Section 30-12-8, N.M.S.A. 1978. The State cites State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct.App. 1977), cert. denied, 90 N.M. 636, 567 P.2d 485 (1977), in support of its contention that the telephonic communications should not have been suppressed. Hogervorst is distinguishable.

Although this rule authorizes the admission of motive testimony (subject however to the balancing requirement of Evidence Rule 403, see State v. Day, 577 P.2d 878 (Ct.App.) decided February 7, 1978), the question is whose motive? Does this rule apply to non-party witnesses? Our decisions concerning Evidence Rule 404(b) have involved the motive of a defendant in a criminal case. State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct.App. 1977); State v. Ross, 88 N.M. 1, 536 P.2d 265 (Ct.App. 1975); State v. McCallum, 87 N.M. 459, 535 P.2d 1085 (Ct.App. 1975). As worded, Evidence Rule 404(b) is very similar to the rule which existed in New Mexico prior to adoption of the rules of evidence.

A privilege for attorney-client confidential communication or work product protection may be waived, if the material sought to be protected was revealed to third parties outside of the attorney-client relationship. Rule 11-511 NMRA; State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct.App. 1977); Public Svc. Co. of N.M. v. Lyons, 129 N.M. 487, 10 P.3d 166 (Ct.App. 2000). Antoon states under oath in his Affidavit that the documents sought in these subpoenas have always been maintained at Goodman Realty. It is apparent, under these circumstances, that Goodman Realty did not "reveal" the correspondence to Sandia Vista in such as way that the expected confidentiality was violated.

not err in refusing to give additional instructions on witness credibility where the district court gives UJI 14-5020. See State v. Ortega , 1991-NMSC-084, ¶ 72, 112 N.M. 554, 817 P.2d 1196 (concluding that where all of the defendant's proffered instructions concerned witness credibility, witness bias and hostility, witness interest in outcome of the case, testimony of accomplices called by the state, immunity of the state's witnesses, and the plea agreement entered into with witnesses or codefendants, the district court did not err in denying such instructions where it gave UJI 14-5020 ), abrogated on other grounds by Kersey v. Hatch , 2010-NMSC-020, ¶¶ 17-18, 148 N.M. 381, 237 P.3d 683 ; State v. Gallegos , 1993-NMCA-046, ¶¶ 10-11, 115 N.M. 458, 853 P.2d 160 (concluding that district court did not err in rejecting the defendant's tendered instruction that would have focused the jury's attention on the reliability of an eyewitness's identification where the court gave UJI 14-5020 ); State v. Hogervorst , 1977-NMCA-057, ¶ 60, 90 N.M. 580, 566 P.2d 828 (concluding that the district court's refusal to give various instructions tendered by the defendant concerning the credibility of certain witnesses was not error, where the district court gave the jury the general uniform jury instruction on witness credibility). Additionally, jury instructions that give "undue emphasis to the [d]efendant's theory of the case" are improper.

See Carter v. Hewitt, 617 F.2d 961, 966 n. 4 (3d Cir. 1980) ("[A] party must specifically request the trial court to determine whether probative value is `substantially outweighed by the danger of unfair prejudice,' before the court is required to invoke the rule."); State v. Hogervorst, 566 P.2d 828, 836 (N.M.Ct.App. 1977) ("Defendant's claim that the evidence was prejudicial did not alert the trial court to a question concerning Evidence Rule 403. The fact that competent evidence may tend to prejudice defendant is not grounds for exclusion of that evidence.").

In this case appellant did not demonstrate that the assistant district attorney would be a necessary witness and, therefore, the assistant district attorney was not required to disqualify himself under the rule. Appellant cites Hogervorst v. State, 90 N.M. 580, 566 P.2d 828 (1977) in his brief. Reliance on this case is misplaced.

See also State v. Mendoza, 109 Ariz. 445, 511 P.2d 627 (1973); Bailey v. People, 630 P.2d 1062 (Colo. 1981); State v. Whitney, 157 Conn. 133, 249 A.2d 238 (1968); State v. Lopez, 522 So.2d 537 (Fla. 1988); State v. Royal, 247 Ga. 309, 275 S.E.2d 646, on remand 158 Ga. App. 405, 280 S.E.2d 427 (1981); People v. Thornton, 125 Ill. App.3d 316, 80 Ill.Dec. 703, 465 N.E.2d 1049 (1984); Maynard v. State, 174 Ind. App. 202, 367 N.E.2d 5 (1977); State v. Batiste, 363 So.2d 639 (La. 1978); Comm. v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (1969); Simmons v. State, 8 Md. App. 355, 259 A.2d 814 (1969); State v. McCrillis, 376 A.2d 95 (Me. 1977); State v. Ford, 276 N.W.2d 178 (Minn. 1979); Ervin v. State, 431 So.2d 130 (Miss. 1983); State v. Hartman, 49 N.C. App. 83, 270 S.E.2d 609 (1980); State v. Parks, 212 Neb. 635, 324 N.W.2d 673 (1982); Hill v. State, 95 Nev. 327, 594 P.2d 699 (1979); State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (1977) cert. den'd, 90 N.M. 636, 567 P.2d 485 (1977); People v. Calvano, 30 N.Y.2d 199, 331 N.Y.S.2d 430, 282 N.E.2d 322 (1972); Lee v. State, 655 P.2d 1046 (Okla. 1982); State v. Murphy, 21 Or. App. 630, 535 P.2d 779 (1975); State v. Jones, 416 A.2d 676 (R.I. 1980); State v. Nelsen, 89 S.D. 1, 228 N.W.2d 143 (1975); State v. Jones, 598 S.W.2d 209 (Tenn. 1980); Altman v. State, 666 S.W.2d 505 (Tex. 1983); State v. Curtis, 542 P.2d 744 (Utah 1975); Dorchincoz v. Commonwealth, 191 Va. 33, 59 S.E.2d 863 (1950); State v. Smith, 93 Wn.2d 329, 610 P.2d 869 (1980), cert. den'd, 449 U.S. 873, 101 S.Ct. 213, 66 L.Ed.2d 93 (1980).

The fact that competent evidence may tend to prejudice a defendant is not grounds in and of itself for exclusion of that evidence. State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct. App.), cert. denied, 90 N.M. 636, 567 P.2d 485 (1977). The trial court must determine whether the probative value of the evidence is outweighed by its prejudicial effect.

"When a trial court refuses to allow a prosecutor to be called as a witness for the defense, the appellate issue is whether the trial court abused its discretion." State v. Hogervorst, 90 N.M. 580, 587, 566 P.2d 828, 835 (1977). The evidence sought from the prosecutor in the instant case could have been obtained from numerous alternative sources, and the trial court's ruling was not error.

There was little, if any, probative value to the challenged evidence and it might have had possible prejudicial effect. See State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct.App. 1977), cert. denied, 90 N.M. 636, 567 P.2d 485 (1977). However, we hold that under the facts of this case the improper admission of that testimony was harmless error.