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MACEWAN v. STATE2/28/1997
the evidence to support a jury charge on heat-of-passion manslaughter.
Alabama appellate courts have frequently addressed the level of recognized legal provocation required in order to prove heat-of-passion manslaughter. The instances in which sufficient provocation has been found fall in two categories. Where one party finds his or her spouse in the act of committing adultery, there is sufficient legal provocation to support an instruction on heat-of-passion manslaughter in the subsequent killing of the offending spouse or the paramour. Biggs v. State, 441 So.2d 989, 992 (Ala. Cr. App. 1983). Also, if a person who has been physically assaulted, suddenly and still under the maddening influence of the blow, slays the assailant, a jury can properly find that there was sufficient provocation for a conviction of manslaughter. Perry v. State, 453 So.2d 762, 765 (Ala. Cr. App. 1984). Mere words, whether they consist of threatened future adultery, admitted past adultery, or other language, no matter how abusive or insulting, will not reduce a homicide from murder to manslaughter. See Biggs, supra, 441 So.2d at 992; Perry, supra, 453 So.2d at 765.
The instant case does not fall under either category. MacEwan, in essence, asks us to find a reasonable theory from the evidence that she had sufficient provocation to kill her daughter either because of the stress caused by her belief that her boyfriend was leaving her and Sydney for another woman; because of the stress caused by raising a child with severe physical and mental disabilities; or because of some combination of both
of these factors. We fail to see the possibility of such provocation in any of these categories. Even an extreme emotional or mental disturbance, without legally recognized provocation, will not reduce murder to manslaughter. Gray v. State, 482 So.2d 1318, 1319 (Ala. Cr. App. 1985).
To rule that a severely handicapped child, under the age of three, could somehow provoke her mother to kill her would go beyond the boundaries of well established precedent, public policy, and principles of jurisprudence. The trial court properly rejected MacEwan's request for a jury instruction on heat-of-passion manslaughter.
II.
MacEwan argues that the trial court improperly denied her request for a jury selection consultant. Specifically, MacEwan contends that a jury selection consultant was necessary for the selection of an unbiased jury because of the emotional nature of the case. We find this argument without merit.
The United States Supreme Court, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), held that an indigent defendant is entitled to the assistance of a competent psychiatrist when the defendant's sanity at the time of the offense is a significant factor at trial. In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the United States Supreme Court found no need to determine what kind of showing a defendant would have to make to be entitled to the assistance of an expert if the defendant offered nothing more than mere assertions that the requested experts would have been beneficial to his or her defense. The Alabama Supreme Court has interpreted Ake and Caldwell, taken together, to "hold that a defendant, to be entitled to funds to pay for an expert, must show more than a mere possibility of assistance from an expert." Dubose v. State, 662 So.2d 1189, 1192 (Ala. 1995). " fair reading of [Ake and Caldwell] is that a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair tria
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