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 VOLUME 11 - CHAPTER 255
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255.3 Heat Of Passion/Hot Blood, Provocation

    255.3.4 Heat Of Passion/Hot Blood: Cooling

    255.3.4.1 Provocation: Cooling -- No Precise Time
    255.3.4.2 Provocation: Cooling Period -- Length Of The Fight Not Controlling
    255.3.4.3 Provocation: Cooling -- Passage Of Time May Cause Provocation To Fester Rather Than Cool

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RATIONALE: The jury should be instructed so it understands that there is no precise time or formula for deciding whether the defendant's passion had cooled.

POINTS AND AUTHORITIES: Whether there has been a sufficient cooling of passion is a question for the jury. (See Walden v. State (GA 1997) 491 SE2d 64, 66; see also Springer v. Commonwealth (KY 1999) 998 SW2d 439, 452-53 [defendant was entitled to instruction on first-degree manslaughter and extreme emotional disturbance where defendant testified that the victim's threat to sexually abuse her daughter was a triggering event; fact that a triggering event may have festered for a time in defendant's mind before the explosive event does not preclude a finding of extreme emotional disturbance]; State v. Rayford (LA 1985) 476 So2d 961, 964 [because question of provocation is one of fact, jury in deciding whether to reduce a homicide to manslaughter must determine whether offender's blood had actually cooled, and whether average person's blood would have cooled]; Allen v. State (NV 1982) 647 P2d 389, 391.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.12 [Provocation/Heat Of Passion].2

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    There is no precise formula for the amount of time involved in the cooling of passion. It is for you to decide whether the prosecution has proven beyond a reasonable doubt that the defendant’s passions had cooled at the time of the killing.

[See generally Walden v. State (GA 1997) 491 SE2d 64, 66; State v. Rayford (LA 1985) 476 So2d 961, 964; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(A) inst. 5 [Provocation-Cooling] p. 85 (South Carolina CLE, 1994).]

    Whether the prosecution has proven beyond a reasonable doubt that there was a reasonable opportunity for the passion to cool depends on whether, under all the circumstances of the particular case, there was such a lapse of time between the provocation and the homicidal act that the mind of a reasonable person would have cooled sufficiently, so that the homicide was directed by reason, rather than by a passion or emotion.

    The length of time that constitutes a reasonable opportunity for the passion to cool may vary according to the circumstances of the particular case.

[See generally Walden v. State (GA 1997) 491 SE2d 64, 66; State v. Rayford (LA 1985) 476 So2d 961, 964; see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-100 [First Degree, Cooling time Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

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 VOLUME 11 - CHAPTER 255

RATIONALE: In some cases there may be more than one provoking incident and/or the defendant's response to the provocation may consist of more than a single act (e.g., a fight may ensue.) In such a case, the jury may improperly tend to consider the entire time span of all the provoking incidents and responsive acts in deciding whether there was an adequate cooling period. Therefore, it may be necessary to instruct the jury that the cooling period is the time between the last provoking incident and the first responsive act by the defendant.

POINTS AND AUTHORITIES: In Potter v. Commonwealth (VA 1981) 283 SE2d 448 the court erroneously instructed the jury that because the fight lasted for several minutes "a sufficient time elapsed for passion to subside and reason to return." While the sufficiency of time for cooling is a question of fact to be decided by the jury, the time to be considered is the interval between the provocation and the act, not the time during which the passion controls. (Id., see also Savary v. State (NE 1901) 87 NW 34, 38.)

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].

    In deciding whether there was a sufficient time for the passion to cool you must only consider the time between the [final provocation] [last provoking incident] and the first responsive act by the defendant.

[Source: FORECITE National™.]

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 VOLUME 11 - CHAPTER 255

PRACTICE NOTE: See Springer v. Commonwealth (KY 1999) 998 SW2d 439, 452-53 [defendant was entitled to instruction on first-degree manslaughter and extreme emotional disturbance where defendant testified that the victim's threat to sexually abuse her daughter was a triggering event; fact that a triggering event may have festered for a time in defendant's mind before the explosive event does not preclude a finding of extreme emotional disturbance].

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].