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.

RESPONDENT'S BRIEF OF PETITIONER/RESPONDENT

TABLE OF CONTENTS

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

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

ARGUMENT

I. The trial judge did not err in refusing to charge the jury on the law of involuntary manslaughter......................................................................................................................................... 6

II. The trial judge did not err in refusing to instruct the jury on the law of accident.........................10

CONCLUSION.............................................................................................................................................. 12

TABLE OF AUTHORITIES

Cases:

Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144 (1992)........................................................................ 6

State v. Avery, 333 S.C. 284, 509 S.E.2d 476 (1998)............................................................................... 7

State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999).................................................................. 7, 8, 10

State v. Cabrera-Pena, 361 S.C. 372, 605 S.E.2d 522 (2004)....................................................... 6, 7, 9

State v. Chatman, 336 S.C. 149, 519 S.E.2d 100 (1999).................................................................. 6, 10

State v. Crosby, 355 S.C. 47, 584 S.E.2d 110 (2003).............................................................................. 8

State v. Goodson, 312 S.C. 278, 440 S.E.2d 370 (1994)...................................................................... 10

State v. McCaskill, 300 S.C. 256, 387 S.E.2d 268 (1990)..................................................................... 10

State v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007)........................................................................... 9

State v. Reese, 370 S.C. 21, 633 S.E.2d 898 (2006)........................................................................... 6, 7

State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994).............................................................................. 9

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

Other Authority:

S.C. Code Ann. '16-23-410 (2003)............................................................................................................. 7

PETITIONER/RESPONDENT'S ISSUES ON CERTIORARI

I.

Did the trial judge err in refusing to charge the jury on the law of involuntary manslaughter?

II.

Did the trial judge err in refusing to instruct the jury on the law of accident?

STATEMENT

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 ALando), 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 Wharton was Amad. . . . 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, Aget 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, A>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 Aswinging [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 Abumped up to Clifton Shaw (a/k/a Smokey, Atrying to be like the big boss. Wharton again exclaimed, AI ain't going to be punked. Geter testified Wharton Aswung 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 Atouch 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 Wharton pushed her away. (R. 41-43). Gilliam recalled that 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 Apushed Wharton.  He said Wharton was in a Arageand argued with other persons in the crowd. Edward stated, Ait had got out of control.  He said that Wharton stood in front of Shaw, who had been arguing with him about the fight with Suber. Edward testified Shaw Awas 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 Awas 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 Adirectly facing face-to-face. Luster was still standing between them. Edward testified he thought the gun went off  Aaccidentally. (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, Alook 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 Achill out. Luster also tried to calm Wharton down. During this time, Wharton Abumped him and they Ahad 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 Awas still having words, when Wharton pulled the gun out Alike 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 conviction to the Court of Appeals. Wharton alleged the trial judge erred, because he (1) charged the law of voluntary manslaughter, (2) failed to charge on the law of involuntary manslaughter, and (3) failed 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. State v. Wharton, 367 S.C. 71, 624 S.E.2d 654 (Ct. App. 2005). (App. 20-24). In its Opinion, the Court of Appeals found no evidence of legal provocation to support a charge of voluntary manslaughter. Because 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.

The State and Wharton subsequently petitioned this Court for a writ of certiorari. On August 9, 2007, this Court granted both petitions.

                                                            ARGUMENT

I.

The trial judge did not err in refusing to charge the jury on the law of involuntary manslaughter. (Respondent/Petitioner's Issue 1).

Wharton argues the trial judge erred in refusing to charge the jury on the law of involuntary manslaughter, because the facts supported the charge.

It is well settled a trial judge must refuse to charge a lesser-included offense where there is no evidence the defendant committed the lesser rather than the greater offense. State v. Chatman, 336 S.C. 149, 519 S.E.2d 100 (1999). Involuntary manslaughter is: (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others. State v. Reese, 370 S.C. 21, 633 S.E.2d 898, 900 (2006); Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144 (1992). The pivotal issue is whether Wharton was engaged in lawful activity at the time of the killing.  State v. Cabrera-Pena, 361 S.C. 372, 605 S.E.2d 522 (2004); see also Chatman, 519 S.E.2d at 101 [while defendant and victim were facing each other on the ground, defendant had his shoulder pressed into victim's neck and he was not attempting to strangle the victim by placing his hands around the victim's neck, and the defendant's battery was not such that naturally tended to cause death or great bodily harm].  At trial, defense counsel argued there was no intent of Wharton Ato do anything in this case except fire the gun into the air and that his actions showed Aa clear reckless disregard[.] (R. p. 96, lines 4-22). On certiorari, Wharton argues several witnesses testified the gun Awent off as he was Aswinging it around in the air.

Under the first Aunlawful act theory, for an involuntary manslaughter charge to stand, the accompanying act must not be a felony nor naturally tend to cause death or great bodily harm. State v. Avery, 333 S.C. 284, 509 S.E.2d 476 (1998). A person who points or presents a loaded or unloaded firearm at another is guilty of a felony. S.C. Code Ann. '16-23-410 (2003); see Reese, 633 S.E.2d at 900-01 [finding the act of pointing or presenting a firearm was a felony which precluded a finding of involuntary manslaughter, because this was not an unlawful act not amounting to a felony].  Wharton's actions do not fall within the first category of involuntary manslaughter, because he was engaged in unlawful, felonious and harmful conduct. As the defendant in Cabrera-Pena, Wharton at minimum presented a loaded pistol to intimidate his friends on a public street and began waving it around. This conduct amounted to a felony which would preclude an involuntary manslaughter charge.

His conduct similarly does not fall within the penumbra of the second definition of involuntary manslaughter. Wharton was acting unlawfully when he took advantage of the extremely dangerous situation that he created by presenting a loaded, deadly weapon into a verbal altercation on a public street. Id., 605 S.E.2d at 527. Indeed, his actions created a highly volatile and incendiary situation that resulted in Luster's death. This precluded an involuntary manslaughter charge. Id., 605 S.E.2d at 528.

Moreover, this was not the type of involuntary manslaughter case where Aa person can be acting lawfully, even if he is in unlawful possession of a weapon, if he was entitled to arm himself in self defense at the time of the shooting.  State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999). In Burriss, the defendant was threatened and then attacked by the victim and another male. After being pushed to the ground, the defendant drew a gun and fired two rounds into the ground. One attacker backed away, but urged his accomplice (the victim) to attack the defendant again. At this point, the defendant was on the ground, separated from his gun. When the victim moved threateningly toward the defendant, he snatched his gun up and it fired. The defendant stated he was scared and his hand was shaking when the gun went off. He said, Ait was an accident. I didn't try to shoot nobody. Burriss, 513 S.E.2d at 108.  At one point, however, the defendant also testified that Amy hand was on the trigger. The trigger was pulled or whatever. This Court found that evidence the defendant was acting lawfully in self-defense when negligently handling a loaded weapon  caused the weapon to fire and kill the victim. This Court held the failure to charge involuntary manslaughter was error.

Likewise, in State v. Crosby, 355 S.C. 47, 584 S.E.2d 110, 111 (2003), this Court held that involuntary manslaughter should have been instructed because there was evidence the victim was charging the defendant with his hand behind his back, and the defendant closed his eyes and fired the gun, without even realizing he had pulled the trigger.

In both Crosby and Burriss, the defendants were entitled to a charge on involuntary manslaughter because there was evidence from which the jury could infer they were lawfully acting in self-defense when they unintentionally fired a gun. Here, Wharton presented no evidence he was acting in self-defense when the gun was fired. He was not in imminent danger when he confronted Shaw with the gun. Wharton could have easily left the scene and avoided further confrontation. He was arguably at fault in bringing on the difficulty. 

Further, the mere negligent handling of a weapon would not support a charge on involuntary manslaughter, because Wharton was not acting Alawfully in possession of the gun. State v. Pittman, 373 S.C. 527, 647 S.E.2d 144, 167 (2007); Cabrera-Pena, 605 S.E.2d at 527.

Even under the most favorable view of the evidence at trial, Wharton intentionally fired the gun. Geter testified Wharton Aswung the gun like he was pointing - - he was pointing to shoot in the air, pow. Shaw testified Wharton pulled the gun out Alike he was trying to pull it in the air. Shaw then ducked and only heard the gun go off. Thus, the evidence shows Wharton intentionally fired the gun. Whether Wharton meant to shoot in the air, or at Shaw as a warning, is irrelevant. The firing of a gun naturally tended to cause death or bodily harm and precluded a charge on involuntary manslaughter. See State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994)[murder defendant not entitled to involuntary manslaughter instruction where the only evidence was that he acted intentionally in wielding the knife; whether the defendant intended to harm the victim was irrelevant].

Since Wharton's actions were outside the definition of involuntary manslaughter, the trial judge did not commit error in refusing to submit the offense to the jury.

II.

The trial judge did not err in refusing to instruct the jury on the law of accident. (Respondent/Petitioner's Issue 2).       

Wharton argues the trial judge erred in refusing to charge accident, particularly where he claims there was testimony the shooting was Aaccidental.

A homicide will be excusable on the ground of accident when (1) the killing was unintentional, (2) the defendant was acting lawfully, and (3) due care was exercised in the handling of the weapon.  State v. Chatman, 336 S.C. 149, 519 S.E.2d 100, 102 (1999).

For the same reasoning discussed regarding the refusal to charge involuntary manslaughter, the trial judge properly refused to instruct the jury on the law of accident. State v. Goodson, 312 S.C. 278, 440 S.E.2d 370, 372 (1994); see also  State v. Burriss, 334 S.C. 256, 513 S.E.2d 104, 108 n.5 (1999)[noting the Aunlawful possession of a firearm can under certain circumstances constitute an unlawful activity so as to preclude an accident defense if it is the proximate cause of the killing]; State v. McCaskill, 300 S.C. 256, 387 S.E.2d 268 (1990)[defendant entitled to instruction on accident where the defendant claimed she armed herself in self-defense, but that the shooting occurred accidentally].

Wharton was engaged in a felony by brandishing the gun. He cannot take advantage of a dangerous situation he created by presenting a gun on a public street during the altercation. Additionally and as previously noted, there was no evidence Wharton was lawfully acting in self-defense. Further, the record is devoid of any evidence Wharton handled the gun with due care at the time of the shooting. Whether or not any witnesses testified the shooting was Aaccidental could not determine whether the instruction was supported by the evidence in this case warranting the submission of the defense to the jury. Under the circumstances presented, there was no evidence to support the charge.

CONCLUSION

It is respectfully submitted the trial judge's refusal to charge involuntary manslaughter and accident should be affirmed.

November 30, 2007

STATE OF SOUTH CAROLINA
IN THE COURT OF APPEALS

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

THE STATE,

Respondent,

vs.

DANNY ORLANDO WHARTON,

Appellant.

CERTIFICATE OF COUNSEL

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

November 30, 2007