State v. Balderama

{1} Having granted the State’s motion for rehearing in this case, we withdraw the opinion filed June 11, 2003 and substitute the following in its place.

{2} Defendant, Valente Balderama, appeals his conviction of first-degree deliberate-intent murder. See NMSA1978, § 30-2-1(A) (1994). Defendant admitted at trial that he killed Victim, but argued that he did not form the deliberate intent to kill her. He raises two issues on appeal. First, he argues the trial court committed reversible error when it sua sponte excluded the expert testimony of Defendant’s sole witness, a neuropsychologist. The expert was prepared to testify regarding Defendant’s neurological deficits, which Defendant contends were relevant to whether he formed the deliberate intent to kill Victim. Second, Defendant contends the trial court abused its discretion by admitting a hearsay statement of Victim regarding his prior bad acts. With regard to the first issue, we hold that the evidence was admissible, not for the purpose of proving the inability to deliberate, but rather to show that he did not form a deliberate intent to kill, and that the trial court abused its discretion by excluding it. With regard to the second issue, we hold that the trial court did not abuse its discretion in admitting the evidence as an excited utterance, but that on retrial the court should determine whether the statement is inadmissible character evidence. Accordingly, we reverse the trial court and remand for a new trial consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

{3} Victim’s decomposing body was discovered among some mesquites outside of Deming, New Mexico, on August 16, 2000. A forensic pathologist testified that she had suffered numerous injuries, including fractures to the front of the skull involving both eye sockets, a fracture to the rear of the skull, fractures of the spinous process of the cervical column consistent with a twisting of the neck or blunt force, fractured ribs, and bruises to the thigh and lower back. The pathologist concluded that Victim’s death was caused by blunt-force injuries to the head and neck.

{4} Three men were arrested in connection with the murder: Defendant and his two acquaintances, Arturo Carbajal and Robert Bertola. Carbajal entered into a plea agreement with the State and was the State’s primary witness at trial. According to Carbajal, the three men went looking for Victim because Defendant said he wished to speak with her. The men located Victim, who was visiting a friend’s house, but Defendant decided not to approach her at that time. Instead, Defendant drove away in Bertola’s truck, while Carbajal and Bertola approached Victim and asked her for a ride to the store.

{5} Carbajal testified that, after going to the store with Victim and Carbajal, Bertola asked Victim “if she wanted to party and get crazy.” At some point while the three were driving around Deming in Victim’s car, Victim requested that Bertola take over the driving responsibilities. She also suggested that they needed to" leave the city limits. Bertola then drove them to a remote location outside of Deming. Bertola stopped the car in a field near a tree after stating that he needed to use the restroom. Bertola got out of the car and stood next to the car for about ten minutes until Defendant arrived, driving Bertola’s truck. Defendant parked the truck about ten feet behind Victim’s car.

{6} According to Carbajal, he was seated on the passenger side of Victim’s car when Defendant arrived. At the insistence of Defendant, Carbajal got out of the car and stood near the rear of the passenger side of the caí-. He saw Defendant grab Victim, who then started slapping Defendant. Defendant then pulled her out of the car, threw her onto the ground, and began kicking her. Victim grabbed Carbajal’s leg, begging him to help her, but he chose not to help. Defendant began to twist Victim’s neck and, as he was doing so yelled: “[Tjhis whore doesn’t want to die. I need something to kill her, to kill this whore.” Defendant walked to Bertola’s truck, then returned with a steel pipe in his hand to where Victim lay unconscious and struck her on the neck and head. Defendant then tossed the pipe into the back of the track and urged the other two men to help him load the body in the trank of Victim’s ear. The three men drove the ear about a quarter of a mile from the murder scene and concealed Victim’s body among some mesquites. They then washed the blood from the trunk of Victim’s car before driving it to Palomas, Mexico, where they were eventually apprehended.

{7} Based on this evidence, and testimony that Defendant had made previous threats against Victim, the State requested a verdict of first-degree murder. According to the State, Defendant had orchestrated a plan to lure Victim to the murder scene, where he deliberately killed her. As evidence of deliberate intent, the State pointed to: (1) previous threats against Victim made by Defendant; (2) the alleged plan to lure her to the murder scene; (3) evidence that Defendant had the presence of mind during his initial beating of Victim to stop, demand a murder weapon, walk away from his victim to retrieve the murder weapon, and then return to kill her; and (4) Defendant’s activity following the murder in disposing of evidence and fleeing the country.

{8} Defendant sharply contested Carbajal’s credibility at trial. Defendant challenged Carbajal’s objectivity on the basis that Carbajal testified for the State pursuant to a plea agreement. Although Carbajal was initially charged with murder, his charges were eventually reduced to receiving or transferring a stolen vehicle and tampering with evidence. Additionally, on cross-examination, Carbajal admitted there were significant inconsistencies between statements he made prior to entering into the plea agreement and statements he later made while testifying for the State.

{9} Although Defendant did not testify, his statement to police regarding the events of the murder came into evidence through another State witness, Detective Frank Peña, who questioned Defendant after his arrest. Defendant’s version of the events differed significantly from Carbajal’s.

{10} According to Defendant’s statement, after he left Bertola and Carbajal near the house where Victim was staying, Defendant had been “driving around and cruising” in Bertola’s truck when he observed Victim driving with Bertola and Carbajal in Victim’s car. Defendant told Detective Peña that “he was falling in love with her” and that he was “worried that something was going to happen to her” in the car with the other men. Defendant said that he began to follow the car, “wanting to know where they were going.” When Victim’s car stopped in a field, Defendant pulled up behind it in Bertola’s truck.

{11} According to Defendant, he approached Victim and asked her to leave with him, but she refused. Defendant told Detective Peña that as he was speaking with her, one of the other two men struck Victim in the face. Defendant admitted to “getting extremely angry” at Bertola and Carbajal, and said he wanted to “kick their asses.” Rather than confront the two men, however, Defendant began to walk back toward the truck. According to Defendant, Victim followed, yelling at him and pushing him. As Defendant turned to face Victim, Bertola knocked her to the ground and went to his truck to retrieve a steel pipe. Defendant claimed that Bertola returned, struck Victim with the pipe, then threw the pipe to Defendant. Defendant struck her on the head and neck, then dropped the pipe to the ground.

{12} Defendant admitted that Victim was still alive when he struck her twice with the pipe. He told Detective Peña that after he struck Victim, he heard Bertola and Carbajal arguing, “stating something to the effect that they had to finish her. They had to kill her.” Defendant said that he had difficulty recalling the details and that he had “blanked out” during the murder.

{13} Because Defendant admitted to killing Victim with the pipe, the sole issue at trial was whether he was guilty of first-or second-degree murder. The State argued Victim’s murder was committed with deliberate intent to kill, constituting first-degree murder. Defendant contended that he killed Victim as the result of a “mere unconsidered and rash impulse,” constituting second-degree murder. Defense counsel repeatedly denied that Defendant was involved in any kind of plan, either to lure Victim to the remote area or to kill her. The defense’s theory was that Defendant came upon Victim, Bertola and Carbajal, and “whether it was for [Victim’s] own protection or in and out of jealousy, he beat [Victim] with that pipe. He didn’t stop and consider the consequences of his actions. He didn’t plan it.... He came upon them and went off.”

{14} Defendant identified only one witness, Dr. Marc Caplan, Ph.D., a neuropsychologist, to support his theory that he killed Victim as the result of a mere unconsidered and rash impulse. Dr. Caplan was expected to provide expert testimony that Defendant suffered neurological deficits, of unknown etiology, that resulted in “difficulty planning and anticipating as well as greater difficulty controlling angry impulses.” Dr. Caplan’s testimony was revealed to the State in advance of trial, and the prosecutor was given an opportunity to interview him. The State neither filed pretrial motions challenging the admissibility of Dr. Caplan’s testimony nor did it object to his testimony during trial.

{15} During her opening statement to the jury, defense counsel expressly relied on Dr. Caplan’s anticipated testimony. Defense counsel informed jurors that they would hear from Dr. Caplan, who had conducted a neuropsychological evaluation of Defendant, and that Dr. Caplan would testify that Defendant “suffers from impulse control disorder and ... has difficulty planning.” According to Defendant, Dr. Caplan’s testimony was critical to the defense’s theory of the case, because it directly impacted on the sole remaining issue: whether Defendant killed with deliberate intent (first-degree murder) or as a result of a mere unconsidered and rash impulse (second-degree murder).

{16} During a bench conference at the end of the second day of trial, defense counsel explained to the court that she needed to alert Dr. Caplan as to when he would testify so that he could cancel patient appointments. The trial judge indicated that it was possible for Dr. Caplan to testify out of order. In response, the prosecutor explained that he had the same problem with his forensic expert and that the State might complete its case sooner than expected. To this the trial judge replied, “Well, then we won’t have to have Dr. Caplan then, will we?” There was no discussion concerning the admissibility of Dr. Caplan’s testimony. Indeed, the trial court concluded the discussion by instructing the parties: “Well, we’ll take him out of order. I mean, whatever time we decide that he’s going to block off his schedule, he’s going to testify during that period of time, whether it’s in your case or it’s in her case.”

{17} At midmorning the next day the State rested its case. Defense counsel advised the court that Dr. Caplan would not be available to testify until 2:00 p.m., as he was traveling to the courthouse from out of town. The judge then explained to the jury: “[W]e understand that the defense is going to put on Dr. Caplan; he’s not going to be here until 2:00. We apologize for that but that happens in these cases. So I’m going to send you home for a long lunch. So you need to be back here around 1:45.”

{18} The next event in the record is a telephone conference with Dr. Caplan, during which he was placed under oath and questioned by defense counsel, the prosecutor, and finally the trial judge himself. What precipitated this telephone conference is unclear. What is evident from the record is that at no point did the prosecutor object to the anticipated testimony of Dr. Caplan. Rather, after speaking with Dr. Caplan telephonically and reviewing Dr. Caplan’s report, the trial court sua sponte excluded Dr. Ca-plan’s testimony, citing Rules 11-401, 11-402 and 11-403 NMRA 2001. The trial court concluded that it would be misleading to the jury to present psychological testimony when that testimony would not support an instruction on diminished capacity, see UJI 14-5110 NMRA 2004, and therefore the testimony was irrelevant and a “waste of time.” When the jury returned from lunch, without making any reference to the promised testimony of Dr. Caplan, the trial court told the jury, ‘You have now heard all the evidence in this case.” The jury then deliberated and returned a guilty verdict on the charge of first-degree murder, from which Defendant now appeals.

DISCUSSION

I. Exclusion of Dr. Caplan’s Testimony

{19} As a preliminary matter, the State argues that Defendant did not preserve the issue of the admissibility of Dr. Caplan’s testimony. The State’s argument is not well taken. Rule 12-216(A) NMRA 2004 states that to preserve an issue for review “it must appear that a ruling or decision by the district court was fairly invoked, but formal exceptions are not required.” In explaining why we decline to require “formal exceptions,” we have stated that our rule “disregards form and relies upon substance, and merely requires that a question be fairly presented to the court and a ruling invoked.” Bays v. Albuquerque Nat’l Bank, 34 N.M. 20, 21, 275 P. 769, 770 (1929). In this case, the issue of the admissibility of Dr. Caplan’s testimony was fairly presented to the court, and a ruling was fairly invoked inasmuch as the court invoked its own ruling.

{20} While a trial judge is not prohibited from excluding evidence sua sponte, a judge should exercise this authority sparingly. This is because: (1) development of the facts at trial is the responsibility of counsel; (2) often counsel may intentionally withhold objection to the admissibility of evidence for strategic reasons; and (3) a trial judge should be careful to avoid the appearance of being more of an advocate or partisan than an objective jurist. See Chapman v. California, 386 U.S. 18, 23 n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (listing the light to an impartial judge as basic to a fair trial). When a trial judge, however, feels compelled to exclude evidence sua sponte, the parties should first be informed of the judge’s specific concerns. This should be done on the record, before excluding the evidence, and outside the presence of the jury. This procedure will afford the proponent of the evidence a fair opportunity to respond to the court’s concerns and to make the necessary offer of proof prior to the sua sponte ruling. Our rules of evidence require no less of counsel who object to the admissibility of evidence, see Rule 11-103(A)(1) NMRA 2004, and we see no reason why the same procedural rules should not apply to a trial judge who seeks to exclude evidence sua sponte. Here, while the preferred practice would have been for defense counsel to reiterate clearly for the court the purpose for which she was offering Dr. Caplan’s testimony and to formally object to the trial court’s ruling, we believe this failure by defense counsel does not preclude review.

{21} Rule 11-103(A) requires as a predicate for preservation that the ruling affect “a substantial right of the party” and, where the ruling is one excluding evidence, that “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” Rule 11-103(A)(2). Although we are not required to review every sua sponte exclusion of evidence that is made without a timely objection by counsel, Rule 11—103(A) and Rule 12-216(A) clearly permit review in this case because the substantial rights of Defendant were affected by the trial court’s ruling and the substance of the evidence to be admitted was made known or was apparent to the court. The fact that the trial court ruled sua sponte to exclude the testimony'—• combined with the fact that the defense presented only one issue to the jury, offered only one witness to testify on that issue, and reasonably relied on the trial court’s earlier pronouncements to counsel and to the jury that Dr. Caplan would testify—exacerbates the potential that the alleged error is fundamental. See State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462 (1942) (fundamental error must go to the foundation of the defendant’s case or take from the defendant' a right which was essential to his defense). We therefore reject the State’s argument that the issue was inadequately preserved.

{22} Having decided to review this issue, we examine the proposed evidence to determine whether the trial court abused its discretion in excluding it. State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85. An abuse of discretion occurs when the ruling is clearly against the logic and effects of the facts and circumstances of the case, is clearly untenable, or is not justified by reason. Id. Whether the trial court abused its discretion depends on an analysis of (1) whether Dr. Caplan’s testimony was relevant; and (2) if relevant, whether the testimony was properly excluded under Rule 11-403 as misleading or a waste of time. Finally, if the court erred in excluding the evidence, we examine whether the error was harmless.

A. Relevancy of the testimony

{23} All relevant evidence is generally admissible, unless otherwise provided by law, and evidence that is not relevant is not admissible. Rule 11-402 NMRA 2004. “ ‘Relevant evidence’ means evidence having any 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 (emphasis added). Any doubt whether the evidence is relevant should be resolved in favor of admissibility. Stanley, 2001-NMSC-037, ¶ 6, 131 N.M. 368, 37 P.3d 85.

{24} In reviewing the relevancy of Dr. Caplan’s testimony, we first consider whether his testimony directly related to Defendant’s theory of the case. See State v. Melendez, 97 N.M. 740, 742, 643 P.2d 609, 611 (Ct.App.1981) (stating that tendered evidence of the victim’s reputation for violence was relevant to the defendant’s claims that occupants of a car were aggressors and that he had reasonable apprehensions for his life and safety), rev’d on other grounds, 97 N.M. 738, 643 P.2d 607 (1982); State v. Debarry, 86 N.M. 742, 743-44, 527 P.2d 505, 506-07 (Ct.App.1974) (remanding for in-camera hearing to determine whether excluded testimony was relevant to the defendant’s misidentification defense, with instructions to grant a new trial if the testimony was sufficiently relevant to defendant’s theory). Defendant’s theory was that he did not form the deliberate intent to kill Victim and therefore was not guilty of first-degree murder. In New Mexico, first-degree murder is defined as “any kind of willful, deliberate and premeditated killing.” Section 30-2-l(A)(l); see State v. Coffin, 1999-NMSC-038, ¶¶ 25-29, 128 N.M. 192, 991 P.2d 477 (outlining the legal history of first-degree murder in New Mexico and clarifying that deliberation, defined as “a thinking over with calm and reflecting mind,” is the defining characteristic of the requisite mental state for first-degree murder) (quoting State v. Smith, 26 N.M. 482, 491, 194 P. 869, 872 (1921)).

{25} Because deliberation is an essential element of first-degree murder, evidence with any tendency to make the existence of deliberation more probable or less probable is by definition relevant to the distinction between first-and second-degree murder. See Rule 11-401. Uniform Jury Instruction 14-201, which was given to the jury in this case, defines “deliberate intention” as follows:

A deliberate intention refers to the state of mind of the defendant. A deliberate intention may be inferred from all of the facts and circumstances of the killing. The word deliberate means arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. A calculated judgment and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate intention to kill. To constitute a deliberate killing, the slayer must weigh and consider the question of killing and his reasons for and against such a choice.

UJI14-201 NMRA 2004 (emphasis added).

{26} Defendant contends that Dr. Caplan’s testimony regarding Defendant’s neurological deficits was relevant because, if believed by the jury, it would tend to make less probable the State’s theory that Defendant killed “as a result of careful thought and the weighing of the consideration for and against the proposed course of action.” Defendant argues that a reasonable juror could infer from Dr. Caplan’s testimony that when Defendant killed Victim, he did so more likely as the result of an “unconsidered and rash impulse” and less likely as a result of “careful thought.”

{27} We conclude that, had the jury been provided with Dr. Caplan’s testimony regarding Defendant’s neurological deficits, the jury would have had specific evidence tending, to some degree, to refute the element of deliberation necessary for first-degree murder. Dr. Caplan performed a neuropsychological forensic evaluation of Defendant, which consisted of fourteen diagnostic tests and the collection of an extensive psychosocial history. Dr. Caplan’s evaluation report, which was reviewed by the trial court, describes Defendant’s history of closed head injuries and a “constellation of behavioral problems ... suggestive of frontal lobe dysfunction.” This neurological dysfunction “results in difficulties in planning and anticipating as well as greater difficulty controlling angry impulses.” Defendant told Dr. Caplan that, since the age of sixteen or seventeen, he has had “blackouts” and becomes “unaware of what happens” when he is in a rage. Dr. Caplan diagnosed Defendant with impulse-control disorder, polysubstance abuse, and antisocial personality disorder. Dr. Caplan concluded his report: “Given this man’s history and evidence of neurological deficits, there is some evidence for diminished capacity. Historically he presents with a constellation of behaviors that suggest significant problems in controlling impulses, planning and anticipating dangerous situations and the ability to postpone or discriminate in achieving his goals.” During the offer of proof via telephone conference, Dr. Caplan repeated that Defendant has neurological dysfunction, which results in problems with impulse control and difficulty in planning. Dr. Caplan described Defendant’s neurological dysfunction as “sort of the underpinning to diminished capacity, in other words difficulty in judging, difficulty in appreciating consequences of one’s actions, difficulty in planning.” Dr. Caplan further indicated that substance abuse tends to “further impair whatever kind of abilities [Defendant] had.”

{28} We conclude that Dr. Caplan’s testimony was relevant, because it would assist the jury in weighing Defendant’s contention that he lacked the deliberate intent necessary for first-degree murder. Dr. Caplan’s testimony regarding Defendant’s impulsiveness and difficulty in planning, if believed, supported Defendant’s theory that he did not act with calculated judgment, but rather he “came upon” Victim, Bertola, and Carbajal and “went off.” Dr. Caplan’s testimony was relevant to whether Defendant formed the intent to murder Victim “as a result of careful thought and the weighing of the consideration for and against a proposed course of action,” or whether he killed her as the result of a “mere unconsidered and rash impulse.” UJI 14-201.

{29} In attempting to refute the relevancy of Dr. Caplan’s testimony, the State correctly points out that Dr. Caplan was also prepared to testify that Defendant was capable of forming specific intent. The specific intent required for first-degree murder is a deliberate intent, which by definition involves careful thought and the weighing of the consideration for and against a proposed course of action, and does not describe every intentional killing. See State v. Campos, 1996— NMSC-043, ¶ 39, 122 N.M. 148, 921 P.2d 1266 (“It is [the] deliberate intent to cause death, beyond the defendant’s intentional actions, that makes premeditated first-degree murder a specific-intent crime.”).

{30} Defendant’s theory at trial, however, was not that Defendant was incapable of forming deliberate intent, and Defendant therefore did not raise the diminished-capacity defense. Defendant’s strategy was to show that he did not, at the time of the killing, form the deliberate intent to kill. He sought to raise a reasonable doubt about whether the State carried its burden of proving the mental state required for first-degree murder. Dr. Caplan clearly viewed Defendant’s neurological deficits, with resulting impulsiveness and difficulty in planning, as distinct from the ability to form deliberate intent. During the telephone conference Dr. Caplan clarified that Defendant’s neurological dysfunction was not the same thing as an inability to form specific intent: “[Defendant] impulsively acts but he does understand that his actions may be wrong. So he is able to form specific intent, but there are difficulties with his judgment, his planning, his patience.” Thus, Dr. Caplan was clear in his testimony and in his report that Defendant’s neurological deficits were not so severe as to wholly subvert his ability to deliberate.

{31} Proof of incapacity to form the requisite deliberate intent, however, is not the only means of defending against the State’s allegation that the defendant acted with the deliberate intent to take away the life of the victim. “An abnormal mental condition may influence the probability that a defendant premeditated and deliberated— and so be taken into account by a jury in determining whether those states of mind existed in fact (beyond a reasonable doubt)— even though it did not eliminate the capacity for premeditation.” United States v. Peterson, 509 F.2d 408, 416-17 (D.C.Cir.1974). “[E]xpert testimony is admissible if it merely ‘supports] an inference or conclusion that the defendant did or did not have the requisite mens rea.’ ” United States v. Bennett, 161 F.3d 171, 183 (3rd Cir.1998) (quoting United States v. Morales, 108 F.3d 1031, 1037 (9th Cir.1997)). Thus, we conclude that evidence of the condition of the mind of the accused at the time of the crime may be introduced, not only for the purpose of proving the inability to deliberate, but also to prove that the conditions were such that Defendant did not in fact, at the time of the killing, form a deliberate intent to kill. See State v. Ellis, 89 N.M. 194, 548 P.2d 1212 (Ct.App.1976) (holding it was.reversible error to exclude the defendant’s tendered expert testimony regarding the defendant’s mental state at the time of the homicide).

{32} In concluding that Dr. Caplan’s testimony was relevant, we note that New Mexico courts have long allowed such expert testimony relating to a defendant’s mental state at the time of the commission of the offense. See id.; see also State v. Elliott, 96 N.M. 798, 635 P.2d 1001 (Ct.App.1981); State v. Smith, 80 N.M. 126, 452 P.2d 195 (Ct.App.1969).

{33} In Elliott, the Court of Appeals held that the trial court’s exclusion of a psychologist’s expert testimony that defendant lacked the intent to kill or do great bodily harm was reversible error. 96 N.M. at 800, 635 P.2d at 1003. In response to the trial court’s ruling that, under Rule 11-702, the expert testimony would not assist the jury in determining the factual issue of intent, the Court of Appeals held: “This may be the trial court’s subjective evaluation of testimony by a psychologist, but it is not New Mexico law. The opinion of an expert, whose qualifications are not challenged, would assist the jury in deciding the intent issue, and the expert opinion was admissible.” Elliott, 96 N.M. at 800, 635 P.2d at 1003; see Rule 11-702 NMRA 2004. We agree that this remains the law in New Mexico.

{34} In Ellis, the defendant at trial offered the expert testimony of a clinical psychologist to show that the defendant shot the victim out of fear and therefore did not have the requisite intent for either first-or second-degree murder. The defendant expressly disclaimed she was relying on the defenses of insanity or diminished capacity. 89 N.M. at 196-97, 548 P.2d at 1214-15. On the basis that Rule 11-702 admits expert testimony if such testimony will assist the jury to determine a fact in issue, the Court of Appeals held that it was error to exclude the testimony, stating that “expert testimony as to defendant’s ‘probable state of mind’ was admissible ... [and] a properly qualified expert may testify as to a defendant’s intent.” Id. at 197, 548 P.2d at 1215.

{35} Finally, in Smith, the trial court admitted the expert testimony of a psychologist and two psychiatrists that defendant was “in-dined to violent emotional eruptions, and that when in a rage he is unable to control himself.” 80 N.M. at 129, 452 P.2d at 198. The defendant introduced this evidence not to establish the defense of insanity or inability to form specific intent, but rather to show that the defendant, at the time of the killing, did not possess the requisite mental state for second-degree murder. Id. at 130, 452 P.2d at 199. In affirming the conviction, the Court of Appeals stated: “The jury was not required to accept these expert opinions and disregard all other evidence bearing on the question of his mental and emotional state.... ” Id. The same is true in Defendant’s case, and, although Dr. Caplan’s testimony is relevant to Defendant’s mental state at the time of the killing, the jury is free to give it little weight, or to reject it altogether.

{36} Because we hold that Dr. Caplan’s testimony was relevant to the essential element of deliberate intent, and because the testimony was not cumulative, we conclude that the trial court’s exclusion on the basis that it was a “waste of time” was error. See Rule 11-403 NMRA 2004.

B. Exclusion on the basis of misleading the jury

{37} The State also argues that the trial court properly excluded Dr. Caplan’s testimony under Rule 11 — 403 because it would be misleading to allow expert testimony that does not support the giving of the diminished-capacity instruction, UJI14-5110. See State v. Lujan, 94 N.M. 232, 234, 608 P.2d 1114, 1116 (1980) (“[U]nless there is evidence that the defendant could not have formed the requisite intent, the diminished responsibility instruction is improper.”). Defendant concedes the evidence was not sufficient to support the giving of the diminished-capacity instruction. We agree. Dr. Caplan was clear in his testimony and in his report that Defendant’s neurological deficits did not reach the degree that would interfere with defendant’s ability to deliberate.

{38} This distinction is significant because in those cases where the evidence does support the diminished-capacity instruction, an additional burden of proof is added to the prosecution. The diminished-capacity instruction is proper only when there is evidence that reasonably tends to show that the defendant’s claimed mental disease or disorder rendered the defendant incapable of forming specific intent at the time of the offense. See State v. Begay, 1998-NMSC-029, ¶38, 125 N.M. 541, 964 P.2d 102. When UJI 14-5110 is given, the use note instructs the trial court to add the following instruction to the essential elements of the first-degree murder instruction: “The defendant was not suffering from a mental disease or disorder at the time the offense was committed to the extent of being incapable of forming [a deliberate] intent to take away the life of another.” See Begay, 1998-NMSC-029, ¶¶39, 41, 125 N.M. 541, 964 P.2d 102. When the defendant has advanced evidence that reasonably tends to show an incapacity to form specific intent, the prosecution then has the additional burden of proving the defendant was capable of forming the deliberate intent despite the alleged intoxication or mental disorder. Here, Defendant concedes he did not offer such evidence, and therefore the prosecution does not have the additional burden of proving that Defendant was capable of forming the deliberate intent to kill.

{39} The court nevertheless raised the legitimate concern that the jury might be misled where such expert testimony is insufficient to warrant the diminished-capacity instruction. This concern is legitimate because the jury might interpret Dr. Caplan’s testimony to mean that Defendant’s neurological deficits prevented him from being capable of forming the deliberate intent to kill, and that therefore he did not. Nevertheless, we hold that the probative value of the testimony in this case outweighs the danger of misleading the jury, and that the testimony should not have been excluded on that basis.

{40} We believe that in cases in which expert testimony is offered to prove or disprove a mens rea element, it is often appropriate for the trial court to make explicit to the jury the precise purposes for which the expert testimony is offered. See Peterson, 509 F.2d at 414 (recognizing that the admission of expert testimony regarding the defendant’s abnormal mental condition requires “careful administration by the trial judge”). In order to mitigate the potential of misleading the jury and thereby prejudicing the prosecution, while at the same time preserving Defendant’s right to challenge the State’s evidence against him, a limiting instruction may be appropriate. On remand, assuming the testimony of Dr. Caplan is not excluded on different grounds, we suggest the following jury instruction as a model:

You must not conclude from Dr. Caplan’s testimony that Defendant was incapable of forming the deliberate intention to take away the life of another. This expert testimony was admitted solely to assist you in determining, based on all of the facts and circumstances of the killing, including Defendant’s mental condition, whether Defendant in fact formed a deliberate intention to take away the life of Victim rather than an unconsidered and rash impulse.

Cf. Peterson, 509 F.2d 408, 415 (suggesting as a model the following instruction: “In determining whether (premeditation and deliberation) has been proved beyond a reasonable doubt you may consider the testimony as to the defendant’s abnormal mental condition.”). Furthermore, we note that the State also has the opportunity through cross-examination and argumentation to clarify any confusion that may result from Dr. Caplan’s direct testimony.

C. Harmless Error

{41} The State’s final argument is that any error in the exclusion of Dr. Caplan’s testimony was harmless, because his testimony would have lost all persuasive force given the weight of incriminating evidence. Defendant does not challenge the sufficiency of the evidence to convict him of murder. Rather, Defendant argues that he was denied the opportunity to present evidence that had a tendency to make his theory of the case — that he did not form the deliberate intent to kill — more probable. Error in the exclusion of evidence in a criminal trial is prejudicial and not harmless if there is a reasonable possibility that the excluded evidence might have affected the jury’s verdict. See Clark v. State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991) (holding that the admission of evidence was not harmless if there was a reasonable possibility that evidence might have contributed to conviction). Here the inquiry is whether there is a reasonable possibility the trial court’s exclusion of Dr. Caplan’s testimony might have contributed to Defendant’s conviction for first-degree rather than second-degree murder.

{42} Although there was overwhelming evidence that Defendant killed Victim, the evidence was in direct conflict as to whether Defendant killed with deliberate intent or through a rash impulse. The only eyewitness testimony regarding Victim’s murder was that provided by Carbajal, whose credibility was sharply contested at trial. If we accept only the testimony of Carbajal, ignore the defense’s cross-examination of him and also ignore Defendant’s account of the events of the murder, then surely the error is harmless. The evidence would overwhelmingly support the conclusion that Defendant murdered the Victim and did so with the requisite deliberate intent. However, we should not ignore the cross-examination or the testimony which introduced Defendant’s version of the events.

{43} Defendant’s statement was to the effect that after being pushed and yelled at by the Victim as he tried to walk away, Bertola became the aggressor, struck Victim first, and threw the steel pipe to the Defendant; then, while “blanking out,” Defendant suddenly struck Victim and dropped the pipe to the ground. Dr. Caplan was Defendant’s only witness, and his testimony represented Defendant’s entire case to rebut the essential element of deliberate intent. Dr. Caplan’s testimony was Defendant’s only means of reinforcing his theory of the case and bringing together what trial counsel argued in both her opening and closing statements. Defendant’s utter dependence on Dr. Caplan for his defense exacerbates the potential for prejudice caused by the exclusion of Dr. Ca-plan’s testimony. See State v. Ellis, 136 Wash.2d 498, 963 P.2d 843, 856 (1998) (holding the trial court’s decision to exclude expert testimony on the defendant’s inability to form specific intent in a first-degree murder trial deprived him of his constitutional right to present evidence in his own defense). As a result, Defendant has raised a reasonable possibility that the exclusion of his only witness might have contributed to his conviction on the greater charge rather than the lesser.

{44} In addition, we note the timing of the court’s decision to exclude Dr. Caplan’s testimony could not have been worse. The court took its action, without any advance notice, at a time when defense counsel had already relied on Dr. Caplan’s anticipated testimony in her opening statement. Defense counsel not only summarized that anticipated testimony to the jury, but identified Dr. Caplan by name. The trial court also informed the jury that Dr. Caplan would be testifying for Defendant. When the promised witness did not appear, the jury may well have drawn a negative inference prejudicial to Defendant. A jury would certainly be inclined to wonder why the only witness identified by defense counsel, who was to help them determine whether the murder was committed with deliberate intent, did not testify. For example, the jury might have inferred that Dr. Caplan was not prepared to testify as defense counsel indicated in her opening, or even that his testimony would contradict the defense’s theory. Without any advance notice of the court’s contemplated action, Defendant was entitled to rely on judicial rulings and discussions in planning his defense strategy and in summarizing that strategy to the jury.

{45} Our Court of Appeals enunciated a similar rationale in reversing a murder conviction and remanding for a new trial. In State v. Glasgow, 2000-NMCA-076,129 N.M. 480, 10 P.3d 159, the trial court during trial changed course from its earlier rulings excluding all evidence of cocaine use, and ruled the evidence admissible if the defendant took the stand to testify as to his state of mind. Id. ¶ 9. In reversing and remanding for a new trial, the Court of Appeals stated that the defendant “had the right to plan his defense strategy relying on the trial court’s ruling that there would be no evidence of drug use introduced to the jury.” Id. ¶ 10. “Our criminal trial system entitles a defendant to formulate a strategy to defend the charges brought by the State.” Id. ¶ 14 (citing N.M. Const, art. II, § 14; March v. State, 105 N.M. 453, 456, 734 P.2d 231, 234 (1987)). In considering the totality of the circumstances, we are not persuaded that the exclusion of Dr. Caplan’s testimony was harmless error.

II. Admission of Victim’s Hearsay Statements

{46} Defendant also argues that the trial court abused its discretion by admitting an out-of-court statement that Victim made to her cousin, Robert Snow. The New Mexico Rules of Evidence prohibit the use of out-of-court statements, offered to prove the truth of the matter asserted, unless such a statement falls into a recognized hearsay exception and is relevant and otherwise admissible. See Rule 11-801 NMRA 2004 (describing hearsay rule); Rule 11-401; Rule 11-403. We review the trial court’s admission of hearsay statements for an abuse of discretion. State v. Lopez, 2000-NMSC-003, ¶ 10,128 N.M. 410, 993 P.2d 727.

{47} Snow testified that Defendant and Victim went to his house in Victim’s car, about a week before Victim was murdered. Defendant was driving and Victim looked “distraught” and “like she’d been crying.” Snow “asked [Victim] to come out of the vehicle so [he] could see what was wrong with her.” When Snow asked Defendant what was going on, Defendant said that he and Victim were “domesticating, fighting.” According to Snow, Defendant ordered him “not to let [Victim] use the [telephone or anything like that.” Defendant had the keys to Victim’s car and was unwilling to return them to Victim. Finally, Defendant threw the car keys at Victim, hitting her in the chest. Snow “ended up knocking [Defendant] around, a little bit and [Victim] got away and got in the car and drove off.” Snow testified that he was “defending” Victim and “didn’t feel it was right what [Defendant] was doing to [her].”

{48} At a critical point during this exchange, Victim told Snow that “[Defendant] had her for three days already, wouldn’t let her use the phone, wouldn’t let her out of his sight.” Defense counsel filed a motion in limine, arguing that Snow’s recitation of what Victim had said to him out of court was inadmissible hearsay and amounted to improper character evidence. See Rule 11-404(A) NMRA 2004 (providing that “Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion”).

{49} We agree that Victim’s statement that Defendant “had her for three days” was presented to prove the truth of the matter asserted; namely, that Defendant had been holding Victim against her will for the previous three days. Therefore, to be admissible, Victim’s statement must fall within a recognized hearsay exception.

{50} The trial court admitted Victim’s statement as an excited utterance, because Snow laid a predicate that Victim was distraught and fearful at the time she made the out-of-court statement. See Rule 11-803(B) NMRA 2004 (providing exception for statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”). Defendant argues that the court abused its discretion in admitting Victim’s statement as an excited utterance. Defendant does not argue that the admission of Victim’s statement violated his constitutional rights, but only argues that Victim’s statement was inadmissible under the Rules of Evidence. Cf. State v. Lopez, 1996-NMCA-101, ¶ 13,122 N.M. 459, 926 P.2d 784 (reviewing de novo the defendant’s constitutional claims regarding the reliability of an out-of-court statement admitted as an excited utterance, but applying abuse-of-discretion standard to question whether statement was properly admitted under the hearsay rule).

{51} In deciding whether to admit an out-of-court statement under the excited utterance exception,

the trial court should consider a variety of factors in order to assess the degree of reflection or spontaneity underlying the statement. These factors include, but are not limited to, how much time passed between the startling event and the statement, and whether, in that time, the declarant had an opportunity for reflection and fabrication; how much pain, confusion, nervousness, or emotional strife the declarant was experiencing at the time of the statement; whether “the statement was self-serving[; and whether the statement was] made in response to an inquiry}.]”

State v. Bonham, 1998-NMCA-178, ¶ 6, 126 N.M. 382, 970 P.2d 154 (quoting 2 John William Strong, McCormick on Evidence § 272, at 219 (4th ed.1999)), abrogated on other grounds by State v. Traeger, 2001-NMSC-022, ¶¶ 19-26, 130 N.M. 618, 29 P.3d 518. “[T]he trial court has wide discretion in determining whether the utterance was spontaneous and made under the influence of an exciting or startling event.” Id. ¶ 7. Given that Victim was “distraught, ... upset,” and looked “like she’d been crying” due to her inability to retrieve her car keys and free herself from Defendant’s presence, there was a sufficient factual predicate to admit Victim’s statement into evidence as an excited utterance.

{52} Defendant also contends that Victim’s out-of-court statement amounted to improper character evidence because it demonstrated a prior bad act — that Defendant held Victim against her will — and was not relevant to the crime for which he was tried. Evidence of Defendant’s prior bad acts is inadmissible to the extent it serves only to prove that he acted in conformity with an alleged propensity for violence. See Rule 11-404(B) (“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”); Rule 11-403 (providing for exclusion of otherwise relevant evidence on grounds of undue prejudice). “On the other hand, evidence of Defendant’s other bad acts can be admissible if it bears on a matter in issue, such as intent, in a way that does not merely show propensity.” State v. Niewiadowski, 120 N.M. 361, 363-64, 901 P.2d 779, 781-82 (Ct.App.1995).

{53} The trial court did not rule on whether Victim’s out-of-court statement was inadmissible character evidence. Accordingly, we determine that the admissibility of Victim’s out-of-court statement under Rule 11-404(B) and Rule 11-403 may be addressed by the trial court, when, and if, this issue is raised at Defendant’s new trial.

CONCLUSION

{54} We reverse and remand for proceedings consistent with this opinion.

{55} IT IS SO ORDERED.

WE CONCUR: PAMELA B. MINZNER, RICHARD C. BOSSON, Justices, PETRA JIMENEZ MAES, Chief Justice,

PATRICIO M. SERNA, Justice (concurring in part and dissenting in part).

. Dr. Caplan also noted in his report that while Defendant claimed a history of “blackouts,” he performed "quite well" on memory tests. Additionally, Dr. Caplan stated that while Defendant claimed he had difficulty recalling details of the offense, when evaluated by Dr. Caplan he was able to recall many such details. For this reason, the testimony of Dr. Caplan, once admitted, would be helpful to the prosecution to impeach Defendant's statement to Officer Peña that he was "blanking out” and unable to recall many details of the murder.

. We note that the term "diminished capacity,” although a term of art, is somewhat misleading and has resulted in considerable confusion. In State v. Padilla, 66 N.M. 289, 292, 347 P.2d 312, 314 (1959), we noted that the terms, "diminished responsibility” and "partial responsibility" were misnomers, and that the theory in fact "contemplates full responsibility, not partial, but only for the crime actually committed.” The same is true with respect to the term, "diminished capacity,” which contemplates not a partial ability but an inability to form specific intent. Therefore, the term "diminished capacity” should be carefully construed to mean an inability to form specific intent. See UJI 14-5110 NMRA 2004.

. The State overstates the holding in Lujan when it asserts that Lujan precludes the admission of evidence falling short of incapacity to form specific intent. Lujan addressed whether the diminished-capacity instruction would be proper where the evidence falls short of incapacity. The admissibility of such evidence was not at issue in Lujan, and indeed the defendant in that case was allowed to present such expert testimony to support his theory of the case.

. As currently drafted, this additional instruction only describes a general intent to kill ("an intent to take away the life of another”). Because intoxication or mental disease or disorder is a defense to the specific intent of "deliberate intention,” this instruction requires revision. The phrase "an intent” must be changed to "a deliberate intention” in order to accurately articulate the mental state at issue.