– Jury in lower court convicted Berry of murder.
– Appealed that it was not murder in California Supreme Court.
– Berry states that there was insufficient evidence for murder.
- Judge erred by not allowing the jury to hear his voluntary manslaughter defense.
- Berry stated that he had provocation.
– The couple got married and three days later she left to Israel – when came back told Defendant that she had slept with another man.
– She continuously provoked Berry and told him that she slept with someone else
– At court:
- Psychiatrist said that Rachel had wanted to be killed and was unconciousably suicidal and wanted the defendant to kill her.
– Defendant, according to the shrink, was provoked into a state of rage and killed Rachel.
– Prosecution states that it couldn’t be heat of passion because of the 20 hour “cooling” of his emotions while waiting for her at the hospital.
– Was the Defendant effectively provoked in order to have his sentence reduced to voluntary manslaughter (were the jury instructions wrong)?
– Provocation does not need to happen at one given point in time…If provoked over a period of time and killed in the heat of passion due to being provoked (versus revenge).
– Two week period where Rachel could provoke rage.
- Jealousy, pain, sexual rage in an ordinary man of average disposition such as to cause him to act rashly from his passion.
- It is significant that the shrink and the Defendant both testified that it was under the heat of passion and that he was provoked….
- Infidelity taunted towards the defendant….
– Any violent, intense, high wrought or enthusiastic emotion by a series of events…
– Verbal provocation with adultery is sufficient….
– Lower court decision was reversed. Must allow jury instructions because there is concrete evidence to show that it could have been “heat of passion.”