OPINION
MINZNER, Justice.
{1} Defendant Luis Rosales, Jr., appeals from a judgment and sentence entered following his convictions of both first-degree murder, contrary to NMSA 1978, § 30-2-1(A)(1) (1994) (deliberate intent murder), and conspiracy to commit tampering with evidence, contrary to NMSA 1978, §§ 30-22-5 (1963, prior to 2003 amendment) (tampering with evidence) and 30-28-2 (1979) (conspiracy). Defendant received a sentence of life imprisonment plus eighteen months. We have jurisdiction in this case pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA 2004. We hold, under the facts of this case, the district court did not abuse its discretion in excluding the testimony of two defense witnesses that may have established a third person’s motive to commit the murder for which Defendant was charged. While the evidence was relevant, Defendant’s insufficient offer of proof prevents us from determining on direct appeal whether the district court properly excluded the evidence as hearsay. Therefore, we affirm Defendant’s convictions.
I
{2} At Defendant’s trial, Sammy Martinez was an important witness for the prosecution. Martinez testified that he was at his auto shop on January 17, 2002. Also present at Martinez’s auto shop were Defendant, Gabriel Sedillo, Peter Aleorta, and Wayne Sharp (“the victim”). The victim wanted to borrow Martinez’s Chevrolet Blazer to go cheek on his unemployment payment. Martinez saw Defendant and the victim leave together, and he assumed Sedillo accompanied them because Sedillo was no longer around the shop. Defendant and Sedillo returned some time later, and Martinez noticed blood inside the vehicle. When Martinez asked about the blood and the victim, Sedillo said something to the effect that “[the victim] is not here anymore.”
{3} Martinez testified that the three men then left the shop, because Defendant and Sedillo wanted to go to the lake to clean the vehicle. In the vehicle, Defendant confessed to Martinez that he had killed the victim. After dropping Defendant off at a friend’s house, Martinez and Sedillo went to a car wash to clean the Blazer. Martinez cleaned the vehicle. Blood would not come off some of the upholstery, so later that night Sedillo, Aleorta, and Martinez cut the upholstery out of the Blazer. Sedillo put the upholstery in a plastic bag. The group left the shop and went to a creek where Sedillo appears to have disposed of the plastic bag and one of the seat cushions from the Blazer. A few days after the murder, Martinez voluntarily went to the police and described what happened. Martinez ultimately pleaded guilty to two counts of tampering with evidence and was placed on probation for two years. As a condition of his probation, Martinez agreed to testify against Defendant and Sedillo.
{4} At trial, Defendant attempted to create reasonable doubt as to whether he committed murder by raising the possibility that it was Martinez who had killed the victim. The evidence showed the murder had taken place in Martinez’s vehicle. Martinez’s pocket knife was used to cut the upholstery out of the Blazer. The police suspected the knife used by Martinez could have also been the murder weapon that was never recovered. Martinez told the police he had thrown the knife out of his vehicle. At trial, however, Martinez testified that the knife was left in the Blazer when he brought the vehicle to the police to be searched. Also, Martinez actively participated in covering up the murder by helping clean the Blazer and assisting Sedillo in disposing of upholstery from the vehicle.
{5} In support of his theory that Martinez actually murdered the victim, Defendant presented the testimony of Leticia Rodriguez, a roommate of the victim at the time he was murdered. Rodriguez testified about Martinez’s relationship to the victim. She stated there was tension in the relationship and a couple of times she heard Martinez make threats against the victim’s life. A couple of weeks before the murder, Rodriguez recalled Martinez stating with respect to the victim, “One of these days I’m going to take that motherf-r for a ride.” Rodriguez understood this statement to be a threat because Martinez’s tone was serious and he appeared “pissed off’ when he made the statement. Rodriguez testified that Martinez had made similar remarks on several other occasions, such as “One of these days I’m going to get rid of that motherf-r.”
{6} Although the district court permitted Defendant to present evidence of the animosity between Martinez and the victim, the court excluded testimony from Rodriguez and Candace Campbell regarding statements they allegedly heard the victim make concerning a debt Martinez owed him. The State moved to exclude any testimony by either of those two witnesses pertaining to statements that the victim might have made a few weeks prior to the murder about Martinez owing him money and the reason for the supposed debt. The State argued the testimony was hearsay and was not admissible under any exception. Defendant responded that the statements were not hearsay — they were not being offered to prove the existence of a debt, but were offered instead as evidence of a motive for Martinez to murder the victim. Defendant’s theory was that Martinez apparently found it more profitable to kill the victim than pay him back the money he owed him. The district court excluded the statements, because they were “too far removed” and “too remote.”
II
{7} On appeal, Defendant argues that the district court erred by refusing to allow Rodriguez and Campbell to testify to statements made by the victim concerning a debt Martinez owed him. Defendant argues that his constitutional right to present a defense was violated by the district court’s ruling. A criminal defendant has a fundamental right under the Due Process Clause of the United States Constitution “to present his own witnesses to establish a defense.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). However, that right has never been absolute or unlimited. The United States Supreme Court has held that a defendant’s interest in presenting evidence may at times “bow to accommodate other legitimate interests in the criminal trial process.” Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Specifically, state rules of evidence “do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (quoting Rock, 483 U.S. at 56, 107 S.Ct. 2704).
{8} Our traditional rules of relevancy and hearsay are designed to ensure reliability in the fact-finding process and are not arbitrary or disproportionate to this legitimate purpose. See State v. Sanders, 117 N.M. 452, 459-60, 872 P.2d 870, 877-78 (1994) (“A defendant’s right to present evidence on his own behalf is subject to his compliance with ‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ”) (quoting Chambers v. Mississippi 410 U.S. 284
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
MINZNER, Justice.
{1} Defendant Luis Rosales, Jr., appeals from a judgment and sentence entered following his convictions of both first-degree murder, contrary to NMSA 1978, § 30-2-1(A)(1) (1994) (deliberate intent murder), and conspiracy to commit tampering with evidence, contrary to NMSA 1978, §§ 30-22-5 (1963, prior to 2003 amendment) (tampering with evidence) and 30-28-2 (1979) (conspiracy). Defendant received a sentence of life imprisonment plus eighteen months. We have jurisdiction in this case pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA 2004. We hold, under the facts of this case, the district court did not abuse its discretion in excluding the testimony of two defense witnesses that may have established a third person’s motive to commit the murder for which Defendant was charged. While the evidence was relevant, Defendant’s insufficient offer of proof prevents us from determining on direct appeal whether the district court properly excluded the evidence as hearsay. Therefore, we affirm Defendant’s convictions.
I
{2} At Defendant’s trial, Sammy Martinez was an important witness for the prosecution. Martinez testified that he was at his auto shop on January 17, 2002. Also present at Martinez’s auto shop were Defendant, Gabriel Sedillo, Peter Aleorta, and Wayne Sharp (“the victim”). The victim wanted to borrow Martinez’s Chevrolet Blazer to go cheek on his unemployment payment. Martinez saw Defendant and the victim leave together, and he assumed Sedillo accompanied them because Sedillo was no longer around the shop. Defendant and Sedillo returned some time later, and Martinez noticed blood inside the vehicle. When Martinez asked about the blood and the victim, Sedillo said something to the effect that “[the victim] is not here anymore.”
{3} Martinez testified that the three men then left the shop, because Defendant and Sedillo wanted to go to the lake to clean the vehicle. In the vehicle, Defendant confessed to Martinez that he had killed the victim. After dropping Defendant off at a friend’s house, Martinez and Sedillo went to a car wash to clean the Blazer. Martinez cleaned the vehicle. Blood would not come off some of the upholstery, so later that night Sedillo, Aleorta, and Martinez cut the upholstery out of the Blazer. Sedillo put the upholstery in a plastic bag. The group left the shop and went to a creek where Sedillo appears to have disposed of the plastic bag and one of the seat cushions from the Blazer. A few days after the murder, Martinez voluntarily went to the police and described what happened. Martinez ultimately pleaded guilty to two counts of tampering with evidence and was placed on probation for two years. As a condition of his probation, Martinez agreed to testify against Defendant and Sedillo.
{4} At trial, Defendant attempted to create reasonable doubt as to whether he committed murder by raising the possibility that it was Martinez who had killed the victim. The evidence showed the murder had taken place in Martinez’s vehicle. Martinez’s pocket knife was used to cut the upholstery out of the Blazer. The police suspected the knife used by Martinez could have also been the murder weapon that was never recovered. Martinez told the police he had thrown the knife out of his vehicle. At trial, however, Martinez testified that the knife was left in the Blazer when he brought the vehicle to the police to be searched. Also, Martinez actively participated in covering up the murder by helping clean the Blazer and assisting Sedillo in disposing of upholstery from the vehicle.
{5} In support of his theory that Martinez actually murdered the victim, Defendant presented the testimony of Leticia Rodriguez, a roommate of the victim at the time he was murdered. Rodriguez testified about Martinez’s relationship to the victim. She stated there was tension in the relationship and a couple of times she heard Martinez make threats against the victim’s life. A couple of weeks before the murder, Rodriguez recalled Martinez stating with respect to the victim, “One of these days I’m going to take that motherf-r for a ride.” Rodriguez understood this statement to be a threat because Martinez’s tone was serious and he appeared “pissed off’ when he made the statement. Rodriguez testified that Martinez had made similar remarks on several other occasions, such as “One of these days I’m going to get rid of that motherf-r.”
{6} Although the district court permitted Defendant to present evidence of the animosity between Martinez and the victim, the court excluded testimony from Rodriguez and Candace Campbell regarding statements they allegedly heard the victim make concerning a debt Martinez owed him. The State moved to exclude any testimony by either of those two witnesses pertaining to statements that the victim might have made a few weeks prior to the murder about Martinez owing him money and the reason for the supposed debt. The State argued the testimony was hearsay and was not admissible under any exception. Defendant responded that the statements were not hearsay — they were not being offered to prove the existence of a debt, but were offered instead as evidence of a motive for Martinez to murder the victim. Defendant’s theory was that Martinez apparently found it more profitable to kill the victim than pay him back the money he owed him. The district court excluded the statements, because they were “too far removed” and “too remote.”
II
{7} On appeal, Defendant argues that the district court erred by refusing to allow Rodriguez and Campbell to testify to statements made by the victim concerning a debt Martinez owed him. Defendant argues that his constitutional right to present a defense was violated by the district court’s ruling. A criminal defendant has a fundamental right under the Due Process Clause of the United States Constitution “to present his own witnesses to establish a defense.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). However, that right has never been absolute or unlimited. The United States Supreme Court has held that a defendant’s interest in presenting evidence may at times “bow to accommodate other legitimate interests in the criminal trial process.” Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Specifically, state rules of evidence “do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (quoting Rock, 483 U.S. at 56, 107 S.Ct. 2704).
{8} Our traditional rules of relevancy and hearsay are designed to ensure reliability in the fact-finding process and are not arbitrary or disproportionate to this legitimate purpose. See State v. Sanders, 117 N.M. 452, 459-60, 872 P.2d 870, 877-78 (1994) (“A defendant’s right to present evidence on his own behalf is subject to his compliance with ‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ”) (quoting Chambers v. Mississippi 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). The United States Supreme Court has “never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability — even if the defendant would prefer to see that evidence admitted.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). Therefore, the evidence complained of by Defendant is not admissible unless it satisfies our relevancy and hearsay rules.
{9} We believe the district court might have excluded the evidence in this case because it appeared to be hearsay and because no exception seemed to apply. That was the State’s argument, so it would be reasonable to believe the district court’s decision reflected that analysis. The words the district court used, however, the reference to “remoteness,” make us uncertain whether the ruling, at least in part, reflected a sense that, on balance, the probative value of the statements was outweighed by other considerations. We consider the latter possibility first, because “we may affirm on grounds upon which the trial court did not rely unless those grounds depend on facts that [the opposing party] did not have a fair opportunity to address in the proceedings below.” State v. Torres, 1999-NMSC-010, ¶22, 127 N.M. 20, 976 P.2d 20. There is authority in other jurisdictions that would support affirmance on this ground.
A
{10} A number of courts in other jurisdictions have held that the motive of a third person is not admissible, unless there is at least some other evidence to connect the third person to the offense. For example, the Alaska Supreme Court has held that evidence of a third party’s motive is only admissible if the defense produces other evidence that tends to directly connect the third person with the commission of the crime charged. Smithart v. State, 988 P.2d 583, 586 (Alaska 1999); accord State v. Hill, 196 Conn. 667, 495 A.2d 699, 703 (1985) (same rule). The rationale generally offered for such a rule is that the evidence could confuse the issues and waste judicial resources. See Smithart, 988 P.2d at 586-87 (“[I]f evidence of motive alone upon the part of other persons were admissible ... in a case involving the killing of a man who had led an active and aggressive life it might easily be possible for the defendant to produce evidence tending to show that hundreds of other persons were possible suspects in the murder.”) (quotation marks and quoted authorities omitted).
{11} We believe, though, that a special rule of admissibility is not required for evidence of a third person’s motive to commit the offense for which the defendant has been charged. Our general rules of relevancy are sufficient to decide the issue. Rule 11-402 NMRA 2004 provides that “[a]U relevant evidence is admissible, except as otherwise provided by the constitution, by statute, by these rules or by other rules adopted by the supreme court.” Evidence is “relevant” if it has “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. Defendant argues that any evidence implicating a third person in the victim’s murder has a tendency to make it less probable Defendant committed the murder. We agree. See Joyner v. State, 678 N.E.2d 386, 389 (Ind.1997) (“Evidence which tends to show that someone else committed the crime logically makes it less probable that the defendant committed the crime, and thus meets the definition of relevance in Rule 401.”). Evidence that Martinez may have murdered the victim to get out from under a debt is probative of Defendant’s guilt or innocence.
{12} However, even relevant evidence may be excluded under Rule 11-403 NMRA 2004. That rule addresses the concerns for admitting third person motive evidence expressed by the Alaska Supreme Court in Smithart. When determining whether the defendant’s evidence of a third person’s motive to commit the offense for which he or she is charged, the district court may properly conclude that the “probative value [of the evidence] is 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.” Rule 11-403. The district court “is vested with great discretion in applying [Rule 11-403], and it will not be reversed absent an abuse of that discretion.” State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991).
{13} On one side of the Rule 11-403 balancing test, we consider the probative value of the evidence at issue. Evidence that Martinez had a motive to murder the victim to get out from under a debt is highly probative on the issue of Defendant’s guilt or innocence. The statements at issue appear to have occurred only a couple of weeks before the murder. At trial, other evidence showed that Martinez had recently threatened the life of the victim, the victim was killed in Martinez’s vehicle, and the murder weapon might have been a pocket knife owned by Martinez. The motive of Martinez to murder the victim, though, was a missing piece of evidence that undercut Defendant’s theory of the case. In its closing argument to the jury, the State seized upon the omission of a motive to refute Defendant’s theory:
[Tjhat was certainly a very eloquent closing by [Defendant’s attorney], but now let’s get back to the facts. [Martinez] had a motive. What motive was that? Anybody remember a motive [Martinez] had? Yeah, he was a little perturbed about his vehicle having been brought back in that condition but that was afterwards ladies and gentlemen. What motive did [Martinez] have beforehand that might have gotten him involved in this or is that something else that was covered up in this apparent conspiracy between the Sheriffs Office and [Martinez] to frame this poor Defendant over here.
Are we to believe that [Martinez] killed [the victim] simply because that’s his vehicle? That is what [the defense] is asking you to believe ladies and gentlemen in all of this. All of that fancy talk, all that going round and round in circles, [the gist] of what the defense is saying is [Martinez] must have killed [the victim] because it’s his vehicle. That’s all they’re saying.
{14} On the other side of the Rule 11-403 balancing test, we consider whether other considerations substantially outweighed the probative value of the evidence. The other evidence of motive the district court permitted is an indication that additional evidence of motive would have been helpful, rather than confusing. Furthermore, we believe that testimony regarding Martinez’s motive would not have caused undue delay in the ease or have been a waste of time. The proffered testimony does not appear to be particularly complex or time-consuming to present. Under these circumstances, Rule 11-403 does not afford an opportunity to affirm the district court on an alternative ground.
B
{15} We next consider whether the testimony was properly excluded as hearsay. Under Rule 11-802 NMRA 2004, “[h]earsay is not admissible except as provided by [the Rules of Evidence] or by other rules adopted by the supreme court or by statute.” “Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 11-801(0) NMRA 2004. “[I]f an out-of-court statement is offered in evidence merely for the purpose of establishing what was said at the time, and not for the truth of the matter, the testimony is not hearsay.” State v. Reyes, 2002-NMSC-024, ¶29, 132 N.M. 576, 52 P.3d 948.
{16} Defendant argues that the testimony of Rodriguez and Campbell was not offered for the truth of the matter asserted, that is, that Martinez actually owed the victim money. Rather, Defendant asserts that the testimony was being offered as evidence of Martinez’s motive to murder the victim. In State v. Johnson, 99 N.M. 682, 687, 662 P.2d 1349, 1354 (1983), we reaffirmed the “longstanding rule” of State v. Alberts, 80 N.M. 472, 474-75, 457 P.2d 991, 993-94 (Ct.App.1969) (emphasis added), where the Court of Appeals noted:
Extrajudicial statements or writings may properly be received into evidence, not for the truth of the assertions therein contained, or the veracity of the out-of-court declarant, but for such legitimate purposes as that of establishing knowledge, belief, good faith, reasonableness, motive, effect on the hearer or reader, and many others.
See also McCord v. Ashbaugh, 67 N.M. 61, 64, 352 P.2d 641, 643 (1960) (“When an extrajudicial statement or writing aids in proving knowledge, belief, good faith, reasonableness or motive, it is admitted as circumstantial evidence thereof.”).
{17} If it had been shown that Martinez heard the victim’s statements, then Defendant’s theory that the evidence was not being offered for its truth would have been clearer. Evidence is not hearsay if admitted as circumstantial evidence of the motive of the listener. See 2 Kenneth S. Broun et al., McCormick on Evidence § 249, at 102 & n. 12 (John W. Strong ed., 5th ed.1999). If Martinez heard the victim’s statements, then the facts of this case would be remarkably similar to those in State v. Alvarez, 216 Conn. 301, 579 A.2d 515 (1990). In that ease, the trial court admitted certain statements of a drug dealer made to the defendant that the victim owed him money for drugs and he wanted the victim dead as a result. Id. at 519-20. The Supreme Court of Connecticut held that the statements were admissible “not for the truth of the matter asserted therein, but rather to show the effect of the statements upon the defendant” and that “[t]he jury could infer from the statements that the defendant had a motive to kill the victim.” Id. at 521.
{18} However, the record does not clearly establish that Martinez heard or was otherwise aware of the victim’s claim that Martinez owed him a debt. “Motive ... is the inducement which impels or leads the mind to indulge in a criminal act.” State v. Segotta, 100 N.M. 18, 25-26, 665 P.2d 280, 287-88 (Ct.App.), rev’d on other grounds, 100 N.M. 498, 672 P.2d 1129 (1983). If Martinez was unaware of the victim’s claim, then Defendant’s theory that the evidence was not being offered for its truth is difficult to understand. If Martinez was unaware of the victim’s claim, but a debt actually existed, Martinez may have known of the debt. In those circumstances, the truth of the testimony would be necessary to provide the motive. See 2 John Henry Wigmore, Evidence in Trials at Common Law § 389, at 417 (James H. Chadbourn rev., 1979) (“[T]he circumstance said to have excited the emotion must be shown to have probably become known to the person; because otherwise it could not have affected his [or her] emotions....”). The victim’s statements that Martinez owed him a debt would have been offered for the truth of the matter asserted and thus properly excluded as hearsay under Rule 11-802. If, on the other hand, Martinez heard the claim of a debt, then we could agree with Defendant’s argument on appeal that the statement came in the context of an argument and “it is the fact that there was animosity between Martinez and [the victim] that was at issue, not the legal status of the debt.” Under such a scenario, the statement would not have been offered for its truth, and the existence of the debt would not be necessary to establish the motive; it would be sufficient that Martinez heard the accusation.
{19} Rule 11-103(A)(2) NMRA 2004 provides that error may not be predicated on the exclusion of evidence unless “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” See also Williams v. Yellow Checker Cab Co., 77 N.M. 747, 750, 427 P.2d 261, 264 (1967) (“When error is based on an improper exclusion of evidence, an offer of proof is essential to preserve the error for appeal.”). An offer of proof is necessary for two purposes. First, an offer of proof is needed “to inform the [district] court so that it may make a reasoned and intelligent decision.” State v. Aragon, 116 N.M. 291, 294, 861 P.2d 972, 975 (Ct.App.1993). Second, “[a]n offer of proof is needed to enable [the] reviewing court to determine whether exclusion of the particular evidence was reversible error.” 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 103.20[1], at 103-33 (Joseph M. McLaughlin ed., 2d ed.2003). To achieve both purposes, the offer of proof must be sufficiently specific to allow the district court to determine in the first instance whether the evidence is admissible and to allow appellate courts in the second instance to review the determination made by the district court.
{20} The offer of proof in this case was insufficient because we cannot determine on appeal whether Martinez heard the victim’s statements or not. At trial, the State moved to exclude “any testimony by either Leticia Rodriguez or Candace Campbell pertaining to statements that [the victim] allegedly might have made about Sammy Martinez owing him money and the reason for Sammy Martinez owing him money.” Despite stating several grounds for the admission of the testimony, Defendant failed to adequately describe the proffered testimony. If the testimony would have been that Martinez heard the victim’s statements, then we believe the evidence should have been admitted because it was not offered to prove its truth and because its probative value appears to have been greater than other considerations. However, if only the witnesses heard the statements, then we believe the district court properly excluded the evidence because it must have been offered to prove its truth and, as the concurring opinion explains, no hearsay exception was applicable. Since the appellate record is unclear on this point, we cannot hold that the district court abused its discretion in excluding the testimony. In view of our disposition, we do not address the issue of whether exclusion of the evidence was harmless error.
Ill
{21} We hold that the district court in this case did not abuse its discretion in excluding the testimony of two defense witnesses that may have established a third person’s motive to commit the murder for which Defendant was charged. Thus, we affirm Defendant’s convictions.
{22} IT IS SO ORDERED.
WE CONCUR: PETRA JIMENEZ MAES, Chief Justice, RICHARD C. BOSSON, and EDWARD L. CHÁVEZ, Justices. PATRICIO M. SERNA, Justice (concurring in result).