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Elliott (D) went to his brother's house with a gun and threatened his ten-year-old niece with the gun, encountered his brother's wife and then chased her upstairs where he shot his brother immediately upon seeing him. D’s brother died from the wounds. D was apprehended almost immediately after the killing about a ½ mile from his brother’s house. A psychiatrist testified that D was acting under the influence of an extreme emotional disturbance caused by a combination of custody problems, the inability to maintain a recently purchased home, and an overwhelming fear of his brother. There was a history of severe conflict between D and his brother such that at one time his brother chased D from a bus with a tire iron, which caused D to leave the area for a number of years. D contends that the trial court erred in its charge of defense of extreme emotional disturbance by giving the heat of the passion test for manslaughter. D was convicted of murder and appealed.

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