State v. Shirar

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.

Billy Jo
Shirar, Appellant.

Appeal From Berkeley County

R. Markley Dennis, Jr., Circuit Court
Judge

Unpublished Opinion No.  2011-UP-466

Submitted October 1, 2011 – Filed October
21, 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, Senior Assistant Attorney General Harold M. Coombs, Jr., all of
Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.

PER CURIAM:  Billy
Jo Shirar appeals his conviction for voluntary manslaughter, arguing the circuit
court erred in instructing the jury on voluntary manslaughter when no evidence was
presented showing Shirar acted in the heat of passion.  We affirm.[1]

The circuit court is required
to charge only the correct and current law of South Carolina.  State v. Brown,
362 S.C. 258, 261-62, 607 S.E.2d 93, 95 (Ct. App. 2004).  Accordingly, if any
evidence supports a jury charge, the circuit court should grant the request.  Id.  "An appellate court will not reverse the [circuit court's] decision
absent an abuse of discretion."  State v. Pittman, 373 S.C. 527,
570, 647 S.E.2d 144, 166 (2007) (internal citations omitted).  "Voluntary
manslaughter is the unlawful killing of a human being in sudden heat of passion
upon sufficient legal provocation."  State v. Cole, 338 S.C. 97,
101, 525 S.E.2d 511, 513 (2000).  An instruction on voluntary manslaughter is
proper in a murder case unless no evidence tends to show the defendant acted in
the heat of passion upon sufficient legal provocation.  See State v.
Davis, 278 S.C. 544, 546, 298 S.E.2d 778, 779 (1983) (holding witness's
testimony that defendant and victim had been fighting was circumstance of
provocation and heat of passion and guilt of voluntary manslaughter could be
logically deduced and was thus properly submitted to the jury).

The circuit court did not err
in instructing the jury on voluntary manslaughter.  Shirar testified he was
attacked by the victims, engaged in a violent "rumble," and "out
of fear for [his] life" began stabbing his attackers.  According to
Shirar, one of the victims was on top of him striking him when he began
stabbing her.  Shirar further testified his first thought after the fight ended
was "wow . . . what just happened."  Shirar's testimony provides evidence
of sufficient legal provocation and that Shirar acted in the heat of passion.  See id.

AFFIRMED.

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

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