I N D E X

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

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

ISSUE PRESENTED........................................................................................................................................... 3

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

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

CONCLUSION..................................................................................................................................................... 8

TABLE OF AUTHORITIES

Cases

Harris v. State, 354 S.C. 382, 581 S.E.2d 154 (2003).................................................................................. 7

State v. Childers, 358 S.C. 614, 595 S.E.2d 872 (Ct. App. 2004)............................................................... 7

State v. Childers, 373 S.C. 367, 645 S.E.2d 233 (2007).............................................................................. 6

State v. Cooley, 342 S.C. 63, 536 S.E.2d 666 (2000).................................................................................. 6

State v. Ellison, 95 S.C. 127, 78 S.E. 704 (1913)......................................................................................... 6

State v. Fennell, 340 S.C. 266, 531 S.E.2d 512 (2000)............................................................................... 7

State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000)............................................................................... 7

State v. Smith, 337 S.C. 27, 522 S.E.2d 598 (1999)..................................................................................... 7

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

ISSUE PRESENTED

1. The Court of Appeals correctly held that there was no evidence of sufficient legal provocation to support a charge on voluntary manslaughter.

2. The Court of Appeals correctly held that the doctrine of transferred intent is inapplicable in a voluntary manslaughter context when an innocent bystander is killed.

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. 

Both Wharton and the State unsuccessfully sought rehearing and petitioned this Court for writ of certiorari.  Pertinent to the present proceeding, the Court granted the State’s petition as to the following two issues:

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

2. The Court of Appeals erroneously held that 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.

The State filed its brief on November 9, 2007.  This brief follows.

ARGUMENT

1.

The Court of Appeals correctly held that there was no evidence of sufficient legal provocation to support a charge on voluntary manslaughter.

The State’s evidence established that Wharton and Clifton Shaw were “arguing” – “not fighting” – when Wharton’s gun discharged - perhaps accidentally - killing Christopher Luster.  ROA p. 63, line 25 – p. 65, line 12.  Even if Wharton had killed Shaw, the State’s evidence still would not have supported a charge on voluntary manslaughter.  As a matter of law, mere words are not a sufficient provocation for killing with a deadly weapon.  State v. Ellison, 95 S.C. 127, 78 S.E. 704 (1913).

Moreover:

Voluntary manslaughter is the unlawful killing of a human being in the sudden heat of passion upon sufficient legal provocation.  Both heat of passion and sufficient legal provocation must be present at the time of the killing.

State v. Cooley, 342 S.C. 63, 536 S.E.2d 666, 668 (2000) (internal citations omitted).  While the evidence described by the State in its certiorari petition may be indicative of the requisite heat of passion, it fails to identify any evidence of sufficient legal provocation by the victim or anybody else.  See State v. Childers, 373 S.C. 367, 645 S.E.2d 233 (2007) (provocation must come from victim).

For this reason, the Court of Appeals correctly determined that the trial judge should not have instructed the jury on voluntary manslaughter.

2.

The Court of Appeals correctly held that the doctrine of transferred intent is inapplicable in a voluntary manslaughter context when an innocent bystander is killed.

Apart from the fact that the record contains no evidence of sufficient legal provocation, the State must also contend with the fact that Wharton killed an innocent bystander, not the purported aggressor.  The State argues that this scenario nevertheless supports a charge on voluntary manslaughter under the doctrine of transferred intent.

The State’s attempt to distinguish Harris v. State, 354 S.C. 382, 581 S.E.2d 154 (2003), is unconvincing.  In Harris, the Court expressly stated, “Sufficient provocation necessary to justify a voluntary manslaughter charge must come from the victim and not be transferred from a third-party to the victim.”  581 S.E.2d at 155 (emphasis in original).  But see State v. Fennell, 340 S.C. 266, 531 S.E.2d 512 (2000), and State v. Smith, 337 S.C. 27, 522 S.E.2d 598 (1999).  The Court of Appeals correctly relied upon Harris and State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000), and wisely disregarded its own opinion in State v. Childers, 358 S.C. 614, 595 S.E.2d 872, 876 (Ct. App. 2004), see also, State v. Childers, 358 S.C. 614, 595 S.E.2d 872 (2007).

For this reason, the Court of Appeals correctly determined that the trial judge should not have instructed the jury on voluntary manslaughter.

CONCLUSION

Based on the foregoing, the Court should affirm the decision of the Court of Appeals.

This 8th day of  February, 2008