NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.
In the Supreme Court of Georgia
Decided: October 25, 2022
S22A0521. REESE v. THE STATE.
BOGGS, Chief Justice.
Appellant Jacarey Reese challenges his 2019 conviction for
felony murder in connection with the shooting death of Stacy
Devero.1 Appellant’s first trial ended with a hung jury. At his second
trial, the defense argued both that Appellant did not shoot Devero
and that, even if he did, he was legally justified in doing so.
Devero was killed on October 8, 2018. On December 18, 2018, a Laurens
1
County grand jury indicted Appellant for malice murder, two counts of felony
murder, and two counts of aggravated assault with a deadly weapon.
Appellant’s first trial took place in October 2019 and ended with a hung jury.
At Appellant’s second trial in December 2019, the jury acquitted him of malice
murder but found him guilty of the remaining charges. The trial court
sentenced him to serve life in prison for felony murder based on aggravated
assault for shooting Devero. The other felony murder count was vacated by
operation of law, and the aggravated assault verdicts merged for sentencing
purposes. Appellant filed a timely motion for new trial, which he amended with
new counsel on May 24, 2021. The trial court denied the motion on November
16, 2021. Appellant filed a timely notice of appeal, and the case was docketed
in this Court for the April 2022 term and submitted for a decision on the briefs.
Appellant contends that the trial court committed reversible error
when it denied his request to give a modified version of the former
pattern jury instruction on affirmative defenses in light of this
Court’s then-recent decision in McClure v. State, 306 Ga. 856 (834
SE2d 96) (2019), and when it overruled his objections to the
prosecutor’s repeated arguments in closing that Appellant was
legally precluded from claiming justification because he never
admitted that he shot Devero. Appellant also contends that the trial
court committed plain error in responding to a jury note showing
that the jury was swayed by the prosecutor’s improper arguments
and therefore misunderstood the law of justification.
As explained below, under the facts of this case, the trial court
erred in denying Appellant’s request to give a modified version of
the former pattern jury instruction on affirmative defenses in light
of McClure. As a result of that initial error, the trial court overruled
Appellant’s objections to the prosecutor’s repeated misstatements of
the law of justification during closing arguments, which the note
sent out by the jury during deliberations showed had misled the
2
jury. Moreover, the court’s response to the jury’s note did nothing to
correct the jury’s misunderstanding of the law and indeed may have
worsened it. Accordingly, we cannot say that the court’s
instructional error was harmless, and we therefore reverse
Appellant’s conviction and sentence for felony murder. However, we
also conclude that the evidence presented at trial was legally
sufficient to support Appellant’s conviction, so the State may retry
him if it so chooses.
1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed the following. On October 8, 2018,
Appellant arranged through his friend Jamil Thompkins to buy two
ounces of marijuana from Devero for about $450. Shortly before 6:00
p.m., DaQuavius Stanley, Appellant’s half-brother, drove him to
Thompkins’ apartment complex, where Appellant got out at
Thompkins’ building and walked around to the back. Stanley drove
on to Building D and backed into a spot at the far end of a row of
parking spaces located directly in front of that building. A
3
surveillance camera trained on Building D and the parking area out
front captured video that was later played for the jury.
A few minutes after Stanley arrived and parked at the far end
of the row of parking spaces, Jonathan Linder arrived in a Toyota
sedan with Devero in the front passenger seat, pulled into the first
spot in the row of parking spaces, and parked. Linder and Devero
got out, walked to the rear of the Toyota, and leaned on either side
of the trunk. A minute later, Appellant, who was carrying a bright
blue book bag, walked up to Linder, and Devero directed Appellant
to go around the Toyota and stand by the front passenger-side door
while they waited for Thompkins. A few minutes later, Thompkins,
who was carrying a black book bag, walked up to Linder. Appellant
then opened the door of the Toyota and started to get into the front
seat but stopped when Thompkins’ cell phone rang and Thompkins
answered the call. Thompkins stood there talking on his cell phone
for the next several minutes.
A few minutes into the call, Devero said that they did not need
to wait for Thompkins, and Appellant took off his book bag and sat
4
in the Toyota, leaving the door open. Linder walked to the front
driver-side door, which also was open, stuck his head inside, and
spoke to Appellant for about ten seconds before walking back
towards the trunk. While Linder was talking to Appellant,
Thompkins finished his call, took off his book bag, and reached
inside it, leaving his hand there during what happened next.
A few seconds after Linder finished talking to Appellant,
Appellant called to Devero, who had been leaning heavily on the
trunk of the Toyota, and Devero walked up to the open front
passenger-side door by Appellant. Devero put his right hand on the
edge of the door, leaned in slightly for a couple of seconds, leaned
back for a couple of seconds, and leaned in again for a couple seconds
more. Suddenly, Devero stepped back quickly, reaching with his
right hand for the nine-millimeter pistol on his right hip. As Devero
started to lift his gun, Appellant bolted out of the car with a gun in
his left hand and shot Devero once in the face. The bullet struck
Devero on the right side of his chin, passed in a downward direction
through his neck and his right carotid artery, and lodged under the
5
skin behind his right shoulder. Devero’s right arm went limp, and
he fell to the ground on top of his gun as Appellant stumbled past
him towards Stanley’s car. Linder ran to a grassy area behind the
Toyota, and Thompkins slowly backed away.
It took Appellant several seconds to reach Stanley’s car, and he
crouched down on the other side of it. Devero managed to get up, use
his left hand to pick up his gun, and toss it clumsily to the grassy
area where Linder had run. Stanley then sped off towards the rear
of the apartment complex with Appellant in his car as Devero briefly
walked towards Linder and Linder picked up Devero’s gun. After a
few seconds, Linder and Devero turned around, ran back to the
Toyota, got in, and drove out of the apartment complex. Once
Stanley saw that the Toyota had left, he turned around, drove back
past Building D, and exited the apartment complex headed in the
opposite direction from the Toyota.
Linder drove Devero to Fairview Park Hospital, where Devero
died. At approximately 6:15 p.m., Detective Allen Harris of the
Dublin Police Department, who was at the hospital to investigate
6
another case, was informed that a man with a gunshot wound had
just arrived. Detective Harris spoke with Linder, who told him
where the shooting took place and said that Devero was shot during
a drug deal that Thompkins set up. Detective Harris briefed
Lieutenant Stacy Sapp on the situation, and Lieutenant Sapp went
to Thompkins’ apartment complex with other officers and eventually
arrested Thompkins. Detective Harris also went to the apartment
complex but stayed only about ten minutes before leaving to go to
the police station to formally interview Linder. Detective Harris
showed Linder an array containing photographs of Appellant and
Thompkins, but Linder did not identify either of them. Linder later
fled the state and could not be located to testify at either of
Appellant’s trials.
Detective Harris interviewed Thompkins later that evening at
the police station. At the apartment complex, Sergeant Lee
Washburn recovered a spent nine-millimeter shell casing from the
space where the Toyota had been parked. The Toyota was towed
from the hospital to the police station, where Officer Patti Fountain
7
found Appellant’s blood-soaked open blue book bag in the floorboard
of the front passenger seat and Devero’s blood-covered nine-
millimeter pistol in the floorboard of the driver’s seat.
Sometime before 6:00 a.m. on the day after the shooting,
Detective Harris reviewed surveillance video from the apartment
complex, which was later played for the jury at each of Appellant’s
trials. Detective Harris knew Appellant and Thompkins from the
community and recognized them on the video. Lieutenant Sapp also
reviewed the video and was able to locate Stanley at his job based
on the car that Stanley was driving in the video. Stanley was taken
into custody shortly after 6:00 a.m. and interviewed by Detective
Harris before being released.
At around 7:30 a.m., the police arrested Appellant at work and
took him to the police station, where he waived his rights under
Miranda v. Arizona, 384 U.S. 436, 444 (86 SCt 1602, 16 LE2d 694)
(1966), and was interviewed for approximately 15 minutes. The
interview was audio and video recorded and later played for the jury
at each of Appellant’s trials. Detective Harris told Appellant at the
8
outset that he needed Appellant to be honest about everything; that
if he lied, it would just get him “deeper into this”; that Detective
Harris already knew that Appellant “was there”; and that he just
needed to know what Appellant’s involvement was, starting from
the previous afternoon.
Appellant provided a thorough account of his whereabouts and
actions on the afternoon and evening of the previous day, including
a detailed timeline from 2:30 p.m. to 9:50 p.m., but left out his trip
to Thompkins’ apartment complex and the shooting.2 Detective
Harris asked, “Is that it?” and Appellant replied, “Yeah.” Detective
Harris told Appellant that he did not tell the truth and that he had
2 According to Appellant, he got off work at 2:30 p.m., went home, and
took a shower. At around 3:30 or 4:00 p.m., his older sister drove him and his
twin brother to his grandfather’s house, where he and his brother stayed while
his sister took his grandfather shopping. When they returned from shopping,
his sister went home, but he and his brother decided to stay for a little while
longer. The brother went to his girlfriend’s house, and Appellant “stayed on
the south side for a little while” – which is not the part of town where
Thompkins’ apartment complex was – and then “went and got a haircut at
about 7:30 [p.m.]” at his cousin’s house, which also is on the south side.
Appellant remembered that he was getting his haircut at 7:30 p.m., because
his mother called him as she was about to get off work, and she gets off work
at 7:30 p.m. At “about 8:00, 8:00 to 8:30 [p.m.],” he went to his “other brother”
Keondrick’s house, where they “were chilling until about 9:50 [p.m.],” when
Appellant called his sister, who came and got him and drove him home.
9
Appellant “on video, plain as day, with the book bag on” at
Thompkins’ apartment complex and asked Appellant to tell him the
truth. Appellant said, “That’s the truth. I promise you, that’s the
truth.”
Detective Harris then said, “It’s not. I’m telling you, I have you
on video, with your brother, with a gun in your hand. That video is
not going to lie. It shows the car you were in, your brother’s car.”
Detective Harris said that he needed to know what happened the
day before and what Appellant’s part was in it, and Appellant
nodded towards the notes that Detective Harris was taking and said,
“That’s the truth right there.” Detective Harris replied, “No, it’s not.
I’m telling you, I have you on video. Are you hearing me?” Appellant
said, “Yeah,” and Detective Harris repeated, “I have you on video”
at Thompkins’ apartment complex “with a gun in your hand during
a drug transaction. The result is we have one dead guy. Okay? So
this is not true,” pointing to his notes.
Appellant said, “I know it’s true. I swear. You can call my
brother.” Detective Harris replied, “I don’t have to. I have the video.
10
The person you was with, that you got out of the car with, has
already told us everything, and we have the video.” Detective Harris
continued, “So I’m telling you, unless you want another charge for
giving me false information obstruction . . . .” Appellant interrupted
and said, “I’m going to beat it. And that’s the truth, I promise you,
that’s the truth right there.”
Lieutenant Sapp then entered the interview room and, after
listening for less than half a minute, explained to Appellant at
length the course of the investigation thus far, what the surveillance
video showed, what physical evidence had been recovered, and what
witnesses had told the police. Lieutenant Sapp then said, “I can’t tell
if he shot at you first – because we’ve got a bullet casing – or you
shot at him first.” Detective Harris asked Appellant, “So was it self-
defense?” and Appellant replied, “Self-defense,” indicating that it
was self-defense. Lieutenant Sapp then asked, “Did you even pull
your trigger?” Appellant leaned over, hung his head, and said, “It
was just crazy. It was just crazy.” Lieutenant Sapp got up and
walked out of the interview room.
11
Detective Harris asked Appellant, “What did he say to you?”
and then described, while writing on a piece of paper, where Devero,
Linder, Thompkins, and Appellant were just before the shooting.
Detective Harris continued, “You sit down in the car. He turns. He
walks over . . . . It’s something that you say to him or he says to you,
and from there everything went south. . . . What went wrong?”
Appellant mumbled, “I don’t know. I mean, you already know. You
already know what’s going on now, so I’m . . . ,” before trailing off.
Detective Harris then said, “I mean, did he say something to you?
Did he – I mean, something had to happen.” Appellant replied, “It
just went crazy, it just, um, in one split second.” Detective Harris
asked, “You saw him pull a gun? He saw you pull a gun?” and
Appellant replied, “Yeah, he pulled it.” Detective Harris stated,
“You’re going to have to tell me a little bit more for it to show self-
defense.” Appellant then said, “I wanted to wait until I get a lawyer.
I’m going to need one,” and Detective Harris ended the interview.
After Appellant’s first trial, which ended with a hung jury, but
before his second trial, a GBI firearm examiner compared the nine-
12
millimeter shell casing recovered from the space where the Toyota
had been parked to Devero’s nine-millimeter pistol recovered from
the floorboard of the driver’s seat of the Toyota. At Appellant’s
second trial, the firearm examiner testified that the ammunition
stamp on the shell casing recovered from the apartment complex did
not match the ammunition stamp on the seven unfired rounds found
in the magazine of Devero’s gun; that she fired three test rounds
from Devero’s gun; that the shell casing recovered from the
apartment complex lacked distinctive microscopic markings that
she observed on all three test-fired shell casings; and that in her
expert opinion, the shell casing recovered from the apartment
complex was not fired from Devero’s gun.
Appellant elected to testify at his first trial but not at his
second trial. At Appellant’s second trial, the State introduced into
evidence an audio recording of his testimony at his first trial, which
was played for the jury with stipulated redactions. Appellant
admitted that on the day of the shooting, he went to Thompkins’
apartment complex to buy “a large amount of drugs,” got Stanley to
13
drive him there, and brought a gun with him, although he claimed
that the gun was a .40-caliber Smith and Wesson that he just
“happened to have . . . on [him]” that day. Appellant further claimed
that he had never met Devero or Linder but trusted them because
Thompkins had done deals with them before and trusted them.
Appellant said that he sat down in the front passenger seat of the
Toyota, opened his book bag, and called Devero over. According to
Appellant, “as soon as [Devero] came from the back he seen my book
bag” and pulled his gun and pointed it at Appellant. Appellant said
that when he saw Devero’s gun, he thought that he was about to be
robbed and that Devero was about to shoot him over a drug deal, so
he “r[a]n beside the car,” and that was “when the shot went off.”
Appellant claimed that he did not know if anyone had been shot, and
he insisted that he did not shoot Devero, that he did not ever fire a
shot, and that the only shot that was fired was not fired by him.
Appellant said that after the shooting, he and Stanley went to
Stanley’s house, because they “just wanted to kind of chill for a
second” and “to kind of recap.” According to Appellant, he then went
14
to his cousin’s house to get a haircut. Appellant acknowledged that
when Detective Harris interviewed him, he deliberately left out his
“whereabouts from roughly 4:30 to 7:00 [p.m.]” and “fast[-]forwarded
it to 7:30 [p.m.] when [he] was getting [his] hair cut.” Appellant said
that when Detective Harris was telling him that he needed “to be
honest,” it felt like “they [were] trying . . . [to] pin the murder on
me.” As for the gun that Appellant can be seen holding in the
surveillance video, he claimed that he had it in the waistband of his
basketball shorts, and when he got out of the car and started
running, “I guess it was kind of slipping, so when I was stumbling,”
the gun slipped out the bottom of his shorts and he grabbed it.
Appellant said that he did not pull out his gun when he was sitting
in the Toyota.3
On cross-examination, Appellant acknowledged that he went
to Thompkins’ apartment complex to buy two ounces of marijuana
from Devero for $450. Appellant claimed that he had the money in
3 The surveillance video does not reveal what happened inside the
Toyota. The recording captured some sounds, including the gunshot and a word
or two here and there, but the audio is otherwise largely unintelligible.
15
his pocket but never took it out. He acknowledged that Devero did
not have his gun out as he approached Appellant and that Devero
did not pull his gun until he “got in front of [Appellant],” which is
when he claimed he first saw Devero’s gun. Appellant admitted that
he grabbed his own gun and pulled it out as he lunged out of the car
but said that he did so because he could feel his gun slipping.
Appellant said that his gun was on his left side and that he used his
left hand to pull it out, because he is left-handed. When asked how
close the gunshot was, Appellant said, “It really felt like it was on
my ear,” because it was “so loud.” Appellant added that he knew that
he did not fire his gun, because every time he grabs his gun, he keeps
his trigger finger on the side along the barrel as a safety measure.
Appellant acknowledged that it would be reasonable to think
that he had his gun in his book bag; that once he sat down in the
Toyota, he opened his book bag and pulled out his gun; and that the
reason Devero can be seen on the surveillance video backing up
quickly and starting to pull his own gun is because Devero had seen
Appellant pull a gun out of his book bag. Appellant also conceded
16
that, given how close he was to Devero when the shot was fired and
the fact that no one else was in close proximity to them, there were
only two possibilities: either he shot Devero, or Devero shot himself.
However, Appellant said that he had reason to conclude that Devero
possibly could have shot himself, because the medical examiner who
performed the autopsy on Devero said that was a possibility.4
The defense theory at the second trial was that the State failed
to prove beyond a reasonable doubt that Appellant shot Devero (as
opposed to Devero shooting himself), and that even if the State
proved that Appellant shot Devero, the State failed to prove beyond
a reasonable doubt that Appellant was not acting in self-defense.
Appellant called four witnesses. Appellant’s older sister, Keyona
4 The medical examiner testified at Appellant’s first trial but was on
medical leave at the time of Appellant’s second trial and unavailable to testify.
At Appellant’s second trial, the State introduced into evidence an audio
recording of the medical examiner’s prior testimony, which was played for the
jury. On cross-examination, defense counsel asked whether, given the entry
point of the bullet and the path it travelled through Devero’s body, “it would
be possible for [Devero] to have been holding the gun that shot the bullet into
his chin?” The medical examiner replied, “That would be possible, yes.” She
was not asked whether it would have been possible for Devero to inflict the
fatal wound if he were holding the gun in his right hand in the usual firing
position.
17
Reese, testified that on the day of the shooting, she took Appellant
to their grandfather’s house in the afternoon and left him there,
because Appellant said that Stanley was coming to pick him up.
Appellant’s mother, Ketika Williams, testified that on the day after
the shooting, she asked Appellant if he knew anything about it, and
he told her that he did not. Defense investigator Dru Watson
testified about his efforts to locate Linder and his inability to do so.
And Officer Amelia Johnston testified that she spoke with Linder at
the hospital after the shooting; that Linder said that he drove
Devero to the hospital but was not present during the shooting; that
when she talked to Linder again, he described the shooter, said that
the shooter ran off after the shooting, and told her where the
shooting took place; that she assisted in securing the Toyota at the
hospital; and that the Toyota was transported to the police station
following proper procedures and protocol.
The jury was instructed, among other things, that “an
affirmative defense is a defense that admits the doing of the act
charged but seeks to justify, excuse, or mitigate it”; that “[o]nce an
18
affirmative defense is raised, the burden is on the State to disprove
it beyond a reasonable doubt”; that “[t]he fact that a person’s conduct
is justified is a defense to prosecution . . . for any crime based on that
conduct”; and that the defense of justification includes the use of
force in self-defense. The jury also was instructed that “[a] person is
not justified in using force if that person . . . is attempting to commit,
or is committing, or is fleeing after the commission or attempted
commission of a felony.”
Appellant does not challenge the legal sufficiency of the
evidence supporting his conviction for felony murder. Nevertheless,
because we are reversing his conviction, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdicts, the evidence presented at trial and summarized
above was sufficient as a matter of due process to authorize a
rational jury to find beyond a reasonable doubt that Appellant shot
Devero, and not in self-defense, and that Appellant instead was
guilty of felony murder. See Jackson v. Virginia, 443 U.S. 307, 319
(99 SCt 2781, 61 LE2d 560) (1979). See also Neal v. State, 313 Ga.
19
746, 749 (873 SE2d 209) (2022) (“It was for the jury to determine the
credibility of the witnesses and to resolve any conflicts or
inconsistencies in the evidence.” (citation and punctuation omitted));
Anthony v. State, 298 Ga. 827, 829 (785 SE2d 277) (2016) (“The jury
is free to reject any evidence in support of a justification defense and
to accept the evidence that the shooting was not done in self-
defense.”).
2. Appellant contends that the trial court erred in denying
his request to give a modified version of the pattern jury instruction
on affirmative defenses in light of this Court’s then-recent decision
in McClure. We review a claim that a trial court erred in refusing to
instruct a jury on an applicable principle of law de novo. See Walker
v. State, 311 Ga. 719, 722 (859 SE2d 25) (2021). See also McClure,
306 Ga. at 863 (explaining that to “authorize a requested jury
instruction, there need only be slight evidence supporting the theory
of the charge,” and that “[w]hether the evidence presented is
sufficient to authorize the giving of a charge is a question of law”
that this Court reviews de novo (citations and punctuation omitted));
20
Collier v. State, 288 Ga. 756, 761, 763 (707 SE2d 102) (2011)
(Nahmias, J., concurring specially) (noting that de novo review
normally applies to properly preserved claims of instructional error).
We hold that, given the evidence presented at Appellant’s second
trial, the trial court erred in refusing to give the modified version of
the pattern jury instruction on affirmative defenses that Appellant
requested.
On the fourth day of Appellant’s second trial, Appellant gave
the court a copy of this Court’s decision in McClure and asked the
court to give the jury a modified version of the pattern jury
instruction on affirmative defenses that incorporated language from
McClure. Appellant argued that, as this Court said in McClure, the
phrase “admits the doing of the act charged,” Council of Superior
Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol.
II: Criminal Cases § 3.00.00 (4th ed. 2007, updated January 2019),
“can easily be misinterpreted.” 306 Ga. at 865. Appellant asked the
trial court to instruct the jury as follows instead:
21
An affirmative defense is one in which the defendant
argues that, even if the allegations of the indictment are
true, there are circumstances that support a
determination that he cannot or should not be held
criminally liable.
This language was taken almost verbatim from our opinion in
McClure.5
The State objected, arguing that the modified instruction was
not appropriate, as there was no evidence that Appellant had
admitted to the shooting. The State further argued that although a
defendant need not testify in order to receive a self-defense
instruction, there must be slight evidence from some source that the
defendant admitted to the underlying act, and there was no such
evidence here. Appellant responded that McClure did not require
the defendant to admit anything, and that because he had two
alternate theories of defense – i.e., that Devero shot himself and that
5 There was only one small change: given that Appellant was charged by
indictment and not by accusation, Appellant’s requested instruction left out
the words “or accusation” after the word “indictment.” Cf. McClure, 306 Ga. at
857 (“[A]n affirmative defense is one in which the defendant argues that, even
if the allegations of the indictment or accusation are true, there are
circumstances that support a determination that he cannot or should not be
held criminally liable.” (emphasis added)).
22
Appellant shot Devero in self-defense – he was in the same position
as the defendant in McClure. The trial court refused Appellant’s
request, stating, “I’m sticking with the pattern charge.” Appellant
renewed his objection to the use of the unaltered pattern jury
instruction after the court charged the jury.
Although this Court said in McClure that the language “admits
the doing of the act charged” in the former pattern instruction was
a correct statement of the law as an abstract proposition, we also
explained that this language can easily be misinterpreted, and that
“wording more in line with our analysis herein would be advisable.”
Id. at 865. And we made clear that “[a] criminal defendant is not
required to ‘admit’ anything, in the sense of acknowledging that any
particular facts are true, in order to raise an affirmative defense.”
Id. at 857. Furthermore, we disapproved a long line of Court of
Appeals decisions requiring a criminal defendant to admit the
charged criminal act in order to get an affirmative defense
instruction. See id. at 864 & n.17. Moreover, it is black-letter law
that jury instructions must be adjusted to the evidence in the
23
particular case before the jury. See, e.g., Morris v. State, 308 Ga.
520, 529 (842 SE2d 45) (2020) (“‘[A] jury instruction must be
adjusted to the evidence and embody a correct, applicable, and
complete statement of law.’” (alteration in original; citation
omitted)).
Here, there was ample evidence to support the giving of an
instruction on the affirmative defense of justification – far more than
the slight evidence that is required to support the giving of a
requested jury charge. See McClure, 306 Ga. at 863. However, the
charge as given was not properly adjusted to the evidence. Although
Appellant never “admitted” to firing his gun, the evidence could have
supported a finding that he did so in self-defense, or at least that the
State had not disproven that he did so beyond a reasonable doubt.
As Appellant stated in his testimony at his first trial, which was
admitted into evidence at his second trial, “the video speaks for
itself.” The video showed that Devero pulled his gun, that Appellant
bolted out of the car, that for an instant they passed or clashed, and
that a shot was fired. Appellant told the police that Devero pulled
24
his gun, and when Detective Harris asked, “So was it self-defense?”
Appellant replied, “self-defense.” Even putting aside Appellant’s
ambiguous response to Detective Harris’ question about self-
defense, the surveillance video alone provided slight evidence that,
despite Appellant’s denials, Appellant did fire his gun and did so in
self-defense after Devero pulled a gun on him. But because none of
this evidence amounted to Appellant “admitting” that he fired his
gun, the charge as given, by stating that an affirmative defense
“admits the doing of the act charged,” was, at least post-McClure,
not a “correct, applicable, and complete statement of law.” Morris,
308 Ga. at 529.
Moreover, the trial court’s instructional error was not
harmless. The test for nonconstitutional harmless error is whether
it is highly probable that the trial court’s error did not affect the
verdicts. See Smith v. State, 299 Ga. 424, 432 (788 SE2d 433) (2016).
Here, the prosecutor blatantly and repeatedly misstated the law in
his closing argument by telling the jury that it could not consider
self-defense unless Appellant admitted that he fired his gun, an
25
argument that directly contravened our holding in McClure. See
McClure, 306 Ga. at 863 (“Trial court error in rejecting requested
and applicable affirmative defense instructions may be compounded
by prosecutorial argument.”). As Appellant argued in renewing his
objection to the pattern instruction after the charge was given,
“literally, what was warned about in this case [i.e., McClure] is what
came out in the [State’s] closing. It’s a – a direct result of not
changing the instructions in the charge.” By the time the jury was
deliberating, it had adopted the prosecutor’s misstatement of the
law, which became clear when the jury sent a note to the trial court
that said, “Your charge said defendant could not claim that [i.e., self-
defense] because he did not admit to shooting [his] firearm.”
(Emphasis in original.)
The court’s response to the jury – “I did not say whether or not
the defendant admitted to shooting the firearm. That is a question
of fact you must find.” (emphasis added) – arguably made matters
worse by suggesting that in order to find that Appellant acted in self-
defense, the jury had to determine whether Appellant ever admitted
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to firing his gun. At the very least, the court’s response did nothing
to remedy the misleading “admits the doing of the act charged”
language contained in the pattern jury instruction. Thus, we cannot
say that it is highly probable that the court’s instructional error did
not contribute to the verdicts.6 Accordingly, we reverse Appellant’s
conviction and sentence for felony murder. However, because the
evidence was legally sufficient to sustain the jury’s guilty verdicts,
the State may choose to retry Appellant. See Harris v. State, 314 Ga.
238, 289 (875 SE2d 659) (2022).
Judgment reversed. All the Justices concur.
6 We note that the State did not request – and the trial court did not give
– an instruction informing the jury that purchasing any amount of marijuana
is a felony. See OCGA § 16-13-30 (j). See also Boothe v. State, 293 Ga. 285, 290
n.9 (745 SE2d 594) (2013) (“[H]armless error must be assessed based on the
review of the record of the trial whose verdict is challenged on appeal . . . .”).
Cf. OCGA § 16-13-2 (b) (“Notwithstanding any law to the contrary, any person
who is charged with possession of marijuana, which possession is of one ounce
or less, shall be guilty of a misdemeanor . . . .”).
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