                    THE STATE OF SOUTH CAROLINA 

                         In The Supreme Court 


            Clarence Kendall Cook, Petitioner,

            v.

            State of South Carolina, Respondent.

            Appellate Case No. 2013-000366



                        Appeal From Marlboro County 

                    Brooks P. Goldsmith, Circuit Court Judge 



                              Opinion No. 27596 

              Submitted October 15, 2015 – Filed December 9, 2015 



                                  REVERSED


            Appellate Defender Kathrine H. Hudgins, of Columbia,
            for Petitioner.

            Attorney General Alan McCrory Wilson , of Columbia,
            and Assistant Attorney General Joshua L. Thomas, of
            Greenwood, for Respondent.


       JUSTICE BEATTY: A grand jury indicted Clarence Kendall Cook for
murder, unlawful possession of a pistol, and possession of a weapon during the
commission of a violent crime. After a jury trial, Cook was convicted of voluntary
manslaughter and possession of a weapon during the commission of a violent
crime. Cook filed a post-conviction relief ("PCR") application, which was
dismissed after a hearing. Following the dismissal of his PCR application, Cook
petitioned this Court for a writ of certiorari pursuant to White v. State, 263 S.C.
110, 208 S.E.2d 35 (1974). We granted certiorari to determine whether the trial
court erred in charging the jury with the lesser-included offense of voluntary
manslaughter. We reverse.

                          I.    Factual/Procedural History

      At the time of the incident that gave rise to this appeal, Cook and Charles
Hayes ("Victim") lived in the Marlboro Court apartment complex in Marlboro
County. Cook, who lived in the apartment above Victim, contended that Victim
had constantly been berating him, calling Cook, inter alia, a "snitch" for testifying
in a murder trial against an individual tied to Victim as well as for telling their
landlord that Victim was allegedly selling drugs out of his apartment.

       At approximately 4:00 p.m. on June 10, 2010, Cook, his girlfriend, and his
cousin were on their way to the grocery store when Cook and Victim exchanged
the following text messages:

      Victim: "You f*** n***a I herd u being sh*t about me n***a and about the
            bullsh*t that going on around here. I don't have sh*t to do with it, so
            keep my name out your mouth."

      Cook: "U aint sh*t 2 b talkn bout I dnt care bout yal or wat u movn I dnt
           want u it aint me no words 4 u or los life goes on."

      Victim: "N***a f*** u."

      Cook: "Lol."

       At approximately 6:00 p.m. that evening, the three returned to the apartment
complex to find Victim sitting outside on the porch. As they walked upstairs,
Victim made a series of threatening comments directed at Cook echoing similar
sentiments from the text messages he sent earlier that day. According to Cook,
Victim was saying "you ain't nothin' but a snitch ass p***y n***a."; "I can get that
n***a touched"; and, "look at him and his b*tch." While Cook admitted Victim's
last comment was "enough to really strike [him] in [his] heart," Cook continued up
the stairs without saying anything to Victim.

     Once inside the apartment, Cook ate some watermelon, placed the
watermelon rinds inside a plastic bag, grabbed his gun from under the couch, and
went downstairs to discard the bag. According to Cook, once downstairs, he did
not have a chance to get to the dumpster because Victim was approaching him,
grimacing and threatening to shoot him in "broad daylight." Cook stated Victim
had one of his hands in his back pocket, acting as if he had a gun and was going to
pull it out and shoot Cook at any moment.1 At this time, Victim's nephew,
Terrance Bridges, was approaching Cook in the opposite direction as if he was
about to "jump" him. Cook and Victim then exchanged the following words:

        Victim:     "You f*** n***a. You ain't nothing but a snitch."

        Cook:       "Who you callin' a f*** n***a?"

        Victim:     "You."

        Cook:       "What?"

Cook said he tried to keep walking down the sidewalk, but Victim kept cutting him
off. According to Cook, Victim continued to approach Cook huffing, grimacing,
and threatening to kill him. At that point, Cook said "the dude was coming up" and
"before I knew it, I fired a shot." Cook said he then fired a second shot and ran.
Both shots struck Victim in the face. When asked why he fired the second shot,
Cook replied "to make sure he was gone." In his oral statement, Cook further
explained: "I was terrified." "I didn't even sit there for a second. As soon as I saw
him reaching I just shot." "I wasn't taking any chances." "It was either me or him,
man, it really was."

      Bridges testified he saw Victim get up and walk over to Cook. He said
"from there on they were just talking real softly." He stated he "could hardly tell it
was an argument." Then Cook stepped back, pulled out a gun and shot Victim.
According to Bridges, Cook then walked over Victim, did some kind of gesture,
shot Victim again, and ran.

       Victim's girlfriend, Kim Brown, was also outside at the time of the incident.
At trial, Brown testified that once Cook came downstairs she saw Victim approach
Cook and say "keep my name out of all this mess y'all got going on out here. I
don't have nothing to do with that." The next thing she heard was a gunshot. After

1
    A gun was never found on Victim.
seeing Victim fall to the ground, Brown testified she saw Cook walk over Victim
and shoot him again. According to Brown, Cook then dropped the bag and ran.

       A grand jury indicted Cook for murder, unlawful possession of a pistol, and
possession of a weapon during the commission of a violent crime. At trial, Cook
claimed self-defense. At the close of the State's case, the State withdrew the
unlawful possession of a pistol charge. At the close of the defense, the trial court,
upon the State's request, and over Cook's objection, instructed the jury on the law
of the lesser-included offense of voluntary manslaughter.2 After deliberations, the
jury returned a verdict of guilty of voluntary manslaughter and guilty of possession
of a weapon during the commission of a violent crime. The trial court sentenced
Cook to twenty years' imprisonment and a consecutive, five-year sentence for
possession of a weapon during the commission of a violent crime.

       Cook filed a PCR application. After a hearing, the PCR judge denied relief
and dismissed Cook's application. Cook then filed a petition for a writ of certiorari
asserting the PCR judge erred in finding Cook was not entitled to a direct appeal
pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). We granted the
petition and directed the parties to brief the issue of whether the trial court erred in
charging the jury with the lesser-included offense of voluntary manslaughter when
there was no evidence of the element of sudden heat of passion required for
voluntary manslaughter.

                             II.    Standard of Review
        "In criminal cases, the appellate court sits to review errors of law only."
State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "An appellate court
will not reverse the trial judge's decision regarding a jury charge absent an abuse of
discretion." State v. Commander, 396 S.C. 254, 270, 721 S.E.2d 413, 421-22
(2011). "An abuse of discretion occurs when the trial court's ruling is based on an
error of law or, when grounded in factual conclusions, is without evidentiary
support." Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). "The
trial court must determine the law to be charged based on the evidence at trial."
State v. Smith, 363 S.C. 111, 115, 609 S.E.2d 528, 530 (Ct. App. 2005). "When


2
  Curiously, even though the State requested a voluntary manslaughter charge, in
its closing argument, the State said: "Use your common sense. This is murder. It
is not self-defense. It is not manslaughter it is murder."
the record contains no evidence to support it, a voluntary manslaughter jury charge
should not be given." Id.

                                  III.   Discussion

      Cook asserts the trial court erred in charging the jury with the lesser-
included offense of voluntary manslaughter because there was no evidence that he
was acting in the sudden heat of passion. We agree.

      "Voluntary manslaughter is the unlawful killing of a human being in sudden
heat of passion upon sufficient legal provocation." State v. Walker, 324 S.C. 257,
260, 478 S.E.2d 280, 281 (1996). "Both heat of passion and sufficient legal
provocation must be present at the time of the killing." Id. At trial, Cook
conceded that there was sufficient legal provocation. Therefore, the narrow issue
on appeal is whether Cook was acting in the sudden heat of passion when he killed
Victim.

      "Whether or not the facts constitute a sudden heat of passion is an
appropriate question for the court." State v. Niles, 412 S.C. 515, 522, 772 S.E.2d
877, 880 (2015). This Court has defined the sudden heat of passion as that which:

      upon sufficient legal provocation, . . . 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.

Id. (citing State v. Walker, 324 S.C. 257, 260, 478 S.E.2d 280, 281 (1996)).

       We do not believe the facts of this case support a finding that Cook shot
Victim in the sudden heat of passion. Here, Cook stated he tried to walk away
from Victim, but Victim kept cutting him off. The fact that Cook was trying to
walk away from the conflict does not suggest Cook was incapable of cooling off.
In addition, Bridges testified that Cook and Victim were talking softly and that he
could hardly tell they were arguing. This too does not suggest that Cook was
acting under an uncontrollable impulse to do violence as surely if one was so
enraged to kill, one would not be talking softly with the victim right before the act.
Further, at no point during Cook's statement does he indicate he lacked control
over his actions. Accordingly, we believe the facts of this case suggest Cook shot
Victim either with malice or in self-defense.

       In finding otherwise, the trial court relied on the following facts: (1) that
Cook was in fear; (2) Cook shot Victim twice; and (3) Cook's statement "before I
knew it, I fired a shot." We believe these facts, without more, are insufficient to
establish Cook was acting in the sudden heat of passion.

         In State v. Starnes, we affirmed the principle that "to warrant a voluntary
manslaughter charge, the defendant's fear must manifest itself in an uncontrollable
impulse to do violence." 388 S.C. 590, 598-99, 698 S.E.2d 604, 609 (2010). We
do not believe the fact that Cook shot Victim twice or his statement "before I knew
it, I fired a shot" is evidence that Cook's fear manifested in an uncontrollable
impulse to do violence.

       In State v. Niles, Niles shot at the victim twice after the victim pulled out his
gun and shot at Niles, knocking out the rear windows of Niles' vehicle. 412 S.C. at
520, 772 S.E.2d at 879. Niles stated, "I shot twice. I went pow, pow." Id. Niles,
like Cook, shot at the victim twice; yet, we determined that fact was not enough to
establish Niles was acting under an uncontrollable impulse to do violence. We
find the same here. Finally, we do not believe Cook's statement "before I knew it,
I fired a shot" warrants a charge of voluntary manslaughter. The State argues this
statement could be interpreted to mean Cook lacked self-control when he shot
Victim, and thus acted under an uncontrollable impulse to do violence. We
disagree. Due to the short, swift motion of firing a gun, we believe this statement
could be heard in any case in which the defendant is charged with firing a weapon,
even out of self-defense. Thus, we do not believe this statement is indicative as to
whether Cook was acting under an uncontrollable impulse to do violence.

       In addition to the facts articulated and relied upon by the trial court, the State
relies on our holding in State v. Lowry to support its position that this Court should
affirm the trial court's decision to charge voluntary manslaughter. 315 S.C. 396,
434 S.E.2d 272 (1993). We find Lowry distinguishable from this case.

       In Lowry, the victim approached Lowry outside a grocery store and began
berating him. Id. at 398, 434 S.E.2d 273. The two men began arguing and
"bumping chests." Id. Lowry then aimed a pistol at the victim and pulled the
trigger, but the pistol was unloaded. Id. After Lowry's friend broke up the fight,
the victim went inside the store. Id. Lowry, loaded a clip of ammunition into his
pistol, fired a single shot into a nearby sign, and followed victim into the store
where the two began arguing again. Id. The victim then raised his arms above his
head, taunting Lowry. Id. Lowry then shot him in the chest, cursed him, and shot
him again, but this time in the head. Id. This Court determined the trial court
erred in refusing to instruct the jury regarding the offense of voluntary
manslaughter because there was testimony which, if believed, tended to show the
victim and Lowry were in a heated argument. Id. at 399, 434 S.E.2d at 274.

       In Lowry, there was both a physical and verbal altercation to support a
finding of sudden heat of passion. Here, there was only a verbal altercation, which
was very brief. Further, in Lowry, it was evident to the witnesses that there was an
altercation between Lowry and the victim due to their conduct. In contrast, the
witnesses here could hardly tell Cook and Victim were arguing. In addition,
Lowry actively pursued the victim, whereas Cook attempted to walk away from
Victim. Collectively, Lowry's actions suggest that he was acting in the sudden heat
of passion. Cook's actions do not do the same.

        "The law to be charged to the jury is determined by the evidence presented
at trial." State v. Hill, 315 S.C. 260, 262, 433 S.E.2d 848, 849 (1993). "[D]ue
process requires that a lesser included offense instruction be given only when the
evidence warrants such an instruction." Hopper v. Evans, 456 U.S. 605, 611
(1982). "The jury's discretion is thus channeled so that it may convict a defendant
of any crime fairly supported by the evidence." Id. Here, the evidence presented
at trial indicates Cook either shot Victim with malice or in self-defense.
Unfortunately, however, as this Court has previously articulated:

      due to the error in granting the solicitor's request for a voluntary
      manslaughter charge, [Cook] will not have to face a jury of his peers
      on the charge of murder again. This is a cautionary tale for solicitors
      as to the pitfalls of requesting a potential "compromise" charge which
      is unsupported by the evidence.

State v. Cooley, 342 S.C. 63, 70, 536 S.E.2d 666, 670 (2000).
                                 IV.   Conclusion

      For the foregoing reasons, we reverse Cook's voluntary manslaughter
conviction.3

      REVERSED.

      TOAL, C.J., KITTREDGE and HEARN, JJ., concur. PLEICONES, J.,
not participating.




3
 Due to our reversal of Cook's voluntary manslaughter conviction, we also reverse
his conviction for possession of a weapon during the commission of a violent
crime, as the former conviction is a prerequisite for the latter. See S.C. Code Ann.
§ 16-23-490(e) (2003) (providing contemporaneous indictment and conviction of
violent crime a prerequisite to punishment under section 16-23-490).
