West Virginia Homicide Jury Instructions Project Professor James R. Elkins & Students at the West Virginia University College of Law [Spring][2006]

Provocation

Standard Jury Instruction (Provocation): The Court instructs the jury that reasonable provocation means those certain acts committed against the defendant which would cause a reasonable man to kill. Inherent in this concept is the further requirement that the provocation be such that it would cause a reasonable person to lose control of himself and act out of the heat of passion, and that he did in fact do so.

Proposed Jury Instruction: You may find that provocation exists when the defendant's:

1) act(s) were committed while in the heat of passion or acting on the basis of strong emotion,

2) and that the defendant's heat of passion would cause,

3) a reasonable person to kill.

You, the jury, must measure the passion or strong emotion by the degree that it would naturally affect the ability of a person to reason, to deliberate, and to make a voluntary conscious choice. This means the heat of passion or strong emotion must render the mind incapable of cool reflection.

In determining whether the defendant acted as a reasonable person, you may examine the totality of the circumstances surrounding the provocation and the defendant's response to it.

[Mere words, without more, are insufficient to provoke a reasonable person to kill.]

Finally, the killing must occur while the defendant is caught up in the heat of passion. This means there must not be a reasonable opportunity for the passion to cool before the killing occurred. Provocation does not exist when enough time passes before the killing to allow a person of ordinary temperament to regain [his][her] clear reason and sound judgment.

Commentary

1. Provocation has been used by West Virginia courts without effort to give an extended definition to the term.

Black's Law Dictionary (8th ed. 2004) provides the following definition of provocation: "[t]he act of inciting another to do something, especially to commit a crime. Something (such as words or actions) that affects a person’s reason and self-control, especially causing the person to commit a crime impulsively.”

Similarly, adequate provocation is defined as: “[s]omething that would cause a reasonable person to act without self-control and lose any premeditated state of mind. The usual form of adequate provocation is the heat of passion. Adequate provocation can reduce a criminal charge, as from murder to voluntary manslaughter.”

2. Provocation is to be determined by a jury without taking into consideration peculiarities of an individual defendant.

Relevant Cases:

1. Basically, a slight provocation is typically not sufficient to justify a killing. Generally, mere words, without more, are insufficient to constitute adequate provocation. State v. Dinger, 218 W. Va. 225, 624 S.E.2d 572, 576 (2005).

2. Generally, a blow or other personal violence on the defendant is adequate provocation, provided it is a substantial assault or physical injury, and the killing that resulted is due to a passion or strong emotion aroused by the violence. “[A] blow or blows are just cause of provocation.” State v. Gravely, 66 W. Va. 375, 66 S.E. 503, 505 (1909). Moreover, “[t]here must be some actual affray, some physical encounter, which excites passion to constitute such provocation. State v. Murphy, 89 W. Va. 413, 109 S.E. 771, 774 (1921)(overruled in part on other grounds State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163, 173 (1995)).

“One of the most common types of provocation is an unprovoked assault on the defendant who responds in the heat of passion by killing the assailant. This ordinarily limits the degree of culpability to voluntary manslaughter . . . . This situation is to be distinguished from the occurrence where the assault is not only unprovoked, but so extreme that the defendant reasonably views that his life will be taken or that great bodily harm will be done him, and he kills the assailant.” State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219, 225, n. 7 (1978).

3. The passion or strong emotion that must exist in the defendant refers to such sensations as fear, terror, anger, rage or resentment. “The word ‘provoke’ connotes umbrage, harassment, offense, inflamation [sic], etc.” State v. Hamric, 151 W. Va. 1, 151 S.E.2d 252, 274 (1966), overruled in part on other grounds State v. Vance, 162 W. Va. 467, 250 S.E.2d 146 (1978).

4. The jury must measure the passion or strong emotion by the degree that it would naturally affect the ability of a person to reason. The provocation must be such that, at the time, it renders the defendant incapable of cool reflection. See generally State v. Boggs, 129 W. Va. 603, 42 S.E.2d 1, 7 (1946); State v. White, 81 W. Va. 516, 94 S.E. 972, 973 (1918).

5. The killing must have occurred while the defendant was still affected by the heat of passion or strong emotion. This means there must not be a reasonable opportunity for the passion or strong emotion to cool before the killing occurred. Furthermore, provocation does not exist when enough time passes before the killing to allow a person of average temperament to regain his/her clear reasoning or judgment. See generally State v. Morris, 142 W. Va. 303, 95 S.E.2d 401 (1956).

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