Murder or Manslaughter: California’s Standard for Provocation

What kind of provocation will suffice to constitute heat of passion and reduce a murder charge to manslaughter in California?  This is the question the Supreme Court of California answered on June 3, 2013, in People v. Beltran.  The government argued that the provocation must be of the sort that would cause an ordinary person of average disposition to kill.  However, the court rejected this argument, relying on the same rationale it adopted nearly one hundred years ago in People v. Logan[1]. The court held that provocation into the heat of passion is sufficient to constitute manslaughter only when an ordinary person of average disposition “would be induced to react from passion and not from judgment.”

Tare Beltran and Claire Tempongko began dating in 1998. Shortly thereafter, Beltran moved into the San Francisco apartment in which Tempongko lived with her nine-year-old son and younger daughter.  Between this time and September 2000, Beltran and Tempongko tried to get pregnant, but Beltran believed they were unsuccessful.  Also during this time, there were several instances of domestic violence, which resulted in Tempongko ending the relationship and obtaining a restraining order against Beltran.

Shortly thereafter, Tempongko began dating another man.  On October 22, 2000, Tempongko was shopping with her children and new boyfriend when Beltran called.  After the call, Tempongko became upset and subsequently continued to receive calls from Beltran on her way home.  Tempongko became nervous about returning home as she planned, and when she neared her apartment, she saw a green Honda parked outside.  Tempongko then instructed her boyfriend to circle the block a few times.  When the Honda finally left, Tempongko went inside her apartment.  Concerned for her safety, Tempongko’s boyfriend called several times but could not reach her, so he drove back to the apartment where he saw a man running across the street.  Later that day, a neighbor learned from Tempongko’s son that Beltran had killed Tempongko in her apartment.  Tempongko had been stabbed multiple times in the upper body, arms, hands, and face.  Six years later Beltran was found and arrested in Mexico.

Tempongko’s son contends that Beltran broke into Tempongko’s apartment, began yelling and questioning Tempongko about where she had been, then walked to the kitchen, retrieved a knife, and stabbed Tempongko as she tried to defend herself.

Beltran, on the other hand, testified that he and Tempongko were scheduled to have lunch that day but instead Tempongko went shopping.  That evening, he went to Tempongko’s apartment and let himself in with a key because Tempongko was expecting him.  Tempongko then became upset because Beltran was late and began yelling insults at him.  When Beltran was leaving, Tempongko provoked Beltran by telling him that she had aborted their child.  Beltran was shocked because Tempongko had never mentioned an abortion before.  Beltran claims this revelation was so disturbing that he acted rashly, not from reflection, but in reaction to the provocation.  Consequently, Beltran was thrust into the heat of passion, and the next thing he remembers is standing in the living room with a bloody knife.  At trial, the jury was left to determine whether they would convict Beltran of first or second degree murder, or voluntary manslaughter.

The United States’ justice system is premised on community moral condemnation.  Crimes that offend the community’s moral standards are punished.  However, the punishment for different crimes varies based on the culpability of the defendant’s mental state, and the severity of the crime relative to community standards.  Generally, the more culpable an individual’s mental state, the more severely the crime is punished.  Accordingly, first degree murder is generally punished more severely than second degree murder, and second degree murder more severely than manslaughter.

Murder is the unlawful killing of a human being with malice aforethought.  At common law, malice aforethought is any mental state sufficient for murder.  It can be the intent to kill another human being, intent to inflict grievous bodily harm on another, or, in what is known as depraved heart murder, extreme reckless disregard for human life.

Voluntary manslaughter, on the other hand, does not require malice aforethought.  Voluntary manslaughter is the unlawful killing of a human being without malice, upon a sudden quarrel or heat of passion.  Heat of passion would reduce an unlawful killing from murder to manslaughter.  But if sufficient time has elapsed between the provocation into the sudden heat of passion and the fatal blow, in which a reasonable person would have cooled off, the killing is not voluntary manslaughter.  In Beltran, the court asserted that heat of passion “is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation.”  Because manslaughter recognizes a fallible human characteristic, and is not committed out of malice, unlike murder, it is punished less severely.  But what provocation is legally sufficient in California to constitute a killing in the heat of passion, and thus reduce a charge of murder to manslaughter?

In Beltran, the government argues that provocation must be of a kind that would cause an ordinary person of average disposition to kill.  If an ordinary person would kill under the circumstances, then a jury may find manslaughter, instead of murder.  However, the defense claims that in order to assess adequate provocation, the question is whether the average person would react by mentally experiencing clouded reason, precluding the formation of malice, not whether the average person would react physically, by killing.

The Supreme Court of California declined to adopt the test proposed by the government, and reaffirmed the standard for determining heat of passion that it adopted nearly a century ago in Logan. It reasoned that accepting a standard that requires provocation such that the ordinary person of average disposition would be moved to kill overlooks the real issue.  With the delineation between voluntary manslaughter and murder, the focus should be directed towards the defendant’s state of mind, not on the defendant’s actions.  The court added that the basic inquiry should be whether the defendant’s reason, at the time of the killing, was so obscured by passion, that an ordinary “person of average disposition would be induced to react from passion and not from judgment.”  Provocation is therefore not measured by whether the average person would act by killing; rather, it is measured by the effect the provocation would have on the average person’s state of mind, and specifically, whether the provocation would cause an average person to act rashly.

Jared Engelking

Blogger, Criminal Law Brief

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[1] People v. Logan, 175 Cal. 45, 49 (1917).

Jerry Lee Jenkins: Wrongfully Convicted, Never Gave Up

June 7, 2013 is a day Jerry Lee Jenkins will always remember.  It was the day he joined over three hundred other men and women who were exonerated with the use of post-conviction DNA testing.  Mr. Jenkins had been fighting to prove his innocence since he was wrongfully convicted in 1987 for the brutal rape of a young woman in Waldorf, Maryland.  On the evening of February 6, 1986 the woman, a real estate agent, was at a model home when a man came in, concealed his face with a stocking and pulled a knife on her.  The man covered the woman’s face and proceeded to rape her.  The woman was able to get a partial glance at his face.  The woman would later admit at a photo lineup with Mr. Jenkins and to the jury that Mr. Jenkins looked like the man who attacked her but she was not sure it was him.  An expert from the FBI testified at trial that Mr. Jenkins was within four percent of the population that could have contributed to the biological material left at the crime, which is still a large pool of possible offenders.  Mr. Jenkins was convicted regardless. 

Before Mr. Jenkins was convicted, a detective noticed that the 1986 rape was very similar to another rape committed over a year prior, in 1984, and only a few miles from the 1986 rape.  That rape involved a similar victim, location, and offender characteristics.  The police even contacted the FBI to conduct a profile of a potential serial rapist.  Mr. Jenkins, only twenty-five at the time, had recently been arrested on an unrelated crime when the police decided to interview him.  Mr. Jenkins was tested against the evidence from the 1984 rape and he was excluded as the suspect.  However, the police continued to try to build a case against Mr. Jenkins for the 1986 rape.  They showed the victim an outdated picture of Mr. Jenkins in a photo line-up. She said Mr. Jenkins and her attacker looked similar but admitted she could not be certain they were the same.

Eyewitness misidentification has been found in seventy-five percent of wrongful conviction cases and is the leading contributor of wrongful convictions.  There has been a considerable amount of research conducted to determine why such misidentification occurs so frequently and methods to prevent it.  People often think their memory is better than it actually is, especially in stressful situations.  The woman in the 1986 rape admitted that she was not sure that Mr. Jenkins was her attacker; however, the jury was likely influenced by her testifying that they looked similar. 

Eyewitness misidentifications can also be caused by suggestive techniques during a line-up.  This may include the suspect wearing a different colored shirt than the rest of the people in a line-up or a police officer telling the witness to take another look at the suspect.  A successful method to diminish the risk of eyewitness misidentifications is to administer a “double-blind” line-up in which neither the person conducting the line-up nor the witness knows the suspect.  Researchers suggest that the line-up should be administered with photographs presented to the witness in sequential order, having the witness look at each photo, determine if it is the offender and move on to the next photo.  Defense attorneys should fight for this kind of photo line-up or ensure that traditional line-ups are not overly suggestive.  Prosecutors and police ought to be just as concerned with the high percentage of eyewitness misidentifications that seem to occur in wrongful conviction cases.      

After Mr. Jenkins was convicted, he sought to have DNA testing done but because DNA profiling was in its early stages, the test was inconclusive.  Mr. Jenkins was sentenced to life in prison.  He continued to file unsuccessful appeals as the process of DNA profiling advanced.  In 2000 when it seemed more likely that Mr. Jenkins could get another trial after the Maryland Court of Appeals ruled that evidence of another perpetrator could be permitted at trial, the prosecution offered to vacate Mr. Jenkins’ conviction if he took an Alford plea, a guilty plea that acknowledges the prosecution has sufficient evidence to convict him on the 1986 rape but allows him to maintain his innocence.  In return, the prosecution would recommend a shorter sentence with the possibility of release in 2010 on probation.  He accepted.

In 2004 the DNA from the 1984 rape was run through CODIS, the FBI’s DNA database.  The DNA belonged to Norman Derr, who was serving a life sentence in Virginia for a 1988 rape that was very similar to the Maryland rapes.  Mr. Derr was suspected of multiple rapes in Virginia.  In 2007 the Mid Atlantic Innocence Project joined Mr. Jenkins’ fight, accepting him as a non-DNA case since it was believed that there was no more evidence from the 1986 rape that could be tested.

In 2010 Mr. Jenkins was released, but he was not finished with his fight to clear his name.  A year later, the big break came when a box of evidence from the 1986 rape was found and DNA testing was conducted.  Not only was Mr. Jenkins excluded by the DNA in the 1986 rape but the DNA evidence matched Mr. Derr’s DNA.  On June 7, 2013 Mr. Jenkins finally won his motion for a new trial, filed previously in February and supported by the State, the case was dismissed. 

Mr. Jenkins’ story is one of many in which post-conviction DNA testing was used to right a terrible wrong.  As of May 24, 2013, all 50 states have laws for access to post-conviction DNA testing.  These laws are extremely important in overturning wrongful convictions, enabling the true perpetrators to be incarcerated and ensuring that the innocent are freed. 

Unfortunately, there are cases of wrongful convictions that do not contain any DNA evidence that can be tested.  Those battles for the truth can be much more difficult.  It is essential that the public and especially members of the criminal justice system are aware of wrongful convictions and their characteristics, as well as the measures that can be taken to implement change to correct and prevent them, such as DNA Access laws or non-suggestive photo line-ups.  The adage that it is better to let 1,000 guilty men go free than convict an innocent man may one day be unnecessary.  Relatively simple measures can be taken to prevent those guilty men from going free and that innocent person from being wrongfully convicted in the first place.       

Raleigh Mark

Blog Editor, Criminal Law Brief

DNA Testing the Next Chapter - The Supreme Court's Ruling in Maryland v. King

On June 3, 2013 the Supreme Court issued its 5-4 opinion in Maryland v. King, holding that when a suspect is arrested with probable cause for a serious offense it is a reasonable search for the officers to collect a DNA swab from the suspect.  Writing for the majority, Justice Kennedy analogized the DNA swab to fingerprinting and photographing as legitimate and routine police booking procedures.  The case before the Court involved Mr. King who, in 2009, was arrested for first and second-degree assault  and had a DNA sample taken as part of the routine booking procedures for serious offenses in Maryland.  Maryland law allows DNA samples to be taken from arrestees charged with violent crimes, burglaries, and attempts to commit either a violent crime or burglary. Md. Pub. Saf. Code Ann § 504(a)(3)(i) (Lexis 2011).  The DNA sample was matched to an unsolved rape case from 2003, and Mr. King was subsequently charged and convicted for the 2003 rape.  Mr. King moved to suppress the DNA evidence as it violated his Fourth Amendment rights, and the Maryland Court of Appeals agreed with Mr. King finding that the DNA swab, in this context, was an unreasonable search.  The Supreme Court reversed the Maryland Court of Appeals’ decision.

The majority reasoned that identifying the individuals who are brought into custody is clearly within the State’s interest.  As the State already engages in similar identifying behavior by fingerprinting suspects, obtaining the DNA sample is just one more source of identification.  The majority reasoned that the DNA swab is limited in its intrusiveness, as it simply requires the swab of a Q-tip on the inside of the suspect’s cheek.  The Court found the government’s interest in obtaining identifying information outweighed the minimally intrusive search of the DNA swab.   

In addition, a person in police custody already has a diminished expectation of privacy and allowing the DNA sample to be collected for identification purposes would not interfere with this expectation.  Under Maryland law, the samples of DNA obtained are solely used for the purposes of identification and not to determine specific genetic traits.  The Court equated this limited scope to the way a drug-test merely tests for the presence of drugs and does not evaluate an individual’s complete medical history.  Accordingly, the Court held the DNA testing of arrestees to be a part of the routine booking procedures and a reasonable search. 

The dissent, written by Justice Scalia, was premised on the idea that a DNA swab is not solely used for identification purposes but used to discover criminal wrongdoing.  Justice Scalia asserted that an invasion of the body without suspicion, no matter how small, is never allowed when the aim is a criminal investigation.  He found that the majority’s use of the term “identification” actually means identifying other crimes the suspect may have committed.  Justice Scalia further explained the differences between how DNA samples and fingerprints are analyzed, concluding that the two systems cannot be compared.  For example, he asserted it takes about twenty-seven minutes to get a response for a fingerprint submission, while it can take several months for a DNA analysis.  While he contended that it is “noble ” to want to solve cold cases, this state interest does not outweigh an individual’s interest in protection from suspicionless searches.

Currently, there are twenty-eight states along with the Federal Government that conduct DNA testing on suspects in custody.  Many of these states have laws similar to Maryland, where the testing is only done for specific offenses; however, the Federal Government conducts testing on all suspects.  The minimally intrusive act of a cheek swab potentially provides law enforcement with invaluable information.  The analogy to fingerprint collection is apt, because both have similar identification functions.  Further, police departments have the similar ability with fingerprints, as with DNA, to match the samples to previously unsolved cases.  In this respect the collection of DNA and fingerprints serve identical purposes and thus should be treated similarly under the law.  Consequently, allowing officers to utilize DNA testing as part of their routine booking procedures permits the full use of technology in criminal investigations.

Some fear that allowing DNA collection to be used on arrestees is a slippery slope and will potentially lead to all citizens having their DNA catalogued.  However, this fear seems unwarranted because the Supreme Court has acknowledged that the collection of DNA constitutes a search and the holding in this case is only applicable to suspects in custody for serious offenses.  The majority does not define what offenses constitute serious offenses, thus seeming to allow the states to define them; the Maryland statute could provide some guidance.  Despite leaving the definition open to interpretation, the Court acknowledged that this type of testing should not be done in every situation. 

The use of this technology could help to solve cold cases and ensure that the correct people are prosecuted for crimes.  Ensuring the correct people are prosecuted is not only in the State’s interest, but also the public’s interest.  Moreover, unlike other types of searches, DNA testing, as it is currently being used, only reveals a person’s identification.  There should be no fear that personal, private information will be revealed, like “at what hour of the night the lady of the house takes her daily sauna and bath.” Kyllo v. United States.  With the proper controls in place, allowing the collection of DNA swabs from individuals in custody for serious offenses based on probable cause, will undoubtedly protect the State’s and the public’s interest.   

Rochelle Brunot

Associate Publications Editor, Criminal Law Brief