State v. Knoten

Justice BURNETT,

dissenting.

I respectfully dissent from that portion of the majority opinion which holds appellant was entitled to an instruction on voluntary manslaughter regarding Kimberly Brown’s (the victim’s) death. In my opinion, there was no evidence of sufficient legal provocation and, therefore, appellant was not entitled to the charge.

The law to be charged must be determined from the evidence presented at trial. State v. Cole, 338 S.C. 97, 525 S.E.2d 511 (2000). In determining whether the evidence requires a charge on voluntary manslaughter, this Court must view the facts in the light most favorable to the defendant. Id. To warrant a court’s eliminating the offense of manslaughter, it *314should very clearly appear that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter. Id.

Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986). Provocation necessary to support a voluntary manslaughter charge must come from some act of or related to the victim in order to constitute legal provocation. State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000). A victim’s attempts to resist or defend herself from a crime cannot satisfy the sufficient legal provocation element of voluntary manslaughter. State v. Shuler, 344 S.C. 604, 545 S.E.2d 805 (2001). Similarly, “the exercise of a legal right, no matter how offensive to another, is never in law deemed a provocation sufficient to justify or mitigate an act of violence.” State v. Norris, 253 S.C. 31, 39, 168 S.E.2d 564, 567 (1969).

“[T]he sudden heat of passion, upon sufficient legal provocation, which mitigates a felonious killing to manslaughter, while it need not dethrone reason entirely, or shut out knowledge and volition, must be such as would naturally disturb the sway of reason, and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called an uncontrollable impulse to do violence.” State v. Byrd, 323 S.C. 319, 322, 474 S.E.2d 430, 432 (1996) (internal quotations omitted). Both heat of passion and sufficient legal provocation must be present at the time of the killing to constitute voluntary manslaughter. State v. Hughey, 339 S.C. 439, 529 S.E.2d 721 (2000).

Considered in the light most favorable to the defendant, appellant’s second statement does not support a charge on voluntary manslaughter. According to the statement, appellant and the victim engaged in consensual intercourse at her home. Thereafter, the victim became upset and struck appellant once on the leg with a kitchen knife. Appellant left the victim’s home, went outside to his car where he opened the driver’s door, released the trunk latch, raised the trunk, looked inside, located and removed a foot long steel bar. Appellant returned into the victim’s home armed with the steel bar and struck her on the head. After the victim fell to *315the floor and attempted to crawl away, appellant rolled her in a blanket and placed her in the trunk of his car. Thereafter, appellant cleaned the victim’s home to remove evidence of his crime, then took a two hour nap before dumping the victim’s body in a river.9

I agree with the majority that the victim’s initial assault with the kitchen knife cutting appellant’s leg constitutes adequate legal provocation. However appellant’s second statement explaining how he methodically obtained the steel pipe from his car trunk reveals that a sufficiently reasonable time between the provocation and killing elapsed during which appellant’s passion should have cooled. See id., 339 S.C. at 452, 529 S.E.2d at 728 (“Even when a person’s passions were sufficiently aroused by a legally adequate provocation, if at the time of the killing those passions had cooled or a sufficiently reasonably time had elapsed so that the passions of the ordinary reasonable person would have cooled, the killing would be murder and not manslaughter.”). Accordingly, the only purpose for appellant’s return to the apartment with the steel bar was to maliciously harm the victim. In striking appellant a second time with the kitchen knife, the victim was simply attempting to defend herself against appellant’s imminent attack. Her attempt to defend herself from a crime could not give rise to legal provocation.10 See State v. Shuler, supra; State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996); State v. Tyson, 283 S.C. 375, 323 S.E.2d 770 (1984); State v. Norris, supra. Since there was no evidence of legal provocation, the trial judge did not err in refusing to charge voluntary manslaughter. State v. Ivey, 325 S.C. 137, 481 S.E.2d 125 (1997) (where no actions by deceased constitute legal provocation, charge on voluntary manslaughter is not required).

Furthermore, I note the majority relies upon Carter v. State, 301 S.C. 396, 392 S.E.2d 184 (1990), to support its *316conclusion appellant was entitled to a voluntary manslaughter charge. While Carter is factually similar to the present case, the legal issue in Carter was whether the post-conviction applicant was entitled to a King11 charge, not whether voluntary manslaughter should have been submitted to the jury in the first instance. Carter is not dispositive of the issue in this case.

I would affirm.

TOAL, C.J., concurs.

. The pathologist testified the victim incurred two forceful blows to her head which caused her scalp to split. In addition, she was strangled. The pathologist stated while all the injuries occurred close to the time of the victim’s death, strangulation was most probably the cause of death.

. The record indicates, at the time he spoke with police, appellant had one small superficial cut on his leg. Apart from his second statement, there is no evidence the victim stabbed appellant twice.

. State v. King, 158 S.C. 251, 155 S.E. 409 (1930), overruled Brightman v. State, 336 S.C. 348, 520 S.E.2d 614 (1999).