Sells v. State, 653 P.2d 162 (N.M. 1982). · Go Syfert
Sells v. State, 653 P.2d 162 (N.M. 1982). Cases Citing This Book View Copy Cite
327 citation events (205 in the last 25 years) across 6 distinct courts.
Strongest positive: State v. Swick (nm, 2012-06-01)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (rule) State v. Swick
N.M. · 2012 · confidence medium
For example, in State v. Martinez, 95 N.M. 421, 423 , 622 P.2d 1041, 1043 (1981), holding limited on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982), we held that “if the defendant was in fact acting in self-defense, it would not have been necessary for him to shoot the victim through the arm and chest, wrap a cord around the victim’s neck, and beat the victim [in] the head” until his skull was smashed.
examined Cited as authority (rule) United States v. Rede-Mendez (6×) also: Cited "see, e.g."
6th Cir. · 2012 · confidence medium
That aggravated assault does not require proof of a specific intent to assault the victim, State v. Manus, [ 93 N.M. 95 , 597 P.2d 280, 284 (N.M.1979) ], overruled on other grounds by Sells v. State, [ 98 N.M. 786 , 653 P.2d 162, 164 (N.M.1982) ][,] ... or of a specific “intent [ ] to injure or even frighten” the victim, State v. Morales, [ 132 N.M. 146 , 45 P.3d 406, 414 (2002) ], only confirms that aggravated assault is not a specific intent crime, but rather is a general intent crime.
discussed Cited as authority (rule) State v. Gutierrez (2×)
N.M. · 2011 · confidence medium
Id. ¶ 56. {46} Finally, because "voir dire is evidence to be used by the trial court in reaching its decision," State v. Robinson, 94 N.M. 693, 696 , 616 P.2d 406, 409 (1980), holding limited on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982), we find that the district court's change of venue decision is supported by substantial evidence obtained during voir dire when there is nothing offered by the *1042 appellant to indicate "that any of the jurors who actually tried the case were in any way tainted by any of the publicity," Deats v. State, 80 N.M. 77, 80 , 451 …
examined Cited as authority (rule) United States v. Ramon Silva (14×) also: Cited "see"
10th Cir. · 2010 · confidence medium
That aggravated assault does not require proof of a specific intent to assault the victim, State v. Manus, 93 N.M. 95 , 597 P.2d 280, 284 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786 , 653 P.2d 162, 164 (1982); see also Abeyta, 27 F.3d at 474 (noting that aggravated assault under N.M.
discussed Cited as authority (rule) State v. Gutierrez
N.M. · 2010 · confidence medium
Id. ¶ 56. {46} Finally, because “voir dire is evidence to be used by the trial court in reaching its decision,” State v. Robinson, 94 N.M. 693, 696 , 616 P.2d 406, 409 (1980), holding limited on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982), we find that the district court’s change of venue decision is supported by substantial evidence obtained during voir dire when there is nothing offered by the appellant to indicate “that any of the jurors who actually tried the case were in any way tainted by any of the publicity,” Deats v. State, 80 N.M. 77, 80 , …
discussed Cited as authority (rule) State v. Valdez
N.M. Ct. App. · 2010 · confidence medium
State 12 v. Benavidez, 94 N.M. 706, 708 , 616 P.2d 419, 421 (1980), overruled on other 13 grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982). 14 At the jury instruction conference, the district court refused the mistake of fact 15 instruction on the basis that no evidence was presented during trial, which would 16 support the inference that Defendant was actually present at any of the previous 17 motorcycle test drives done by his family before they purchased the dirt bike.
cited Cited as authority (rule) State v. Skippings
N.M. Ct. App. · 2009 · confidence medium
State v. Benavidez, 94 N.M. 706 , 2 708, 616 P.2d 419, 421 (1980), overruled on other grounds by Sells v. State, 98 N.M. 3 786, 788 , 653 P.2d 162, 164 (1982).
discussed Cited as authority (rule) State v. J Hunt
N.M. Ct. App. · 2009 · confidence medium
In certain circumstances, informational words may constitute 11 sufficient provocation, see Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982), 12 but Defendant points to no evidence regarding the substance of any argument 13 Defendant and the victim may have had.
discussed Cited as authority (rule) Ruiz v. Vigil-Giron
N.M. · 2008 · confidence medium
State v. Ramirez, 89 N.M. 635, 644-45 , 556 P.2d 43, 52-53 (Ct.App.1976), overruled on other grounds, Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982). {9} Plaintiffs, however, argued that Defendant’s exhibit was not a proper summary under Rule 11-1006.
discussed Cited as authority (rule) State v. Soto
N.M. Ct. App. · 2007 · confidence medium
Defendant appears to argue that the trial court cannot admit a public record for a limited purpose because “[a] public record cannot be just half-trustworthy.” {27} The rationale behind the public records exception is that this type of record, like the exception for records made in the regular course of business, “should be admissible despite the hearsay rule where the sources of information and the method of preparation indicate trustworthiness.” State v. Ramirez, 89 N.M. 635, 644-45 , 556 P.2d 43, 52-53 (Ct.App.1976) (emphasis omitted), overruled on other grounds, Sells v. State, 98 …
discussed Cited as authority (rule) State v. Hernandez
N.M. Ct. App. · 2004 · confidence medium
In contrast, Instruction 16 told the jury that an emergency in fact existed, and that the jury should therefore give Arthur leeway in his conduct. {10} We observe that the language borrowed from Prince originated in the context of a civil lawsuit against an officer for excessive force, Mead v. O’Connor, 66 N.M. 170, 173 , 344 P.2d 478, 480 (1959), which is quoted in Prince, 1999-NMCA-010 , ¶ 12, 126 N.M. 547 , 972 P.2d 859 , Gonzales, 97 N.M. at 610 , 642 P.2d at 213 , and State v. Manus, 93 N.M. 95, 100 , 597 P.2d 280, 285 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786, …
cited Cited as authority (rule) Apodaca v. AAA Gas Co.
N.M. Ct. App. · 2003 · confidence medium
State v. Ramirez, 89 N.M. 635, 645-46 , 556 P.2d 43, 53-54 (Ct.App.1976), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982).
examined Cited as authority (rule) State v. Taylor (7×) also: Cited "see", Cited "see, e.g."
N.M. Ct. App. · 2000 · confidence medium
Defendant contends that once he “comes forth with evidence of provocation, the burden is on the State to show that the defendant did not act as a result of sufficient provocation.” To place the burden upon the State to disprove provocation, however, Defendant must demonstrate legally sufficient provocation, which is “sufficient evidence that the provocation was such as to cause a temporary loss of self control in an ordinary person of average disposition.” State v. Manus, 93 N.M. 95, 99 , 597 P.2d 280, 284 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2…
discussed Cited as authority (rule) State v. Cline
N.M. Ct. App. · 1998 · confidence medium
Our Court, too, has recently emphasized the primary purpose of the Fourth Amendment exclusionary rule as being to “ ‘deter future unlawful police conduct.’” Haywood, 1998-NMCA-029, ¶ 9 , 124 N.M. 661 , 954 P.2d 93 (quoting State v. Ramirez, 89 N.M. 635, 639 , 556 P.2d 43, 47 (Ct.App.1976), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982)). {9} In Defendant’s case, it is not apparent to us how the police engaged in official misconduct of any kind, much less misconduct that would require suppression of evidence as a means of deterring unlawful …
discussed Cited as authority (rule) State v. Stills
N.M. · 1998 · confidence medium
We agree. {39} This case is like State v. Farris, 95 N.M. 96, 97 , 619 P.2d 541, 542 (1980) overruled on other grounds, Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982), where we found insufficient provocation.
discussed Cited as authority (rule) In Re Forfeiture of ($28,000.00)
N.M. Ct. App. · 1997 · confidence medium
Evidence that is unconstitutionally obtained is inadmissible at trial under the "exclusionary rule," the primary purpose of which is to "deter future unlawful police conduct." State v. Ramirez, 89 N.M. 635, 639 , 556 P.2d 43, 47 (Ct.App. 1976) ( quoting United States v. Calandra, 414 U.S. 338, 347 , 94 S.Ct. 613, 619 , 38 L.Ed.2d 561 (1974)), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982).
discussed Cited as authority (rule) City of Albuquerque v. Haywood
N.M. Ct. App. · 1997 · confidence medium
Evidence that is unconstitutionally obtained is inadmissible at trial under the “exclusionary rule,” the primary purpose of which is to “deter future unlawful police conduct.” State v. Ramirez, 89 N.M. 635, 639 , 556 P.2d 43, 47 (Ct.App. 1976) (quoting United States v. Calandra, 414 U.S. 338, 347 , 94 S.Ct. 613, 619 , 38 L.Ed.2d 561 (1974)), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982).
discussed Cited as authority (rule) State v. Salazar
N.M. · 1997 · confidence medium
State v. Benavidez, 94 N.M. 706, 708 , 616 P.2d 419, 421 (1980), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982); State v. Diaz, 1995 NMCA 066, ¶ 24, 121 N.M. 28 , 908 P.2d 258 ; State v. Arias, 115 N.M. 93, 96 , 847 P.2d 327, 330 (Ct.App. 1993), overruled on other grounds by State v. Abeyta, 1995 NMSC 052, ¶ 21, 120 N.M. 233 , 901 P.2d 164 .
discussed Cited as authority (rule) Thoma v. Thoma
N.M. Ct. App. · 1996 · confidence medium
Dep’t of Human Servs. v. Avinger, 104 N.M. 255, 256-57 , 720 P.2d 290, 291-92 (1986) (appellate courts raised PKPA on own motion); State v. Ramirez, 89 N.M. 635, 642 , 556 P.2d 43, 50 (Ct.App.1976) (appellate court can raise jurisdictional question sua sponte), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982). 29.If it were clear from the record before us that the Oklahoma judgment was rendered in the absence of subject matter jurisdiction under the UCCJA or was not entitled to full faith and credit under the PKPA or FFCCSOA, affirmance might be prope…
cited Cited as authority (rule) State v. Abeyta
N.M. · 1995 · confidence medium
Sells v. State, 98 N.M. 786, 787-88 , 653 P.2d 162, 163-64 (1982).
discussed Cited as authority (rule) Forfeiture of $14,639 in US Currency
N.M. Ct. App. · 1995 · confidence medium
The primary purpose of the exclusionary rule is to "deter future unlawful police conduct." State v. Ramirez, 89 N.M. 635, 639 , 556 P.2d 43, 47 (Ct.App.1976) (quoting United States v. Calandra, 414 U.S. 338, 347 , 94 S.Ct. 613, 619 , 38 L.Ed.2d 561 (1974)), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982).
discussed Cited as authority (rule) Albuquerque Police Department v. Martinez
N.M. Ct. App. · 1995 · confidence medium
The primary purpose of the exclusionary rule is to “deter future unlawful police conduct.” State v. Ramirez, 89 N.M. 635, 639 , 556 P.2d 43, 47 (Ct.App.1976) (quoting United States v. Calandra, 414 U.S. 338, 347 , 94 S.Ct. 613, 619 , 38 L.Ed.2d 561 (1974)), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982).
discussed Cited "see" State v. City of Rio Rancho (2×)
N.M. Ct. App. · 2025 · signal: see · confidence high
See State v. Ramirez, 1976-NMCA-101 , ¶ 40, 89 N.M. 635 , 556 P.2d 10 43 (providing that the district court is “the best judge [of] whether evidence tendered 11 as a public record . . . meets the standards of trustworthiness and reliability which 12 will entitle the record to stand as evidence of issuable facts”), limited on other 13 grounds by Sells v. State, 1982-NMSC-125 , ¶ 9, 98 N.M. 786 , 653 P.2d 162 . 14 4.
discussed Cited "see" State v. Bashir (2×)
N.M. · 2023 · signal: see · confidence high
See Sells v. State, 1982-NMSC-125 , ¶ 7, 98 N.M. 786 , 653 P.2d 162 (“[W]ords alone, however scurrilous or insulting, will not furnish adequate provocation to require submission of a voluntary manslaughter instruction”); id. (drawing a distinction between “mere insulting words” and “informational words” whose substance and meaning impart the “sudden disclosure of [an adequately provocational] event,” with only the latter, if accompanied by “ensuing arguments and other actions of the parties,” providing support for a provocation defense).
discussed Cited "see" State v. Porter (2×)
N.M. · 2020 · signal: see · confidence high
See State v. Manus, 1979-NMSC-035 , ¶¶ 12-14, 93 N.M. 95 , 597 P.2d 280 (holding that the state was only required to prove that the unlawful act was done with general criminal intent in an aggravated assault), overruled on other grounds by Sells v. State, 1982-NMSC-125 , ¶¶ 9-10, 98 N.M. 786 , 653 P.2d 162 ; State v. Dominguez, 2005-NMSC-001, ¶ 18 , 137 N.M. 1 , 106 P.3d 563 (holding that the “intent to injure . . . is not an element of shooting at or from a motor vehicle”), overruled on other grounds by Montoya, 2013-NMSC-020, ¶ 54 ; see also UJI 14-342 Use Note 5 (providing that th…
discussed Cited "see" State v. Romine (2×)
N.M. Ct. App. · 2020 · signal: see · confidence high
At the same time, Defendant also notes that our precedent establishes that a finding of “[a]n unauthorized presence in a structure is evidence from which a jury could reasonably infer the necessary intent to commit a felony or theft therein.” State v. Jennings, 1984-NMCA-051 , ¶ 14, 102 N.M. 89 , 691 P.2d 882 ; see State v. Castro, 1979-NMCA-023 , ¶ 19, 92 N.M. 585 , 592 P.2d 185 (“The burglarious intent can be reasonably and justifiably inferred from the unauthorized entry alone.”), overruled on other grounds by Sells v. State, 1982-NMSC- 125, ¶¶ 7-10, 98 N.M. 786 , 653 P.2d 162 .
discussed Cited "see" State v. Perez (2×)
N.M. Ct. App. · 2019 · signal: see · confidence high
See Sells v. State, 1982-NMSC-125 , ¶ 8, 98 N.M. 786 , 653 P.2d 162 (“Generally, it is for the jury to determine whether there is sufficient provocation under an appropriate instruction on voluntary manslaughter.”); Hunter, 2001-NMCA-078, ¶ 16 (explaining that it is for the jury to determine whether the defendant was provoked in such a way that an ordinary person would have reacted as he or she did). {8} Alternatively, Defendant appears to invite this Court to view the evidence in the light most favorable to himself.
discussed Cited "see" State v. Gabaldon (2×)
N.M. Ct. App. · 2018 · signal: see · confidence high
See, e.g., State v. Mireles, 1971-NMCA-027 , ¶ 6, 82 N.M. 453 , 483 10 P.2d 508 (holding that evidence that a residence had been entered with an intent to 11 commit theft was the fact that various items of personal property had been stolen); see 12 also State v. Castro, 1979-NMCA-023 , ¶ 19, 92 N.M. 585 , 592 P.2d 185 (“The 13 burglarious intent can be reasonably and justifiably inferred from the unauthorized 14 entry alone.”), overruled on other grounds by Sells v. State, 1982-NMSC-125 , ¶¶ 7- 15 10, 98 N.M. 786 , 653 P.2d 162 .
discussed Cited "see" State v. Ramirez (2×)
N.M. · 2017 · signal: see · confidence high
See § 30-3-1(B). {23} This Court’s decision in State v. Manus disposes of Ramirez’s second argument—that there was no evidence he willfully and intentionally assaulted Rhiannon. 1979-NMSC-035 , ¶¶ 12-14, 93 N.M. 95 , 597 P.2d 280 , overruled on other grounds by Sells v. State, 1982-NMSC-125 , ¶¶ 9-10, 98 N.M. 786 , 653 P.2d 162 .
discussed Cited "see" State v. Ramirez
N.M. · 2017 · signal: see · confidence high
See § 30-3-1(B). 12 1 {23} This Court’s decision in State v. Manus disposes of Ramirez’s second 2 argument—that there was no evidence he willfully and intentionally assaulted 3 Rhiannon. 1979-NMSC-035 , ¶¶ 12-14, 93 N.M. 95 , 597 P.2d 280 , overruled on 4 other grounds by Sells v. State, 1982-NMSC-125 , ¶¶ 9-10, 98 N.M. 786 , 653 P.2d 5 162 .
discussed Cited "see" State v. Dye (2×)
N.M. Ct. App. · 2017 · signal: see · confidence high
Branch, 2016-NMCA-071, ¶ 14 ; see 3 State v. Manus, 1979-NMSC-035 , ¶ 12, 93 N.M. 95 , 597 P.2d 280 , overruled on other 4 grounds by Sells v. State, 1982-NMSC-125 , ¶¶ 9-10, 98 N.M. 786 , 653 P.2d 162 .
discussed Cited "see" State v. Ramirez (2×)
N.M. Ct. App. · 2016 · signal: see · confidence high
See State v. Manus, 1979-NMSC-035 , ¶¶ 12, 14, 93 N.M. 95 , 597 P.2d 280 (stating that “general criminal intent is required to support a conviction for aggravated assault”), overruled on other grounds by Sells v. State, 1982-NMSC-125 , ¶¶ 9-10, 98 N.M. 786 , 653 P.2d 162 .
discussed Cited "see" State v. Jim (2×)
N.M. Ct. App. · 2014 · signal: see · confidence high
See State v. Manus, 1979-NMSC-035 , ¶ 16, 93 N.M. 95 , 597 P.2d 280 , overruled on other grounds by Sells v. State, 1982-NMSC-125 , 98 N.M. 786 , 653 P.2d 162 .
discussed Cited "see" State v. Jim (2×)
N.M. Ct. App. · 2014 · signal: see · confidence high
See State v. Manus, 1979-NMSC-035 , ¶ 16, 93 N.M. 95 , 597 P.2d 280 , overruled on other grounds by Sells v. State, 1982-NMSC-125 , 98 N.M. 786 , 653 P.2d 162 .
discussed Cited "see" State v. Martinez (2×)
N.M. Ct. App. · 2012 · signal: see · confidence high
See State 17 v. Manus, 93 N.M. 95, 103 , 597 P.2d 280, 288 (1979) (discussing true rebuttal 18 witnesses and whether they must be disclosed pre-trial), overruled on other grounds 19 by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982).
discussed Cited "see" State v. J Downs (2×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See State v. Manus, 93 N.M. 95, 104 , 597 5 P.2d 280 , 289 ( 1979) (stating that a defendant must show prejudice from the state’s 6 failure to comply with disclosure rules), overruled on other grounds by Sells v. State, 7 98 N.M. 786 , 653 P.2d 162 (1979).
discussed Cited "see" State v. Glascock (2×)
N.M. Ct. App. · 2008 · signal: see · confidence high
See State v. Manus, 93 N.M. 95, 101 , 597 P.2d 280, 286 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982); State v. Gaitan, 2002-NMSC-007, ¶ 24 , 131 N.M. 758 , 42 P.3d 1207 .
discussed Cited "see" State v. Dominguez (2×)
N.M. · 2007 · signal: see · confidence high
See State v. Manus, 93 N.M. 95, 103 , 597 P.2d 280, 288 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982).
discussed Cited "see" State v. Glascock (2×)
N.M. Ct. App. · 2007 · signal: see · confidence high
See State v. Manus, 93 N.M. 95, 101 , 597 P.2d 280, 286 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982); State v. Gaitan, 2002-NMSC-007, ¶ 24 , 131 N.M. 758 , 42 P.3d 1207 .
discussed Cited "see" State v. Trujillo
N.M. · 2007 · signal: see · confidence high
See State v. Ramirez, 89 N.M. 635, 642 , 556 P.2d 43, 50 (Ct.App.1976) (stating that a jurisdictional defect “goes to the very power of the court to entertain the action”), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 658 P.2d 162, 164 (1982).
discussed Cited "see" Murken v. Deutsche Morgan Grenfell, Inc. (2×)
N.M. Ct. App. · 2006 · signal: see · confidence high
See State v. Ramirez, 89 N.M. 635, 646 , 556 P.2d 43, 54 (Ct.App.1976), overruled on other grounds by Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982).
discussed Cited "see" State v. Garcia (2×)
N.M. Ct. App. · 2002 · signal: see · confidence high
See State v. Manus, 93 N.M. 95, 104 , 597 P.2d 280, 289 (1979) (“A warrantless search may be made on the basis of probable cause and exigent circumstances.”), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 , 653 P.2d 162, 164 (1982); see also State v. Gomez, 1997-NMSC-006, ¶ 40 , 122 N.M. 777 , 932 P.2d 1 .
examined Cited "see" Stills v. Dorsey (3×) also: Cited "see, e.g."
10th Cir. · 2001 · signal: see · confidence high
See State v. Farris, 95 N.M. 96 , 619 P.2d 541, 542 (N.M.1980) (harsh words and poking in the chest not sufficient provocation for voluntary manslaughter instruction), overruled on other grounds, Sells, 653 P.2d at 164 .
discussed Cited "see" State v. Gaitan (2×)
N.M. Ct. App. · 2000 · signal: see · confidence high
See State v. Manus, 93 N.M. 95, 99 , 597 P.2d 280, 284 (1979), overruled in part by Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982).
examined Cited "see" State v. House (4×)
N.M. Ct. App. · 1998 · signal: see · confidence high
See State v. Manus, 93 N.M. 95, 98 , 597 P.2d 280, 283 (1979) (applying this principle to element of crime requiring proof of a defendant’s intent), overruled on other grounds by Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982); 21 Am.Jur.2d Criminal Law § 381 (noting that no witness can swear as a matter of fact, independent of his judgment, that local prejudice exists in the minds of county inhabitants); 1980 ABA Standards, supra § 8-3.3 (allowing various forms of circumstantial evidence). 113.In this case, the trial court had before it expert testimony regarding public opinion polls ta…
examined Cited "see" State v. Wilson (8×)
N.M. Ct. App. · 1993 · signal: see · confidence high
See State v. Manus, 93 N.M. 95, 100-01 , 597 P.2d 280, 285-86 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982); State v. Marquez, 96 N.M. 746, 748-49 , 634 P.2d 1298, 1300-01 (Ct.App.1981).
examined Cited "see" Gutierrez v. Albertsons, Inc. (4×)
N.M. Ct. App. · 1991 · signal: see · confidence high
See generally State v. Manus, 93 N.M. 95, 100 , 597 P.2d 280, 285 (1979) (discussing limitations on jury’s broad authority in treating the proof), overruled on other grounds, Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982); see also State v. Corneau, 109 N.M. 81, 89 , 781 P.2d 1159, 1167 (Ct.App.1989) (indicating that with appropriate jury instructions, fragmentation of the evidence can be avoided).
discussed Cited "see" State v. Lara (2×)
N.M. Ct. App. · 1990 · signal: see · confidence high
See State v. Montano, 95 N.M. 233 , 620 P.2d 887 (Ct.App.1980), overruled on other grounds, Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982) (jury instructions should not be given on areas where there is no evidence to support the instruction).
discussed Cited "see" State v. Pierce (2×)
N.M. · 1990 · signal: see · confidence high
See State v. Manus, 93 N.M. 95 , 597 P.2d 280 (1979), overruled on other grounds, Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982); NMSA 1978, 14-201.
discussed Cited "see" State v. Sheldon (2×)
N.M. Ct. App. · 1990 · signal: see · confidence high
See State v. Manus, 93 N.M. 95 , 597 P.2d 280 (1979), overruled on other grounds, Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982).
Joseph SELLS, Petitioner,
v.
STATE of New Mexico, Respondent
14178.
New Mexico Supreme Court.
Oct 18, 1982.
653 P.2d 162
Paula G. Burnett, Kennedy & Steinmetz, Grants, for petitioner., Jeff Bingaman, Atty. Gen., Barbara F. Green, Asst. Atty. Gen., Santa Fe, for respondent.
Federici, Payne, Sosa, Riordan.
Cited by 136 opinions  |  Published

OPINION

FEDERICI, Justice.

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 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.

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 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.

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.

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. ...

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.

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.

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 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.

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).

Various results have been reached in pri- or 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).

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.

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.

IT IS SO ORDERED.

PAYNE, C.J., SOSA, Senior Justice, and RIORDAN, J., concur.