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State v. Eubanks4/22/1999
e trial court must determine, as a matter of law, whether evidence of reasonably sufficient provocation caused by the victim is present in the case to warrant a voluntary manslaughter instruction. Id. First, the trial court must apply an objective standard to determine if the provocation was reasonably sufficient to have brought on a sudden passion or sudden fit of rage. If the answer is in the affirmative, then a subjective standard is used to determine if that defendant was actually under the influence of the sudden passion or fit of rage. Id. at 634. In Shane, the court determined that the confession of infidelity was not a serious provocation which satisfied the objective standard. An instruction on voluntary manslaughter was not required based upon these facts.
The facts in the instant case are less favorable to an instruction of voluntary manslaughter than those found in Shane. Unlike Shane, appellant knew of his spouse's alleged infidelity for approximately a week before the murder. At first, appellant even accepted the notion of his wife's adultery as long as it helped pay the rent. Even accepting appellant's version of his conversation with his son, appellant was told of some kissing and touching but not anything directly about a sexual encounter. Further, Lanita Eubanks' alleged statements to appellant contained nothing overtly relating to her affair. Even if Lanita Eubanks had said something pertaining to appellant regarding an affair, under the holding of Shane, this still would have been insufficient to justify an instruction on voluntary manslaughter.
Also, the jury received instructions on aggravated murder and murder, and chose to convict appellant of the greater offense of aggravated murder. The jury obviously found appellant purposely killed Lanita Eubanks with prior calculation and design as the jury rejected the lesser charge of murder. There is little, if any, likelihood the jury would have acquitted appellant of aggravated murder and murder but convicted him of voluntary manslaughter. The trial court correctly denied appellant's request for a jury charge on the offense of voluntary manslaughter.
Appellant's first assignment of error lacks merit.
III.
Appellant's second assignment of error challenges the trial court's denial of his motion for a mistrial. Appellant made the motion following some testimony by the victim's daughter, Alisha, in which she referred to earlier incidents when appellant had used a firearm in the residence.
The testimony in issue was as follows:
Q. At the time you heard the gunshots, what were you feeling, or what did you do, or -
A. At the time I didn't think he shot her, because I didn't hear her scream, or nothing like that. So I didn't think he shot her.
Q. You didn't hear your mom scream; is that what your (SIC) said?
A. Yes.
Q. So you didn't think that he had shot her, even though you heard the gunshots?
A. I thought maybe he shot something in the house, `cause he done shot a couple of things in the house before that.
Q. Okay. So Herman shot up things in the house before that day; is that correct?
A. Yes.
Q. Did he use that same gun when he shot up things in the house before, or a different gun?
A. A different gun.
Q. A pistol or a rifle before?
A. A pistol.
Q. What things did he shoot up in the house before?
A. The walls, and one day he shot at my cousin in front of our house.
Q. He shot the walls?
A. Um-hum.
Q. And he shot your cousin?
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