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2011-UP-469 - State v. Leek

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Leroy Leek, Appellant.


Appeal From Spartanburg County
 E. C. Burnett, III, Circuit Court Judge


Unpublished Opinion No. 2011-UP-469
Submitted May 1, 2011 – Filed October 24, 2011   


AFFIRMED


Senior Appellate Defender Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Barry Barnette, of Spartanburg, for Respondent.

PER CURIAM: Leroy Leek appeals his conviction for voluntary manslaughter, arguing the circuit court erred in failing to instruct the jury that he had no duty to retreat prior to his defense of a third party.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities: State v. Sales, 285 S.C. 113, 114, 328 S.E.2d 619, 620 (1985) (holding that appellant was prejudiced when the circuit court, after instructing the jury on the duty to retreat before defending another, failed to instruct the jury on an immunity to the duty that was applicable to the facts presented); State v. Lee-Grigg, 374 S.C. 388, 415, 649 S.E.2d 41, 55 (Ct. App. 2007) ("To warrant reversal based on the [circuit] court's failure to give a requested jury instruction, the failure must be both erroneous and prejudicial." (citations omitted)).

AFFIRMED.

HUFF, WILLIAMS, and THOMAS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.