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2011-UP-518 - State v. Scott

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.

Sammy L. Scott, Appellant.


Appeal From Anderson County
 J.C. Buddy Nicholson, Jr., Circuit Court Judge


Unpublished Opinion No. 2011-UP-518
Heard November 3, 2011 – Filed November 29, 2011   


AFFIRMED


Chief Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William E. Salter, III, all of Columbia; and Christina T. Adams, of Anderson, for Respondent.

PER CURIAM:  Appellant Sammy Scott appeals his convictions and sentences for one count of murder, four counts of assault and battery with intent to kill, and five counts of possession of a firearm during the commission of a violent crime.  On appeal, Scott argues the trial court erred by:  (1) denying his request to charge the jury on voluntary manslaughter as a lesser included offense of murder and (2) admitting prejudicial hearsay evidence.  We affirm.

1.  We find the trial court did not err by denying Scott's request to charge the jury on voluntary manslaughter as a lesser included offense of murder because there was insufficient evidence that Scott acted in the heat of passion.  See Suber v. State, 371 S.C. 554, 559, 640 S.E.2d 884, 886 (2007) ("[T]he trial court 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."); State v. Smith, 391 S.C. 408, 412-13, 706 S.E.2d 12, 14 (2011) ("Voluntary manslaughter is the intentional and unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation.");   State v. Starnes, 388 S.C. 590, 596, 698 S.E.2d 604, 608 (2011) (holding there must be evidence of both heat of passion and sufficient legal provocation at the time of the killing to warrant a charge on voluntary manslaughter); id. at 598, 698 S.E.2d 609 (holding a person's fear immediately following an attack or threatening act may cause the person to act in a sudden heat of passion, but only when such fear causes the person to lose control and creates an uncontrollable impulse to do violence).

2.  We find the trial court did not err by allowing witness Kyle Duncan to testify that shortly after the shooting Nicki Scott told him "you didn't see shit," and Troy Verner described the shooting as "some real gangster shit."  Neither statement constitutes hearsay evidence because the statements were not offered to prove the truth of the matter asserted.  See Rule 801(c), SCRE ("'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.").  Furthermore, even if the statements did constitute impermissible hearsay evidence, the trial court's admission of the evidence did not prejudice Scott because the statements were cumulative to other evidence presented at trial.  See State v. Garner, 389 S.C. 61, 67, 697 S.E.2d 615, 618 (Ct. App. 2010) ("Improper admission of hearsay testimony constitutes reversible error only when the admission causes prejudice." (internal quotation marks omitted)); State v. Vick, 384 S.C. 189, 199-200, 682 S.E.2d 275, 280 (Ct. App. 2009) ("[T]he admission of improper hearsay evidence is harmless where the evidence is merely cumulative to other evidence.").

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.