The presence of "sudden passion" or "heat of blood" are not elements of the offense of manslaughter, but, rather, are factors in the nature of mitigating circumstances which may reduce the grade of homicide. State v. Thorne, 93-859 (La.App. 5th Cir. 2/23/94), 633 So.2d 773, 777; State v. Holliday, 623 So.2d at 130; State v. Maddox, 522 So.2d 579, 582 (La.App. 1st Cir. 1988). When the preponderance of the evidence shows that a homicide was committed in "sudden passion" or "heat of blood" which would deprive an average person of his self-control and cool reflection, a jury errs in returning a verdict of second degree murder.
While there was conflicting testimony as to which man approached the other inside the bar and whether some type of verbal exchange took place immediately before the shooting, the guilty verdict indicates the jury concluded either: (1) that the argument(s) was (were) not sufficient provocation to deprive an average person of his self-control and cool reflection; or (2) that an average person's blood would have cooled before defendant shot the victim. See State v. Maddox, 522 So.2d 579, 582 (La.App. 1st Cir. 1988). We have carefully reviewed the record and find that the evidence supports the jury's determination.
However, the guilty verdict in this case demonstrates that the jury concluded that this argument was not sufficient provocation to deprive an average person of his self-control and cool reflection. See State v. Maddox, 522 So.2d 579, 582 (La.App. 1st Cir. 1988); State v. Kennedy, 494 So.2d 550, 553 (La.App. 1st Cir.), writ denied, 495 So.2d 290 (La. 1986). Although the defendant and the victim were arguing over their child prior to the shooting, witnesses stated that they were not screaming or shouting at each other; and the argument was not characterized as "heated."
The instant guilty verdict indicates that the jury concluded either: (1) that the initial confrontation at the K S Store and the subsequent confrontation at the LaFloridan Motel were not sufficient provocation to deprive an average person of his self-control and cool reflection; or (2) that an average person's blood would have cooled before the defendant stabbed the victim. See State v. Maddox, 522 So.2d 579, 582 (La.App. 1st Cir. 1988). We have carefully reviewed the record and find that the evidence supports the jury's determination.
Once the jury finds the elements of second-degree murder then it has to determine whether the circumstances indicate that the crime was actually manslaughter. State v. Maddox, 522 So.2d 579 (La.App. 1st Cir. 1988). The standard on review is, viewing the evidence in the light most favorable to the prosecution, whether a rational trier of fact could have found that the mitigatory factors were not established by a preponderance of the evidence.
See State v. Ducksworth, 496 So.2d 624, 631 (La.App. 1st Cir. 1986.) See also State v. Maddox, 522 So.2d 579 (La.App. 1st Cir. 1988.) We have carefully reviewed the record and find that the evidence supports the jury's determination.
The jury obviously concluded either: (1) that the argument between the defendant and Mrs. Crochet two nights earlier, and/or the fact that the victim was involved in a sexual relationship with Mrs. Crochet, was not sufficient to deprive an average person of his self-control and cool reflection; or (2) that an average person's blood would have cooled by the time the defendant shot the victim. See State v. Maddox, 522 So.2d 579, 582 (La.App. 1st Cir. 1988). We have carefully reviewed the record and find the evidence supports the jury's determination.
Moreover, the determination of whether sufficient provocation existed for reduction of the grade of homicide is a factual question which must be answered by the fact-finder in the case. State v. Maddox, 522 So.2d 579 (La.App. 1st Cir. 1988). The trial judge was the fact-finder in this case.
Once the jury finds the elements of second-degree murder then it has to determine whether the circumstances indicate that the crime was actually manslaughter. State v. Maddox, 522 So.2d 579 (La.App. 1st Cir. 1988). The standard on review is, viewing the evidence in the light most favorable to the prosecution, whether a rational trier of fact could have found that the mitigatory factors were not established by a preponderance of the evidence.
The presence of "sudden passion" or "heated blood" are mitigating circumstances which may reduce second degree murder to manslaughter. State v. Lombard, 486 So.2d 106 (La. 1986), after remand, 501 So.2d 889 (La.App. 5 Cir. 1987); State v. Maddox, 522 So.2d 579 (La.App. 1 Cir. 1988). It is incumbent upon the defendant to prove the mitigating factors by a preponderance of the evidence.