State v. Penn

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.

David Judson Penn, Appellant.

Appellate Case No. 2013-002146

Appeal from Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2016-UP-114
Heard January 6, 2016 – Filed March 2, 2016

AFFIRMED

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

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Donald J. Zelenka, Assistant
Attorney General Caroline M. Scrantom, and Assistant
Attorney General Kaycie Smith Timmons, all of
Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, for Respondent.
PER CURIAM: David Judson Penn appeals his convictions of murder and grand
larceny. First, Penn argues the trial court erroneously instructed the jury "an overt
threatening act" by the victim was required to reduce murder to voluntary
manslaughter. Additionally, Penn maintains the court erred by refusing to charge
the jury on examples of legal provocations as cited in State v. Gallman.1 Further,
Penn asserts the trial court erred in refusing to instruct the jury on circumstantial
evidence using the supreme court's language from State v. Logan.2 Finally, Penn
contends the trial court erred by instructing the jury that words alone can never be
enough to constitute legal provocation. We affirm pursuant to Rule 220(b),
SCACR, and the following authorities:

1. As to whether the trial court erred in instructing the jury "an overt threatening
act" against him was required to reduce murder to voluntary manslaughter: State v.
Brandt, 393 S.C. 526, 549, 713 S.E.2d 591, 603 (2011) (holding in reviewing a
jury charge, the charge should be viewed as a whole and a charge is correct if read
as a whole it adequately explains the law); id. ("A jury charge which is
substantially correct and covers the law does not require reversal); State v. Rogers,
320 S.C. 520, 525, 466 S.E.2d 360, 362-63 (1996) ("[W]hen death is caused by the
use of a deadly weapon, offending words must be accompanied by an 'overt,
threatening act . . . which could have produced the heat of passion.'" (alteration by
court) (quoting State v. Lowry, 315 S.C. 396, 399, 434 S.E.2d 272, 274 (1993)));
State v. Scurry, 322 S.C. 514, 517, 473 S.E.2d 61, 63 (Ct. App. 1996) ("A deadly
weapon is generally defined as 'any article, instrument or substance which is likely
to produce death or great bodily harm.'" (quoting State v. Campbell, 287 S.C. 377,
379, 339 S.E.2d 109, 109 (1985))).

2. As to whether the trial court erred by refusing to charge the jury on examples of
legal provocations as cited in Gallman: S.C. Const. art. V, § 21 ("Judges shall not
charge juries in respect to matters of fact, but shall declare the law."); Ellison v.
Parts Distribs., Inc., 302 S.C. 299, 301, 395, S.E.2d 740, 741 (Ct. App. 1990)
(holding to warrant reversal, a trial court's refusal to give a requested jury charge
must be both erroneous and prejudicial); State v. Hughey, 339 S.C. 439, 452, 529
S.E.2d 721, 728 (2000) ("A trial judge's refusal to provide specific jury instructions
is not reversible error if the general instructions are sufficiently broad to enable the

1
State v. Gallman, 79 S.C. 229, 240, 60 S.E. 682, 687 (1908).
2
State v. Logan, 405 S.C. 83, 99, 747 S.E.2d 444, 452 (2013).
jury to understand the law and the issues involved."), overruled on other grounds
by Rosemund v. Catoe, 383 S.C. 320, 680 S.E.2d 5 (2009).

3. As to whether the trial court erred in refusing to instruct the jury on
circumstantial evidence using the supreme court's language from Logan: State v.
Adkins, 353 S.C. 312, 318-19, 577 S.E.2d 460, 464 (Ct. App. 2003) ("The
substance of the law is what must be charged to the jury, not any particular
verbiage."); Logan, 405 S.C. at 100, 747 S.E.2d at 452-53 ("This holding does not
prevent the trial court from issuing the circumstantial evidence charge provided in
Grippon[3] and Cherry.[4] However, trial courts may not exclusively rely on that
charge over a defendant's objection.").

4. As to whether the trial court erred by instructing the jury that words alone can
never be enough to constitute legal provocation: Cohens v. Atkins, 333 S.C. 345,
349, 509 S.E.2d 286, 289 (Ct. App. 1998) (holding in charging the jury, the trial
court is required only to charge the current and correct law of South Carolina);
Rogers, 320 S.C. at 525, 466 S.E.2d at 362 ("[R]acist statements . . . are legally
insufficient to constitute such legal provocation because mere words, no matter
how opprobrious, are insufficient to constitute adequate legal provocation when
death is caused by the use of a deadly weapon."); Campbell, 287 S.C. at 379, 339
S.E.2d at 110 (stating any "article, instrument or substance which is likely to
produce death or great bodily harm" can be considered a deadly weapon) (quoting
State v. Sturdivant, 283 S.E.2d 719, 725 (N.C. 1981))).

AFFIRMED.

FEW, C.J., and KONDUROS and LOCKEMY, JJ., concur.

3
State v. Grippon, 327 S.C. 79, 84-84, 489 S.E.2d 462, 463-64 (1997).
4
State v. Cherry, 361 S.C. 588, 600-02, 606 S.E.2d 475, 481-82 (2005).