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33. Should the court instruct on voluntary manslaughter?
The defendant did not testify or offer any evidence. The defendant requested that the jury be instructed on voluntary manslaughter based upon heat of passion from adequate provocation. The state argued that murder should be the only form of homicide submitted.
A defendant was on trial for murder, which the jurisdiction defines as a homicide with malice aforethought. Three witnesses testified for the state that the defendant approached the victim in a bar, engaged in a brief conversation with him, and then, without warning, drew a gun and shot the victim in the stomach. One witness for the state testified that just before the defendant drew his gun and shot the victim, the victim twice kicked the defendant in the groin. The state's evidence clearly established that the victim died as a result of the gunshot wound.
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A is incorrect. In this case, the state offered evidence of a serious battery on the defendant, which may constitute adequate provocation. It is irrelevant which party presented the evidence because the defendant in a criminal trial is under no burden to produce evidence. Here, the testimony that the state offered is sufficient for the jury to consider.
B is incorrect. The judge's job is not to weigh the evidence but only to determine whether a reasonable jury could find adequate provocation; only the jury may weigh the evidence. Here, the jury may permissibly credit a single witness's account, even when that account contradicts ample other evidence.
C is incorrect. There is no general rule that the defense is entitled to an instruction on any theory of the case. The defense is only entitled to instructions for which there is a factual and legal basis. For instance, if there were no evidence of provocation but the defense sought a manslaughter instruction, such an instruction should be denied.