597 P.2d 280 (N.M. 1979), 11879, State v. Manus

Docket Nº:11879.
Citation:597 P.2d 280, 93 N.M. 95, 1979 -NMSC- 035
Opinion Judge:[9] Easley
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. William A. MANUS, Defendant-Appellant.
Attorney:[6] Jack Smith, Albuquerque, Pickard & Singleton, Sarah Michael Singleton, Santa Fe, for defendant-appellant. [7] Jeff Bingaman, Atty. Gen., Charlotte H. Roosen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
Judge Panel:SOSA, C. J., and PAYNE, J., concur.
Case Date:May 04, 1979
Court:Supreme Court of New Mexico

Page 280

597 P.2d 280 (N.M. 1979)

93 N.M. 95, 1979 -NMSC- 035

STATE of New Mexico, Plaintiff-Appellee,

v.

William A. MANUS, Defendant-Appellant.

No. 11879.

Supreme Court of New Mexico.

May 4, 1979

Page 281

Rehearing Denied May 21, 1979.

Page 282

[93 N.M. 97] Jack Smith, Albuquerque, Pickard & Singleton, Sarah Michael Singleton, Santa Fe, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Charlotte H. Roosen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

EASLEY, Justice.

The jury found William Manus guilty of first degree murder, attempted first degree murder and aggravated assault. Consecutive sentences were imposed. Manus appeals. We affirm.

Manus raises issues of:

1. substantial evidence of deliberate intent;

2. sufficiency of evidence to submit the charge of aggravated assault;

3. failing to instruct the jury on voluntary manslaughter;

4. consecutive sentences as double jeopardy;

5. admissibility of statements made by the defendant;

6. admission of pretrial statements of witnesses;

7. allowing a rebuttal witness to testify without allowing further discovery and investigation; and,

[93 N.M. 98]

Page 283

8. warrantless search of defendant's clothing.

The following facts are not in dispute. The victim, Officer Wasmer, had stopped Mrs. Manus for driving violations, had arrested her and placed her in the back seat of his police car. This occurred nearly in front of the Manus' home. Lesher had stopped to report that her truck had been sideswiped a short time before. Wasmer was filling out an accident report with the help of Lesher. Switzer, a member of the Bosque Farms Patrol who was with Wasmer, was standing in front of the Lesher vehicle which had pulled up behind the police car. Manus approached the vehicle from the front carrying a loaded shotgun. Wasmer died from injuries inflicted as a result of the discharge of Manus' shotgun.

There is conflicting testimony concerning events at the immediate scene. Manus testified that he had taken the shotgun out of his house and had gone to some outbuildings to investigate what he thought were prowlers. He said he approached the police car with the intention of reporting the suspected prowlers. He was blinded by the lights, and the next thing he remembered was being shot, staggering and sitting down.

Lesher testified that she looked up and saw a man with a shotgun in front of Mrs. Manus' car, that the man said, "Just go on and put the car in the driveway." Wasmer then said, "Put down the gun." The man did not put down the gun, but pointed the shotgun in the direction of Lesher and Wasmer. She then testified that she ducked behind her truck door and heard two shots. When she looked up, she observed that Wasmer had been shot, and the man with the shotgun was pointing it at Switzer. She testified that Switzer told her to go to the end of the block and get help, and that he was trying to get the man to drop his gun. When she returned, the man was sitting on the ground. Lesher found shotgun pellet marks in the door and on the top of her truck.

Switzer testified that he observed someone running toward them, and when the person was about 15 feet away, Switzer noticed that he had a gun. He pointed the gun at Switzer, who then yelled, "He's got a gun", and ducked behind the car. He heard two shots. He drew his gun and ran to the back of the car, where he saw the man with the shotgun run to the front of the car and again point the gun at him. Switzer fired at the man, who then dropped his gun and said, "I will get you, too."

Cole, a neighbor of Manus, testified that he arrived at the scene and was rendering first aid to Manus. He testified that Manus made the following statement: "I was drunk. Stupid thing. Just a stupid thing. The Bosque Farms police stopped my wife. I got angry and went and got my gun." Faust, another neighbor of Manus, testified that he also was rendering first aid. He testified that Manus said, "I have done a stupid, stupid thing." He further testified that Manus appeared shaken and upset, but that he apparently knew what had happened and what was going on at the time.

Finally, there was testimony that the police, soon after the incident, discovered two boxes of shotgun shells and some loose shells scattered on top of a table in Manus' home.

Evidence of Premeditation Deliberate Intent

In determining whether substantial evidence was presented to support charges, an appellate court must view the evidence in the light most favorable to the State and indulge all reasonable inferences which support the conviction. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). The direct evidence shows that Manus killed Wasmer. The evidence was circumstantial on the element of deliberate intent. Since the element of intent involves the state of mind of the defendant it is seldom, if ever, susceptible to direct proof, and may be proved by circumstantial evidence. State v. Ferrari, 80 N.M. 714, 460 P.2d 244 (1969); State v. Smith, 76 N.M. 477, 416 P.2d 146 (1966). A verdict of not guilty should be directed only when there are no reasonable inferences or sufficient surrounding circumstances[93 N.M. 99]

Page 284

from which to infer intent. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App.1977).

From the evidence set out above, the jury could reasonably infer deliberation and premeditation. Manus' statement that he got angry when the police stopped his wife is evidence of motive. His statement that he went and got his gun, and the testimony of shotgun shells loose on his table next to boxes of shells, is evidence which the jury could infer manifested a plan or design. When coupled with the testimony of the witnesses at the scene concerning the action and conduct of Manus, there was clearly sufficient evidence to submit the charge of first degree murder to the jury and to support the jury's verdict of guilty thereon.

With regard to the attempted murder in the first degree of Switzer, there is also sufficient evidence to support the submission of the charge and the verdict thereon. The testimony shows that Manus twice aimed his shotgun at Switzer, who had to seek cover, and that Manus told Switzer, "I'll get you, too."

Intent Requirement in Aggravated Assault Charge

Manus argues that his conviction for the aggravated assault of Lesher cannot stand because there was no evidence of any intentional assault directed at Lesher. Three recent cases have addressed this issue. State v. Cutnose, 87 N.M. 307, 532 P.2d 896 (Ct.App.1974), Cert. denied, 87 N.M. 299, 532 P.2d 888 (1974); State v. Mascarenas, 86 N.M. 692, 526 P.2d 1285 (Ct.App. 1974); State v. Cruz, 86 N.M. 455, 525 P.2d 382 (Ct.App.1974). Each held that a general criminal intent is required to support a conviction for aggravated assault.

The court below gave N.M.U.J.I.Crim. 1.50, N.M.S.A.1978 as to the elements of aggravated assault, and also instructed on general criminal intent.

The State was not required to prove that Manus intended to assault Lesher, but only that he did an unlawful act which caused Lesher to reasonably believe that she was in danger of receiving an immediate battery, that the act was done with a deadly weapon, and that it was done with a general criminal intent. §§ 30-3-1 & 2, N.M.S.A.1978; Cutnose, supra. There is substantial evidence to support the conviction of aggravated assault.

Necessity for Instruction on Voluntary Manslaughter

Manus argues that it was reversible error for the court to fail to instruct on voluntary manslaughter. Manus tendered an instruction conforming with N.M.U.J.I.Crim. 2.20, N.M.S.A.1978. The uniform instruction reads, in pertinent part, "In the case of voluntary manslaughter the defendant kills after having been sufficiently provoked, . . . . The provocation must be such as would affect the ability to reason and cause a temporary loss of self control in An ordinary person of average disposition." (Emphasis added). Manus was entitled to an instruction on voluntary manslaughter only if there was some evidence in the record to support it. State v. Riggsbee, 85 N.M. 668, 515 P.2d 964 (1973); State v. Ulibarri, 67 N.M. 336, 355 P.2d 275 (1960).

The general rule is that, in order to reduce murder to manslaughter, the victim must have been the source of the defendant's provocation. 1 R. Anderson, Wharton's Criminal Law and Procedure, § 276 (1957); 1 O. Warren & B. Bilas, Warren on Homicide, § 92 (1938); 40 C.J.S. Homicide § 53 (1944). We therefore review the record to determine if there is some evidence that Wasmer provoked Manus. We must also ask whether there is sufficient evidence that the provocation was such as to cause a temporary loss of self control in an ordinary person of average disposition.

The key facts in favor of Manus are that Wasmer had stopped Mrs. Manus and, when Manus approached the scene with his shotgun, a shot was fired from behind the lights of the stopped cars. Up to the time when the first shot was fired, there is nothing to indicate that Wasmer was not rightfully and lawfully exercising his duties.

[93 N.M. 100]

Page 285

The exercise of a legal right, no matter how offensive, is no such provocation as lowers the grade of homicide. (State v. Lawry, 4 Nev. 161 (1868); State v. Craton, 28 N.C. (6 Ired.L.) 133 (1845)).

If the defendant intentionally caused the victim to do acts which the defendant could claim provoked him, he cannot kill the victim and claim that he was provoked. In such case, the circumstances show that he acted with malice aforethought, and the offense is murder. (Footnote omitted).

1) R. Anderson, Supra at 587. A law enforcement officer performing lawful acts in the discharge of his duty is engaged in the exercise of a legal right. Acts of a peace officer exercising his duties in a lawful manner cannot rise to the level of sufficient provocation. People v. Roman, 256 Cal.App.2d Supp. 656, 64 Cal.Rptr. 268 (Ct.App.1967). See also ...

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