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State v. Young4/20/1994
APODACA, Judge.
Defendant was charged under indictment with an open count of murder. After a jury trial, he was convicted of voluntary manslaughter in violation of NMSA 1978, Section 30-2-3 (Repl. Pamp. 1984). He appeals his conviction, raising the following issues: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court committed reversible error by admitting Defendant's post-arraignment statement; (3) whether the trial court committed reversible error by admitting Defendant's three pre-arraignment statements; (4) whether the trial court erroneously refused to give two uniform jury instructions requested by Defendant. Because we conclude that the trial court erred under Issue 2, we reverse Defendant's conviction and remand for a new trial. We address Issue 1 because, if we were to reverse Defendant's conviction on the basis that there was not substantial evidence to support the conviction, Defendant could not be retried. We remand on Issue 3 for the trial court's reconsideration consistent with this opinion. In light of our Disposition, we need not address Issue 4.
BACKGROUND
Defendant's conviction arose out of the death of Pamela Mass, Defendant's girlfriend. David Bigelow, a friend of Defendant's, found her body on Tuesday, November 26, 1991, in an adobe addition to the trailer in which Defendant and Mass lived. Mass had been dead since Saturday. Her heart blood contained a normally lethal amount of phenobarbital; additional undigested phenobarbital was in her stomach. Her blood alcohol content was .088%. There was also evidence of fresh bruises on her face and body, and fresh internal injuries, including bruising around her right and left ribs and her kidneys. In addition, there was a ligature mark on her neck, consistent with strangulation. At trial, the State's theory was that Defendant strangled Mass during a fight; the defense theory was that she died of a drug overdose. Additional facts will be discussed as relevant to the issues.
Discussion
1. Sufficiency of the Evidence.
Defendant contends that the evidence was insufficient to support his conviction for voluntary manslaughter because there was insufficient evidence that the victim provoked him into killing her "upon a sudden quarrel or in the heat of passion." See § 30-2-3. We decline to consider the sufficiency of the evidence to support Defendant's manslaughter
conviction because the instruction on voluntary manslaughter was given at Defendant's request. Although we agree that generally there must be evidence of sufficient provocation by the victim to support a conviction of voluntary manslaughter, see , New Mexico courts have consistently refused to review such claims where the trial court instructed the jury as the defendant requested, see (defendant knowingly, intelligently, and voluntarily waived his right to have the jury instructed on a lesser included offense where he requested the court not to give the instruction); ) (defendant requested trial court to instruct on uncharged offense that was not lesser included offense), cert. denied, 107 N.M. 132, 753 P.2d 1320 (1988); ) (defendant's conviction of voluntary manslaughter, where defendant had requested the relevant jury instruction, did not amount to fundamental error even though the evidence did not support the instruction), cert. denied, 104 N.M. 378, 721 P.2d 1309 (1986). At trial, Defendant obviously believed that the evidence supported an instruction on voluntary manslaughter and that such an instruction would benefit him. Und
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