Correct. Carl’s statement to his daughter is an out-of-court statement offered at trial by Bob to prove the truth of the matter of the statement--that the light was green. Thus, the statement is hearsay. Carl, who is deceased, is not testifying about his statement and is not available for cross-examination.

But Rule 11-804(B)(2) NMRA 1999 recognizes the "dying declaration" exception to the rule that hearsay is inadmissible. This exception is available for "[a] statement made by a declarant while believing that declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be an impending death." Since Carl’s declaration did not relate to the cause or circumstances of his impending death, it does not fall within the exception.

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