1. People v. Berry, (1976); pg. 151, briefed 9/27
Prepared by Roger Martin http://people.qualcomm.com/rmartin

2. Facts: Berry married a woman who, three days after their marriage, traveled to Israel and claimed to have fallen in love with another man. When she returned, she told Berry about the other man, and that she wanted a divorce. However, for the next two weeks, she alternatively taunted him with sex, and rejected him, claiming to be saving herself for this other man. Several arguments and violent episodes occurred during those two weeks, ending with Berry strangling his wife with a phone cord. There was expert testimony at the trial that Berry was in a state of uncontrollable rage due to his wife’s taunting when he killer her.

3. Procedural Posture: Berry was convicted of first degree murder and sentenced to life imprisonment. The trial judge did not instruct the jury on voluntary manslaughter as Berry had requested.

4. Issue: Whether a defendant can be sufficiently provoked to a heat of passion to kill another when the provocation is a combination of continuous verbal and sexual taunting by a spouse over a considerable period of time.

5. Holding: No.

6. Reasoning: In our present system of law, the jury decides whether the facts and circumstances are sufficient to provoke an ordinarily reasonable person to kill under the heat of passion. In Valentine, the Court held that there is no specific type of provocation required, and the verbal provocation may be sufficient, if it continues over a considerable period of time. Admissions of infidelity and taunts can support a finding of killing in the heat of passion. Thus, it was error for the trial judge to refuse the voluntary manslaughter instruction because a reasonable jury could have found that the defendant killed in the heat of passion.