I N D E X

INDEX................................................................................................................................................................. 1

TABLE OF AUTHORITIES............................................................................................................................... 2

ISSUES PRESENTED..................................................................................................................................... 3

STATEMENT OF FACTS................................................................................................................................ 4

ARGUMENT...................................................................................................................................................... 6

TABLE OF AUTHORITIES

Cases

State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999)............................................................................... 6

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

State v. Chatman, 336 S.C. 149, 519 S.E.2d 100 (1999)........................................................................... 8

State v. Crosby, 355 S.C. 47, 584 S.E.2d 110 (2003)................................................................................. 6

State v. Goodson, 312 S.C. 278, 440 S.E.2d 370 (1994)........................................................................... 8

State v. Wharton, 367 S.C. 71, 624 S.E.2d 654 (Ct. App. 2005)............................................................... 5

State v. White, 361 S.C. 407, 605 S.E.2d 540 (2004)................................................................................. 6

ISSUES PRESENTED

1. The Court of Appeals erred by electing not to address the trial judge’s refusal to instruct the jury on involuntary manslaughter.      

2. The Court of Appeals erred by electing not to address the trial judge’s refusal to instruct the jury on the law of accident.

STATEMENT OF FACTS

Danny Orlando Wharton was indicted during the February 2002 term of the Greenville County grand jury for murder and possession of a weapon during the commission of a violent crime. He stood trial before Judge C. Victor Pyle, Jr., and a jury on December 9 and 10, 2002.

The Assistant Solicitor revealed the crux of this case in the first sentence of her closing argument:   “There is no doubt that that [sic] Defendant did not intend to kill Chris Luster.”  ROA p. 97, lines 19 – 20.  To the contrary, the State’s evidence was that the victim was Wharton’s lifelong friend and that the shooting was a tragic accident.  ROA p. 17, lines 17 – 19; p. 36, lines 8 – 11; p. 43, line 21 – p. 44, line 4.  Wharton, who was in his own neighborhood, had been attacked by his ex-girlfriend, Pam Suber. Suber precipitated the argument because Wharton was seeing another woman.  ROA p. 20, line 24 – p. 21, line 25; p. 35, lines 15 – 20. 

According to eyewitness Chraius Geter, Wharton got a weapon and “was just swinging it around in the air . . . and a shot went off.”  ROA p. 25, lines 10 – 25.  Edward Morris Wharton, petitioner’s cousin, testified he thought Wharton meant to shoot in the air but that “the gun went off accidentally.”  ROA p. 65, lines 4 – 12.  Clifton Deshon Shaw, a third eyewitness, testified, “I thought [Wharton] was going to shoot in the air.”  ROA p. 77, line 25 – 95, line 1. 

The jury acquitted Wharton of murder but found him guilty of the lesser offense of voluntary manslaughter.  Further, the jury also found him guilty of the weapons possession charge.  The judge sentenced Wharton to fifteen years in prison for voluntary manslaughter and five years for possession of a weapon during a violent crime.

On direct appeal to the Court of Appeals, Wharton raised three issues:

1. Whether the trial judge erred in charging the jury on the law of voluntary manslaughter.

2. Whether the trial judge erred in failing to charge the jury on the law of involuntary manslaughter.

3. Whether the trial judge erred in failing to charge the jury on the law of accident.

The Court of Appeals reversed Wharton’s conviction on the first issue and stated, “Having reversed the trial court on the voluntary manslaughter charge, we need not address appellant’s remaining issue.”  State v. Wharton, 367 S.C. 71, 624 S.E.2d 654 (Ct. App. 2005).  The Court denied rehearing. 

In a petition for writ of certiorari filed with the Supreme Court Wharton presented two issues:

1. The Court of Appeals erred by not addressing the trial judge’s failure to charge the jury on the law of involuntary manslaughter. 

2. The Court of Appeals erred by not addressing the trial judge’s failure to charge the jury on the law of accident.

The Court granted certiorari by order dated August 9, 2007. 

ARGUMENT

1.

The Court of Appeals erred by electing not to address the trial judge’s refusal to instruct the jury on involuntary manslaughter.

The evidence presented at trial determines the law that is charged.  State v. White, 361 S.C. 407, 605 S.E.2d 540 (2004).  If any evidence exists to warrant a jury charge on involuntary manslaughter, it must be given.  State v. Cabrera-Pena, 361 S.C. 372, 605 S.E.2d 522 (2004). 

Involuntary manslaughter is defined as (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. Crosby, 355 S.C. 47, 584 S.E.2d 110 (2003).  The reckless handling of a loaded gun will support a finding of involuntary manslaughter.  State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999). 

Several witnesses testified that the handgun “went off” as Wharton was “swinging it around in the air.”  ROA p. 42, lines 6-25; ROA p. 65, lines 4-12; ROA p. 77, line 21 – p. 78, line 2.  Defense counsel specifically requested a charge on involuntary manslaughter, arguing:

Based on the testimony of the witnesses that this was an accident and that the gun was in the air and that he was in shock when [the victim] was shot, then I believe that it would qualify as a jury question, a factual issue for the jury, for involuntary manslaughter. 

ROA p. 24, line 21 – p. 95, line 8.  The judge denied the request.  ROA p. 95, line 23 – p. 96, line 23.  During its deliberations, the jury asked the judge, “Is involuntary manslaughter an option?  If not, why not?”  ROA p. 111, lines 6 and 7.  The Court of Appeals elected not to address this issue, having held that the trial judge erred in charging the jury on voluntary manslaughter. 

The evidence presented in this case supported a charge on involuntary manslaughter.  Several witnesses testified that the gun discharged unintentionally while Wharton was behaving recklessly. 

Accordingly, the Court of Appeals erred by electing not to address the issue of whether Wharton was entitled to an instruction on the lesser- included offense of involuntary manslaughter. 

2.

The Court of Appeals erred by electing not to address the trial judge’s refusal to instruct the jury on the law of accident.

As noted before, several witnesses testified that Wharton’s gun discharged accidentally while he was waiving it around.  The State itself conceded that Wharton had not intended to kill the victim, who was his best friend.

In addition to involuntary manslaughter, defense counsel requested a charge on the law of accident.  ROA p. 95, lines 8 and 9.  The judge denied that request as well.  ROA p. 95, lines 15-20.  The Court of Appeals elected not to address that issue in its opinion. 

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 (1999).  The mere unlawful possession of a firearm does not preclude a charge on accident.  State v. Goodson, 312 S.C. 278, 440 S.E.2d 370 (1994). 

The evidence in this case supported a charge on the law of accident.  Several witnesses specifically testified that Wharton had shot his friend accidentally.

Accordingly, the Court of Appeals erred by electing not to address the issue of whether Wharton was entitled to an instruction on accident.

This 5th day of  September, 2007

STATE OF SOUTH CAROLINA
IN THE SUPREME COURT

Certiorari to Greenville County
C. Victor Pyle, Jr., Circuit Court Judge

THE STATE,

PETITIONER/RESPONDENT,

V.

DANNY ORLANDO WHARTON,

RESPONDENT/PETITIONER

CERTIFICATE OF SERVICE

I certify that a true copy of the petitioner’s brief of respondent/petitioner in this case has been served on Norman Mark Rapoport, Esquire, this 5th day of September, 2007.  A copy of the brief has also been served on the Court of Appeals.

SWORN TO BEFORE ME this 5th day
of September, 2007.

                                                                 (L.S.)
Notary Public for South Carolina
My Commission Expires: March 19, 2017

STATE OF SOUTH CAROLINA
IN THE SUPREME COURT

Certiorari to Greenville County
C. Victor Pyle, Jr., Circuit Court Judge

THE STATE,

PETITIONER/RESPONDENT

V.

DANNY ORLANDO WHARTON,

RESPONDENT/PETITIONER

PETITIONER’S
BRIEF OF RESPONDENT/PETITIONER