State v. Boyd , 1995 Tenn. Crim. App. LEXIS 522 ( 1995 )

HAYES, Judge,

concurring in part and dissenting in part.

I concur with my colleagues’ conclusion that the evidence was insufficient to establish the elements of attempted first-degree murder. However, under the facts presented at trial and found by the majority, I would conclude that the appellant is guilty of attempted voluntary manslaughter rather than attempted second-degree murder.

The distinction between voluntary manslaughter and second-degree murder is that voluntary manslaughter requires that the killing resulted from a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner. See Tenn.Code Ann. § 39-13-210, 211(a) (1991). The majority explicitly concludes that the appellant committed the offense “in a fit of passion and with a hot temper.” I agree with this conclusion and would furthermore conclude that the appellant’s state of passion was produced by adequate provocation, which would lead a reasonable person to act in an irrational manner. I would find that the appellant’s reason was obscured and that her act was the result of impulse, based upon the demeaning and taunting nature of the conduct involved, coupled with its longstanding duration. I therefore conclude that the appellant is guilty of criminal attempt to commit voluntary manslaughter, not the offense of criminal attempt to commit second-degree murder.