STATE V. BENAVIDEZ, 1980-NMSC-097, 94
N.M. 706, 616 P.2d 419 (S. Ct. 1980)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
ROGER BENAVIDEZ, SR., Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
1980-NMSC-097, 94 N.M. 706, 616 P.2d 419
Appeal from the District Court of
Bernalillo County, William Riordan, District Judge.
Jeff Bingaman, Attorney General, John G.
McKenzie, Jr., Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Appellee.
William Lazar, El Rito, New Mexico,
Attorney for Appellant.
Sosa, C.J., wrote the opinion. WE CONCUR:
MACK EASLEY, Justice, WILLIAM R. FEDERICI, Justice
{*707} SOSA, Chief
Justice.
{1} Defendant was convicted
of the first-degree murder of Michael Salazar. He was sentenced to life
imprisonment. The issue we decide on appeal is whether the trial court erred in
refusing to instruct on voluntary manslaughter. We hold that it did, and
reverse.
{2} The facts pertinent to
this appeal follow. The defendant and his son (Benavidez, Jr.) lived together
and were both acquainted with the victim (Salazar). On the afternoon of
September 6, 1978, Salazar phoned Benavidez, Jr. and made threats to kill both
him and defendant. Defendant may have known of the threats. Late that night,
Salazar and a friend drove to the Benavidez home. Salazar was highly
intoxicated. Salazar knocked on the door of the home, and according to the
testimony of one witness, defendant opened the door. The witness also testified
that he heard an argument, heard Salazar yell "I've got three guys
too!", heard him yell "I'll take both of you on!" and then heard
further arguing. Then, just before two shots were fired, the witness saw
Salazar gesture with his arm. The gesture was variously characterized as a
raised fist, a swing, a punch, an attempt to strike and a move for a weapon.
The evidence is conflicting, and varies with who is telling the story. The
defendant denies ever having shot at Salazar, claiming his son did it. The case
was submitted to the jury with instructions on first-degree murder and
second-degree murder. Defendant requested instructions on voluntary
manslaughter but they were refused by the trial court.
{3} The defendant argues that
the trial court erred in refusing to instruct the jury on the crime of
voluntary manslaughter. He contends that there was sufficient evidence to
support the giving of a manslaughter instruction, and the error requires
reversal.
{4} The State argues
initially that even if there was evidence of manslaughter, the failure to give
an instruction was harmless and non-prejudicial. The State's argument
{*708} is based on the fact that the jury was
instructed to first determine whether the defendant was guilty of first-degree
murder, and only if they decided he was not, were they to proceed to lesser
included offenses. N.M.U.J.I. Crim. 2.40, N.M.S.A. 1978. Since the jury here
found the defendant guilty of first-degree murder, the arguments runs, the jury
never would have discussed either second-degree murder or voluntary
manslaughter. Thus the lack of a manslaughter instruction, even if warranted,
was harmless.
{5} It is basic that a
defendant is entitled to have his theory of the case submitted to the jury
under proper instructions where the evidence supports it.
State v. Ortega,
77 N.M. 7,
419 P.2d 219 (1966);
State v. Ulibarri, 67 N.M. 336,
355 P.2d
275 (1960);
State v. Diaz, 36 N.M. 284,
13 P.2d 883 (1932). We cannot
conclude that it was harmless error not to give an instruction which is supported
by evidence.
See Keeble v. United States, 412 U.S. 205 (1973). Even
though the jury is instructed to consider first-degree murder and make a
determination before moving on to any lesser offenses, the jury is also
instructed on each of the crimes charged, and the elements of each, before
deliberation ever begins. N.M.U.J.I. Crim. 2.40. The jury therefore knows what
their choices are before they deliberate. Here, assuming there was evidence of
provocation, the jury was not given the choice of finding that the defendant
committed voluntary manslaughter. To argue that a finding by the jury that the
defendant acted with deliberate intention precludes any possibility that they
could have found sufficient provocation begs the question. The jury was simply not
given the choice. We do not consider this to be harmless and non-prejudicial
where the evidence would support such a choice by the jury.
{6} The State secondly argues
that the evidence in this case did not support the giving of a manslaughter
instruction. The question which we must decide at this point is how much
evidence is necessary before an elements instruction on voluntary manslaughter
will be required. The State would have us use the standard that an elements
instruction on voluntary manslaughter should be given when there is sufficient
evidence to sustain a conviction on the charge.
State v. Lopez, 79 N.M.
282,
442 P.2d 594 (1968);
State v. Ulibarri, supra. This seems to us to
be the most reasonable standard. If any lower standard were adopted, and a
defendant was convicted under an instruction given without sufficient evidence
to sustain a conviction, we would be in a position of having to discharge the
defendant.
See Smith v. State, 89 N.M. 770,
558 P.2d 39 (1976).
{7} We now reach the basic
issue of whether there was sufficient evidence in the instant case to sustain a
conviction for voluntary manslaughter. A conviction for voluntary manslaughter
requires that there be sufficient provocation "such as would affect the
ability to reason and cause a temporary loss of self control in an ordinary
person of average disposition. The provocation must be such that an ordinary
person would not have cooled off before acting." N.M.U.J.I. Crim. 2.20,
N.M.S.A. 1978. We believe that the evidence would sustain a conviction of
voluntary manslaughter. There is evidence that Salazar had at one time stolen a
television belonging to defendant, that Salazar had introduced defendant's son
to the use of heroin, that he had assaulted defendant's son in the past, that
he had threatened both defendant and his son with death, that he was arguing
with defendant at the time of the killing, and that he made some type of motion
which could have been an attempt to strike or a move for a weapon. This
evidence of provocation is clearly sufficient to sustain a conviction of
manslaughter.
{8} We hold the trial court's
error in refusing to give the jury a manslaughter instruction was prejudicial
to the defendant, and the conviction must be reversed.
{9} For the foregoing reasons
this case is reversed and remanded to the trial court for a new trial.
WE CONCUR: MACK EASLEY, Justice, WILLIAM R. FEDERICI, Justice