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State v. Young4/20/1994
ter, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant killed [name of victim];
2. The defendant knew that his acts created a strong probability of death or great bodily harm to [name of victim];
3. This happened in New Mexico on or about [date].
The difference between second degree murder and voluntary manslaughter is sufficient provocation. In second degree murder the defendant kills without having been sufficiently provoked, that is, without sufficient provocation. In the case of voluntary manslaughter the defendant kills after having been sufficiently provoked, that is, as a result of sufficient provocation. Sufficient provocation reduces second degree murder to voluntary manslaughter.
(Footnotes omitted.) Under these instructions the defendant should be acquitted of second degree murder if the State fails to prove beyond a reasonable doubt that "the defendant did not act as a result of sufficient provocation"; at the same time, the defendant can be convicted of voluntary manslaughter without the State bearing any burden of persuasion with respect to provocation.
On the other hand, the uniform jury instructions provide that if the defendant is charged only with voluntary manslaughter, the jury should be given SCRA 1986, 14-221, entitled "Voluntary manslaughter; no murder instruction; essential elements." U.J.I. 14-221 states:
For you to find the defendant guilty of voluntary manslaughter, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant killed [name of victim];
2. The defendant knew that his acts created a strong probability of death or great bodily harm to [name of victim];
3. The defendant acted as a result of sufficient provocation;
4. This happened in New Mexico on or about [date].
(Footnotes omitted.) Under this instruction the jury must acquit the defendant of voluntary manslaughter unless the State proves beyond a reasonable doubt that the defendant acted as a result of sufficient provocation."
Consider the consequences to this case. At the first trial, apparently at least one juror refused to find Defendant guilty of second murder because he or she had a reasonable doubt concerning whether Defendant was sufficiently provoked. Hence, the jury did not return a verdict on the charge of second degree murder n1 and convicted on voluntary manslaughter. Now, however, we are ordering a retrial. Assuming that Defendant is tried only for voluntary manslaughter, the Uniform Jury Instructions require the State to convince all jurors beyond a reasonable doubt that Defendant was sufficiently provoked. This is a much greater burden than the State had at the first trial. Indeed, the same jurors who found Defendant guilty of voluntary manslaughter at the first trial could well decide to acquit at the second trial on the very same evidence because of the change in the State's burden of persuasion. Moreover, evidence of provocation that was sufficient to sustain a verdict of voluntary manslaughter at the first trial may as a matter of law be insufficient to sustain the verdict at the second trial because of the increased burden of persuasion. This result seems unjust and unjustifiable.
Perhaps this result is required by our Supreme Court's decision in . If so, that aspect of Smith is worth reconsideration by the Supreme Court and/or review by the legislature. I would note that the majority rule i
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