State v.

Redmond (voluntary manslaughterheat of passion defense) Fact

D was washing his car in front of his mothers house Victim lived down the street, and he was walking his dog with ds ex-girlfriend/wife (mother of his child) D and victim began to argue; victim accused d of treating Sherwood badly D said at that point, victim reached into his pocket, and he saw a gun and he thought the Johnson was going to kill him D grabbed a baseball bat from the trunk and hit Johnson in the head, killing him D testified that he told the police officer that Johnson had a gun, but according to the police officer, he didnt mention it; on the written statement to the police, he also failed to mention that the victim had a gun. The victim didnt have a weapon on his peron

Procedure The trial ct refused ds proffered instructions on voluntary m.s. but submitted an instruction on self defense. Jury found him guilty of murder in the second degree Issue

Whether trial ct erred in refusing to submit the ds proffered instruction on v.m.s based on the evidence presented in this case.

General rule Voluntary m.s. is a lesser included offense of second degree. A trial ct is required to instruct on a lesser included offense if the evidence provides a basis for both an acquittal of the greater offense and a conviction of the lesser offense, and if such instruction is requested by one of the parties or the ct. The crime of v.m.s is defined as causing the death of another person under circumstances that would constitute murder in the 2nd degree, except that the death was caused under the influence of sudden passion arising from adequate cause. Sudden passion is defined as passion directly caused by and arising out of provocation by the victim or another acting with the victim p. 319; adequate cause is cause that would reasonably produce a degree of passion in a person of ordinary temperament The offense must have been committed in sudden passion, and not after there has been time for the passion to cool. Words alone, no matter how insulting, are not sufficient to show adequate provocation Application There was evidence of a heated argument, in which the victim confronted the d in a threatening manner and scared the d by displaying a deadly weapon (which is questionable) Victim approached d in a confrontational manner and an altercation ensued D testified that he feard for his life and consequently struck the victim with a baseball bat.

The jury could accept ds testimony, or it could reject it as unbelievable. Its not for the ct to determine ds credibility, nor to weight the evidence in any other respect. The cts role is to determine whether the testimony presented would support a finding that the d killed under the influence of sudden passion arising from adequate cause. Threatening confrontation and the showing of a gun is the type of provocation that could cause a reasonable person to lose self control. The evidence presented is sufficient to inject the issue of sudden passion.

Conclusion The trial ct erred in refusing ds proffered instruction on voluntary m.s. because there was sufficient evidence to support an acquittal of murder in the second degree and a conviction of v.m.s. Ds conviction of murder in the 2nd degree is reversed, remanded for a new trial. Rule

If sufficient evidence presented to support that the murder was committed in a sudden passion arising from adequate cause, the ct has to submit an instruction of voluntary m.s., even thought the evidence might be dubious. Its the jurys role to decide the credibility of d, not the ct.