concurring
While I agree with the opinion in this appeal, I write separately to express my view that the standard adopted by our circuit for provocation justifying a voluntary manslaughter instruction is impossibly high. The opinion correctly states the standard as requiring that the provocation must be such as would “arouse a reasonable and ordinary person to kill someone.” I cannot envision such a provocation that would not constitute justification for the crime. “[A] reasonable person does not kill even when provoked____” Model Penal Code § 210.3 cmt. 5(a), at 56 (1980); see Stephen J. Morse, Undiminished Confusion in Diminished Capacity, 75 J.Crim.L. & Criminology 1, 33 (1984) (“Reasonable people do not kill no matter how much they are provoked, and even enraged people generally retain the capacity to control homicidal or any other kind of aggressive or antisocial desires.” (footnote omitted)).
The Model Criminal Jury Instructions for the Ninth Circuit set forth what appears to me to be a more appropriate standard: "Provocation, in order to be adequate, must be such as might naturally cause a reasonable person in the passion of the moment to lose self-control and act on impulse and without reflection." 9th Cir.Crim. Jury Instr. 8.24C (1992). This standard does not imply that reasonable people kill, but rather focuses on the degree of passion sufficient to reduce the actor’s ability to control his actions. Similar standards have been adopted by other circuits. See, e.g., United States v. Elk, 658 F.2d 644, 649 (8th Cir. 1981) (provocation must be such "`as would cause the ordinary reasonable person to act rashly and without deliberation and reflection, and from such passion, rather than from judgment’" (citation omitted)); United States v. Alexander, 471 F.2d 923, 946 (D.C.Cir.) (provocation "must be such as might naturally induce a reasonable man in the passion of the moment to lose self-control and commit the act on impulse and without reflection"), cert. denied, 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1972). Even were we to apply the Model Instruction’s standard, however, I would conclude that the trial court did not abuse its discretion in refusing to give the instruction, although I also believe it would not have been an abuse of discretion to have given it.