(specially concurring).
I join fully in Judge Apodaca’s opinion for the panel. I write separately only to reenforce two points made in the opinion and to point out a troubling issue lurking on retrial but not discussed in the briefs of the parties.
First, although it is tempting to rule as a matter of law that anyone with Defendant’s blood-alcohol level cannot knowingly and intelligently waive his rights under Miranda, there is substantial authority that a high blood-alcohol level is not dispositive when other evidence would support a finding of a proper waiver. See, e.g., State v. Hall, 111 Idaho 827, 727 P.2d 1255, 1261-62 (Ct.App.1986) (.25 percent), review denied, (Jan. 16, 1987); People v. Sleboda, 166 Ill.App.3d 42, 116 Ill.Dec. 620, 626, 519 N.E.2d 512, 518 (1988) (.22 percent); State v. Keith, 628 A.2d 1247, 1250-51 (Vt.1993) (.203 percent); 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.9, at 527 (1984).
Second, in rejecting the State’s contention that Defendant’s motion to strike his post-arraignment statement was untimely, I do not believe that we are violating the generally accepted requirement that an objection “must be made as soon as the applicability of it is known (or could reasonably have been known).” 1 John H. Wigmore, Wigmore on Evidence § 18, at 796 (Tillers rev. 1983); accord 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 103[02], at 103-17 (1993); see Wigmore, supra, § 18, at 817 (same requirement applies to motions to strike). Ordinarily, one would think that when Defendant’s post-arraignment statement was offered into evidence he must have known that he had made his statement after he had requested counsel. Certainly, if defense counsel knew that the statement had been made after Defendant had requested counsel, he had an obligation to object immediately, rather than waiting until the introduction of evidence establishing Defendant’s request for counsel. Here, however, it appears that defense counsel was not aware of Defendant’s request for counsel. Evidence of the request was elicited by the State, not defense counsel, during cross-examination of Officer Richard Farrally. Perhaps defense counsel did not act promptly even after this testimony. As noted by the State’s brief, two witnesses testified between the time that Farrally testified and the time that the district court heard argument on Defendant’s motion to strike. Yet, it appears from the court’s comments at the hearing on the motion that defense counsel had indicated at some unspecified previous time that he wished to be heard on a motion to strike.
Thus, on the record before us it is not clear precisely how promptly Defendant moved to strike after hearing Officer Farrally’s testimony, nor is it clear whether Defendant “could reasonably have known” before Farrally’s testimony that he had requested an attorney prior to his post-arraignment statements. In this context I find it dispositive that in district court the State did not contend that Defendant’s motion was untimely. The State’s response to the motion addressed only the merits. Likewise, the district court denied the motion on the merits, apparently treating the motion as timely. Given the ambiguous record and the State’s failure to raise the point below, I would not dispose of the issue on the ground that the motion to strike was untimely.
Finally, I address the troubling issue lurking on remand. I hope that my comments convince others that the issue is one worthy of attention by the Uniform Jury Instructions for Criminal Cases Committee, the New Mexico Supreme Court, and perhaps the legislature. Under State v. Wilson, 116 N.M. 793, 867 P.2d 1175 (1994), the district court should consider the issue on remand.
There is a remarkable anomaly in our uniform jury instructions which could create substantial injustice on the retrial of this case. The anomaly is that the elements of the offense of voluntary manslaughter depend on whether or not the defendant is also charged with second degree murder. Consider what happens if a defendant is tried on charges of both second degree murder and voluntary manslaughter, acquitted of second degree murder, and then retried on only voluntary manslaughter. Because of the change in the elements of the offense contained in the instructions, evidence that would sustain a voluntary manslaughter conviction at the first trial may be insufficient to sustain a voluntary manslaughter conviction on retrial. To be specific, assuming that the other elements of the offense are established, when the defendant is charged with both second degree murder and manslaughter at the first trial, the jury can, and should, convict of manslaughter if the jury (or, indeed, only one juror) believes that there is a reasonable possibility that the defendant was sufficiently provoked. To sustain a conviction of manslaughter on retrial, however, all jurors must be convinced beyond a reasonable doubt that the defendant was sufficiently provoked.
This result is a consequence of the following uniform jury instructions: If the defendant is charged with both second degree murder and voluntary manslaughter, the uniform jury instructions provide that the jury should be given SCRA 1986, 14-210 (entitled “Second degree murder; voluntary manslaughter lesser included offense; essential elements”) and SCRA 1986, 14-220 (entitled “Voluntary manslaughter; lesser included offense”). U.J.I. 14-210 states:
For you to find the defendant guilty of second degree murder, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant killed [name of victim];
2. The defendant knew that his acts created a strong probability of death or great bodily harm to [name of victim];
3. The defendant did not act as a result of sufficient provocation;
4. This happened in New Mexico on or about [date].
(Footnotes omitted.) U.J.I. 14-220 states:
For you to find the defendant guilty of voluntary manslaughter, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant killed [name of victim];
2. The defendant knew that his acts created a strong probability of death or great bodily harm to [name of victim];
3. This happened in New Mexico on or about [date].
The difference between second degree murder and voluntary manslaughter is sufficient 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.
(Footnotes omitted.) Under these instructions the defendant should be acquitted of second degree murder if the State fails to prove beyond a reasonable doubt that “[t]he defendant did not act as a result of sufficient provocation”; at the same time, the defendant can be convicted of voluntary manslaughter without the State bearing any burden of persuasion with respect to provocation.
On the other hand, the uniform jury instructions provide that if the defendant is charged only with voluntary manslaughter, the jury should be given SCRA 1986,14-221, entitled “Voluntary manslaughter; no murder instruction; essential elements.” U.J.I. 14-221 states:
For you to find the defendant guilty of voluntary manslaughter, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant killed [name of victim];
2. The defendant knew that his acts created a strong probability of death or great bodily harm to [name of victim];
3. The defendant acted as a result of sufficient provocation;
4. This happened in New Mexico on or about [date].
(Footnotes omitted.) Under this instruction the jury must acquit the defendant of voluntary manslaughter unless the State proves beyond a reasonable doubt that “[t]he defendant acted as a result of sufficient provocation.”
Consider the consequences to this case. At the first trial, apparently at least one juror refused to find Defendant guilty of second degree murder because he or she had a reasonable doubt concerning whether Defendant was sufficiently provoked. Hence, the jury did not return a verdict on the charge of second degree murder1 and convicted on voluntary manslaughter. Now, however, we are ordering a retrial. Assuming that Defendant is tried only for voluntary manslaughter, the Uniform Jury Instructions require the State to convince all jurors beyond a reasonable doubt that Defendant was sufficiently provoked. This is a much greater burden than the State had at the first trial. Indeed, the same jurors who found Defendant guilty of voluntary manslaughter at the first trial could well decide to acquit at the second trial on the very same evidence because of the change in the State’s burden of persuasion. Moreover, evidence of provocation that was sufficient to sustain a verdict of voluntary manslaughter at the first trial may as a matter of law be insufficient to sustain the verdict at the second trial because of the increased burden of persuasion. This result seems unjust and unjustifiable.
Perhaps this result is required by our Supreme Court’s decision in Smith v. State, 89 N.M. 770, 558 P.2d 39 (1976). If so, that aspect of Smith is worth reconsideration by the Supreme Court and/or review by the legislature. I would note that the majority rule in other jurisdictions appears to be that on retrial the jury should (1) be instructed on both second degree murder and voluntary manslaughter but (2) be told that if it finds the defendant guilty of either offense, it should render a verdict only of voluntary manslaughter. See Milton Roberts, Annotation, Propriety of Manslaughter Conviction in Prosecution for Murder, Absent Proof of Necessary Elements of Manslaughter, 19 A.L.R.4th 861, at §§ .11-12 (1983). This view finds support in the analysis of voluntary manslaughter in a thoughtful article by Dean Romero: Leo M. Romero, Sufficiency of Provocation for Voluntary Manslaughter in New Mexico: Problems in Theory and Practice, 12 N.M.L.Rev. 747, 747-61, 788-89 (1982). See also Charles W. Daniels & Teresa E. Storch, Criminal Law, 14 N.M.L.Rev. 89, 93-96 (1984).
. It is not clear to me whether Defendant was acquitted of second degree murder. If he was not acquitted, he can be retried on that charge. The jury would then be instructed as at the original trial, so there would be no inconsistency in the instructions at the two trials.