A motion for a mistrial is addressed to the sound discretion of the trial court and is only reviewable for an abuse of discretion. State v. King, 90 N.M. 377, 563 P.2d 1170 (Ct.App. 1977). The case law in New Mexico is clear and consistent in holding that erroneous admission of evidence of prior crimes of the accused is error, absent special circumstances.
The firearm enhancement does not apply to capital felonies, only noncapital felonies. State v. King, 90 N.M. 377, 379, 563 P.2d 1170, 1172 (Ct. App. 1977) ("[F]irst degree murder is defined as a capital felony and the firearm enhancement provision does not apply to capital felonies"), overruled on other grounds by State v. Reynolds, 98 N.M. 527, 529, 650 P.2d 811, 813 (1982). We therefore agree with both Defendant and the State that the one-year enhancement to Defendant's life-sentence should be reversed.
"Shooting at Manzanares" suggests, to a certain degree, an intentional act, and wrongly describes the mens rea associated with involuntary manslaughter. NMSA 1978, § 30-2-3 (1994) (describing manslaughter as the killing of a human being without malice); State v. King, 90 N.M. 377, 380, 563 P.2d 1170, 1173 (Ct.App. 1977) (stating that the involuntary manslaughter statute excludes all cases of intentional killing), overruled on other grounds by State v. Reynolds, 98 N.M. 527, 650 P.2d 811 (1982). It is not error for a trial court to refuse instructions which are inaccurate.
We have analyzed felonious homicide, the unlawful taking of human life, as a "generic offense" encompassing several degrees or forms. See id., 38 N.M. at 468, 35 P.2d at 289; see also State v. Ulibarri, 67 N.M. 336, 338, 355 P.2d 275, 276 (1960); State v. Roy, 40 N.M. 397, 412, 416-17, 60 P.2d 646, 655, 658 (1936); cf. State v. King, 90 N.M. 377, 379, 563 P.2d 1170, 1172 (Ct.App. 1977) (open charge of murder), overruled on other grounds, State v. Reynolds, 98 N.M. 527, 650 P.2d 811 (1982). We repeatedly have held that it is error for the trial court to refuse to instruct on a degree of homicide for which there is substantial evidence, and error to submit a degree of homicide for which there is no evidence.
Therefore, the prompt sustaining of defendant's objection and the admonition to the jury to disregard the answer cured any prejudicial effect. State v. Simonson, 100 N.M. 297, 669 P.2d 1092 (1983); State v. King, 90 N.M. 377, 563 P.2d 1170 (Ct.App. 1977), overruled on other grounds, 98 N.M. 527, 650 P.2d 811 (1982). Defendant's conviction for first-degree murder is affirmed.
The overwhelming New Mexico case law states that the prompt sustaining of the objection and an admonition to disregard the answer cures any prejudicial effect of inadmissible testimony. State v. Vialpando, 93 N.M. 289, 599 P.2d 1086 (Ct.App.), cert. denied, 93 N.M. 172, 598 P.2d 215 (1979); State v. King, 90 N.M. 377, 563 P.2d 1170 (Ct.App. 1977); State v. Baca, 81 N.M. 686, 472 P.2d 651 (Ct.App.), cert. denied, 81 N.M. 721, 472 P.2d 984 (1970). Therefore, since the granting of a mistrial is discretionary with the trial court, we will not disturb the decision on appeal absent an abuse of discretion.
On the basis of the trial record, I would hold any prejudice was cured by the trial court's admonition. State v. King, 90 N.M. 377, 563 P.2d 1170 (Ct.App. 1977); State v. McFerran, 80 N.M. 622, 459 P.2d 148 (Ct.App. 1969). I would affirm.
We do not consider this to be harmless and non-prejudicial where the evidence would support such a choice by the jury. To the extent that State v. King, 90 N.M. 377, 563 P.2d 1170 (Ct.App. 1977), and State v. Scott, 90 N.M. 256, 561 P.2d 1349 (Ct.App.), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977), are inconsistent with State v. Benavidez, supra, those cases are hereby expressly overruled. The trial court erred in refusing to instruct the jury on voluntary manslaughter.
The granting of a mistrial lies within the trial court's discretion and review is for an abuse of that discretion. State v. King, 90 N.M. 377, 563 P.2d 1170 (Ct.App. 1977). There was no showing that any juror had read the article.
The information in this case contains an "open charge" of murder because it does not define the murder by type or degree. See State v. King, 90 N.M. 377, 563 P.2d 1170 (Ct.App. 1977); State v. Roy, 40 N.M. 397, 60 P.2d 646 (1936). The information meets all the requirements of Rule 5.