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Criminal Practice – Second-Degree Murder – Malice & Provocation – Jury Instructions – Voluntary Manslaughter

State v. Chaves (Lawyers Weekly No. 011-078-16, 11 pp.) (Mark Davis, J.) Appealed from Durham County Superior Court (Michael O’Foghludha, J.) N.C. App.

Holding: The victim’s acts and words – engaging in sexual intercourse with defendant in order to manipulate him into texting her new boyfriend that defendant and the victim were no longer a couple and then taunting him in “Spanglish” – were not adequate provocation to negate the presumption of malice. Defendant was not entitled to a jury instruction on voluntary manslaughter.

We find no error in defendant’s conviction of second-degree murder.

Defendant also failed to show that he acted in the heat of passion. First, the victim had asked defendant to text the message to her new boyfriend earlier in the day. Second, there was a lapse in time between (1) their act of sexual intercourse, the victim’s request for defendant’s cellphone, and her taunting of him and (2) defendant’s stabbing of the victim. Following the victim’s request for defendant’s cellphone after they had engaged in sexual intercourse, defendant carried his personal belongings downstairs and placed them in his vehicle. Only then did he return to the apartment and kill the victim. Thus, defendant clearly had an opportunity to regain his composure.

Finally, defendant stabbed the victim 29 separate times. When numerous wounds are inflicted, the defendant has the opportunity to premeditate from one wound to the next.

No error.


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