Criminal Practice – Sufficient Legal Provocation – Sudden Heat of Passion

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Trial counsel’s performance was not deficient because evidence in the record supports his belief that self-defense was not a viable claim, and the voluntary manslaughter charge was proper.

We affirmed the finding of the post-conviction relief (PCR) court.

Petitioner argued the PCR court erred in not finding trial counsel ineffective for failing to object to the voluntary manslaughter instruction because there was no evidence of “sufficient legal provocation” or “sudden heat of passion.” Petitioner contended, based on the facts and controlling South Carolina case law, “the facts of this case present a clear proposition: murder or nothing.” We disagreed.

There is evidence in the record tending to show Petitioner acted in a sudden heat of passion upon sufficient legal provocation. Multiple witnesses testified to tense relations between Decedent and Petitioner. Shante Glover, Petitioner’s girlfriend at the time, testified Decedent “had an attitude” and previously threatened to “F” Petitioner up. Petitioner testified that Decedent pulled out a gun and instructed him to run. We found this overt act, coupled with witness testimony establishing the tense relationship between Petitioner and Decedent and Decedent’s previous threats to “F” Petitioner up are sufficient to support a finding of legal provocation.

Petitioner testified he was not thinking in the moment when he began running, he was just shooting his gun. Petitioner attempted to refute a finding of “sudden heat of passion” by arguing if Petitioner went to the home looking for problems, such evidence would constitute malice – lending itself to a charge of murder. However, witness testimony established Petitioner went to the home on Francis Street for the sole purpose of picking up his child, something he had done many times in the past. The interaction with Decedent was not pre-planned and it was only set into motion as Petitioner was returning to his car upon being informed the children were still at daycare. Because we found there was evidence to support the charge of voluntary manslaughter, we believe counsel’s decision not to object was reasonable under prevailing professional norms. At the PCR hearing, trial counsel admitted he believed this case presented evidence supporting a charge of voluntary manslaughter. Further, at the PCR hearing, trial counsel articulated a valid, strategic reason for not objecting. Trial counsel testified he did not object to the voluntary manslaughter charge because he believed self-defense was not a viable outcome. Trial counsel based his belief on the fact Decedent was shot from behind – presumably while running from Petitioner – thus eliminating the possibility of self-defense.

We found trial counsel’s performance was not deficient because evidence in the record supports his belief that self-defense was not a viable claim, and the voluntary manslaughter charge was proper. The jury was instructed on both murder and voluntary manslaughter, and based on its view of the evidence, it chose to acquit Petitioner of the charge of murder. Accordingly, trial counsel was not deficient in failing to object to the lesser-included charge.

Affirmed.

Owens v. The State of South Carolina (Lawyers’ Weekly No. 012-055-25, 7 pp.) (Per Curiam) Jared Sullivan Newman, of Jared S. Newman, P.A., of Port Royal, for Petitioner; Attorney General Alan Wilson, Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Danielle Dixon, all of Columbia, for Respondent. South Carolina Court of Appeals Unpublished