{ "id": 1557243, "name": "STATE of New Mexico, Plaintiff-Appellee, v. John Eloy CASTRO, Defendant-Appellant", "name_abbreviation": "State v. Castro", "decision_date": "1979-02-20", "docket_number": "No. 3597", "first_page": "585", "last_page": "589", "citations": [ { "type": "official", "cite": "92 N.M. 585" }, { "type": "parallel", "cite": "592 P.2d 185" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "90 N.M. 710", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874545 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0710-01" ] }, { "cite": "89 N.M. 74", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2864061 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "77" }, { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0074-01" ] }, { "cite": "84 N.M. 217", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765791 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0217-01" ] }, { "cite": "24 Cal.Rptr. 708", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1962, "opinion_index": 0 }, { "cite": "207 Cal.App.2d 891", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2126990 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/cal-app-2d/207/0891-01" ] }, { "cite": "89 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866025 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0297-01" ] }, { "cite": "36 N.M. 41", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586498 ], "weight": 5, "year": 1932, "pin_cites": [ { "page": "44-5" }, { "page": "935" } ], "opinion_index": 0, "case_paths": [ "/nm/36/0041-01" ] }, { "cite": "203 P. 846", "category": "reporters:state_regional", "reporter": "P.", "year": 1921, "opinion_index": 0 }, { "cite": "27 N.M. 594", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843029 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nm/27/0594-01" ] }, { "cite": "89 N.M. 770", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867174 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "772" }, { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0770-01" ] } ], "analysis": { "cardinality": 636, "char_count": 11101, "ocr_confidence": 0.795, "pagerank": { "raw": 2.1773705842986836e-07, "percentile": 0.7719087097355869 }, "sha256": "09c5ea1f82fa5f7fda1f3df63ea58686852882e8c7ea2e45542941af62add847", "simhash": "1:9badeac43f4cce33", "word_count": 1794 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ, J., concurs,", "ANDREWS, J., concurring in result," ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. John Eloy CASTRO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nDefendant John Castro was convicted of voluntary manslaughter and aggravated burglary. The victim was Linda, his divorced wife. John appeals. We reverse on voluntary manslaughter and affirm on aggravated burglary.\nLinda and John had been married for approximately eight years and were divorced in either August or September, 1977. The homicide was committed on October 6, 1977. John was off work at about 3:00 p. m., went home, drank two bottles of beer and had supper. While John was watching a baseball game on television, Linda called and wanted money for rent. He told her to let him alone and she said she didn\u2019t have to. Linda then used abusive language. Subsequently, John went to the store and purchased a gun and ammunition. This transaction took about ten minutes and John appeared calm. He went back home, loaded the gun, walked around for about a half hour and then walked to Linda\u2019s house. He planned on shooting her in the spine to prevent her from dancing. John saw Linda sitting on the couch watching television and knocked on the door. Linda became scared, called the police, hollered and ran toward the back bedroom. John broke the lower left hand window, unlocked the door, and from a distance of five feet shot Linda three times and killed her.\nJohn was charged with first degree murder and aggravated burglary. The jury returned a verdict of guilty of voluntary manslaughter and aggravated burglary, both with the use of a firearm.\nA. No evidence supported submission of voluntary manslaughter.\nSection 30-2-3(A), N.M.S.A. 1978 reads:\nManslaughter is the unlawful killing of a human being without malice.\nA. Voluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion.\nSmith v. State, 89 N.M. 770, 772, 558 P.2d 39, 41 (1976) says:\nIt follows logically and obviously from the definition that, in order to convict of voluntary manslaughter, the jury must have evidence that there was a sudden quarrel or heat of passion at the time of the commission of the crime (in order, under the common law theory, to show that the killing was the result of provocation sufficient to negate the presumption of malice; see, e. g., R. Anderson, Wharton\u2019s Criminal Law and Procedure \u00a7 242 at 522 (1957)).\nThe transcript of the record is barren of any such evidence of provocation. * * [Emphasis added.] [Smith was discharged.]\nU.J.I. Crim. 2.20 was submitted to the jury. It contained the definition and meaning of \u201csufficient provocation\u201d and reads:\nThe difference between second degree murder and voluntary manslaughter is 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.\nSufficient 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 cause a temporary loss of self control in an ordinary person of average disposition. The provocation must be such that an ordinary person would not have cooled off before acting. [Emphasis added.]\nThe State claims that the provocative telephone call from Linda put into motion the series of events that led to Linda\u2019s death. The State contends that it showed conclusively that John reacted in response to the provocation of Linda. This argument falls short of the meaning of \u201csufficient provocation\u201d in three respects. First, when buying the gun John acted calmly, free of any extreme emotions. Second, John walked about the area a considerable period of time before approaching Linda\u2019s residence. He did not act immediately or soon after the provocation. State v. Trujillo, 27 N.M. 594, 203 P. 846 (1921). Even if we assumed that initially John was angered, he had sufficient time to cool off. He did not lose self control. Sudden anger or heat of passion and provocation must concur. State v. Nevares, 36 N.M. 41, 7 P.2d 933 (1932). Finally, \u201cAnd words alone, however scurrilous or insulting, will not furnish the adequate provocation required for this purpose.\u201d Nevares, supra, Id. at 44-5, 7 P.2d at 935.\nThe Committee Commentary shows that Nevares was considered in arriving at the definition of \u201csufficient provocation.\u201d The \u201cwords alone\u201d concept does not fall within the terms \u201cany action, conduct or circumstances which arouse anger\u201d as set forth in U.J.I. Crim. 2.20, supra. We conclude that the telephone conversation did not constitute \u201csufficient provocation.\u201d\nAbsent \u201csufficient provocation,\u201d there was no evidence to support submission of voluntary manslaughter to the jury. John is discharged on this count of the criminal information.\nB. There was sufficient evidence to support the crime of aggravated burglary-\nSection 30 -16-4(A), N.M.S.A. 1978 reads:\nAggravated burglary consists of the unauthorized entry of any dwelling . . . with intent to commit any felony . . therein and the person either:\nA. is armed with a deadly weapon;\nPursuant to U.J.I. Crim. 16.22, the court instructed the jury that \u201cwhen the defendant entered the Linda Castro residence, he intended to commit murder when he got inside . . .\u201d \u201cMurder\u201d was stated to be the felony.\nThe crucial factor in the crime of aggravated burglary is whether the defendant had the intent to commit a felony on entering the dwelling, not whether the felony was actually committed. Intent does not have to be consummated. State v. Tixier, 89 N.M. 297, 551 P.2d 987 (Ct.App.1976).\nThe jury acquitted defendant of first and second degree murder and we hold defendant not guilty of voluntary manslaughter. None of these crimes were actually committed. This fact does not resolve the problem. The failure of defendant to commit murder in any of its degrees did not foreclose the jury from concluding that at the time of entry defendant did intend to commit murder in any one of its degrees. Proof of intent at the time of entry does not depend upon the subsequent commission of the felony, failure to commit the felony or even an attempt to commit it. People v. Robles, 207 Cal.App.2d 891, 24 Cal.Rptr. 708 (1962).\nDefendant unlawfully entered Linda\u2019s home and from a distance of five feet shot Linda three times and killed her. Defendant testified that upon entry he intended to shoot Linda in the spine. This was an admission that he intended to commit aggravated battery as a matter of law, i. e., to inflict great bodily harm with a deadly weapon, a third degree felony. Section 30-3-5, N.M.S.A. 1978. In other words, defendant confessed to aggravated burglary, except for his defense of insanity. The court should have instructed the jury to find defendant guilty of aggravated burglary unless the jury believed him to be insane at the time.\nDuring deliberations, the jury submitted an inquiry whether the essential element of \u201cfelony\u201d should read:\nMurder or great bodily harm when he got inside.\nOut of the presence of parties and attorneys, the court answered \u201cno\u201d as to \u201cgreat bodily harm,\u201d and instructed the jury that:\n[T]he word \u201cmurder\u201d is defined by either of the following: 1, 2, or 3. One, murder in the first degree, murder in the second degree, voluntary manslaughter.\nIn the alternative, the inquiry of the jury should have led the district court to instruct the jury that \u201cwhen the defendant entered the Linda Castro home he intended to commit aggravated battery,\u201d i. e:, to inflict great bodily harm with a deadly weapon.\nNevertheless, the jury was not compelled to believe defendant\u2019s testimony that his only intent at the time of entry was to do great bodily harm. Criminal intent is a state of mind, State v. Viscarra, 84 N.M. 217, 501 P.2d 261 (Ct.App.1972), known only by defendant. A jury cannot determine defendant\u2019s state of mind at the time of entry except from the circumstances surrounding the death of Linda and the reasonable inferences to be drawn therefrom.\nIn Robles, supra, defendant was charged with rape and aggravated burglary with intent to commit rape. The rape charge was dismissed for failure of the jury to agree. Defendant contended that the failure to find him guilty of rape negatived his conviction of burglary with intent to commit rape. In answer, the California court enumerated two rules that govern appellate review of the sufficiency of the evidence when the charge is burglary. First, the jury\u2019s verdict will not be disturbed if the circumstances reasonably justify the facts which the jury deduced from the evidence and if those facts are sufficient to support the verdict. Second, burglary may be proved by circumstantial evidence. The burglarious intent can be reasonably and justifiably inferred from the unauthorized entry alone.\nUnder the rules, the jury could reasonably infer from the circumstances in the instant case that defendant intended to commit one of the degrees of murder. The jury did believe that he committed the crime of voluntary manslaughter. \u201cWe place our reliance on the sense of justice and fair play reposing in juries under correct instructions upon the law.\u201d State v. Fiechter, 89 N.M. 74, 77, 547 P.2d 557, 560 (1976).\nDefendant raises two other issues in support of reversal.\nThe defendant claims that the trial court erred in not directing a verdict by reason of insanity. The evidence in the record was sufficient to warrant submission of the issue of the defendant\u2019s sanity to the jury as a question of fact. Defendant was not entitled to a directed verdict.\nAppellant\u2019s final argument is that the introduction of irrelevant hearsay by the State and prosecutorial misconduct warrants a mistrial. To permit the defendant\u2019s mother-in-law to testify concerning the defendant\u2019s dismissal from employment for the harassment of three women was harmless error. In light of the seventeen page sworn statement in which the defendant admitted the killing and the statements relating the circumstances surrounding the shooting given by defendant\u2019s children, appellant\u2019s claim of prejudice cannot stand. Proper v. Mowry, 90 N.M. 710, 568 P.2d 236 (Ct.App.1977). However, we do not compliment the district attorney who persisted in presenting irrelevant testimony. This conduct tends to deny a defendant a fair trial. Under the circumstances of this case, defendant was not entitled to a mistrial.\nDefendant\u2019s conviction of voluntary manslaughter is reversed.\nDefendant\u2019s conviction of aggravated burglary is affirmed.\nIT IS SO ORDERED.\nLOPEZ, J., concurs,\nANDREWS, J., concurring in result,", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Tandy L. Hunt, Ralph D. Shamas, Hunt & Shamas, Roswell, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Michael A. Kauffman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "592 P.2d 185\nSTATE of New Mexico, Plaintiff-Appellee, v. John Eloy CASTRO, Defendant-Appellant.\nNo. 3597.\nCourt of Appeals of New Mexico.\nFeb. 20, 1979.\nWrit of Certiorari Denied March 14, 1979.\nTandy L. Hunt, Ralph D. Shamas, Hunt & Shamas, Roswell, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Michael A. Kauffman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0585-01", "first_page_order": 621, "last_page_order": 625 }