THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Alexander Santee

Johnson, Appellant.

Appeal From Greenville County

C. Victor Pyle, Jr., Circuit Court Judge

Opinion No. 24851

Heard September 24, 1998 - Filed November 9, 1998

REVERSED AND REMANDED

William G. Yarborough, III, of Ashmore &

Yarborough, Greenville, for appellant.

Attorney General Charles M. Condon, Deputy Attorney

General John W. McIntosh, Assistant Deputy Attorney

General Donald J. Zelenka, and Assistant Attorney

General Derrick K. McFarland, all of Columbia, and

Solicitor Robert M. Ariail, of Greenville, for

respondent.

PER CURIAM: Appellant Alexander Santee Johnson was convicted of

murder and sentenced to life imprisonment. The sole issue on appeal is

whether Johnson was entitled to a jury charge on voluntary manslaughter.

We hold that he was and, accordingly, we reverse.

FACTS

p.23

The facts, taken in the light most favorable to Johnson, indicate that

in the early morning hours of December 12, 1995, Johnson was "hanging out"

with Frank Moore, Travis Croft, and the victim, Curt Kirksey. According to

witnesses, Kirksey had taken the keys to Johnson's vehicle and wouldn't give

them back to him. Kirksey then went into his house, and Johnson left.

Moore and Croft were still outside Kirksey's house 15-20 minutes later when

Johnson returned. Kirksey's live-in girlfriend, Lola Smith, testified Johnson

knocked on their door at approximately 2:00AM and asked to speak to

Kirksey. Kirksey came to the door and he and Johnson "had words."

Kirksey then went outside and "sort of pushed [Johnson] off the porch."

According to one witness, Kirksey was the first one to throw a punch.

Another witness testified that "[Kirksey] was getting the best of [Johnson]."

Several witnesses testified that, during the fight, Johnson took out a gun and

shot Kirksey several times; Kirksey died a short time later.

ISSUE¹

¹ At oral argument before this Court, the state maintained the issue

raised by Johnson is procedurally barred under our opinion in State v.

Whipple, 324 S.C. 43, 476 S.E.2d 683 (1996). We disagree and take this

opportunity to clarify Whipple.

In Whipple, supra, the defendant asserted error in the trial court's

failure to instruct the jury concerning his thirty year parole eligibility, or

alternatively, in the failure to give a "plain and ordinary meaning" charge

pursuant to State v. Norris, 285 S.C. 86, 328 S.E.2d 339 (1985). A majority

of this Court found the issue procedurally barred stating "Whipple's failure

to object to the charge as given, or to request an additional charge when

given an opportunity to do so constitutes a waiver of his right to complain on

appeal." 476 S.E.2d at 688. In a dissenting opinion, Justice Finney stated

he "would hold that where a defendant's request for a jury charge is denied

in a pre-charge conference, he need not renew that request after the charge

is omitted from the jury instructions in order to preserve the issue for

appellate review." 476 S.E.2d at 690. Accordingly, combining the majority's

holding with the dissent, Whipple is now being read to hold that where a

party's jury charge objections or requests are denied on-the-record after a pre-

charge conference, the party must renew those objecti