Applying the Provision

Applying the Provision

The preceding sections took § 210.3(1)(b) apart one phrase at a time. A fact pattern requires putting those phrases back together in the order the statute states them: a homicide that would otherwise be murder, committed under the influence of extreme mental or emotional disturbance, for which there is reasonable explanation or excuse, judged from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.¹ Keeping that order guards against two common errors. One is asking only whether the defendant was badly upset, which skips the question whether the upset was understandable. The other is judging reasonableness from the outside, before adopting the defendant's situation and his perception of events. The provision's two components line up against those errors: whether this defendant actually acted under extreme disturbance is wholly subjective, while the existence of a reasonable explanation or excuse supplies the objective test, applied from the defendant's own viewpoint.²

Step one asks only whether the prosecution has a murder in hand. It does not ask whether the defendant lacked the intent to kill, because a defendant can intend to kill while acting under extreme emotional disturbance, and it does not ask whether the victim provoked anything, because the Code requires no provocation and does not require that the disturbance come from the victim's conduct.⁷ Step two is a threshold. In People v. Casassa the trial court, sitting as factfinder, accepted that the defendant killed Miss Lo Consolo while under extreme emotional disturbance, and the Court of Appeals described that finding as a threshold question that must be answered in the affirmative before any test of reasonableness is required.⁸

Evidence on step two also decides whether the jury hears the issue at all. In State v. Dumlao, Hawaii's version of the provision required an instruction on manslaughter if any evidence supported a finding of extreme disturbance with a reasonable explanation from the defendant's own viewpoint, and expert testimony diagnosing a paranoid personality disorder that included pathological jealousy, together with the testimony of the defendant and his family, met that standard, so the conviction was reversed and the case remanded for a new trial.⁹ Contradicting testimony from other witnesses did not defeat the entitlement, because weighing credibility belongs to the jury.¹⁰ A court applying step two also may not add conditions the statute omits. Hawaii's supreme court later held it reversible error to tell a jury that the defense requires exposure to extremely unusual and overwhelming stress, because the statute contains no such requirement and the instruction shifts attention from the defendant's reaction to the quality of the stress.¹¹ The phrase extreme mental or emotional disturbance also appears in capital sentencing statutes as one mitigating circumstance among several, as in Strickland v. Washington, where the sentencing judge found the defendant was not suffering from it.¹² That sentencing factor is weighed against aggravating circumstances and does not reduce a homicide from murder to manslaughter.

Step three is where the viewpoint clause does its work. The situation the factfinder adopts includes personal handicaps and some external circumstances, such as blindness, shock from a traumatic injury, or extreme grief, but it excludes idiosyncratic moral values, so an assassin who kills a political leader because he thinks it right cannot be judged by the standard of a reasonable extremist.¹³ Ordinary temperament falls on the excluded side as well. In State v. Ott the Oregon court agreed that a jury should not consider a defendant's personality characteristics, reasoning that otherwise a bad-tempered person could be spared a murder conviction while an even-tempered person in precisely the same situation was convicted.¹⁴ The external circumstances are taken as the defendant perceived them, however inaccurate the perception,¹⁵ so a man who reasonably but mistakenly identifies his wife's rapist and kills the wrong person may still be eligible for mitigation.¹⁶

The two outcomes differ at step two, but the sequence can also fail at step three. In Casassa, step two was satisfied: the trial court accepted the disturbance as fact, then considered each mitigating factor the defendant offered, including his claimed mental disability. It concluded that the excuse was so peculiar to him that it was unworthy of mitigation and that the killing came from malevolence rather than from an understandable human response, and the Court of Appeals could not say as a matter of law that the trial court erred.¹⁷ The result stayed murder. Students lose points here when they treat a finding of disturbance as the end of the analysis, because the statute also asks whether the explanation was reasonable, and the factfinder is not obliged to find mitigation on any particular set of facts once disturbance is shown.¹⁸

Sorting the facts of a longer problem by step keeps the analysis orderly. In People v. McKenzie, as reported, a heated argument followed the refusal of sexual relations by the defendant's fiancée and her disclosure that she had been unfaithful with one of his friends. He took a knife from the kitchen and stabbed her some 47 times, then told a friend that he had snapped, described himself to the 911 dispatcher as having lost it and blacked out, and was described by the friend as spaced out.¹⁹ The knife and the number of wounds bear on whether the killing was purposeful, which is step one. His statements about snapping and blacking out, and the friend's description of him, go to step two. The refusal and the disclosure are the claimed cause that step three evaluates from his viewpoint and his perception of events, and the sequence of events is the kind of fact that bears on step four. The sequence does not decide how a jury will resolve those facts; it tells the reader where each fact does its work.

If the answers to all four questions favor mitigation, the offense is manslaughter, which the Code grades as a felony of the second degree.²⁰ The grade matters because murder is a felony of the first degree, while the Code's second-degree felony carries a maximum of ten years and a minimum of one to three.²¹ A reduction under § 210.3(1)(b) therefore changes the grade of the offense and the sentencing range, even though the defendant is still convicted of an intentional killing.

The burden of proof is a jurisdiction-specific overlay on those four questions and does not change them. As the preceding section explained, the Code leaves the prosecution to disprove disturbance once the issue is properly raised, while New York makes the same formula an affirmative defense that the defendant must establish by a preponderance of the evidence. In Patterson v. New York the jury was told that the State had to prove the intent to kill beyond a reasonable doubt, that the defendant had to prove his affirmative defense by a preponderance, and that proof of the defense would make the verdict manslaughter.²² The Court held that this allocation satisfied due process, and it later summarized the holding the same way in Martin v. Ohio.²³ The analysis ran in the same order in both settings, and the allocation matters only when the evidence on a step is evenly balanced, because the party carrying the burden loses a tie. On an exam, run the four questions first and then name the burden rule the jurisdiction's statute adopts.