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.
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.
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.
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 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.
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."
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 victim's minor son testified that he could hear the defendant and the victim having a disagreement in the kitchen area concerning some pictures.
The guilty verdicts demonstrate that the jury concluded either: (1) that the argument between defendant and the victims was 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 by the time defendant shot the victims. See, State v. Maddox, 522 So.2d 579, 582 (La.App. 1st Cir. 1988). In addition to defendant, two character witnesses testified for the defense stating that defendant has a reputation for peacefulness and non-violence.