OPINION
WOOD, Chief Judge.
Defendant appeals his conviction of voluntary manslaughter. Issues listed in the docketing statement, but not briefed, were abandoned. State v. Gallegos, 92 N.M. 336, 587 P.2d 1347 (Ct.App.1978). We (1) answer three issues summarily and (2) discuss the excluded character evidence tendered by defendant.
Issues Answered Summarily
(a) The prosecutor filed a nolle prosequi as to the first indictment. Defendant was then reindicted. Defendant claims the second indictment was invalid because the first indictment was valid. This argument overlooks the fact that after the nolle prosequi, the first indictment was no longer pending. See State v. Sweat, 78 N.M. 512, 433 P.2d 229 (Ct.App.1967). Entry of the nolle prosequi was not a bar to the second indictment. State v. Rhodes, 77 N.M. 536, 425 P.2d 47 (1967).
(b) Defendant contends there was insufficient evidence of voluntary manslaughter to submit that charge to the jury. We disagree; the evidence was sufficient. Compare State v. Cochran, 79 N.M. 640, 447 P.2d 520 (1968).
(c) Defendant asserts that the prosecutor’s closing argument was inflammatory and exceeded fair comment on the evidence, with the result that defendant was denied a fair trial. The prosecutor’s comments did not amount to reversible error. See State v. Smith, 92 N.M. 533, 591 P.2d 664 (1979). The comments were either within the latitude permitted to attorneys in closing argument or were in response to the argument of counsel for a co-defendant.
Excluded Character Evidence
Several persons, including defendant, were at the trailer house, outside of which the killing occurred. The victim came to the trailer to “take out” Jeanette, who refused to go with the victim because he had been drinking. The victim departed angrily. The victim returned about an hour later. The men in the trailer went outside and told the victim to leave. The victim spun his car wheels as he left. After another hour, the victim again returned, this time accompanied by a male passenger.
On the victim’s third visit, the men from the trailer were again outside urging the victim to leave. A shouting match occurred between the victim and the men from the trailer. The trial court characterized this shouting match as amounting to threats, the use of abusive and foul language, violent argument and challenges to mutual combat.
The men from the trailer were hiding behind things in the yard because Jeanette had told them the victim had a handgun. The men thought they saw a rifle protruding from the victim’s car. Rick and defendant were among the men from the trailer; they re-entered the trailer. Rick got his derringer; defendant took it from Rick and went outside. The brief-in-chief states that defendant “hid behind a rock and again pleaded with the deceased and his companion to leave. The occupants of the car responded with more obscenities.... [Defendant] fired what he described as a warning shot into the air. When it failed to move the occupants of the vehicle, he fired another shot.” This second shot entered the passenger window and struck the driver, killing him. ■
There was no rifle in the car; the passenger had a stick. Neither the victim nor the passenger had exited the car or attempted to do so. Defendant fired from a distance of 50-to-70-feet from the car.
Defendant sought to introduce evidence “as to the violent character and specific instances of violent conduct of the deceased.” He claims the trial court erred in excluding this evidence.
Defendant did not know the victim or the victim’s reputation prior to the shooting. Because of this lack of knowledge, the trial court ruled that the testimony was not admissible to show defendant’s fear in connection with the self-defense claim. State v. Alderette, 86 N.M. 600, 526 P.2d 194 (Ct.App.1974). The propriety of this specific ruling is not challenged. Defendant claims, in his brief, that this was the only basis on which the trial court excluded the evidence. This claim flagrantly misstates what occurred in the trial court.
Defendant urged admission of the evidence on the basis of Evidence Rules 404 and 405. After extended argument by counsel, the trial court suggested that defendant tender his evidence by question and answer to avoid any ambiguity as to the evidence sought to be introduced. See Evidence Rule 103(a)(2). This was done. After the tender, the argument as to admissibility continued. Throughout the proceedings the trial court was concerned with the applicability of Evidence Rules 404 and 405, with the relevancy of the tendered evidence, with the fact that the tendered evidence was on a collateral matter, and with the fact that the tendered evidence might be no more than “character assassination.” See Evidence Rule 403.
The pertinent portion of Evidence Rule 404 states:
(a) Character evidence generally.
Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused ....
The trial court properly rejected the prosecutor’s contention that character evidence was not admissible under Evidence Rule 404(a)(2) unless the defendant had knowledge of the character involved. Under this rule, evidence of a pertinent trait of character of the victim was admissible to prove that the victim acted in conformity with that character trait in the incident where the killing occurred. State v. Bazan, 90 N.M. 209, 561 P.2d 482 (Ct.App.1977); State v. Alderette, supra.
Although Evidence Rule 404 was authority for admission of the tendered character evidence, the evidence was not to be admitted unless tendered in the form required by Evidence Rule 405. State v. Bazan, supra.
Evidence Rule 405 states:
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.
Defendant sought admission of the tendered evidence to show that the victim was a violent person and had carried a gun on previous occasions.
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OPINION
WOOD, Chief Judge.
Defendant appeals his conviction of voluntary manslaughter. Issues listed in the docketing statement, but not briefed, were abandoned. State v. Gallegos, 92 N.M. 336, 587 P.2d 1347 (Ct.App.1978). We (1) answer three issues summarily and (2) discuss the excluded character evidence tendered by defendant.
Issues Answered Summarily
(a) The prosecutor filed a nolle prosequi as to the first indictment. Defendant was then reindicted. Defendant claims the second indictment was invalid because the first indictment was valid. This argument overlooks the fact that after the nolle prosequi, the first indictment was no longer pending. See State v. Sweat, 78 N.M. 512, 433 P.2d 229 (Ct.App.1967). Entry of the nolle prosequi was not a bar to the second indictment. State v. Rhodes, 77 N.M. 536, 425 P.2d 47 (1967).
(b) Defendant contends there was insufficient evidence of voluntary manslaughter to submit that charge to the jury. We disagree; the evidence was sufficient. Compare State v. Cochran, 79 N.M. 640, 447 P.2d 520 (1968).
(c) Defendant asserts that the prosecutor’s closing argument was inflammatory and exceeded fair comment on the evidence, with the result that defendant was denied a fair trial. The prosecutor’s comments did not amount to reversible error. See State v. Smith, 92 N.M. 533, 591 P.2d 664 (1979). The comments were either within the latitude permitted to attorneys in closing argument or were in response to the argument of counsel for a co-defendant.
Excluded Character Evidence
Several persons, including defendant, were at the trailer house, outside of which the killing occurred. The victim came to the trailer to “take out” Jeanette, who refused to go with the victim because he had been drinking. The victim departed angrily. The victim returned about an hour later. The men in the trailer went outside and told the victim to leave. The victim spun his car wheels as he left. After another hour, the victim again returned, this time accompanied by a male passenger.
On the victim’s third visit, the men from the trailer were again outside urging the victim to leave. A shouting match occurred between the victim and the men from the trailer. The trial court characterized this shouting match as amounting to threats, the use of abusive and foul language, violent argument and challenges to mutual combat.
The men from the trailer were hiding behind things in the yard because Jeanette had told them the victim had a handgun. The men thought they saw a rifle protruding from the victim’s car. Rick and defendant were among the men from the trailer; they re-entered the trailer. Rick got his derringer; defendant took it from Rick and went outside. The brief-in-chief states that defendant “hid behind a rock and again pleaded with the deceased and his companion to leave. The occupants of the car responded with more obscenities.... [Defendant] fired what he described as a warning shot into the air. When it failed to move the occupants of the vehicle, he fired another shot.” This second shot entered the passenger window and struck the driver, killing him. ■
There was no rifle in the car; the passenger had a stick. Neither the victim nor the passenger had exited the car or attempted to do so. Defendant fired from a distance of 50-to-70-feet from the car.
Defendant sought to introduce evidence “as to the violent character and specific instances of violent conduct of the deceased.” He claims the trial court erred in excluding this evidence.
Defendant did not know the victim or the victim’s reputation prior to the shooting. Because of this lack of knowledge, the trial court ruled that the testimony was not admissible to show defendant’s fear in connection with the self-defense claim. State v. Alderette, 86 N.M. 600, 526 P.2d 194 (Ct.App.1974). The propriety of this specific ruling is not challenged. Defendant claims, in his brief, that this was the only basis on which the trial court excluded the evidence. This claim flagrantly misstates what occurred in the trial court.
Defendant urged admission of the evidence on the basis of Evidence Rules 404 and 405. After extended argument by counsel, the trial court suggested that defendant tender his evidence by question and answer to avoid any ambiguity as to the evidence sought to be introduced. See Evidence Rule 103(a)(2). This was done. After the tender, the argument as to admissibility continued. Throughout the proceedings the trial court was concerned with the applicability of Evidence Rules 404 and 405, with the relevancy of the tendered evidence, with the fact that the tendered evidence was on a collateral matter, and with the fact that the tendered evidence might be no more than “character assassination.” See Evidence Rule 403.
The pertinent portion of Evidence Rule 404 states:
(a) Character evidence generally.
Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused ....
The trial court properly rejected the prosecutor’s contention that character evidence was not admissible under Evidence Rule 404(a)(2) unless the defendant had knowledge of the character involved. Under this rule, evidence of a pertinent trait of character of the victim was admissible to prove that the victim acted in conformity with that character trait in the incident where the killing occurred. State v. Bazan, 90 N.M. 209, 561 P.2d 482 (Ct.App.1977); State v. Alderette, supra.
Although Evidence Rule 404 was authority for admission of the tendered character evidence, the evidence was not to be admitted unless tendered in the form required by Evidence Rule 405. State v. Bazan, supra.
Evidence Rule 405 states:
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.
Defendant sought admission of the tendered evidence to show that the victim was a violent person and had carried a gun on previous occasions. As the brief-in-chief points out, the evidence was tendered “to show that the deceased acted aggressively in conformity with his character.” Thus, admissibility was sought on the basis of Evidence Rule 404 and not on the basis that the victim’s character was an essential element of any defense, including the self-defense claim. See State v. Bazan, supra.
Almost all of the evidence tendered by defendant went to specific instances of conduct. Specific conduct evidence to show character is not admissible unless the character involved is an essential element of a charge, claim or defense. Evidence Rule 405(b). Specific conduct evidence is not admissible to prove a pertinent trait of character under Evidence Rule 404. When Evidence Rule 404 is the authority for the admission of character evidence, the method of proof must be in conformity with Evidence Rule 405(a). See State v. Bazan, supra. The specific instances of conduct tendered by defendant were properly excluded because not admissible under Evidence Rule 405(a). State v. McCarter, 93 N.M. 708, 604 P.2d 1242 (1980).
During the redirect examination of one of the four witnesses who testified during the tender, defendant elicited the witness’s opinion that the victim was aggressive and violent. This was the sole testimony in the tender in the proper form for admission under Evidence Rule 405(a).
The question of admissibility does not and with Evidence Rules 404 and 405. The evidence must also be relevant. Evidence Rule 402; State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977). If relevant, the balancing test of Evidence Rule 403 may be involved. See State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App.1978). If relevant, the trial judge’s authority under Evidence Rule 611(a) to control the presentation of evidence so as to make it effective for the ascertainment of truth may also be involved.
Evidence Rule 403 is not involved in this case. There is, however, a question as to the relevancy of the opinion concerning the victim’s character. Although there was a vituperative shouting match, there is nothing indicating the victim made any effort to get out of his car; he was in the driver’s seat of the car when shot. The only suggestion of any aggression on the part of the victim is stated in the brief-in-chief: “The defendant [as well as other witnesses] testified that he saw a large object in the car that looked to him in the dark like a rifle or shotgun.” Defendant fired from a distance of 50-t0-70-feet from the car. Under the facts, an opinion as to the victim’s character for aggression and violence was no more than marginally relevant.
There is also a question under Evidence Rule 611(a) because the opinion as to the victim!s character, offered to prove conduct in conformity with character, went to a collateral matter. Evidence as to collateral matters is within the trial court’s discretionary control. State v. Alderette, supra; see State v. Bell, supra; State v. Day, supra. In light of the marginal relevance of the single item of properly tendered character evidence, we cannot hold there was an abuse of discretion in excluding this evidence. See State v. McCarter, supra.
The judgment and sentence are affirmed.
IT IS SO ORDERED.
LOPEZ, J., concurs. SUTIN, J., dissents.