(dissenting).
I dissent.
A. Defendant was not guilty of voluntary manslaughter.
Section 30-2~3(A), N.M.S.A.1978 reads:
A. Voluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion.
There is not a scintilla of evidence that defendant shot the victim “upon a sudden quarrel or in the heat of passion.”
“All that is required [to make of the killing manslaughter] is sufficient provocation to excite in the mind of the defendant such emotions as either anger, rage, sudden resentment, or terror as may be sufficient to obscure the reason of an ordinary man, and to prevent deliberation and premeditation, and to exclude malice, and to render the defendant incapable of cool reflection.” State v. Kidd, 24 N.M. 572, 577, 175 P. 772 (1917). “It is well established by the great weight of authority that no mere words, however opprobrious or indecent, are deemed sufficient to arouse ungovernable passion, so as to reduce a homicide from murder to manslaughter.” State v. Trujillo, 27 N.M. 594, 597, 203 P. 846 (1921); State v. Nevares, 36 N.M. 41, 7 P.2d 933 (1932). “Mere sudden anger or heat of passion will not reduce the killing from murder to manslaughter. There must be adequate provocation. The one without the other will not suffice to effect the reduction in the grade of the offense.” [Id. 44, 7 P.2d 933.]
Kidd has been interpreted to mean that generally speaking evidence requiring submission of self-defense will call for a submission of voluntary manslaughter. State v. Simpson, 39 N.M. 271, 46 P.2d 49 (1935). In the instant case, the court instructed the jury on self-defense. But what were the undisputed facts?
On the night in question, the deceased drove to defendant’s house three different times. The first two times deceased left angrily. At approximately 11:00 p. m. he returned a third time. There was another exchange of words. At all times deceased remained in his car parked a distance of 50 to 70 feet from defendant. Deceased shouted challenges and obscenities. Defendant went into his house, got a gun and came outside. He pleaded with deceased to leave. The response was continued oral challenges and obscenities. Defendant lay prone behind a rock at the above distance from deceased’s car. He was crying. Defendant fired one shot in the air. There was another verbal exchange. None of these verbal exchanges justify a manslaughter verdict.
A second shot was fired that killed deceased while sitting in his car. Defendant shot at the top of the car without any intention of hitting deceased. The killing was not committed upon a sudden quarrel or in the heat of passion. What allegedly frightened defendant was a chimera — a stick projecting out of the car. There was no aggression on the part of deceased. Even though the trial court believed this, as a matter of precaution, it gave an instruction on self-defense. To demonstrate what is meant by self-defense and voluntary manslaughter, see, State v. Wright, 38 N.M. 427, 34 P.2d 870 (1934); State v. Davis, 36 N.M. 308, 14 P.2d 267 (1932); State v. Martinez, 39 N.M. 290,46 P.2d 657 (1935); State v. Inman, 41 N.M. 424, 70 P.2d 152 (1937); State v. Simpson, 39 N.M. 271, 46 P.2d 49 (1935); State v. Ulibarri, 67 N.M. 336, 355 P.2d 275 (1960).
In overruling State v. Smith, 89 N.M. 777, 558 P.2d 46 (Ct.App.1976), the Supreme Court reviewed the law of New Mexico and discharged a 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 (Ct.App.1979).
Defendant should be discharged.
B. The trial court erroneously excluded character evidence of the victim.
In its case-in-chief, the district attorney put a witness on the stand who testified as to the good character of the victim. The good character of the deceased is not a subject of proof in a prosecution against another for killing him where his character has not been attacked by the defense. This testimony allowed defendant to introduce contrary character evidence. State v. Johnson, 24 N.M. 11, 172 P. 189 (1918); Underhill’s Criminal Evidence, § 647 (5th Ed. 1957); 1 Wharton’s Criminal Evidence, § 236 (13th Ed. Torcia, 1972).
Having made decedent’s character an issue in the case, defendant offered evidence of the character of deceased. Two principals from deceased’s former high school testified as part of the offer of proof that deceased had attacked one of them, and when the other came to rescue, deceased attacked both; that deceased had been expelled from West Mesa High School for carrying a gun; the probation officer testified that deceased had been convicted of carrying a gun illegally, was a violent personality and was on probation. The probation officer had recommended that his probation be revoked. All three men would have testified that in their opinions deceased was a violent and aggressive man.
The court refused this offer for two reasons: (1) that defendant did not know this information at the time of the shooting, and (2) there was no act or evidence or aggression on part of deceased; that there was nothing inconsistent with a self-defense instruction and exclusion of this evidence.
From territorial days, in cases of homicide, it was permissible to allow the defendant to show the general reputation of the deceased as to being a lawless and violent character, but specific acts of violence on the part of deceased could not be shown. Territory v. Lobato, 17 N.M. 666,134 P. 222, L.R.A.(NS) 1917A, 1226 (1913), aff’d Lobato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916). Ten years later the court said that “The authorities seem to be in a state of hopeless confusion, announcing rules ranging from that denying proof of specific acts of violence on the part of the deceased under any circumstances to the other extreme of holding such evidence admissible under all circumstances.” State v. Ardoin, 28 N.M. 641, 642, 216 P. 1048 (1923). In Ardoin, Mr. Justice Botts wrote an excellent essay on the subject of a deceased’s reputation, specific acts of conduct and its value to a jury. Some language in Ardoin is consistent with Evidence Rule 404(a)(2). State v. Alderete, 86 N.M. 600, 604, 526 P.2d 194 (Ct.App.1974).
The time has come once again to delineate those areas in homicide cases that control the admission and exclusion of evidence bearing upon the traits of character and specific acts of conduct of a victim. For an extensive annotation, see Admissibility of Evidence As To Other’s Character Or Reputation For Turbulence On Question Of Self-Defense By One Charged With Assault Or Homicide, 1 A.L.R.3d 571 (1965).
Exclusive of Evidence Rule 404(a)(2), N.M.S.A.1978, it is reversible error to permit the State in its case-in-chief to admit evidence of the good character of the decedent. To hold that it is harmless error is a convenient method of affirming a conviction. State v. Alderete, supra, Sutin, J. dissenting. The majority opinion stated that Rule 404 was not applicable.
Furthermore, “But when the evidence tends to show, in the slightest degree, that the' killing was in self-defense, or shows a hostile demonstration by the deceased against the accused at the time of the killing, or even leaves in doubt who was the aggressor, it is always relevant to show that the deceased was a quarrelsome, desperate and revengeful man, provided it also appears that his reputation as such was known to defendant.” [Emphasis added.] Underhill, Id. § 647 at 1553-54. This proviso appears to be a minority view. Smith v. United States, 161 U.S. 85, 88, 16 S.Ct. 483, 484, 40 L.Ed. 626 (1896) put it this way in a murder case:
[U]pon principle, and by the weight of authority, evidence that the deceased was a larger and more powerful man than the defendant, as well as evidence that the deceased had the general reputation of being a quarrelsome and dangerous person, was competent, especially if his character in this respect was known to defendant, which there was evidence in this case tending to show. [Emphasis added.]
In a case where defendant is charged with homicide and the State opens up with the good character of decedent, it is important for the jury to hear adverse testimony. Evidence leading up to decedent’s bad character was exemplified by his many challenges and obscenities. To grant the State the right in rebuttal testimony to show the good character of decedent, State v. Brock, 56 N.M. 338, 244 P.2d 131 (1952); State v. McFerran, 80 N.M. 622, 459 P.2d 148 (Ct. App.1969), and to deny defendant that right in his defense, denies defendant a fair trial. This fact was made evident in Evidence Rule 404(a)(2). An exception exists where defendant introduces evidence of the pertinent trait of character of the victim or where the prosecution rebuts the same, irrespective of self-defense.
Defendant offered decedent’s traits of character to show that decedent was the aggressor. Where character is an element of the crime, claim or defense, it may be proved by evidence of reputation, opinion evidence or by specific instances of conduct. Defendant did claim self-defense. State v. Bazan, 90 N.M. 209, 561 P.2d 482 (Ct.App.1977). The discussion of character evidence in Bazan is confusing. This is true in the history of this subject matter in New Mexico. I read Bazan to mean:
... Evidence Rule 404(a)(2) permits the defense to introduce evidence of a pertinent trait of character of ... [decedent] as victim of the crime for the purpose of showing that ... [decedent] acted in conformity with that character trait in defendant’s case....
Specific conduct is ... admissible to prove character of ... [this] type... . [90 N.M. 214.]
In the instant case, evidence was offered both in opinion form and in specific violent acts form an acceptable method under Evidence Rule 405.
Generally, the determination of the admission of violent acts of a victim, a collateral issue, rests within the discretion of the trial court. But if the defendant brings himself within the 404(a)(2) exception, trait of character evidence is admissible. State v. Marquez, 87 N.M. 57, 529 P.2d 283 (Ct. App.1974).
On character evidence, the rule in New Mexico is, or should be stated as follows:
(1) It is improper for the State to introduce in evidence in its case-in-chief any good traits of character or specific acts of good conduct of the victim. To do so is plain prejudicial error. Evidence Rule 103(d). The primary duty of the State is to prove the guilt of the defendant beyond a reasonable doubt, not the character of the victim. Bad traits of character or specific acts of misconduct of a victim are admissible in evidence by defendant. If the State desires to combat this evidence, it can do so in rebuttal. Defendant is entitled to a fair trial regardless of the competence of an attorney to make any objections. Once the jury has heard the favorable testimony, it is indelibly stamped in the juror’s mind.
(2) In every homicide case, a defendant has the right to introduce in evidence any pertinent traits of character or specific acts of conduct of a victim, including prior criminal offenses committed which bear upon his traits of, character in the case being tried. Irrespective of a claim of self-defense respect must be shown for the life and liberty of a defendant. The State can meet this challenge in rebuttal. The element of self-defense, once an important factor in attacking a victim’s traits of character, was eliminated by Rule 404(a)(2). To deny a defendant the right to introduce such evidence is not harmless error under Rule 51 of the Rules of Criminal Procedure because it is inconsistent with substantial justice.
(3)Plain error vs. harmless error should not be decided on the idiosyncratic attitude of a district judge in the admission or exclusion of character evidence in criminal cases. The determination should not be based upon judicial discretion. Judicial discretion is not a standard to be used in the admission or exclusion of such evidence because it changes from judge to judge. The standard is: Do the traits of character and specific acts of conduct of a victim bear a reasonable relationship to the conduct of the victim which led to his injury or death? It is simply a confirmation or corroboration of the testimony given at trial by defendant and witnesses. The State and the public are protected by countervailing testimony. The final arbiter is the jury.
The exclusion of defendant’s character evidence was prejudicial error.
Defendant should be discharged or granted a new trial.