STATE OF SOUTH CAROLINA
IN THE SUPREME COURT

On Writ of Certiorari
To the Court of Appeals

Appeal From Greenville County
C. Victor Pyle, Jr., Circuit Court Judge

THE STATE,

Petitioner/Respondent,

vs.

DANNY ORLANDO WHARTON,

Respondent/Petitioner.

PETITIONER’S BRIEF OF PETITIONER/RESPONDENT

TABLE OF CONTENTS

PETITIONER/RESPONDENT’S ISSUES ON CERTIORARI............................................................... 1

STATEMENT............................................................................................................................................. 2

ARGUMENT

I. The Court of Appeals erroneously reversed Wharton’s voluntary manslaughter conviction, because there was sufficient legal provocation to support the charge......................................6

II. The Court of Appeals erroneously held the doctrine of transferred intent was inapplicable where Wharton shot at Shaw in the heat of passion upon sufficient legal provocation, but he killed Luster instead....................................................................................................................... 9

CONCLUSION........................................................................................................................................ 13

TABLE OF AUTHORITIES

Cases:

Casey v. State, 305 S.C. 445, 409 S.E.2d 391 (1991)..................................................................... 10

Harris v. State, 354 S.C. 382, 581 S.E.2d 154 (2003)....................................................... 5, 9, 11, 12

Solomon v. City Realty Co., 262 S.C. 198, 203 S.E.2d 435 (1974)................................................... 5

State v. Childers, 358 S.C. 614, 595 S.E.2d 872 (Ct. App. 2004)............................................... 9, 10

State v. Childers, 373 S.C. 367, 645 S.E.2d 233 (2007)............................................................ 10, 11

State v. Cole, 338 S.C. 97, 525 S.E.2d 511 (2000)............................................................................. 6

State v. Cutro, 332 S.C. 100, 504 S.E.2d 324 (1998)......................................................................... 5

State v. Davis, 278 S.C. 544, 298 S.E.2d 778 (1983)......................................................................... 6

State v. Dunbar, 356 S.C. 138, 587 S.E.2d 691 (2003)...................................................................... 5

State v. Fennell,  340 S.C. 266, 531 S.E.2d 512 (2000).................................................................... 11

State v. Franklin, 310 S.C. 122, 425 S.E.2d 758 (Ct. App. 1992)...................................................... 7

State v. Gandy, 283 S.C. 571, 324 S.E.2d 65 (1984)........................................................................ 10

State v. Johnson, 333 S.C. 62, 508 S.E.2d 29 (1998)......................................................................... 6

State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000)........................................................... 5, 9, 12

State v. Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993)......................................................................... 6

State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997)...................................................................... 8

State v. Pinckney, 339 S.C. 346, 529 S.E.2d 526 (2000)................................................................... 8

State v. Prioleau, 345 S.C. 404, 548 S.E.2d 213 (2001).................................................................... 5

State v. Rowell, 326 S.C. 313, 487 S.E.2d 185 (1997)....................................................................... 8

State v. Wharton, 366 S.C. 56, 620 S.E.2d 83 (Ct. App. 2005)......................................................... 4

State v. Wharton, 3S.C. 71, 624 S.E.2d 654 (Ct. App. 2005)........................................................ 4, 5

State v. Wiggins, 330 S.C. 538, 500 S.E.2d 489 (1998)................................................................ 6, 8

PETITIONER/RESPONDENT’S ISSUES ON CERTIORARI

I.

Did the Court of Appeals erroneously reverse Wharton’s voluntary manslaughter conviction where there was sufficient legal provocation to support the submission of the charge?

  II.

Did the Court of Appeals erroneously hold the doctrine of transferred intent was inapplicable where Wharton shot at another person in the heat of passion upon sufficient legal provocation, but he killed the victim instead?

STATEMENT

The victim Christopher Luster died of a gunshot wound to the head on the evening of October 21, 2001, in Fountain Inn.  (R. 5-6, 50-51).

That evening, Respondent/Petitioner Danny Orlando Wharton (a/k/a “Lando”), Luster, and several other friends sat around outside a friend’s house, playing cards and drinking beer.  (R. 13-14, 19-20, 29, 57-58, 73-74).  At some point during the evening, Wharton left the group and walked a short distance down the street. There, he had a verbal altercation with his ex-girlfriend, Pam Suber.  (R. 20-21, 41-42, 58-61, 74). Suber testified she broke up with Wharton the week before. (R. 35). Suber admitted she started the argument because Wharton was seeing another woman.  Suber said she struck Wharton. Suber testified the fight lasted about five minutes.  (R. 33, 35, 37).

Several eyewitnesses testified about what occurred next. Chraius Geter testified he and several others went to watch the argument. By the time Geter got there, the fight was already broken up. He recalled that Wharton was “mad. . . . And everybody was trying to talk to him and calm him down.” Geter said there were about five or six people around him. Wharton told them, “get off of me. Leave me alone.” (R. p. 22, lines 5-22; p. 29, line 17 - p. 30, line 11). Geter stated Wharton then made a call on his cell phone. He overheard Wharton say, “‘bring the shit.  I ain’t going to be punked out no more.’ [meaning] like he was not going to be afraid of nobody.” A short time thereafter, a car pulled up. Wharton then produced a gun. (R. p. 22, line 23 - p. 24, line 16).  Geter testified Wharton was “swinging [the gun] around in the air.”  Geter told Wharton to put the gun down, but  Wharton ignored him. Geter stated that as Wharton was talking, he “bumped up” to Clifton Shaw (a/k/a ”Smokey”), “trying to be like the big boss.” Wharton again exclaimed, “I ain’t going to be punked.” Geter testified Wharton “swung the gun like he was pointing - - he was pointing to shoot in the air, pow.” Geter stated he turned to run, but tripped over Shaw on the ground.  Geter got up and when he looked back, he saw Luster laying on the road.  (R. p. 24, line 17 - p. 26, line 20; p. 29, line 25 - p. 30, line 17). Geter further testified that before the gun went off, Wharton pointed it at people in the crowd, including Shaw. Wharton taunted them to “touch me and see what happens.”  (R. p. 26, line 21 - p. 28, line 19).

Elizabeth Gilliam testified she tried to break up the argument between Suber and Wharton. She said that Wharton pushed her away. (R. 41-43). Gilliam recalled Wharton was mad at this time. (R. 44). Gilliam then went home. (R. 43).

Edward Wharton witnessed the shooting.  He also tried to break up the fight. He testified he had “pushed” Wharton.  He said Wharton was in a “rage”and argued with other persons in the crowd. Edward stated, “it had got out of control.”  He said Wharton stood in front of Shaw, who had been arguing with him about the fight with Suber. Edward testified Shaw “was walking up approaching like . . . [t]hey was going to fight or whatever.” Luster was in the middle and tried  to stop the two from fighting. Edward stated Wharton walked over to a car and got a gun, and then “was coming at Smokey.” They were still arguing. Edward testified that when Wharton pulled the gun out and pointed it at Shaw, the gun went off. Wharton and Shaw were “directly facing face-to-face.”  Luster was standing between them. Edward testified he thought the gun went off  “accidentally.” (R. p. 61, line 4 - p. 66, line 9; p. 68, line 14 - p. 69, line 18; p. 71, lines 7-16). After the shooting, Wharton told Shaw, “look at what you made me do, you made me shoot my home boy.”  (R. 66-67).

Clifton Shaw testified he also walked down the street to see the fight. Shaw stated Wharton was agitated. Wharton walked around in circles, telling people not to touch him. Shaw told Wharton to “chill out.” Luster also tried to calm Wharton down. During this time, Wharton “bumped” him and they “had a few words.” (R. p. 74, line 24 - p. 77, line 8; p. 80, lines 4-13; p. 80, lines 20-25).  Shaw testified Wharton retrieved a gun from a car. He and Wharton “was still having words,” when Wharton pulled the gun out “like he was trying to pull it in the air.”  Shaw said he ducked and then heard the gun go off. When Shaw got up, Luster was on the ground.  (R. p. 77, line 9 - p. 79, line 4).

Wharton was convicted of voluntary manslaughter and possession of a weapon during the commission of a violent crime. He appealed his convictions to the Court of Appeals. Wharton alleged the trial judge erred by (1) submitting a voluntary manslaughter verdict to the jury, (2) failing to charge on the law of involuntary manslaughter, and (3) failing to charge on the law of accident.  

The Court of Appeals reversed Wharton’s convictions in State v. Wharton, 366 S.C. 56, 620 S.E.2d 83 (Ct. App. 2005). (App. 1-5). The State’s petition for rehearing and rehearing en banc were denied on October 10, 2005. (App. 19, 25).  Wharton’s cross-petition for rehearing was denied that same date. (App. 19). In its Order denying the petitions for rehearing, the Court of Appeals withdrew its earlier Opinion, and it substituted and refiled an amended Opinion in State v. Wharton, 3S.C. 71, 624 S.E.2d 654 (Ct. App. 2005). (App. 20-24). In this Opinion, the Court of Appeals found no evidence of legal provocation to support a charge of voluntary manslaughter. It held the evidence showed Shaw and Wharton were only arguing. The Court of Appeals further determined that although Wharton was arguing with Shaw at the time of the shooting, there was no evidence which showed there was any argument or discord between Wharton and Luster to justify the submission of voluntary manslaughter as to his killing. Id., 624 S.E.2d at 656. (App. 23).  The Court of Appeals similarly rejected the applicability of transferred intent as presented by the State. It found the “sufficient provocation necessary to justify a voluntary manslaughter charge must come from the victim and not transferred from a third party.” Id. [citing Harris v. State, 354 S.C. 382, 581 S.E.2d 154, 156 (2003), and State v. Locklair, 341 S.C. 352, 535 S.E.2d 420, 425 (2000)].¹

This Court granted the State’s petition for writ of certiorari on August 9, 2007.²

ARGUMENT

I.

The Court of Appeals erroneously reversed Wharton’s voluntary manslaughter conviction, because there was sufficient legal provocation to support the charge. (Petitioner/Respondent’s Issue I).

The Court of Appeals found no evidence of legal provocation to support a charge of voluntary manslaughter, finding the evidence showed that Shaw and Wharton were “only arguing.”

A trial judge may not eliminate the offense of manslaughter unless it very clearly appears that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter. State v. Cole, 338 S.C. 97, 525 S.E.2d 511, 513 (2000);  State v. Lowry, 315 S.C. 396, 434 S.E.2d 272, 272 (1993).

A trial judge may not exclude the offense of voluntary manslaughter if the defendant and victim were in a heated argument, and the decedent was about to initiate a physical encounter when the shooting occurred. State v. Johnson, 333 S.C. 62, 508 S.E.2d 29, 31 (1998); see State v. Wiggins, 330 S.C. 538, 500 S.E.2d 489 (1998)[holding the evidence tended to show the defendant acted in sudden heat of passion where the defendant was in a heated argument with the victim and feared for his life because the victim threatened him]; Lowry, 434 S.E.2d 272 [holding a voluntary manslaughter charge was necessary where the defendant and the victim were in a heated argument and the victim was about to initiate a physical encounter when shooting occurred]; State v. Davis, 278 S.C. 544, 298 S.E.2d 778 (1983)[holding a voluntary manslaughter charge was proper where a witness testified that defendant and victim had been fighting]; see also State v. Franklin, 310 S.C. 122, 125, 425 S.E.2d 758, 760 (Ct. App. 1992)[mind can be rendered incapable of cool reflection by “exasperation, rage, anger, sudden resentment, or terror”].

Under the facts of this case, voluntary manslaughter was properly submitted to the jury. The testimony showed Wharton and his ex-girlfriend got into an altercation on the street. Several of his friends intervened and tried to calm Wharton down. They all had been drinking and playing cards only minutes before. Both Luster and Shaw were involved in the confrontation with Wharton. The Court of Appeals overlooked other testimony that Shaw and Wharton “bumped,” and they had “some words.” Wharton told his friends, “I ain’t going to be punked.” Wharton telephoned someone to “bring the shit.” When a car pulled up, Wharton retrieved a gun. He waved the gun around, and he threatened and pointed it at his friends. Wharton told his friends to “touch him now and see what happens.” Several eyewitnesses testified it appeared Wharton pulled the gun out and was only trying to shoot it in the air. Other testimony presented by the State, however, showed Shaw and Wharton were not only arguing but, also, were about to fight when Wharton pulled out the gun and pointed it at Shaw. The Court of Appeals overlooked that Edward Wharton testified: “So [Shaw] was walking up approaching like whatever they was going to - - whatever it was going to be. They was going to fight or whatever,” and Luster tried to keep them from fighting. (R. 63-64). (Emphasis added). Edward Wharton said Wharton then retrieved the gun and “[Wharton] and [Shaw] was arguing. He was coming at [Shaw]” while armed with the gun. (R. 64-65). (Emphasis added). He recalled that they were “face-to-face” before the gun went off. (R. 66). (Emphasis added). When the shot was fired at Shaw, it struck Luster as he stood between them and tried to break up the confrontation.

Wharton’s obvious agitated state of mind, coupled with his heated confrontation with Shaw and evidence they had “bumped” and it appeared they were about to initiate a physical altercation when Wharton shot at Shaw, was more than sufficient evidence to demonstrate legal provocation to submit the issue of voluntary manslaughter to the jury. In other words, the facts presented by the State demonstrated more than a mere argument.  Lowry, supra; see also State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997)[voluntary manslaughter supported by evidence the decedent and the defendant had been arguing, and the defendant claimed the decedent had a weapon].

Since there was no complete absence of evidence of voluntary manslaughter, it was properly submitted to the jury for their determination. Wiggins, supra. The decision by the Court of Appeals amounted to an improper weighing of the evidence and  the granting of a directed verdict in favor of Wharton. State v. Pinckney, 339 S.C. 346, 529 S.E.2d 526 (2000); State v. Rowell, 326 S.C. 313, 487 S.E.2d 185 (1997). 

II.

The Court of Appeals erroneously held the doctrine of transferred intent was inapplicable where Wharton intentionally shot at Shaw, but he killed Luster instead. (Petitioner/Respondent’s Issue II).

The Court of Appeals held the “sufficient provocation necessary to justify a voluntary manslaughter charge must come from the victim and not transferred from a third party,” citing Harris v. State, 354 S.C. 382, 581 S.E.2d 154, 155 (2003), and State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000). In reaching this conclusion, the Court of Appeals disregarded this Court’s precedent on the applicability of the doctrine of transferred intent in homicide cases.

In  State v. Childers, 358 S.C. 614, 595 S.E.2d 872 (Ct. App. 2004), the testimony showed the victim was Childers’ estranged ex-girlfriend. The defendant testified he saw the victim at a turkey shoot and they tried to reconcile. After the turkey shoot, the defendant drove to the home of the victim’s mother and wanted to talk with the victim. He brought a loaded gun with him in case he encountered stray dogs during his walk. The defendant testified that when he arrived at the house, he saw the victim, her sister, and her sister’s ex-husband in the yard. The defendant said that as he approached, the ex-husband shot at him. The defendant testified he immediately fired back and ran away, and the victim was shot and killed. The trial judge refused the defendant’s request for an instruction on voluntary manslaughter and the defendant was convicted of murder. The Court of Appeals reversed, finding the defendant was provoked. The Court of Appeals held the act of Childers pointing and firing of the gun under the circumstances warranted a voluntary manslaughter instruction. It further held, “[a]lthough it was the victim’s brother-in-law, and not the victim herself, who allegedly shot at and thereby provoked Childers, the doctrine of transferred intent justifies a voluntary manslaughter charge as to the killing of the victim.” Id., 595 S.E.2d at 875 [citing State v. Gandy, 283 S.C. 571, 324 S.E.2d 65, 67 (1984), implicitly overruled on other grounds by Casey v. State, 305 S.C. 445, 409 S.E.2d 391 (1991)(affirming murder conviction where defendant intending to kill one man through a closed door, killed an unintended victim, this Court held, “where a defendant intends to kill or seriously injure one person, but kills another, a defendant may be found guilty of murder or manslaughter”)].

Subsequently, in State v. Childers, 373 S.C. 367, 645 S.E.2d 233 (2007), this Court reversed the Court of Appeals decision regarding the refusal to charge voluntary manslaughter. Justices Waller and Burnett found Childers was not entitled to a voluntary manslaughter instruction, since he only testified he was provoked by the victim’s brother-in-law and he fired the gun in response to first being shot at by the brother-in-law. They noted Childers’ testimony did not support sudden heat of passion upon sufficient legal provocation, because the overt act that produces the sudden heat of passion must be made by the victim. Id., 645 S.E.2d at 236 [citations omitted]. Chief Justice Toal concurred in the result only, finding there was no evidence to warrant a charge on voluntary manslaughter and, therefore, the concept of transferred intent had no relevance to the outcome of the case. Id., 645 S.E.2d at 237. Justices Moore and Pleicones, however, believed “this case represents a classic claim of  transferred intent.” Id. They held the critical question was Childers’ mental state at the time he shot and, if there was evidence he fired in sudden heat of passion upon sufficient legal provocation, “it matters not that his aim was poor.” Id. The dissent found that since Childers testified his sudden heat of passion was aroused when the victim’s brother-in-law shot at him and that in returning fire, he mistakenly shot the victim, the doctrine of transferred intent applied to the submission of a voluntary manslaughter instruction.   

The State further notes that in State v. Fennell,  340 S.C. 266, 531 S.E.2d 512 (2000), the defendant was convicted of murder of the intended victim and the assault and battery with intent to kill (ABIK) the unintended victim. The defendant argued with the intended victim (Thrailkill). A few weeks later the defendant approached him at a restaurant to talk about the incident. Thrailkill refused to talk about it and made a disparaging remark which angered the defendant. The defendant retrieved a gun from his car. He returned to the restaurant and emptied his gun, striking Thrailkill with five shots, killing him. A stray bullet struck and seriously injured Armstrong, a bystander. The defendant told a psychiatrist that he did not intend to injure Armstrong. The defendant moved for a directed verdict on the ABIK charge, because the State failed to prove he intended to kill Armstrong and he argued the doctrine of transferred intent did not apply. This Court disagreed, holding: “[a] person who, acting with malice, unleashes a deadly force in an attempt to kill or injure an intended victim should anticipate that the law will require him to answer fully for his deeds when that force kills or injures an unintended victim.” Id., 531 S.E.2d at 516.

The reliance by the Court of Appeals  on Harris was misplaced.³ In Harris, this Court held a “provocation” from the intended victim cannot be transferred to an unintended victim. In other words, a defendant cannot assert an intended victim’s provocation to claim voluntary manslaughter for the intentional shooting of the unintended victim. Harris does not, however, hold a defendant’s intent cannot be transferred from the intended victim to the unintended victim.

Locklair also supports this conclusion. In Locklair, the defendant argued he was entitled to a charge on voluntary manslaughter, because (1) there was evidence of a domestic dispute between him and the victim, and (2) the victim’s mother threw a cigarette lighter at him immediately before he shot the victim. This Court held the victim’s words alone, absent any overt physical actions, was insufficient provocation to reduce the crime to manslaughter. This Court further explained that any alleged provocation of the victim’s mother was insufficient to reduce the crime to manslaughter for the defendant’s intentional shooting of the victim.

Harris and Locklair are distinguishable from the circumstances in the present case. Wharton was  provoked by Shaw. The Court of Appeals erroneously focused on the lack of provocation by Luster. The issue was not the transfer of provocation to Luster; rather, it was Wharton’s intent to shoot Shaw as a result of Shaw’s provocation, which could be transferred to Luster when Wharton missed Shaw and killed Luster instead. Therefore, as noted by Justices Moore and Pleicones, and pursuant to the concept of transferred intent, Wharton was guilty of voluntary manslaughter. Under the misinterpretation of  transferred intent by the Court of Appeals, there could be no criminal culpability whatsoever under circumstances where an individual misses the intended target and injures or kills a bystander.

CONCLUSION

For all of the foregoing reasons, it is respectfully submitted the decision of the Court of Appeals should be reversed.

November 9, 2007

STATE OF SOUTH CAROLINA
IN THE COURT OF APPEALS

Appeal From Greenville County
C. Victor Pyle, Jr., Circuit Court Judge

THE STATE,

                                                                                                                                                Respondent/Respondent,

vs.

DANNY ORLANDO WHARTON,

Respondent/Petitioner

CERTIFICATE OF COUNSEL

The undersigned certifies that this Final Brief of Respondent complies with Rule 211(b), SCACR.

January 15, 2004

¹Because the Court of Appeals reversed Wharton’s conviction on this ground, it did not address his issues regarding the failure to charge involuntary manslaughter or the law of accident. On August 9, 2007, however, this Court granted Wharton’s petition for a writ of certiorari on these issues.

²This Court granted certiorari only on the Issues addressed in this Brief. However, the State does not abandon its position as set forth on certiorari, where it argued the Court of Appeals erroneously reversed Wharton’s conviction on grounds admittedly not preserved for direct review. Under the well-settled precedent of this Court in this regard, the decision below should be reversed. See State v. Dunbar, 356 S.C. 138, 587 S.E.2d 691 (2003)[holding an issue that was not preserved for appellate review should not be addressed by the Court of Appeals]; State v. Prioleau, 345 S.C. 404, 548 S.E.2d 213 (2001)[holding Court of Appeals erroneously considered an issue not specifically raised at trial]. Additionally, the State once again submits that Wharton’s argument to the Court of Appeals was conclusory and should have been dismissed on direct appeal. See State v. Cutro, 332 S.C. 100, 504 S.E.2d 324 (1998)[holding a one sentence argument is too conclusory to present any issue on appeal]; Solomon v. City Realty Co., 262 S.C. 198, 203 S.E.2d 435 (1974)[holding where only passage in brief relating to issue appealed was single conclusory statement which left unargued the error assigned by exception, issue was abandoned].

³Harris arose from a review of the granting of post-conviction relief based on the failure of trial counsel to object to the trial judge’s failure to charge voluntary manslaughter. This Court noted the PCR court mistakenly associated the term “voluntary manslaughter” with the law of involuntary manslaughter in relation to the issue presented to it, and the issue was ultimately decided on that basis. Harris, 581 S.E.2d at 157.