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255.3 Heat Of Passion/Hot Blood, Provocation

    255.3.2 Heat Of Passion/Hot Blood, Provocation: Basis For / Right To Instruction

    255.3.2.1 Heat Of Passion/Hot Blood, Provocation: Evidence Necessary
    255.3.2.2 Heat Of Passion/Hot Blood, Provocation: Duty to Instruct
    255.3.2.3 Heat Of Passion/Hot Blood, Provocation: Type Of Emotions
    255.3.2.4 Right To Instruction On Heat Of Passion/Hot Blood When Defendant Has Not Testified
    255.3.2.5 Defense Theory Of Accident Or Self Defense Does Not Preclude Instruction On Heat Of Passion/Hot Blood
    255.3.2.6 Heat of Passion/Hot Blood, Provocation: Subjective and Objective Elements

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    See generally FORECITE National™ 250.2 [Evidentiary Requirements For Defense Theory Instruction].

  VOLUME 11 - CHAPTER 255                 

    255.3.2.2    Heat Of Passion/Hot Blood, Provocation: Duty To Instruct

    See generally FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].

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RATIONALE: Heat of passion is a emotional state that may involve various types of emotions. Without an instruction defining heat of passion the jury may not understand the full range of emotions that may constitute heat of passion.

POINTS AND AUTHORITIES: In the context of the heat of passion, the word "passion" encompasses more than anger or rage; it includes fear, terror and other intense emotions. (Howell v. State (AK 1996) 917 P2d 1202, 1206; see also Collins v. State (AR 1912) 143 SW 1075, 1077 [to reduce a homicide from murder to manslaughter, accused held entitled to show the existence of passion induced by an emotion such as anger, surprise, fear, or terror]; State v. Blades (CT 1993) 626 A2d 273, 283; Swann v. U.S. (DC App. 1994) 648 A2d 928, 935 ["heat of passion includes such emotions as rage, resentment, anger, terror and fear"]; Mathes v. State (IN 1982) 437 NE2d 51; State v. Ritchey (KS 1977) 573 P2d 973, 975 ["heat of passion" includes emotional state of mind characterized by anger, rage, hatred, furious resentment, or terror]; Le v. State (OK 1997) 947 P2d 535, 546 [passion or emotion such as fear, terror, anger, rage, or resentment]; McClung v. Commonwealth (VA 1975) 212 SE2d 290, 292; VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 37.200 [Malice - Definition] (Lexis, 1998) [heat of passion: may be founded upon rage, fear or a combination of both].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 255.1.1 [Heat Of Passion/Hot Blood, Provocation: Federal Circuit Model Instructions And Notes].

    Heat of passion may be provoked by fear, rage, anger, terror, revenge or other emotion.

[See Swann v. U.S. (DC App. 1994) 648 A2d 928, 935; Howell v. State (AK 1996) 917 P2d 1202, 1206; Le v. State (OK 1997) 947 P2d 535, 546; see also IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 707 [ Murder And Manslaughter Distinguished] (Idaho Law Foundation, Inc., 1995).]

    The phrase "in the heat of passion" means an emotional state which is generally provoked or induced by anger, fear, inducement, terror, or rage.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL OI 46.1 [Manslaughter, Voluntary] ¶ 7 (1997).]

    The term heat of passion as used in these instructions means any intense or vehement emotional excitement such as rage, anger, hatred, furious resentment, fright, or terror which was spontaneously* provoked from the circumstances. 

* But see FORECITE National™ 255.3.3.5 [Provocation: Sufficiency Of A Series of Events Over A Period Of Time].

[See generally Howell v. State (AK 1996) 917 P2d 1202, 1206; Swann v. U.S. (DC App. 1994) 648 A2d 928, 935; Le v. State (OK 1997) 947 P2d 535, 546; see also PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 56.04(e) [Crimes Against Persons-Homicide Definitions] (Kansas Judicial Council, 3rd ed. 1999).]

    Heat of passion may be provoked by fear, anger or terror. Provocation, in order to be adequate, must be such as might arouse a reasonable and ordinary person to kill someone.

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 8.91 [Manslaughter-Voluntary] (2000).]

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PRACTICE NOTE: Even if the defendant did not testify, the trial court has a duty to give a heat-of-passion instruction if there is substantial evidence in support of such a theory notwithstanding the absence of the defendant's testimony. (See e.g., People v. Brooks (CA 1986) 185 CA3d 687, 696 [230 CR 86].)

    See also FORECITE National™ 250.2.2 [Defendant Need Not Testify To Obtain Instruction On Defense Theory].

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 255.1.1 [Heat Of Passion/Hot Blood, Provocation: Federal Circuit Model Instructions And Notes].

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    255.3.2.5    Defense Theory Of Accident Or Self Defense Does Not Preclude Instruction On Heat Of Passion/Hot Blood

PRACTICE NOTE: "A defendant is entitled to an instruction consistent with his theory of the case if there is evidence to support that theory. [Citation.] This is true even where the evidence of the theory is inconsistent or of doubtful credibility. [Citation]." (People v. Miller (IL 1994) 630 NE2d 1125, 1130; see also Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 41-22, Comment ["self defense and heat of passion are not mutually exclusive . . ."].) For example, if it is the defense theory that the victim was killed accidentally while the defendant while trying to kill another due to heat of passion the jury should be instructed on both theories. (Ibid.)

    In other words, a defense theory of accident "does not free the court from the duty of instructing on the partial defense of provocation...." (People v. Middleton (CA 1997) 52 CA4th 19, 34 [60 CR2d 366]; see also People v. Wickersham (CA 1982) 32 C3d 307, 328 [185 CR 436] ["the jury was entitled to reject that portion of appellant's testimony which sought to explain the shooting as an accident and still find that appellant had not acted with malice"]; State v. Miller (MO 1998) 981 SW2d 623, 632 [self defense and accident, a defendant may be entitled to have both submitted to the jury if they are proved by proper evidence].)

    Similarly, primary reliance on self defense does not preclude instruction on heat of passion and provocation. (See People v. Miller (IL 1994) 630 NE2d 1125, 1130 [defendant's assertion of self-defense does not negate his right to a second degree murder instruction based upon provocation]; see also McKay v. State (MD 1992) 600 A2d 904, 909-10 [evidence of heat of passion was sufficient to warrant an instruction on legally adequate provocation, even though the defendant's testimony focused on self-defense].)

   See also FORECITE National™ 250.2.5 [Right To Instruction On Inconsistent Defenses].

    See also FORECITE National™ 253.4.1.11 [Self Defense Requires Acquittal Even If Defendant Also Acted In Heat of Passion].

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 255.1.1 [Heat Of Passion/Hot Blood, Provocation: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The subjective element of provocation/heat of passion is whether the defendant actually acted under the influence of passion.  The objective element is whether the provocation was serious, i.e., legally adequate, an cooling time was insufficient, the jury applies an objective standard.  (PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 15.2503A, note [Voluntary Manslaughter-Murder In Issue] p.3 (Pennsylvania Bar Institute, PBI Press, 12/88).)

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 255.1.1 [Heat Of Passion/Hot Blood, Provocation: Federal Circuit Model Instructions And Notes].