Criminal Law
James R. Elkins
College of Law / West Virginia University
Fall, 2011

Provocation as a Mitigation of Murder

When the defendant produces evidence of provocation and that acts taken in response to that provocation were that of a reasonable person, then what has been charged as murder may be found by the jury to be voluntary manslaughter (if the trial court has given a jury instruction on voluntary manslaughter).

The adequacy or reasonableness of the provocation is a matter to be decided by the trier of fact, but only after the court has determined in the first instance that the evidence is legally sufficient to substantiate the defense, thus requiring submission to the jury with an appropriate jury instruction. Whether evidence exists from which the jury could find adequate provocation is a question of law to be determined by the court. The court must view the evidence in the light most favorable to the defendant when determining whether sufficient evidence exists to warrant a jury instruction on adequate provocation. If the evidence is sufficient to make the existence of all the facts constituting the defense a reasonable hypothesis for the fact-finder to entertain then an instruction is appropriate. In determining whether a defendant has introduced sufficient evidence to successfully raise the affirmation defense of provocation/heat of passion, a reviewing court must evaluate the evidence, which, if believed, would raise a question in the minds of reasonable men concerning the existence of provocation which resulted in killing in a heat of passion.

Where the evidence raises the possibility that the defendant may have acted on reasonable provocation, the state must prove, and the jury must find, beyond a reasonable doubt that the defendant did not act on reasonable provocation.

Taunting words, even those wilfully and intentionally designed to excite or anger, have been held not to constitute adequate provocation.

Provocation, when it constitutes a threat of imminent bodily harm, may also be the basis for a claim of self-defense (which we will study at some length later in the course). When the defendant proves she acted in self-defense, and the claim is accepted by the jury (or judge trying a case without a jury), then the defendant is acquitted. Defenses based on self-defense and on provocation/heat of passion are not mutually exclusive. In some cases, the defendant may be entitled to instructions on both provocation and self-defense. The jury may consider voluntary manslaughter on either a failed self-defense theory or provocation theory of the case. If the jury accepts the self-defense, then the defendant must be acquitted.

A trial court should grant the defendant's requested voluntary manslaughter instruction only if the evidence demonstrates a evidentiary dispute regarding defendant's having acted in a heat of passion. To establish that he acted in the heat of passion, the defendant must show sufficient provocation to engender the passion. Sufficient provocation is demonstrated by such emotions as anger, rage, sudden resentment, or terror that are sufficient to obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable of reflection. Or, put somewhat differently, for provocation to be adequate, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control. The issue posed for a trial court judge in the decision as to whether to give a voluntary manslaughter jury instruction is not whether the evidence was sufficient to warrant a conviction, or whether the evidence my be persuasive to a jury. The question is whether the defendant was entitled to an instruction, and for this purpose, the evidence is evaluated in a light most favorable to the defendant. If no reasonable jury would decide that the defendant was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction.

The provocation must be reasonable under the circumstances. In order to determine whether a defendant acted in a heat of passion, it is necessary to consider the nature and degree of provocation, as well as the manner in which it was resisted.

When the jury instruction given by the trial court jury are in some fashion erroneous, it is incumbent on defense counsel to pose a timely objection to the erroneous jury instructions. Absent such an objection, an appellate court will review the instructions only to determine whether the error resulted in a substantial risk of a miscarriage of justice.

Unfortunately, notwithstanding the common occurrence of the provocation claim, there is no set formula or bright line test for determining what constitutes reasonably sufficient provocation occasioned by the victim that would incite a person to use deadly force. The question as to provocation is to be resolved by examining the circumstances of the case.

In State v. Forrest (the North Carolina mercy killing case), the defendant contended, on appeal, that the trial court erred in giving incomplete instructions on the element of malice and improperly suggesting that the mitigating evidence presented at trial did not negate malice or show a heat of passion.

On the issue of malice, the trial court consistently instructed the jury as follows:

Malice means not only hatred, ill-will or spite, as it is ordinarily understood; to be sure that's malice. But it also means that condition of the mind that prompts a person to take the life of another intentionally, or to intentionally inflict serious bodily harm which proximately results in his death without just cause, excuse or justification.

If the State proves beyond a reasonable doubt that the defendant killed the victim with a deadly weapon, or intentionally inflicted a wound upon the victim with a deadly weapon that proximatley [sic] caused the victim's death you may infer, first, that the killing was unlawful. Second, that it was done with malice. But you are not compelled to do so. You may consider this, along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.

I charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death. But you may consider such belief in determining whether the killing was done with malice.

The North Carolina court in Forrest rejected defendant's argument on the negation of malice by showing that he acted in a heat of passion.

Defendant argues second that the trial court erred in giving incomplete instructions on the issue of malice, thereby improperly suggesting that any mitigating evidence presented did not negate malice or show heat of passion. While conceding that the instruction here was technically correct, defendant claims that it was nevertheless inadequate and misleading in that it failed to define what was meant by the phrase "just cause, excuse or justification." According to defendant, there is abundant evidence in the record that, upon seeing his father at the hospital, he was overwhelmed by the futile, horrible suffering before him and that, in a highly emotional state, he killed to bring relief to the man he deeply loved. The jury instruction employed by the trial court, concludes defendant, because it did not instruct on heat of passion, for all intents and purposes precluded the jury from considering these critical facts in mitigation of the offense. We do not agree with defendant, and we hold that a heat of passion jury instruction on facts such as those of the case at bar is improper.

In essence, defendant asks this Court to hold that his extreme distress over his father's suffering was adequate provocation, as in the "heat of passion" doctrine, to negate the malice element required for a murder conviction. Our Court has held on numerous occasions that, under certain circumstances, one who kills another human being in the "heat of passion," produced by adequate provocation sufficient to negate malice, is guilty of manslaughter rather than murder. A killing in the "heat of passion" on sudden and adequate provocation means a killing without premeditation under the influence of a sudden passion which renders the mind incapable of cool reflection.

Significantly, our Court has narrowly construed the requirement under the "heat of passion" doctrine that provocation be adequate and reasonable. We have held, for example, that mere words or insulting language, no matter how abusive, can never be adequate provocation and can never reduce murder to manslaughter under the "heat of passion" doctrine. We have held as adequate provocation an assault or threatened assault, and the discovery of the deceased spouse and a paramour in the act of intercourse.

We are unwilling to hold that, as in the case at bar, where defendant kills a loved one in order to end the deceased's suffering, adequate provocation to negate malice is necessarily present. The "heat of passion" doctrine is meant to reduce murder to manslaughter when defendant kills without premeditation and deliberation and without malice, but rather under the influence of the heat of passion suddenly aroused which renders the mind temporarily incapable of cool reflection. Here, irrefutable proof of premeditation and deliberation is clearly present. This defendant, though clearly upset by his father's condition, indicated by his actions and his statements that his crime was premeditated and deliberate.

The Court found that the jury instruction given by the trial court was correct and rejected defendant's arguments that the jury instruction constituted reversible error.