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Unpublished Opinion No. 2011-UP-518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.