Lead Opinion
OPINION
{1} Defendant, Frederico Gaitan, was convicted of second degree murder as an accessory under NMSA 1978, § 30-2-l(B) (1994) and NMSA 1978, § 30-1-13 (1972), aggravated assault with a deadly weapon under NMSA 1978, § 30-3-2(A) (1963), tampering with evidence as an accessory under NMSA 1978, § 30-22-5 (1963) and Section 30-1-13, and aggravated battery with a deadly weapon under NMSA 1978, § 30-3-5(0 (1969). Defendant appeals his convictions and raises two issues on appeal: (1) whether the trial court erred in failing to instruct the jury on voluntary and involuntary manslaughter; and (2) whether the trial court erroneously admitted evidence of a prior bad act. The Court of Appeals affirmed Defendant’s convictions, and we granted his petition for writ of certiorari to the Court of Appeals. State v. Gaitan,
I.
{2} On October 13,1997, Defendant, Richard Padilla, and Viento Herrera initiated an altercation with Stephen аnd Wesley Zotigh that resulted in Stephen’s death. On that night, Defendant, Padilla, and Herrera had been drinking at a party and were driving to another party when they approached the victim and his cousin, who were walking home from a convenience store. During the ensuing altercation, the victim was stabbed four times. He later died as a result of two of the wounds.
{3} According to Wesley Zotigh’s testimony, the three men pulled up beside him and his cousin and offered them a ride. After they refused the offer, someone in the car asked them if they were Indian, what their names were, and if they had any money. Zotigh stated that he got the feeling something bad was going to happen after the three men began to giggle inside the car, and he urged the victim to leave. As the two walked away, Zotigh heard the engine rev and felt a “little shove” from the victim, pushing him out of the way. When Zotigh turned around he saw the car hit the victim, throwing him onto the hood of the car. The victim then got off the hood, took off his shirt, and approached Defendant, who had gotten out of his car. Zotigh testified that as Defendant and the victim pushed and shoved each other, Defendant turned toward the car and said, “Let’s get out the gat,” as he gestured to his friends with both hands. Padilla and Herrera then got out of the car, and all three men began fighting with the victim. Zotigh stated that he then heard one of the men say, “Let’s go. Let’s go,” and the three ran back to the car laughing and drove away. At that point Zotigh realized the victim had been seriously injured.
{4} Padilla testified that he heard the Defendant say “Get the gat” at a party the three men attended earlier in the evening. He stated that Dеfendant used the words to intimidate people at the party when they refused to allow Defendant to leave with some of the beer. Padilla reiterated that the Zotighs did not want a ride from the three men and had in fact refused their offer. He testified that he was the first person to get back into the car after the altercation and that Defendant was the last one back in. He also stated that after they got back in the car the three men laughed about what had taken place.
{5} Teresa Padilla, Kichard Padilla’s mother, testified that Herrera told her that after the Zotighs started walking away from the ear, Defendant was “acting crazy” and kept asking, “Should I run the fuckers over?” Herrera apparently responded “Go for it,” and the Defendant hit the victim with his ear.
{6} Vincent Archuleta, another friend of Defendant, testified that on the night of the stabbing Defendant came to Archuleta’s trailer and asked if he could stay at his house. Defendant told him that “they had got [sic] in a fight and somebody was stabbed, that they had stabbed somebody.” Archuleta’s girlfriend, Isabel Cortez, was present at Archuleta’s trailer that night, and testified that she too heard Defendant say “We stabbed somebody.”
{7} The State also presented testimony from Kevin Silva, who was incarcerated in the Taos County Detention Center when Defendant was brought in on these charges. He stated that he had known Defendant since childhood and that they had both been in the Barrios Small Town gang together. Silva testified that when he asked Defendant why he was in jail, Defendant told him ‘We pulled a cap back on an Indian,” and “We had killed an Indian.” Defendant further explаined that they had stabbed the victim.
{8} Defendant gave a different version of the events of that night. According to his testimony, he pulled up beside the two men in his car, and Herrera, a passenger, asked them if they wanted a ride. Defendant stated he could not recall why he had pulled over, although he admitted that the Zotighs “weren’t asking for a ride,” but that they had “pulled over and offered them a ride.” After the Zotighs refused Herrera’s offer and continued walking, Defendant decided he “wanted to mess around with them a little bit,” and he slowly drove up behind them, “revved” his engine, and stopped “real close” to the victim. Defendant stated that when he stopped his ear, the victim “must of [sic] thought I was going to hit him or something because I was so close to him. He turned around and maybe his instinct was to jump, so he jumped on my car and hе got off and took off his shirt.” Defendant testified that after the victim jumped off the hood of the car he came towards Defendant in an aggressive manner. Defendant thought the victim was going to attack him, so he got out of his ear to apologize and explain that he was just “playing around.” However, as soon as Defendant exited his vehicle the victim began pushing Defendant toward the road. Fearing the victim was going to “pound” him, Defendant told the victim, “I have a gat, leave me alone. I have a gat.” Soon thereafter, Defendant saw Herrera and Padilla get out of the car and begin fighting with the victim. Contrary to Padilla’s testimony, Defendant stated that he was the first to get back in the car, and that after Padilla and Herrera got back in he drove away.
{9} Defendant testified that, as he was driving away, he sаw blood on the victim’s face and chest, but thought the victim had a bloody nose. Herrera then commented that he had blood on his hands, and Padilla announced that he had stabbed the victim. Defendant also testified that he did not know Padilla had a knife and did not know that the victim had been stabbed until after they drove away.
II.
{10} The State charged Defendant with first degree murder as an accessory. The indictment named as principals either Herrera or Padilla, or both. At trial, the jury was instructed on second degree murder as a lesser included offense of first degree murder. The trial court refused Defendant’s tendered instructions on the lesser included offenses of voluntary and involuntary manslaughter. Defendant argues that the trial court’s failure to tender his requested instructions to the jury constituted reversible error because there was a reasonable view of the evidence which could sustain a finding that voluntary manslaughter, or in the alternative, involuntary manslaughter, was the highest degree of homicide committed by Defendant. We review this issue de novo. See State v. Salazar,
A.
[2^4] {11} A defendant is entitled to an instruction on a lesser included offense when there is “ ‘some view of the evidence pursuant to which the lesser offense is the highest degree of crime committed, and that view [is] reasonable.’ ” State v. Brown,
{12} Because Defendant was charged as an accessory, and the principal and accessory may each be convicted for different degrees of an offense depending on their state of mind, we agree with the Court of Appeals’ determination that we must consider whether Defendant, rather than Padilla or Herrera, was sufficiently provoked by the victim. Gaitan,
{13} Defendant argues that the Court of Appeals interpreted this language too broadly, and that the proper reading of Manus is that “where the assailed person intentionally provokes an attack so that he can use that attack as an excuse for killing, he is guilty of murder.” We are not persuaded by Defendant’s reading of this case. Rather we conclude that the proper interpretation of this language is that the law does not permit one who intentionally instigates an assault on another to then rely on the victim’s reasonable response to that assault as evidence of provocation sufficient to mitigate the subsequent killing of the victim from murder to manslaughter. See State v. Munoz,
{14} Furthermore, there is no reasonable view of the evidence supporting sufficient provocation as the mental state underlying Defendant’s role in the killing. “ ‘Sufficient provocation’ can be any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition.” UJI 14-222 NMRA 2002. Under Defendant’s version of the facts, he had no intent for the victim to be killed. However, Defendant did intentionally threaten the victim and goad him to respond. He testified that he was “trying to just mess around with [the victim], ... put him in some anger and stuff[, and] ... get[ ] him mad or piss[ ] this young man off.” Dеfendant stated that he knew his actions warranted an apology to the victim, and he testified that the victim’s anger was understandable, stating, “he was angry about what happened. And I was guilty about what happened also.” Defendant stated, “I don’t blame him for being angry, either, because I would have been angry myself.” Defendant testified that he “never did attack [the victim]. And [the victim] actually never really attacked me. If he would have attacked me, he would have probably left me with my face pretty swoll [sic] up and stuff. And he just basically just shoved me, pushed me, that was it.” Defendant said that “[t]he only time I felt threatened was when I thought he was going to beat me up.” From this testimony, it is clear that Defendant did not fear anything more than a beating by the victim, that the victim was going to “pound” him and that he may have a swollen facе as a result. See Salazar,
B.
{15} Defendant also claims he was entitled to an involuntary manslaughter instruction because the evidence supported a reasonable view that involuntary manslaughter was the highest degree of homicide to which Defendant was an accessory. Defendant concedes that the theory argued on appeal is not the theory expressed in the rejected instruction. However, he argues that the instruction alerted the trial court to the possibility that the facts could be construed to support such an instruction and that the instruction was warranted. We do not agree.
{16} The Court of Appeals deemed this issue unpreserved, noting that “Defendant acknowledges that he failed to preserve the alleged error for appeal because he faded to request an involuntary manslaughter instruction at trial.” Gaitan,
[F]or the preservation of error in the charge, objection to any instruction given must be sufficient to alert the mind of the court to the claimed vice therein, or, in case of failure to instruct on any issue, a correct written instruction must be tendered before the jury is instructed.
(Emphasis added.) The purpose of this language is “to allow the court an opportunity to decide a question whose dimensions are not open to conjecture or after-the-fact interpretation.” Gallegos v. Stаte,
{17} Defendant’s requested instruction asked the jury to find involuntary manslaughter if it determined that either Herrera or Padilla, or both, “stabbed Steven Zotigh with a knife.” We do not believe that the act described in the instruction can be characterized as anything other than a felonious act, which is outside the statutory definition of involuntary manslaughter. See NMSA 1978, § 30-2-3(B) (1994); Salazar,
{18} Defendant was only entitled to an instruction on involuntary manslaughter if there was some reasonable view “ ‘of the evidence pursuant to which the lesser offense is the highest degree of crime committed.’ ” Brown,
{19} In Holden, our Court of Appeals considered the issue of accessory liability as it relates to involuntary manslaughter. In that case, the evidence introduced at trial was that the defendant was looking for the victim and had made a statement to the effect that he was going to get someone to beat the victim up. Holden,
{20} This ease is distinguishable from Holden. According to Defendant’s testimony, he had no intent that Padilla or Herrera act at all during the altercation with the Zotighs. He testified that he thought the victim was going to attack him, so he got out of his car to apologize, and as soon as he exited the vehicle the victim began pushing him toward the road. Defendant told the victim, “I have a gat, leave me alone. I have a gat,” fearing the victim wаs going to “pound” him. Defendant explained that he used the statement to intimidate the victim, not as a call for help from his friends. Defendant also testified that there was never any agreement between the three men to fight the victim, nor did he think that they would “jump in” for him. Thus, Defendant’s own testimony does not present a reasonable view of the evidence which would support involuntary manslaughter as the highest degree of homicide to which Defendant was an accessory, because according to Defendant’s theory of the case he did not intend, help, encourage or cause the acts which resulted in the victim’s death. See UJI14-2822 NMRA 2002.
{21} Furthermore, under no version of the facts presented at trial is Defendant entitled to the instruction. First, on appeal Defendant argues that a reasonable view of the evidence would have supported the instruction on the theory that Defendant by his negligent actions — provoking the altercation — precipitated the unintentional killing. This argument misinterprets accessory liability as it applies to involuntary manslaughter because it focuses on Defendant’s actions as an accessory, rather than on his intent with respect to the actions of the principals. See 2 LaFave & Scott, supra, § 6.7(c), at 144. However, even if Defendant’s conduct of provoking the altercation precipitated the acts which eventually resulted in the victim’s death, we do not agree that Defendant’s actions were negligent. Defendant acknowledged that as a result of intentionally approaching the victim with his vehicle, the victim, “must of [sic] thought I was going to hit him or something because I was so close to him.” Even if we assume Defendant did not strike the victim with his vehicle, according to Defendant’s own testimony, the victim presumably believed he was going to hit him. Thus, at the very least, Defendant’s actions were criminal and amounted to an aggravated assault with a deadly weapon (a motor vehicle), a fourth degree felony. See § 30-3-2(A) (“Aggravated assault consists of ... unlawfully assaulting or striking at another with a deadly weapon____”); State v. Mata,
{22} Second, even if Defendant only said “I have a gat,” intending to intimidate the victim, that statement аlso constitutes the felony of aggravated assault and again fails to show the intent required for the instruction. See § 30-2-3(B); Mata,
{23} Finally, with respect to the stabbing of the victim by the principals, the jury was presented with two alternative statements by Defendant relevant to his intent as an accessory. Under the first alternative, according to his own testimony, Defendant said, “I have a gat,” intending to intimidate and not as a call for help. If believed by the jury, this statement would have resulted in an acquittal on the accessory to murder charge, because Defendant would not have shared the principals’ purpose or design. Under the second alternative, Defendant said, “Let’s get the gat,” intending that his friends get a weapon and help him seriously injure or kill the victim. If believed by the jury, this statement demonstrates liability as an aсcessory to first or second degree murder because Defendant intended that a felonious act be committed. See § 30-2-1.
{24} Defendant has advanced no argument, and we find no reasonable view of the evidence, pursuant to which involuntary manslaughter is the highest degree of crime to which Defendant was an accessory. We will not “fragment the testimony ... to such a degree as to distort it” in order to construct a view of the evidence which would support the giving of the instruction. Ma-nus,
III.
{25} Defendant also asserts that the trial court improperly admitted testimony that Defendant said “Get the gat,” at a party several hours before the stabbing incident. He argues that the statement was irrelevant, unfairly prejudicial, and constituted inadmissiblе propensity evidence. The trial court admitted the statement, concluding that it was relevant to the issues in the case, was not unfairly prejudicial, and could be construed as an admission by a party opponent. We will only reverse the trial court’s ruling regarding the admissibility of evidence if the court abused its discretion. See State v. Garcia,
{26} Under Rule 11-404(B) NMRA 2002, “[e]vidence of other crimes, wrongs, or acts” is not admissible to show that the defendant had a propensity to commit the charged crimes. However, this evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Rule 11-404(B). “In order to admit evidence under [this Rule], the court must find that the evidence is relevant to a disputed issue other than the defendant’s character, and it must determine that the prejudicial effect of the evidence does not outweigh its probative value____” State v. Beachum,
{27} Defendant argues that the State’s proffered reasons for using Defendant’s statement were “nothing more than propensity recast in other words.” He asserts that the State sought to admit the statement to show that Defendant was a “bullying gang member” and had a “propensity to commit violent acts with guns.” The State responds that the statement was probative of the disputed issue of whether Defendant was an accessory to several crimes including murder and assault with intent to commit a violent felony. We note that to convict the Defendant of these crimes as an accessory the State was required to prove thаt Defendant intended that the crimes be committed and that he helped, encouraged, or caused the crimes to be committed. See UJI 14-2822. The State asserts that the evidence of the earlier statement made at the party is useful as a comparison to his similar statement made during the altercation with the Zotighs, in that, “it tended to show that when in trouble the [Defendant used a phrase that alerted his friends to the fact that he wanted them to help him as necessary.” We agree with the Court of Appeals that the statement was admissible under Rule 11-404(B) “because the trial court could have concluded that the statement was highly probative of Defendant’s intent to enlist or encourage the help of his companions and therefore relevant to the disputed issue of Defendant’s liability as an accessory.” Gaitan,
{28} Furthermore, Defendant argues that the trial court misapplied the law by failing to perform the proper balancing test under Rule 11-403 NMRA 2002 and consequently erred in concluding that its prejudicial impact did not substantially outweigh its probative value. We disagree. Rule 11-403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
In this case, the trial court specifically indicated its concern that the statement was prejudicial, explaining that “this is really a question of ... weighing and balancing.” Thus, as the Court of Appeals determined, based on the record, it appears that the trial court conducted the proper Rule 11-403 analysis. See Gaitan,
{29} We further agree with the Court of Appeals that the prejudice of the statement did not outweigh its probative value to show Defendant’s intent. At the time the statement was admitted, “the State had already introduced testimony concerning Defendant’s gang affiliation, ‘bullying’ nature, and propensity for violence.” Gaitan,
IY.
{30} For the foregoing reasons we affirm Defendant’s convictions for second degree murder as an accessory, aggravated assault with a deadly wеapon, tampering with evidence as an accessory, and aggravated battery with a deadly weapon.
{31} IT IS SO ORDERED.
Concurrence Opinion
(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,
{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 apоlogize. 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,
{36} The State’s second argument appears to me to expand a rule past its original boundaries and tо create a per se rule where a fact-based one is appropriate. In State v. Manus,
{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 rеspond. 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 maliсe 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,
{40} In State v. Marquez,
{41} Similarly, in State v. Durante,
{42} This interpretation is endorsed by the commentators. In addition to the view expressed in Wharton’s Criminal Law, аnother 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 tо 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,
{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.