State v. Johnson

BURNETT, Justice:

Appellant appeals his convictions for murder, assault and battery with intent to kill (two counts), and possession of a firearm during the commission of a violent crime. We affirm.

FACTS

This case arose from a shooting incident that occurred at Goose Creek High School. According to the testimony at *40trial, there was a pre-arranged fight between two students after school on March 15, 1994. Following the fight, appellant, who was not a student at Goose Creek, entered into some type of verbal altercation with another individual or individuals who had witnessed the fight. During this altercation, appellant pulled out a handgun and fired several times. One student was killed and two other individuals were injured when they were struck by bullets.

ISSUES

(1) Did the trial judge err in refusing to charge voluntary manslaughter?

(2) Did the trial judge err in allowing testimony indicating the vehicle in which appellant was driving on the day of the shooting was stolen?

(3) Did the trial judge err in allowing the State to present hearsay testimony?

DISCUSSION

Voluntary Manslaughter

Appellant first argues the trial judge erred in refusing to charge the lesser-included offense of voluntary manslaughter. We disagree.

Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. State v. Gilliam, 296 S.C. 395, 373 S.E.2d 596 (1988). When death is caused by the use of a deadly weapon, words alone, however opprobrious, cannot constitute sufficient legal provocation. State v. Rogers, 320 S.C. 520, 466 S.E.2d 360 (1996). Rather, the offending words must be accompanied by some overt threatening act which could have produced the heat of passion. Id.; State v. Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993).

Here, the evidence indicates the altercation between appellant and the other individual or individuals merely involved “bad mouthing” and “trash talking.” Although appellant testified the individuals approached him as they were “trash talking,” and there was testimony one of the individuals *41removed his hat and “stepped out a little bit” demonstrating a willingness to fight, there was no evidence indicating any individual or individuals made an overt threatening act towards appellant. Consequently, the trial judge did not err in refusing to charge voluntary manslaughter. State v. Goldenbaum, 294 S.C. 455, 365 S.E.2d 731 (1988) (a request to charge a lesser-included offense is properly refused when there is no evidence the defendant committed the lesser rather than the greater offense).1

Testimony About Stolen Car

Appellant argues the trial judge erred in allowing testimony indicating the vehicle in which appellant was driving on the day of the shooting was stolen, and in allowing the solicitor to question appellant and to make comments about the stolen nature of the car. A review of the record, however, indicates appellant made no contemporaneous objection at trial and did not raise this issue at any point during trial. Consequently, this issue is not preserved for review. State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (a contemporaneous objection is required to properly preserve an error for appellate review); State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (issues not raised to and ruled on by the trial court are not preserved for appeal).

Hearsay

In describing what had occurred during the verbal altercation, State’s witness Ronald Myers testified as follows:

A. And then he said, “well, you got a gun?” and [appellant] was like, “yeah, and I ain’t scared to shoot,” and [appellant] pulled out the gun and started shooting.

The solicitor then asked Myers, “Who said *you got a gun’?” Defense counsel objected on hearsay grounds. The objection was overruled. Appellant argues this was error. We disagree.

*42Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Player v. Thompson, 259 S.C. 600, 193 S.E.2d 531 (1972); see also Rule 801, SCRE. Here, the statement “you got a gun?” was not hearsay as it was not offered to prove the truth of the matter asserted. Indeed, the statement was not even an assertion, but was a question asked to appellant. Further, even if the testimony was hearsay and its admission error, the error was clearly harmless as appellant admitted at trial that he possessed (and fired) a gun during the verbal altercation.

For the foregoing reasons, appellant’s convictions are affirmed.

AFFIRMED.

MOORE, A.J., R. MARKLEY DENNIS, JR., Acting Associate Justice, concur. FINNEY, C.J., and WALLER, A.J., dissenting in separate opinion.

. In Lowry, supra, we held the defendant was entitled to a voluntary manslaughter charge where the evidence indicated the decedent moved toward the defendant in a menacing fashion with his arms and hands outstretched as if to grab the defendant. In appellant’s case, no such evidence was presented.