(concurring in part and dissenting in part).
{32} I respectfully dissent. I believe Defendant was entitled to an instruction on voluntary manslaughter. I agree that the trial court did not abuse its discretion in admitting the “get the gat” statement. I also agree that Defendant’s proposed instruction on accessory to involuntary manslaughter was flawed and that he thus failed to preserve an appellate issue with respect to an instruction on that theory. Because on remand Defendant might draft a better instruction and put on new or different evidence, I would not reach the issue of his entitlement to an instruction on involuntary-manslaughter. I therefore concur in part 11(B) to the extent that it holds that issue was not preserved, and I concur in part III. For the following reasons, I dissent from part 11(A), and I would remand for a new trial.
{33} Defendant sought an instruction on voluntary manslaughter. Defendant was not the killer, but the State charged him as an accessory. Manslaughter consists of “the unlawful killing of a human being without malice,” NMSA 1978, § 30-2-3 (1994), and voluntary manslaughter is “manslaughter committed upon a sudden quarrel or in the heat of passion.” NMSA 1978, § 30-2-3(A) (1994). Defendant is liable for voluntary manslaughter as an accessory if he “procures, counsels, aids or abets in its commission.” NMSA 1978, § 30-1-13 (1972). In order to be entitled to an instruction of a lesser included offense to the offense charged, there must be some reasonable view of the evidence whereby the lesser offense is the highest degree of the offense committed. State v. Brown, 1998-NMSC-037, ¶ 12, 126 N.M. 338, 969 P.2d 313. Thus, to be entitled to the instruction, there must be some reasonable view of the evidence whereby Defendant was sufficiently provoked by the victim, and while so provoked Defendant aided, abetted or encouraged Padilla and Herrera to kill the victim.
{34} The State has argued that Defendant was not entitled to the voluntary manslaughter instruction as an accessory for two reasons. First, Defendant was not sufficiently provoked by the victim’s size and anger. Second, Defendant was the initial aggressor and as such cannot rely on the victim’s response as adequate provocation.
{35} The first question is properly one for the jury. As the majority notes, Defendant testified that he revved his engine to scare the victim, and when the victim responded by taking off his shirt and jumping on the hood of the car, he got out to apologize. Although he was not initially afraid of the victim— despite the significant difference in their sizes — Defendant testified that he did feel threatened when he thought the victim was going to “pound” him. Majority Opinion, ¶ 8. I believe there is thus a view of the evidence in which Defendant was provoked. The jury should have been given the opportunity to decide whether to credit Defendant’s testimony and to determine whether the provocation was sufficient under the law. The trial court ought not have decided, as a matter of law, that Defendant was not provoked. State v. Munoz, 113 N.M. 489, 490, 827 P.2d 1303, 1304 (Ct.App.1992) (“Whether a particular set of circumstances is sufficient provocation is generally a question for the jury to decide.”).
{36} The State’s second argument appears to me to expand a rule past its original boundaries and to create a per se rule where a fact-based one is appropriate. In State v. Manus, 93 N.M. 95, 100, 597 P.2d 280, 285 (1979) we said: “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.” Based on that language the majority concludes that, as a matter of law, Defendant is not entitled to an voluntary manslaughter instruction because he initially assaulted the victim.
{37} The first sentence of this quote can be read in more than one way, depending on the interpretation given to the word “intentionally.” As the State argues, intentionally could be read to describe the act that causes the victim to respond. Thus, a negligent act that elicits a response from the victim is distinguished from an intentional act. On the other hand, as Defendant argues, intentionally could be read to describe the motive in doing the act that elicits the victim’s response. In that way, a defendant who provokes a victim in order to rely on the victim’s response as provocation is distinguished from one who intends to agitate the victim, but is surprised by that victim’s reaction and genuinely provoked by it. The former, by virtue of the premeditated decision to kill, is guilty of murder, and the latter, who lacks such premeditation and is actually provoked by the victim, is guilty of manslaughter.
{38} I think the latter interpretation is more natural, and is confirmed by the second sentence of the quoted language: “In such case, the circumstances show that he acted with malice aforethought, and the offense is murder.” By this language the author of Manus indicated that the reason for the rule that a initial aggressor cannot claim provocation is because the circumstances of that initial aggression evince an intent to murder prior to the provocation. Additionally, the author of Manus quoted this language from Wharton’s Criminal Law. That source followed the quote used in Manus with an example: “Thus, a defendant is guilty of murder when he arms himself and plans to insult the victim and then kill him if the victim strikes him in resentment over the insult.” 2 Charles E. Torcía, Wharton’s Criminal Law § 157, at 352 (15th ed.1994) (footnote omitted). That example seems to me to clarify the rule and to support a conclusion that an initial aggressor loses the benefit of provocation in more limited circumstances than urged by the State.
{39} Such an interpretation is brought out by the facts of Manus and subsequent cases that rely on this rule. Although Manus was the source of the rule quoted above, the defendant in that case was largely denied the instruction because the acts he claimed provoked him were performed by the police in the lawful exercise of their duty. “The exercise of a legal right, no matter how offensive, is no such provocation as lowers the grade of homicide.” Manus, 93 N.M. at 100, 597 P.2d at 285 (citation omitted).
{40} In State v. Marquez, 96 N.M. 746, 634 P.2d 1298 (Ct.App.1981), for example, the defendant, who had a bad history with the victim, went to her home, broke in, took a knife from the kitchen and waited for her to come home. When she did, he confronted her and got into an argument during which he stabbed a chair in the room repeatedly with the knife. He then chased the victim and managed to stab her once. She responded by throwing a vase at him, which he claimed provoked him. He then killed her. In that case, unlike this one, there is simply no view of the evidence that allows an inference that the defendant killed in response to the victim’s provocation.
{41} Similarly, in State v. Durante, 104 N.M. 639, 725 P.2d 839 (Ct.App.1986), the defendant broke into the victims’ house wearing a ski mask, put his hand over the sleeping female victim’s mouth and instructed her to be quiet or he would kill her. The male victim, who was sleeping next to her, woke up, observed what the defendant was doing, and struggled with him. During the struggle, the defendant stabbed the male victim several times. The male victim was responding to a serious threat to his safety from a masked and armed intruder, a threat realized by the intruder’s actions.
{42} This interpretation is endorsed by the commentators. In addition to the view expressed in Wharton’s Criminal Law, another commentator has described the rule of provocation in the context of a mutual quarrel or combat:
If an unlawful attack is resisted by force obviously in excess of what is needed in self-defense, the case may or may not be within the rule of provocation. There is no mitigation in favor of the original assailant if he intended in the beginning to kill or to inflict great bodily injury; whereas if the original assailant intended only a non-deadly scuffle the counter attack may constitute adequate provocation.
Rollin M. Perkins & Ronald N. Boyce, Criminal Law 89 (3d ed.1982) (footnotes omitted). Whether the victim’s response was in excess of self-defense, whether Defendant intended to kill prior to the encounter, or whether he was surprised by the victim’s response are all fact-intensive inquiries that should properly be considered by a jury. A per se rule that, as an initial aggressor, Defendant was not entitled to claim provocation seems to deprive Defendant of his right to have a jury determine whether he was sufficiently provoked in this context.
{43} In this case there is a version of the facts, from Defendant’s testimony and some permissible inferences from his conduct, that he did not provoke the victim with the predetermined intent of killing him, and that when he encouraged his companions to come after the victim he was afraid of him. The evidence of provocation was not overwhelming, and a jury could easily determine that Defendant’s testimony concerning his intentions was untrustworthy, and that his actions support an inference that he intended to kill from the beginning of the encounter. That was, however, the jury’s decision to make, and the jury was deprived of that opportunity when the trial court denied the proper instruction. I do not consider this error harmless because “[tjhere is a legitimate concern that conviction of the greater offense may result because acquittal is an alternative that is unacceptable to the jury.” State v. Meadors, 121 N.M. 38, 52, 908 P.2d 731, 745 (1995) (Ransom, J., specially concurring).
{44} Defendant’s original intent in approaching the victim and the sufficiency of the provocation are both questions for the jury. Having put forth some evidence of provocation as a part of his theory of the case, Defendant was entitled to an instruction. I respectfully dissent from part 11(A), and I would remand this case for a new trial. I concur in the holding in part 11(B) that Defendant failed to preserve his claim to an instruction on involuntary manslaughter, and I concur in part III.
I CONCUR: GENE E. FRANCHINI, Justice.