        The Supreme Court of South Carolina

             The State, Petitioner,

             v.

             Richard Bill Niles, Jr., Respondent. 


             Appellate Case No. 2012-213592 




                                        ORDER


The petition for rehearing is granted with respect to the request that footnote 11 be
deleted. All other grounds for rehearing raised in the petition for rehearing are
denied. The attached opinion is substituted for the previous opinion, which is
withdrawn.

                                    s/ Jean H. Toal                              C.J.

                                    s/ Donald W. Beatty                            J.

                                    s/ John W. Kittredge                           J.

                                    s/ Kaye G. Hearn                               J.

I would grant the petition for rehearing in its entirety.

                                    s/ Costa M. Pleicones                          J.


Columbia, South Carolina
June 10, 2015
           THE STATE OF SOUTH CAROLINA 

                In The Supreme Court 


   The State, Petitioner,

   v.

   Richard Bill Niles, Jr., Respondent.

   Appellate Case No. 2012-213592



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


                Appeal From Horry County 

         Benjamin H. Culbertson, Circuit Court Judge 



                     Opinion No. 27510 

         Heard June 25, 2014 – Refiled June 10, 2015 



                            REVERSED


   Attorney General Alan McCrory Wilson, Chief Deputy
   Attorney General John W. McIntosh, Senior Assistant
   Deputy Attorney General Donald J. Zelenka, and
   Assistant Attorney General Brendan Jackson McDonald,
   all of Columbia, and Solicitor Jimmy A. Richardson II,
   of Conway, for Petitioner.

   Chief Appellate Defender Robert Michael Dudek, of
   Columbia, and Reid T. Sherard, of Nelson Mullins Riley
               & Scarborough, LLP, of Greenville, for Respondent.


CHIEF JUSTICE TOAL: Richard Bill Niles, Jr. was convicted of murder,
armed robbery, and possession of a weapon during the commission of a violent
crime. The court of appeals reversed Respondent's murder conviction and
remanded for a new trial, finding the trial court erred in refusing to instruct the jury
on the lesser-included offense of voluntary manslaughter. State v. Niles, 400 S.C.
527, 735 S.E.2d 240 (Ct. App. 2012).1 We reverse.

                         FACTS/PROCEDURAL BACKGROUND

      This case arises from the shooting death of James Salter (the victim) in a
Best Buy parking lot in Myrtle Beach. It is undisputed that Niles, his fiancé,
Mokeia Hammond, and Ervin Moore met the victim at the parking lot to purchase
marijuana from him.2 Niles and Moore testified at trial,3 and Niles's version of
events matched Moore's version, except as to whose idea it was to rob the victim
and whether Niles or the victim fired the first shots.4 Thus, the evidence at trial
focused on whether Niles was the aggressor in the deadly encounter.

       On the afternoon of April 9, 2007, Niles and Hammond encountered Moore
at a convenience store in Trio, South Carolina, and invited Moore to accompany
them to Myrtle Beach. Niles and Moore were acquaintances, having known each
other through various family members. On the way to Myrtle Beach, the trio
smoked all of the marijuana that they had brought with them.

1
 Niles did not appeal his convictions for the remaining offenses. Niles, 400 S.C. at
531 n.1, 735 S.E.2d at 242 n.1.
2
  Hammond and Moore were also charged with murder, armed robbery, and
possession of a firearm during the commission of a violent crime. Moore entered
into a plea agreement with the State, whereby he pleaded guilty to voluntary
manslaughter, armed robbery, and possession of a firearm during the commission
of a violent crime in exchange for his testimony against Niles and Hammond at
their joint trial.
3
    Hammond chose not to testify in her defense.
4
    Niles admitted he shot the victim and that Moore and Hammond were unarmed.
       Therefore, Niles contacted the victim5 via telephone and arranged to meet
him at the Best Buy parking lot to purchase marijuana. Niles testified that his
conversation with the victim had a dual purpose. Not only was he meeting with
the victim so that Moore could purchase a pound of marijuana from him, but he
claimed that the victim owed him $5,000 as payment for other drug transactions.
According to Moore, however, Niles subsequently decided to rob the victim
instead.6

       Once in Myrtle Beach, the trio made several stops at various motels so that
Niles could sell crack cocaine before meeting the victim at the designated meeting
spot at approximately 7:00 p.m. Hammond was driving Niles's rental vehicle, with
Niles riding in the front passenger's seat and Moore riding in the back seat.
Hammond parked the rental vehicle next to the victim's vehicle. Moore testified
that his role in the robbery was "to identify the weed" for Niles. Therefore, Moore
approached the victim's vehicle first. Moore joined the victim in the victim's
vehicle, and the victim produced the bag of marijuana for Moore to inspect.

        Moore testified that as he returned to Niles's vehicle, Niles had already
exited his vehicle, and Moore told Niles that the victim had the drugs. Moore
testified that as he returned to his place in Niles's vehicle, Niles was leaning inside
the passenger-side door of the victim's vehicle and was speaking to the victim.7

      Moore testified he heard two shots and saw Niles leap into the back seat of
his vehicle behind Hammond. 8 Moore then heard the victim fire a weapon in

5
  While Niles testified that he and the victim did not know each other personally,
they had engaged in drug transactions for the past six to nine months. Niles
testified he knew the victim by his nickname, "Spice," and that the victim knew
him by his nickname, "Rich Boy." Niles testified that he and the victim were "in
the business of selling drugs."
6
 Niles, on the other hand, testified that it was Moore's decision to rob the victim,
and he did so without warning Niles beforehand.
7
 Niles's fingerprints were found on the victim's vehicle near where Niles was
allegedly standing, corroborating Moore's testimony.
8
 Other witnesses to the shooting testified that they saw a "heavyset" black male
running from the victim's car back to a dark sedan, which the State argued closely
matched Niles's description, as Moore had a much smaller build than Niles.
response. Niles and the victim shot back and forth multiple times. Niles had the
drugs with him that Niles had stolen from the victim.

       In contrast, Niles testified that Moore acted alone. Niles stated he merely set
up the meeting, but Moore went over to the victim's vehicle to purchase the drugs
while Niles and Hammond sat in the car and discussed their upcoming wedding.
Niles said he then saw Moore and the victim fighting in the victim's vehicle, and
realized that Moore was robbing the victim. Niles testified that Moore exited the
victim's vehicle with the stolen drugs, and as Moore dove back into Niles's vehicle,
Niles saw the victim draw his gun and shoot at them, knocking out the rear
windows of Niles's vehicle. Therefore, Niles grabbed his gun, and returned fire.
According to Niles, he was concerned with stopping the shooter and for
Hammond's safety:

      So, while he was shooting in the car . . . I grabbed my pistol and that's
      when I shot two times. My eyes were closed. I wasn't even looking. I
      shot two times. I went pow, pow. I wasn't trying to hit nobody . . . I
      was just trying to get him to stop shooting. That's all I was trying to
      do. I didn't know if my fiancé got shot or nothing. That's the first thing
      that came to my head, you know.

       After the shooting, Niles instructed Hammond to drive away from the scene,
and the trio abandoned the vehicle at a nearby trailer park. Niles then called a
taxicab to transport him and Hammond to a local motel. At that point, he and
Hammond parted ways with Moore, and Moore kept the marijuana. The victim
died at the scene from a gunshot wound.

       On these facts, the trial court instructed the jury on the law of murder and
self-defense, but refused Niles's request to instruct the jury on voluntary
manslaughter, reasoning that the evidence showed Niles was either guilty of
murder or he was not guilty of any crime based on his claim of self-defense.

       The court of appeals reversed Niles's murder conviction and remanded the
case for a new trial, finding the evidence compelled a jury instruction on the lesser-
included offense of voluntary manslaughter. Niles, 400 S.C. at 534, 735 S.E.2d at
244. Specifically, the court of appeals found there was evidence of sufficient legal
provocation based on Niles's testimony that he shot at the victim only after the
victim began shooting first. Id. at 535, 735 S.E.2d at 244. Further, the court of
appeals found that there was evidence that Niles acted in a sudden heat of passion
based on Niles's testimony that he took Moore to meet the victim to buy marijuana;
that Moore, without warning, decided to rob the victim; and that Niles did not fire
his gun until after Moore perpetrated the robbery and the victim shot first. Id. at
536, 735 S.E.2d at 245. Therefore, the court of appeals concluded that there was
evidence that Niles did not have an opportunity for cool reflection, and as such,
there was evidence Niles acted in a sudden heat of passion. Id.

       We granted the State's petition for a writ of certiorari to consider the State's
argument that the court of appeals erred in determining Niles was entitled to a jury
instruction on voluntary manslaughter because there was no evidence at trial that
Niles acted in the sudden heat of passion.9

                               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). Thus, this Court is bound
by the trial court's factual findings unless the appellant can demonstrate that the
trial court's conclusions either lack evidentiary support or are controlled by an error
of law. State v. Laney, 367 S.C. 639, 644, 627 S.E.2d 726, 729 (2006). "The
refusal to grant a requested jury charge that states a sound principle of law
applicable to the case at hand is an error of law." State v. Pittman, 373 S.C. 527,
570, 647 S.E.2d 144, 167 (2007).

                                      ANALYSIS

       The State maintains the trial court did not err in refusing Niles's request for
an instruction on voluntary manslaughter because Niles failed to present evidence
that he acted in the sudden heat of passion. We agree with the State that there was
no evidence that Niles acted within a sudden heat of passion upon sufficient legal
provocation, and therefore the trial court did not err in refusing to instruct the jury
on the lesser-included offense of voluntary manslaughter.

        "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). The trial
court is required to charge a jury on a lesser-included offense if there is evidence
from which it could be inferred that the defendant committed the lesser, rather than

9
 We note that the State has not challenged the court of appeals' finding that there
was evidence of sufficient legal provocation.
the greater, offense. State v. Drafts, 288 S.C. 30, 340 S.E.2d 784 (1986); Dempsey
v. State, 363 S.C. 365, 610 S.E.2d 812 (2005). When determining whether the
evidence requires a charge on voluntary manslaughter, the court must view the
facts in the light most favorable to the defendant. Pittman, 373 S.C. at 572–73,
647 S.E.2d at 168.

      "Voluntary manslaughter is the intentional and unlawful killing of a human
being in sudden heat of passion upon sufficient legal provocation." State v. Smith,
391 S.C. 408, 412–13, 706 S.E.2d 12, 14 (2011). To receive a voluntary
manslaughter charge, there must be evidence of sufficient legal provocation and
sudden heat of passion. State v. Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 513
(2000).

      The 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. Walker, 324 S.C. 257, 260, 478 S.E.2d 280, 281 (1996). Whether or not
the facts constitute a sudden heat of passion is an appropriate question for the
court. State v. Hernandez, 386 S.C. 655, 662, 690 S.E.2d 582, 586 (Ct. App. 2010)
(citation omitted).

       Niles's own testimony does not establish that he was overtaken by a sudden
heat of passion such that he had an uncontrollable impulse to do violence. Rather,
Niles testified that he did not want to hurt the victim; that he shot with his eyes
closed; that he was merely attempting to stop the victim from shooting; and that
when he shot his gun, he was thinking of Hammond rather than of perpetrating
violence upon the victim. See Cole, 338 S.C. at 102, 525 S.E.2d at 513 ("[T]here
was no evidence presented that Appellant was overcome by a sudden heat of
passion as would produce an 'uncontrollable impulse to do violence.' On the
contrary, by Appellant's own testimony, he shot at the men to scare them away.
Appellant's testimony appears designed to support a charge of self[-]defense, not
heat of passion."). As in Cole, the focus of Niles's testimony at trial was on who
was the aggressor—Niles or the victim—apparently to support Niles's theory of
self-defense. In State v. Childers, we explained:
      Voluntary manslaughter, by definition, requires a criminal intent to do
      harm to another. But according to the defendant's story, he had no
      criminal intent whatsoever.

              If, as he suggests, the defendant returned fire in a panic for his
      life, surely the defense of self-defense would be appropriate. Notably,
      this was charged by the trial court . . . . Without any evidence
      supporting the view that the defendant fired the fatal shots while
      under an "uncontrollable impulse to do violence," the trial court
      properly declined to charge the law of voluntary manslaughter to the
      jury.

373 S.C. 367, 375–76, 645 S.E.2d 233, 237 (2007). Because Niles, by his own
testimony, lacked the intent to harm the victim, we cannot see how a voluntary
manslaughter charge would have been appropriate under these facts.10

       We note further that it was undisputed that Niles, Hammond, and Moore met
the victim in the parking lot to rob the victim during the drug transaction. Niles
further admitted that Moore and Hammond were unarmed, and that he fired the
fatal shots, killing the victim. Thus, the scheme to rob the victim, coupled with
Niles's decision to arrive at the scene armed with a deadly weapon, discounts any
claim that Niles in any way act in a sudden heat of passion. Rather, Niles clearly
planned for the possibility that he might have to discharge his weapon to
accomplish the robbery, and did in fact kill the victim. These salient facts cannot
be ignored. See Pittman, 373 S.C. at 575, 647 S.E.2d at 169 ("In determining
whether an act which caused death was impelled by heat of passion or by malice,
all the surrounding circumstances and conditions are to be taken into consideration,
including previous relations and conditions connected with the tragedy, as well as
those existing at the time of the killing." (citation omitted)). In other words, there
was nothing sudden about Niles's decision to shoot the victim.11

10
  Undeniably, murder, self-defense, and voluntary manslaughter may coexist
under the right factual circumstances; here, however, Niles's testimony went to the
elements of self-defense, not voluntary manslaughter.
11
   Along the same lines, while the State has not challenged the court of appeals'
findings with respect to sufficient legal provocation, we note that sufficient legal
provocation cannot be found to exist where the victim is defending himself from a
crime. See State v. Knoten, 347 S.C. 296, 314, 555 S.E.2d 391, 400 (2001)
      Thus, we hold that the evidence did not warrant a voluntary manslaughter
charge. See State v. Smith, 315 S.C. 547, 549, 446 S.E.2d 411, 412–13 (1994)
("The trial court may and should refuse to charge on a lesser-included offense
where there is no evidence that the defendant committed the lesser rather than the
greater offense.").

                                    CONCLUSION

      For the foregoing reasons, we reverse the court of appeals.

REVERSED.

BEATTY, KITTREDGE and HEARN, JJ., concur. PLEICONES, J.,
dissenting in a separate opinion.




(Burnett, J., dissenting) ("A victim's attempts to resist or defend herself from a
crime cannot satisfy the sufficient legal provocation element of voluntary
manslaughter." (citing State v. Shuler, 344 S.C. 604, 545 S.E.2d 805 (2001)).
JUSTICE PLEICONES: I respectfully dissent. In my opinion, the court of
appeals was correct in its holding that there is evidence in the record entitling Niles
to a charge on voluntary manslaughter.

If there is any evidence to support a jury charge, the trial judge should grant the
request. State v. Shuler, 344 S.C. 604, 632, 545 S.E.2d 805, 819 (2001). “To
warrant the court in 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. Wharton, 381 S.C. 209, 214, 672 S.E.2d 786,
788 (2009). Voluntary manslaughter is the unlawful killing of a human being in
sudden heat of passion upon sufficient legal provocation. State v. Smith, 391 S.C.
408, 412-413, 706 S.E.2d 12, 14 (2011). The sudden heat of passion needed to
justify a voluntary manslaughter charge 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 may be called an uncontrollable impulse to do
violence. State v. Cole, 338 S.C. 97, 101-102, 525 S.E.2d 511, 513 (2000).

In this case, a voluntary manslaughter charge should have been given if there were
any evidence in the record from which a jury could infer that this killing was the
result of sufficient legal provocation which caused Niles to experience an
uncontrollable impulse to do violence. In my opinion, there is.

 First, as the court of appeals noted, the unprovoked shooting by Salter amounted
to evidence sufficient for a jury to infer that there was legal provocation. See State
v. Pittman, 373 S.C. 527, 573, 647 S.E.2d 144, 168 (2008) ("This court has
previously held than an overt, threatening act or a physical encounter may
constitute sufficient legal provocation."). Second, I agree with the court of appeals
that Niles's testimony that he immediately returned fire out of fear for himself and
his fiancée provided evidence from which a jury could find that Niles was acting
pursuant to an uncontrollable impulse to do violence. State v. Wiggins, 330 S.C.
538, 549, 500 S.E.2d 489, 495 (1998) (holding that the lower court properly
charged the jury on voluntary manslaughter where defendant testified he was in
fear of the threat of physical assault). Accordingly, I would affirm the court of
appeals because I cannot say there is no evidence whatsoever tending to reduce this
crime from murder to manslaughter.

Unlike the majority, I am unable to discern Niles' intent and state of mind on April
9, 2007, and to resolve numerous factual issues much as a jury might have done.
For example, the majority states with certitude that Niles determined "to arrive at
the scene armed with a deadly weapon," thus demonstrating he "clearly planned for
the possibility that he might have to discharge his weapon to accomplish the
robbery . . . ." In light of this premeditated decision, the majority states "there was
nothing sudden about Niles' decision to shoot the victim." In my opinion, the
majority exceeds our scope of review in this law case by resolving disputed issues
of fact in order to deny Niles a new trial. E.g., State v. Sams, 410 S.C. 303, 764
S.E.2d 511 (2014).

I would affirm the court of appeals.
