State v. Castro
| Decision Date | 20 February 1979 |
| Docket Number | No. 3597,3597 |
| Citation | 92 N.M. 585,592 P.2d 185,1979 NMCA 23 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. John Eloy CASTRO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant John Castro was convicted of voluntary manslaughter and aggravated burglary. The victim was Linda, his divorced wife. John appeals. We reverse on voluntary manslaughter and affirm on aggravated burglary.
Linda and John had been married for approximately eight years and were divorced in either August or September, 1977. The homicide was committed on October 6, 1977. John was off work at about 3:00 p. m., went home, drank two bottles of beer and had supper. While John was watching a baseball game on television, Linda called and wanted money for rent. He told her to let him alone and she said she didn't have to. Linda then used abusive language. Subsequently, John went to the store and purchased a gun and ammunition. This transaction took about ten minutes and John appeared calm. He went back home, loaded the gun, walked around for about a half hour and then walked to Linda's house. He planned on shooting her in the spine to prevent her from dancing. John saw Linda sitting on the couch watching television and knocked on the door. Linda became scared, called the police, hollered and ran toward the back bedroom. John broke the lower left hand window, unlocked the door, and from a distance of five feet shot Linda three times and killed her.
John was charged with first degree murder and aggravated burglary. The jury returned a verdict of guilty of voluntary manslaughter and aggravated burglary, both with the use of a firearm.
A. No evidence supported submission of voluntary manslaughter.
Section 30-2-3(A), N.M.S.A. 1978 reads:
Manslaughter is the unlawful killing of a human being without malice.
Smith v. State, 89 N.M. 770, 772, 558 P.2d 39, 41 (1976) says:
It follows logically and obviously from the definition that, in order to convict of voluntary manslaughter, the jury must have evidence that there was a Sudden quarrel or heat of passion At the time of the commission of the crime (in order, under the common law theory, to show that the killing was the result of provocation sufficient to negate the presumption of malice; see, e. g., R. Anderson, Wharton's Criminal Law and Procedure § 242 at 522 (1957)).
The transcript of the record is barren of any such evidence of provocation. * * * (Emphasis added.) (Smith was discharged.)
U.J.I. Crim. 2.20 was submitted to the jury. It contained the definition and meaning of "sufficient provocation" and reads:
The difference between second degree murder and voluntary manslaughter is provocation. In second degree murder the defendant kills without having been sufficiently provoked, that is, without sufficient provocation. In the case of voluntary manslaughter the defendant kills after having been sufficiently provoked, that is, as a result of sufficient provocation. Sufficient provocation reduces second degree murder to voluntary manslaughter.
Sufficient provocation can be any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. 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. The provocation must be such that an ordinary person would not have cooled off before acting. (Emphasis added.)
The State claims that the provocative telephone call from Linda put into motion the series of events that led to Linda's death. The State contends that it showed conclusively that John reacted in response to the provocation of Linda. This argument falls short of the meaning of "sufficient provocation" in three respects. First, when buying the gun John acted calmly, free of any extreme emotions. Second, John walked about the area a considerable period of time before approaching Linda's residence. He did not act immediately or soon after the provocation. State v. Trujillo, 27 N.M. 594, 203 P. 846 (1921). Even if we assumed that initially John was angered, he had sufficient time to cool off. He did not lose self control. Sudden anger or heat of passion and provocation must concur. State v. Nevares, 36 N.M. 41, 7 P.2d 933 (1932). Finally, "And words alone, however scurrilous or insulting, will not furnish the adequate provocation required for this purpose." Nevares, supra, Id. at 44-5, 7 P.2d at 935.
The Committee Commentary shows that Nevares was considered in arriving at the definition of "sufficient provocation." The "words alone" concept does not fall within the terms "any action, conduct or circumstances which arouse anger" as set forth in U.J.I. Crim. 2.20, Supra. We conclude that the telephone conversation did not constitute "sufficient provocation."
Absent "sufficient provocation," there was no evidence to support submission of voluntary manslaughter to the jury. John is discharged on this count of the criminal information.
Section 30-16-4(A), N.M.S.A. 1978 reads:
Aggravated burglary consists of the unauthorized entry of any . . . dwelling . . . with intent to commit any felony . . . therein and the person either:
A. is armed with a deadly weapon;
Pursuant to U.J.I. Crim. 16.22, the court instructed the jury that "when the defendant entered the Linda Castro residence, he intended to commit murder when he got inside . . . ." "Murder" was stated to be the felony.
The crucial factor in the crime of aggravated burglary is whether the defendant had the Intent to commit a felony on entering the dwelling, not whether the felony was actually committed. Intent does not have to be consummated. State v. Tixier, 89 N.M. 297, 551 P.2d 987 (Ct.App.1976).
The jury acquitted defendant of first and second degree murder and we hold defendant not guilty of voluntary manslaughter. None of these crimes were actually committed. This fact does not resolve the problem. The failure of defendant to commit murder in any of its degrees did not foreclose the jury from concluding that at the time of entry defendant did intend to commit murder in any one of its degrees. Proof of intent at the time of entry does not depend upon the subsequent commission of the felony, failure to commit the felony or even an attempt to commit it. People v. Robles, 207 Cal.App.2d 891, 24 Cal.Rptr. 708 (1962).
Defendant unlawfully entered Linda's home and from a distance of five feet shot Linda three times and killed her. Defendant testified that upon entry he intended to shoot Linda in the spine. This was an admission that he intended to commit aggravated battery as a matter of law, i. e., to inflict great bodily harm with a deadly weapon, a third degree felony. Section 30-3-5, N.M.S.A. 1978. In other words, defendant...
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State v. Montoya, 3958
...defendant convicted of voluntary manslaughter. Smith v. State, 89 N.M. 770, 558 P.2d 39 (1976). Smith was followed in State v. Castro, 92 N.M. 585, 592 P.2d 185 (App.1979). Defendant should be discharged. B. The trial court erroneously excluded character evidence of the victim. In its case-......
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State v. Montano
... ... The provocation must be such that an ordinary person would not have cooled off before acting ... Words alone are not sufficient provocation to reduce a murder charge to voluntary manslaughter. Lujan; State v. Castro, 92 N.M. 585, 592 P.2d 185 (Ct.App.), cert. denied, 92 N.M. 621, 593 P.2d 62 (1979). The jury should not be instructed on voluntary manslaughter when there is no evidence of the occurrence of a sudden quarrel, or that the act was done in the heat of passion, or on sufficient provocation. Ramirez ... ...
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...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 evid......