “[T]he state of mind that is characterized as guilty consciousness or consciousness of guilt is strong evidence that the person is indeed guilty.” State v. Robertson, 254 Conn. 739, 760 A.2d 82, 99 (2000) (quotation marks and quoted authority omitted) (alteration in original); accord Torres v. State, 794 S.W.2d 596, 598 (Tex.App.1990) (“A ‘consciousness of guilt’ is perhaps one of the strongest kinds of evidence of guilt. It is consequently a well accepted principle that any conduct on the part of a person accused of a crime subsequent to its commission, which indicates a ‘consciousness of guilt’ may be received as a circumstance tending to prove that he [or she] committed the act with which he [or she] is charged.”) (quotation marks and quoted authority omitted).
{65} Additionally, two witnesses testified about Defendant’s actions after the crime. In addition to relating Defendant’s confession, Hoff testified that Defendant exited the house with Coley and Young and that Defendant had a “[v]ery calm” demeanor. Hoff also testified that when they returned to Defendant’s house Defendant told him to hang up the phone and instructed Wayne Ingram to watch him to make sure he did not report the crime to the police. Defendant conceded that he, and not Young, told Wayne to leave with Hoff, although he denied telling him to watch Hoff, and Wayne corroborated Hoffs testimony by confirming that he was instructed to “keep an eye on Hoff.” This testimony from two witnesses establishes that Defendant attempted to prevent the report of the crime, which again demonstrates a consciousness of guilt. The absence of Young’s statement, which did not include the subject of Wayne being told to leave or watch Hoff, would not affect a rational jury’s assessment of this evidence.
{66} In contrast to the abundant evidence corroborating Young’s description of Defendant’s participation in the robbery and murders, the only evidence conflicting with Young’s statement is Defendant’s self-serving, uncorroborated2 testimony. However, Defendant’s testimony was undermined both by his prior inconsistent statements and by the improbability of his story. Defendant’s story fails to explain how Hoff, who testified that he did not discuss the details of the crime with any participant beyond Defendant’s confession, could have known that a tire iron was used in the robbery when, according to Defendant, Coley did not obtain the tire iron until after Hoff had left. In addition, according to Defendant’s story, Defendant and the two victims told Coley to put away the gun. Despite this opposition by three men, Coley placed the gun in his waistband to search for a second weapon. Considering the physical evidence establishing that both victims received wounds from a tire iron, a rational jury would understand that it would have been far more likely with multiple victims for one person to hold the gun on the victims to prevent their resistance while another person beat them with the tire iron. Under these circumstances, I do not believe that Defendant’s testimony can be viewed as sufficiently conflicting with Young’s that, in the absence of Young’s testimony, it could have led to an acquittal by a rational jury.
{67} As with the factor of cumulative evidence, the existence of evidence conflicting with the improperly admitted evidence is only one of several Van Arsdall factors relevant to a harmless error inquiry. The bare existence of conflicting evidence, without reference to the quality and quantity of that evidence in relation to the properly admitted evidence of guilt, does not lead to automatic reversal under the Chapman harmless error standard. For example, in Ross, despite the defendant’s testimony that he did not intend to kill the victim, 122 N.M. at 19, 919 P.2d at 1084, we concluded in that case that the defendant’s self-serving testimony did not constitute substantial conflicting evidence in light of other evidence in the case. Id. at 27, 919 P.2d at 1092; cf. United States v. Blevins, 960 F.2d 1252, 1263-64 (4th Cir.1992) (determining that a constitutional trial error was harmless despite the defendants’ testimony denying culpability); People v. McPeters, 2 Cal.4th 1148, 9 Cal.Rptr.2d 834, 832 P.2d 146,165 (1992) (concluding an error was harmless because the “defendant’s guilt was established by the testimony of numerous eyewitnesses as well as corroborating physical evidence, and ... defendant’s credibility was undermined by his own inherently improbable testimony denying any connection to the murder”); Fayson v. State, 726 N.E.2d 292, 295 (Ind.2000) (concluding admission of co-defendant’s incriminatory statement harmless beyond a reasonable doubt because eyewitness testified to the defendant’s involvement and, “significantly,” the defendant admitted his involvement to another witness, despite the fact that the defendant testified and denied both committing the crime and making the admission of guilt). We also concluded in Ross that a Confrontation Clause violation was harmless because the erroneously admitted statement was cumulative to some evidence and corroborated by other evidence. 122 N.M. at 27, 919 P.2d at 1092. I believe the same conclusion we reached in Ross applies in the instant ease. Defendant’s denial of involvement in the crimes is uncorroborated, self-serving, not fully exculpatory, impeached by two of his own prior statements, and factually improbable. As in Ross, given the other evidence introduced by the State, Defendant’s testimony is not substantial conflicting evidence for purposes of harmless error.
{68} The jury’s task in this case was not as difficult as it would be in most murder cases tried before a jury. Defendant’s own testimony established that Defendant was at the scene of the crime, that he arrived at the scene with an undisputed perpetrator of the crime and had a discussion with this individual about the crime before it occurred, and that he was aware that his cohort was armed with a gun. It was also undisputed that Defendant chose to remain in the room during the robbery despite prior knowledge of Coley’s intent, an awareness that Coley had a gun, and the same opportunity to leave exercised by Hoff. The only question for the jury was whether, while voluntarily in the room with his gun-wielding friend during the robbery, Defendant participated in the crime. There was an abundance of evidence heard by the jury supporting Defendant’s complicity with Coley, including an eyewitness’s testimony that he initiated the robbery, a confession of guilt from Defendant, powerful evidence of a consciousness of guilt, and eyewitness testimony from two witnesses of Defendant’s behavior after the fact being consistent with his participation in the crime. All of this evidence was actually heard by the jury and is not a hypothetical pattern of evidence constructed after the fact. The harmless error standard established by the Supreme Court requires that we examine the evidence actually presented to the jury to determine whether a hypothetical, rational jury would have reached the same verdict without the introduction of Young’s statement. Under this standard, I believe the State has established beyond a reasonable doubt that a rational jury would have reached the same verdict in the absence of Young’s statement. I would therefore affirm Defendant’s convictions of felony murder and conspiracy and respectfully dissent from the majority’s holding to the contrary.
. The Slate concedes that the conviction of armed robbery would merge with the conviction of felony murder if the latter conviction were to be affirmed.
. The majority attributes to Hoff the testimony that the discussion in the bathroom sounded as though one person wanted to commit the robbery and one did not. However, Hoff’s testimony directly contradicts this point. This statement came from a question by defense counsel repeating a question by an officer in an earlier interrogation of Hoff, with which Hoff had at that time only equivocally accepted as partly accurate. In response to this question by defense counsel, Hoff denied that this description of the bathroom conversation was accurate and testified that he did not remember the incident that way. The prior statement could at most only be used to impeach Hoff's testimony; because it was not made under oath, it is not substantive evidence corroborating Defendant’s version of events. See Rule 11 — 801(D)(1)(a) NMRA 2004.