JOSEPH SELLS, Petitioner,
vs.
STATE OF NEW MEXICO, Respondent
SUPREME COURT OF NEW MEXICO
1982-NMSC-125, 98 N.M. 786, 653 P.2d 162
ORIGINAL PROCEEDING ON CERTIORARI
PAULA G. BURNETT, KENNEDY and STEINMETZ,
Grants, New Mexico, Attorneys for Petitioner.
JEFF BINGAMAN, Attorney General, BARBARA
F. GREEN, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Respondent.
Federici, J., wrote the opinion. WE
CONCUR: H. VERN PAYNE, Chief Justice, DAN SOSA, JR., Senior Justice, WILLIAM
RIORDAN, Justice.
{1} Joseph Sells petitioned
this Court on a writ of certiorari to review the judgment of the Court of
Appeals in
State v. Sells (Ct. App. No. 5440, filed February 16, 1982),
which affirmed the conviction of the defendant for the crime of murder in the
second degree with a firearm enhancement. Mr. Sells was charged with the
deliberate first degree murder of his wife, Barbara Sells. The jury was
instructed on first and second degree murder and on involuntary manslaughter.
Mr. Sells' requested instruction on voluntary manslaughter was refused. The
issue we decide on certiorari is whether the trial court erred in refusing to
instruct on voluntary manslaughter. We hold that it did, and reverse.
{2} It is necessary at the
outset to set forth the facts and circumstances in this case that warranted the
giving of the instruction on voluntary manslaughter. The evidence adduced at
trial showed that there had been a series of heated arguments between Mr. Sells
and his wife. The arguments occurred during the night and into the early
morning when the fatal shot was fired about 5:00 a.m. The arguments occurred at
several bars and finally at the family residence at Farmington, New Mexico.
Both Mr. Sells and Mrs. Sells had been drinking heavily during the night and
morning the shot was
{*787} fired. The
arguments concerned Mrs. Sells' boyfriend. Mr. Sells was unaware of his wife's
infidelity and sexual relationship with her boyfriend until the revelations
were made to him that night and morning. Witnesses stated that Mr. Sells was
dazed, shocked and stared at the ceiling after the revelations. The Sells'
daughter testified that her father was unaware of Mrs. Sells' boyfriend before
the revelations were made. Other witnesses staying at the family residence
heard Mrs. Sells say to Mr. Sells, the morning the shot was fired, that she
enjoyed her sexual relationship with her boyfriend. The extent of Mrs. Sells'
relationship with her boyfriend became apparent to Mr. Sells as he realized
that Mrs. Sells' recent trip to Phoenix, Arizona, was to be with her boyfriend.
Also, it became apparent that an unusually large long-distance telephone bill
involved Mrs. Sells and her boyfriend. A scuffle or struggle occurred between
the parties just before the shot was fired. Mr. Sells shot Mrs. Sells fatally a
short time afterwards as she sat at the kitchen table. Mr. Sells testified that
he did not believe the .22 caliber handgun that fired the fatal shot was
loaded. He also testified that he did not remember shooting his wife.
{3} Mr. Sells argued before
the trial court and in the Court of Appeals that voluntary manslaughter was a
necessarily included lesser offense of first degree murder, requiring, at
least, a submission of a jury instruction to that effect. The trial court did
not instruct the jury on voluntary manslaughter. The Court of Appeals affirmed
the trial court stating that it was bound by this Court's decision of
State
v. Farris, 95 N.M. 96,
619 P.2d 541 (1980), to the extent that words alone,
no matter how scurrilous, cannot provide adequate provocation to support a
voluntary manslaughter instruction.
{4} This interpretation of
Farris,
supra, is too restrictive. Such a reading of
Farris does not allow
sufficient flexibility under relevant facts, and would prohibit submission of
the jury instruction on voluntary manslaughter in appropriate cases. We note
that both Section
30-2-3(A), N.M.S.A. 1978, which defines voluntary
manslaughter, and N.M.U.J.I. Crim. 2.22, N.M.S.A. 1978 (Repl. Pamp. 1982),
which defines sufficient provocation, permit the instruction of voluntary
manslaughter based upon broad concepts. Section 30-2-3(A) reads:
Voluntary manslaughter consists of manslaughter committed upon
a sudden quarrel or in the heat of passion.
N.M.U.J.I. Crim. 2.22 defines sufficient provocation as:
[A]ny action, conduct or circumstances which arouse anger,
rage, fear, sudden resentment, terror or other extreme emotions....
{5} Provocation "must be
'such as would affect the ability to reason and to cause a temporary loss of
self control in an ordinary person of average disposition.'"
State v.
Reynolds, 98 N.M. 527,
650 P.2d 811 (1982). The provocation must concur
with sudden anger or heat of passion and an ordinary person would not have
cooled off before acting.
Id.
{6} In this case, Mr. Sells'
contention is that there was sufficient provocation to properly warrant a
voluntary manslaughter instruction. We agree. We believe there was credible evidence
introduced at trial that tended to show that Mr. Sells could have been
sufficiently provoked by action, conduct or circumstances which aroused in him
anger, rage, sudden resentment, or other extreme emotions, all of which could
have contributed in precipitating his actions. His wife had revealed to him
that she had a lover, someone that apparently Mr. Sells knew. Mr. Sells was
unaware of the clandestine relationship between his wife and her boyfriend
until she revealed it to him. Mr. Sells appeared dazed or shocked. These facts,
together with other facts already mentioned above, indicate that in the
totality of the circumstances, the instruction of voluntary manslaughter should
have been given to the jury.
{7} We have no quarrel with
the statement that words alone, however scurrilous or insulting, will not
furnish adequate provocation to require submission of a voluntary
{*788} manslaughter instruction.
State v.
Farris, supra; State v. Castro, 92 N.M. 585;
592 P.2d 185 (Ct. App.),
cert.
denied, 92 N.M. 621, 593 P.2d 62 (1979);
State v. Nevares, 36 N.M.
41,
7 P.2d 933 (1932). However, if there is evidence to raise the inference
that by reason of actions and circumstances the defendant was sufficiently
provoked, as defined in Section 30-2-3(A) or in N.M.J.U.I. Crim. 2.22, then the
jury should be given the voluntary manslaughter instruction. N.M.U.J.I. Crim.
2.20, N.M.S.A. 1978 (Repl. Pamp. 1982).
State v. Martinez, 95 N.M. 421,
622 P.2d 1041 (1981). The fact that words were used in this case is not dispositive.
It is well recognized that informational words, as distinguished from mere
insulting words, may constitute adequate provocation. 2 C. WHARTON'S CRIMINAL
LAW Section 156 (14 ed. 1979). Accordingly, "a sudden disclosure of an
event (the event being recognized by the law as adequate) may be the equivalent
of the event presently occurring."
Id. at 249.
See also W.
LaFAVE, A. SCOTT, JR., CRIMINAL LAW, Section 76 (1972). Thus, the substance of
the informational words spoken, the meaning conveyed by those informational
words, the ensuing arguments and other actions of the parties, when taken
together, could amount to provocation. The defendant is entitled to an
instruction on voluntary manslaughter as a lesser included offense of murder in
the first degree if there is evidence to support, or tending to support, such
an instruction.
State v. Robinson, 94 N.M. 693,
616 P.2d 406 (1980). In
this case the record reflects that there was such evidence. Defendant was
entitled to have the trial court instruct the jury on voluntary manslaughter.
{8} Generally, it is for the
jury to determine whether there is sufficient provocation under an appropriate
instruction on voluntary manslaughter.
State v. Ulibarri, 67 N.M. 336,
355 P.2d 275 (1960).
{9} Various results have been
reached in prior cases decided by this Court and the Court of Appeals, in the
application of the term "provocation." Each case must be read and
interpreted in the light of the facts in that particular case.
See State v.
Reynolds, supra; State v. Farris, supra; State v. Maestas, 95 N.M. 335,
622
P.2d 240 (1981);
State v. Martinez, supra; State v. Lujan, 94 N.M. 232,
608 P.2d 1114 (1980);
State v. Robinson, supra; State v. Benavidez, 94
N.M. 706,
616 P.2d 419 (1980);
State v. Manus, 93 N.M. 95,
597 P.2d 280
(1979);
Smith v. State, 89 N.M. 770,
558 P.2d 39 (1976).
State v.
Marquez, 96 N.M. 746,
634 P.2d 1298 (Ct. App. 1981);
State v. Montano,
95 N.M. 233,
620 P.2d 887 (Ct. App. 1980);
State v. Ramirez, 89 N.M.
635,
556 P.2d 43 (Ct. App. 1976).
{10} To the extent that
State
v. Farris, supra, or other cases decided by this Court or the Court of
Appeals are inconsistent with the views announced in this case, they are hereby
expressly overruled.
{11} The trial court erred in
refusing to instruct the jury on voluntary manslaughter. The Court of Appeals
and the trial court are reversed and this cause is remanded to the trial court
for granting of a new trial to the defendant.
PAYNE, Chief Justice, SOSA, Senior Justice, and RIORDAN,
Justice.