Sells v. State

98 N.M. 786 (1982)

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Nature of the Case

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Facts

There had been a series of heated arguments between D and his wife. The arguments occurred at several bars and finally at the family residence. D had been drinking heavily during the night and morning the shot was fired. D was unaware of his wife's infidelity and sexual relationship with her boyfriend until the revelations were made to him that night and morning. Witnesses stated that D was dazed, and shocked, and stared at the ceiling after the revelations. D's daughter testified that her father was unaware of the boyfriend before the revelations were made. The morning the shot was fired, the wife said that she enjoyed her sexual relationship with her boyfriend. Her recent trip to Phoenix, Arizona, was to be with her boyfriend. Also, it became apparent that an unusually large long-distance telephone bill involved the wife and her boyfriend. A scuffle or struggle occurred between the parties just before the shot was fired. D shot her a short time afterward as she sat at the kitchen table. D testified that he did not believe the .22 caliber handgun that fired the fatal shot was loaded. He also testified that he did not remember shooting his wife. D was charged with first-degree murder. D argued that voluntary manslaughter was a necessarily included lesser offense of first-degree murder, requiring, at least, a submission of a jury instruction to that effect. The trial court instructed on both first and second-degree murder and involuntary manslaughter. It did not instruct the jury on voluntary manslaughter. D was convicted of second-degree murder and appealed. The Court of Appeals affirmed. D appealed.