S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Alexander Santee
Johnson, Appellant.
Appeal From Greenville County
C. Victor Pyle, Jr., Circuit Court Judge
Opinion No. 24851
Heard September 24, 1998 - Filed November 9, 1998
REVERSED AND REMANDED
William G. Yarborough, III, of Ashmore &
Yarborough, Greenville, for appellant.
Attorney General Charles M. Condon, Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney
General Donald J. Zelenka, and Assistant Attorney
General Derrick K. McFarland, all of Columbia, and
Solicitor Robert M. Ariail, of Greenville, for
respondent.
PER CURIAM: Appellant Alexander Santee Johnson was convicted of
murder and sentenced to life imprisonment. The sole issue on appeal is
whether Johnson was entitled to a jury charge on voluntary manslaughter.
We hold that he was and, accordingly, we reverse.
FACTS
p.23
STATE v. JOHNSON
The facts, taken in the light most favorable to Johnson, indicate that
in the early morning hours of December 12, 1995, Johnson was "hanging out"
with Frank Moore, Travis Croft, and the victim, Curt Kirksey. According to
witnesses, Kirksey had taken the keys to Johnson's vehicle and wouldn't give
them back to him. Kirksey then went into his house, and Johnson left.
Moore and Croft were still outside Kirksey's house 15-20 minutes later when
Johnson returned. Kirksey's live-in girlfriend, Lola Smith, testified Johnson
knocked on their door at approximately 2:00AM and asked to speak to
Kirksey. Kirksey came to the door and he and Johnson "had words."
Kirksey then went outside and "sort of pushed [Johnson] off the porch."
According to one witness, Kirksey was the first one to throw a punch.
Another witness testified that "[Kirksey] was getting the best of [Johnson]."
Several witnesses testified that, during the fight, Johnson took out a gun and
shot Kirksey several times; Kirksey died a short time later.
ISSUE1
1 At oral argument before this Court, the state maintained the issue
raised by Johnson is procedurally barred under our opinion in State v.
Whipple, 324 S.C. 43, 476 S.E.2d 683 (1996). We disagree and take this
opportunity to clarify Whipple.
In Whipple, supra, the defendant asserted error in the trial court's
failure to instruct the jury concerning his thirty year parole eligibility, or
alternatively, in the failure to give a "plain and ordinary meaning" charge
pursuant to State v. Norris, 285 S.C. 86, 328 S.E.2d 339 (1985). A majority
of this Court found the issue procedurally barred stating "Whipple's failure
to object to the charge as given, or to request an additional charge when
given an opportunity to do so constitutes a waiver of his right to complain on
appeal." 476 S.E.2d at 688. In a dissenting opinion, Justice Finney stated
he "would hold that where a defendant's request for a jury charge is denied
in a pre-charge conference, he need not renew that request after the charge
is omitted from the jury instructions in order to preserve the issue for
appellate review." 476 S.E.2d at 690. Accordingly, combining the majority's
holding with the dissent, Whipple is now being read to hold that where a
party's jury charge objections or requests are denied on-the-record after a pre-
charge conference, the party must renew those objections or requests
subsequent to the courts instructions to the jury. The majority opinion in
Whipple, however, did not establish such a rule.
In Whipple, there was no on-the-record discussion regarding whether
the judge would give Whipple's requests to charge. The only discussion at
p.24
STATE v. JOHNSON
Did the court err in refusing Johnson's request to charge the law
of voluntary manslaughter?
DISCUSSION
A trial court should refuse to charge a lesser-included offense only
where there is no evidence the defendant committed the lesser rather than
the greater offense. State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994). In
determining whether the evidence requires a charge on voluntary
manslaughter, this Court must view the facts in a light most favorable to the
defendant. State v. Byrd, 323 S.C. 319, 474 S.E.2d 430 (1996). To warrant
a court's eliminating the offense of manslaughter, it should very clearly
appear that there is no evidence whatsoever tending to reduce the crime from
murder to manslaughter. State v. Lowery , 315 S.C. 396, 434 S.E.2d 272
all was during voir dire at the guilt phase. Whipple asked the court to voir
dire the jury concerning their understanding of life imprisonment, and
counsel advised the court he would request a parole eligibility instruction if
the trial reached a sentencing phase. There was absolutely no further
discussion of such a charge in either the guilt or sentencing phase.
Thereafter, although Whipple submitted written requests to charge at
sentencing, there was no colloquy as to whether the court would give the
requested charges, nor did Whipple object to the judge's charge as given after
being given an opportunity to do so. Unlike the present case, the brief
colloquy in Whipple is simply not an on-the-record ruling as to whether the
court would give a certain charge. Accordingly, we adhere to our ruling that
Whipple failed to preserve the issue by failing to object to the judge's charge
as given.
However, we clarify that neither our opinion in Whipple, nor Rule
20(b), SCRCrimP (notwithstanding requests to charge, party must object to
the giving or failure to give an instruction before the jury retires .... Failure to
do so constitutes a waiver of objection) have altered the long-standing rule
that where a party requests a jury charge and, after opportunity for
discussion, the trial judge declines the charge, it is unnecessary, to preserve
the point on appeal, to renew the request at conclusion of the court's
instructions. Rogers v. Florence Printing Co., 233 S.C. 567, 106 S.E.2d 258
(1958); State v. Grant, 275 S.C. 404, 272 S.E.2d 169 (1980). Unlike Whipple,
Johnson's request to charge was denied on-the- record after an opportunity for
discussion. Accordingly, the issue is preserved for review, and Johnson was
not required to renew his request at the conclusion of the charge.
p.25
STATE v. JOHNSON
(1993).
Voluntary manslaughter is the unlawful killing of a human being in
sudden heat of passion upon sufficient legal provocation. Lowery, supra.
Although words alone may not constitute sufficient legal provocation, words
accompanied by some overt, threatening act may be sufficient. Id. In Lowery ,
we held the defendant was entitled to a charge on voluntary manslaughter
where the defendant and victim were in a heated argument and "the
decedent was about to initiate a physical encounter" when the shooting
occurred.
Here, Johnson and the victim had "had words" and were engaged in a
fight at the time the shooting occurred. Under Lowry, it is patent Johnson
was entitled to a voluntary manslaughter charge. Accordingly, the judgment
below is
REVERSED AND REMANDED.
p. 26