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

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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

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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

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

(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.

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