(concurring in part and dissenting in part).
{31} I concur in part and dissent in part. I concur in affirming Defendant’s conviction for second-degree murder. I respectfully dissent from the decision to reverse Defendant’s conviction for attempted second-degree murder. I also concur in affirming the enhancement of Defendant’s sentence pursuant to NMSA 1978, § 31-18-15.1 (1993). I would affirm both convictions from which Defendant has appealed, as well as the judgment and sentence. Because I concur in the analysis within Sections I and III of the Opinion, I will discuss only Section II.
{32} Although I agree with most of the analysis in Section II, I am not persuaded that Defendant was entitled to an instruction on attempted voluntary manslaughter. I would hold there was insufficient evidence of the extreme emotion, sufficient to cause a loss of self-control, on which UJI 14-222 NMRA 2006, defining provocation, instructs the jury. The Majority Opinion relies on the concept of imperfect self-defense, see State v. Abeyta, 120 N.M. 233, 901 P.2d 164 (1995), but the Opinion seems to overlook the uniform jury instruction requirement that the action to which a defendant was responding aroused an extreme emotion. The Opinion describes Defendant’s testimony as very clear, see ¶25, but there is no hint within that testimony that Defendant’s ability to reason was affected. Unlike the testimony in State v. Wright, 38 N.M. 427, 34 P.2d 870 (1934), to which the Majority Opinion refers in ¶ 24, there was no testimony that Defendant was afraid of the victim, that he was afraid of being shot, or that he was unable to reason as a result of his fear.
{33} The Majority Opinion suggests and perhaps actually holds that the same facts that give rise to an instruction on self-defense will give rise to an instruction on provocation. Yet the concepts are different. See generally State v. Parish, 118 N.M. 39, 46, 878 P.2d 988, 995 (1994) (“Either the Defendant is guilty of having been provoked into voluntary manslaughter or he is innocent because he killed in self-defense.”). In Parish, this Court noted the potential for confusion, but we suggested that if juries are instructed that they must acquit if they are satisfied a defendant acted in self-defense, then jury confusion on the difference between the effect of finding provocation and the effect of finding self-defense can be avoided. Id. at 47, 878 P.2d at 996.
{34} The Majority Opinion leads me to the conclusion that, in addition to the kind of instruction Parish recommends, recognition of attempted voluntary manslaughter requires us to approve new jury instructions. If facts that support imperfect self-defense always justify an instruction on provocation, we at least need an instruction on provocation that fits the circumstances in which, based on evidence supporting an imperfect self-defense claim, the jury should receive a step-down instruction from attempted second-degree murder to attempted voluntary manslaughter. See generally Leo M. Romero, Sufficiency of Provocation for Voluntary Manslatighter in New Mexico: Problems in Theory and Practice, 12 N.M. L.Rev. 747, 756 (1982) (arguing that our uniform jury instructions permit us to distinguish proof of sufficient provocation “when it serves as a mitigating defense to murder”).
{35} Professor Romero notes, as he begins the discussion of our cases, that “[t]he evidence of provocation and heat of passion sufficient to require or merit an instruction on voluntary manslaughter in New Mexico is not clear.” Id. at 752. He argues that we ought to distinguish the standard for determining whether there is enough evidence to support a voluntary manslaughter conviction when charged or tried separately from the standard for determining whether there is enough evidence to support giving an instruction on voluntary manslaughter as a lesser included instruction. See id. at 754-55. He also argues that constitutional due process actually requires recognizing the dual role of voluntary manslaughter, id. at 760, which is both a lesser included offense and a separate crime, “with additional and different elements from murder.” Id. He concludes his article, however, with the following:
Voluntary manslaughter could then operate as both a mitigating defense and a crime at the same time. The drafters of the Uniform Jury Instructions attempted such a compromise in the instructions on murder and voluntary manslaughter. Instructions, however, cannot change the statutory definition of voluntary manslaughter. The responsibility rests with the legislature. The homicide law in New Mexico should be revised to resolve the contradiction in the murder-manslaughter scheme.
Id. at 789.
{36} I am persuaded that we ought to recognize, as Professor Romero argues, the right to an instruction on voluntary manslaughter as a lesser included offense of second-degree murder in circumstances other than those in which the statutory definition of voluntary manslaughter has been satisfied. See generally NMSA 1978, § 30-2-3(A) (1994) (defining voluntary manslaughter as “manslaughter committed upon a sudden quarrel or in the heat of passion”). I also agree that we ought to recognize the existence of the crime of attempted voluntary manslaughter and concur in the analysis within Section 11(B).
{37} I appreciate the careful way in which the Majority Opinion discusses the issue of preservation within Section 11(A). Nevertheless, I am not persuaded that the issue on which the Majority Opinion reverses Defendant’s conviction for attempted second-degree murder was preserved. In Abeyta, this Court indicated that when both self-defense and imperfect self-defense are argued, an instruction clarifying the role of each should be given. 120 N.M. at 241, 901 P.2d at 172 (indicating the jury must be told that it must acquit if it finds a defendant acted in self-defense in order to avoid conflicting instructions). Such an instruction was not tendered in this ease. In addition, as the Majority Opinion notes, one of the reasons we can conclude, on these facts, that attempted voluntary manslaughter is a lesser included offense is the fact that we believe second-degree murder of the intentional kind was the type on which the jury was instructed. See Maj. Op. ¶ 19. That fact is not something Defendant argued. In addition, Defendant’s argument on appeal, and thus perhaps at trial, seems to rely not only on the evidence that he thought the victim had a gun, but also that he was provoked by the victim’s treatment of Jessica Runningwater. Finally, the Majority Opinion reaches a conclusion about the availability of an instruction on provocation that seems to have required a different instruction than the instruction Defendant tendered. See Maj. Op. ¶ 8. Defendant tendered an instruction that would ask the jury a question I am not persuaded the evidence actually supports. He did not tender an instruction that would have asked the question the Majority Opinion concludes he was entitled to have answered.
{38} For these reasons, I concur in Sections I, 11(B), and III. I respectfully dissent from Sections 11(A) and 11(C). I would affirm the convictions Defendant has challenged on appeal and the judgment and sentence entered on the jury’s verdict. The majority being of a different view, I concur in part and dissent in part.
I CONCUR: PETRA JIMENEZ MAES, Justice.