i represent creasing news this is a classic example of second degree murder if some provocation tree she showed up to his friend's house with no intent to kill his friend he called when he once he got there he called her his wife to take her home the partner and immediately charged tracey pushing him and causing traces gun to fire and the traces on that is undisputed but all it was fired into his arm the two then shrugged over the gun traces he pulled the trigger and the whole instantly killed and paralyzed carl tracy left for the hospital and told his story to the police so based on this some courts have found that these facts hasa to prosecution as a matter of law we're not asking for that we're only asking for a jury instruction because there is at least some evidence of provocation leonards supreme court case very similar to this and that case there was a struggle over a gun the defendant showed up to his past employer armed with a gun to clean out his office when he showed up he was confronted by security guards i witnesses saw the two of them struggle over a gun the defended shoot the ceased and pushed him over the balcony are screaming that the court held that because it is possible not just true but possible that he could have shown up without the intent to kill the security guard that he was entitled to a provocation instruction people who phillips is another case the lines closely with this in that case like trees the defendant showed up with the intent only to frighten the deceased he was armed with them not once he showed up his boss it was in an office setting shot up with a knife to scare off his boss there was a struggle over the knife the knife was taken from the defendant at some point the defendant got the knife back and stabbed the disease that the court they are held that was sufficient evidence for provocation another case people feet high true in this case discusses how simply because you raise a self defense probably a self defense like degree murder jury instruction that does not preclude you encouraging the defendant to fight the defendant said no the defendant been picked up a wooden beam the deceased still with the knife in his hand encouraging the fight the defendant swung the being beam hitting the deceased in the head and killing in that case the defendant said that he swung the beam because he was afraid and because he was scared nevertheless the court still held that based on the circumstantial evidence he could also have swung it out of provocation and the court explicitly held there that just because he said he was afraid does not preclude a provocation instruct correct but as you myself that gives me provocation no you can't just shoot yourself to provocation but someone charges you causing you to shoot yourself you aren't out of provocation there is no exception there about if someone tosses you to shoot discussed with regard to shoot himself what about a mistake and the mistake being that he shot himself he's clearly has fairly low level of violence if in fact this he's not been confronted with a gun he's not been in the other way and shown to be in fear for his life maybe in fear for safety and fear for life well that sounds more like a self defense category here or continues charging again and then on the the scene it's why saying they are struggling over the gun with both hands on the gun so i don't know how he's escalating the fight by shooting himself that's accidental he's not doing that on purpose and this is these considerations are just not a part of provocation also what matters is whether he was intensely passionate cause in a regional person would have been provoked by such conduct those are what the statutes focus on so and that's what we definitely have here   oh we'll just conclude with the the stink sion between murder and second degree murder is predicated on the legal recognition of human failings under stress because the penalty for first degree murder is so high courts have first degree murder conviction no i'm saying you can if you give the good one of the standard is if there is some evidence and you deny jury instruction this was voted in mcdonald that is an abuse of discretion to not give that here there is plenty of evidence here provocation and plenty of cases finding and mcdonald the defendant said before he showed up that he wanted to killed the deceased we don't have any of that here  side with you so that we give more information out of fear not really use it as some justification fair enough but if you put that aside the prosecutor they didn't even argue at trial that three she showed up with the intent to kill and the stage brief doesn't argue it now i mean no one's really saying that trees filled up with an intent to kill and that's why this is arguably a matter of law provocation case but we don't even have to go that far you're only asking for a jury instruction so that the the jury can hear the facts of this case that they can hear the defendant's best argument for second degree murder and that's provocation he showed up with no intent to kill he was charged hit which caused him to shoot himself the deceased continued to charge and the defendant shot with one bullet that killed him instantly or between provocation self defense provocation decide whether or not the jury will definitively decide whether they're going to buy provocation that's we're only saying that there's some evidence of provocation here and based on these facts they have been found to be prosecution by a as a matter of law but we're not asking for district and people who are suspect donald miller sprinkler case also issued in two thousand and sixteen the court is correct that the appropriate standard of review is abuse of discretion and the trial judge ruled that as a matter of his discretion he did not feel as though a jury instruction on the issue of provocation was appropriate in people versus camacho the  driving his vehicle with the victim writing as a passenger or for some reason or another the car got into a good a mishap or hit a rail the two of them began to argue begin to choke each other they got out of the  started choking each other you know hitting each other then the defendant grabbed a pen from his pocket stabbed the victim numerous times dragged him over to a watery area where he basically drowned the victim the victim having something like half a coke can of mud discovered in his lungs so that seems like it's a fairly aggressive battle but according camacho found that  a provocation instruction was inappropriate even though there were two different versions of events there the first version of events was offered by witnesses that the defendant spoke to after the event they suggested  testified that camacho heard that the defendant instigated the fight and the court ruled that one who initiate combat cannot rely on the victim's response as evidence of mutual combat sufficient to mitigate the killing of that victim so that version that they said did not support a propagation jury instruction because the witness has suggested that the defendant aided the comp and i think that applies in this case here this gentleman engaged in combat in a case of bar that depended engaged in combat with the picked him twenty minutes earlier i believe that the victim forcibly evicted him from his residence and the defendant goes home gets a gun comes back and knocks on the victim's door with a gun and his bare hands had it you know what transpires after that i think was as a result of the conduct of the defendant s beginning to fight the court also went on to say in camacho that the second version was that offered by the defended the defendant camacho said that all of his actions were in self defense and the court ruled that the defendant stabbers that his actions were defensive as he feared for his life and did not suggest the willingness to enter into the fight with the victim because the defendant only asserted he acted in self defense is not entitled to a provocation instruction so under camacho there's two separate reasons why this depended and the defendant in the case of bar did the same thing he argued that when he was at the door he had no intent of getting into it tussle with the victim he was there only to retrieve his wife when victim rushed him he said that he didn't began to fear for her sly and when he shot himself he thought that the victim was serious and wanted to hurt so that's when he lost it and began shooting at the victim eventually kelly i think it's important to know to camacho as well that the court went on to say even assuming arguing to and camacho that there was  struggle that did transform into mutual combat on equal terms the dependence inflexion up or the twenty wounds to the face of the then an armed victim with a pen reflects retaliation it was disproportionate to the mutual or his system only of hand to hand combat prior to that time so the court of collateral finds a third exception which is if the response of the  disproportionate then the provocation instruction is appropriate here we have an armed victim who's in his own residence who has only recently picked it this defendant now the definitive peers at his home again armed with a weapon and so even if he did shoot himself as a result of the application with the victim is surely did not require him emptying his god or shooting repeatedly at the victim and the end of court in mcdonald did likewise it to address leonard and philip's finding exceptions for both of those you know the court in mcdonald defined mutual combat as applied her struggle that both parties enter willingly or where two persons upon and sudden quarrel and high blood usually fight upon equal terms and where death results from the combat and this is since we do not have people entering in with the evidence clearly suggests that the that it did not enter into this willingly he did so and attempt to defend himself furthermore they were not on equal terms the defendants armed with a pistol and the victim clearly was not  and those are the types of things and discussing austin the supreme court suggests that you know that there was no evidence of beautiful combat in austin even though there was a physical struggle between the bus driver and defendant in that instance the court found that because the bus driver was merely defending her or acting in response to a fight initiated by the defended and because the defendant had a weapon on her a gun and shot the bus driver that those were again two exceptions to the application of the provocation rule the same two exceptions mentioned in camacho i'd also known it kind of an interesting point at least from my standpoint i understand that the defendant is arguing that the rule is if there is some evidence of provocation that and sufficient evidence of serious provocation to warrant they requested instruction so if there's insufficient evidence it suggests to me that  any or any evidence is not synonymous with somebody there has to be some evidence that is justifiable or sufficient to warrant the giving of the instruction it's a little confusing in my mind but you know i can only interpret it is is the supreme court suggesting even though there may be some evidence we're not saying and have it it's what support to giving up instruction is that the course saying it was insufficient a little confusing but i think nevertheless that's a ruling in a battle those are the two most recent cases that i found concerning this issue i think both of them raise several exceptions to the provocation defense all while his arm causing the gun to go off that in that case you've got no visible contact all right so that would be harder which here it's on there is plenty of evidence that this was caused by the deceased actions in part and that's all that's required we don't have to find them by as a matter of law your back yard that that case is unclear and what what is the level was it some i mean these are very fine kind of academic distinctions what is any what's some what's non what the point of my point is is that there is talked about the second distinction which is that there was a struggle over the deadly weapon we don't have that we have that here there was no struggle over deadly weapon in that case and mcdonald there's a third difference that shows that three differences the show now that this case has more evidence than mcdonald and remember macdonald held had a dissent so it was a close case even with that little amount of evidence of provocation we have more evidence of provocation in this case we're about this council so mr large in our minds is the court made a truly based on the totality of the circumstances presented and testify they're going to get the gun to disarm this individual so if we're looking at this from abuse of discretion who are we how do we take that discretion away from a coup or who said we're going to get it get it done there's testimony of the record that there was an attempt to disarm the defendant ok but it's not it's from the defendant's perspective so he's got someone trying to take gun away who was just beat him up and now that person trying to get gun away he has that if students actions have caused him to shoot himself in the arm so whether someone wants to characterize it as disarm  said he's also said i there are several ways he describes what happened my writing exactly ok but my point is he's giving what happened in piecemeal things this is not a test we flock or he's off the head telling a police officer what happened all right and what he said and this is his consistent story is then as i said he shows up yes shar shoots himself in the arm and in the physical his supports this