## Facts

- Joseph Sells and Barbara Sells were married.
- Over the course of one night and into the early morning, they drank heavily and engaged in repeated, heated arguments.
- The arguments occurred at several bars and later at the family residence in Farmington, New Mexico.
- During the arguments, Barbara revealed she was having an extramarital affair with a man Joseph knew.
- Barbara told Joseph that a recent trip she took was to be with her lover.
- Barbara also made statements to Joseph about the affair, including that she enjoyed sexual relations with the other man.
- Witnesses described Joseph as dazed and shocked during and after these revelations, and indicated he had not known of the affair before that night.
- The evidence showed the conflict escalated and, shortly before the shooting, the couple physically struggled with each other.
- A fatal shot was fired at about 5:00 a.m.; Barbara was shot while seated at the kitchen table.
- Joseph testified that he did not think the .22 caliber handgun was loaded and that he did not remember shooting his wife.
- Joseph was charged with deliberate first-degree murder.
- At trial, the court instructed the jury on first-degree murder, second-degree murder, and involuntary manslaughter, but refused Joseph’s request for a voluntary manslaughter instruction.
- The jury convicted Joseph of second-degree murder and found a firearm-related sentencing increase.
- The New Mexico Court of Appeals affirmed, and the New Mexico Supreme Court granted certiorari to review the jury-instruction issue.

## Issues

1. Did the trial court commit reversible error by refusing to instruct the jury on voluntary manslaughter when the evidence could support a finding that the killing occurred in the heat of passion upon sufficient provocation?

## Decision

- Yes. The Supreme Court of New Mexico held the trial court erred by refusing the requested voluntary manslaughter instruction.
- The court reversed the judgment affirming the conviction and remanded for further proceedings consistent with its opinion.

## Legal Principles

- A defendant is entitled to a lesser-included-offense instruction when there is evidence from which a reasonable jury could find guilt on the lesser offense and not guilty on the greater offense.
- In deciding whether to give a lesser-included instruction, the court does not decide which version of disputed facts is more believable; it asks whether the evidence provides a rational basis for the lesser verdict.
- Voluntary manslaughter is an intentional killing committed in the heat of passion caused by sufficient provocation.
- Evidence that a spouse suddenly learned of infidelity, coupled with provocative statements and an immediate escalation in conflict, can provide a basis for a jury to find adequate provocation and heat of passion.
- When such evidence exists and the instruction is requested, refusing the voluntary manslaughter instruction is reversible error because it removes a legally available verdict option from the jury.

## Conclusion

Sells v. State held that where the evidence could allow a jury to find that a husband killed his wife in the heat of passion after learning of her affair and after the conflict escalated into a physical struggle, the defendant was entitled to a voluntary manslaughter instruction; the trial court’s refusal required reversal of the second-degree murder conviction and remand.


Sells v. State, 98 N.M. 786 (1982)