Murder. DeKalb Superior Court. Before Judge Hunter.
Gerard B. Kleinrock, for appellant.
Robert D. James, Jr., District Attorney, Anna G. Cross, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Christian A. Fuller, Assistant Attorney General, for appellee.
Peter McLean was tried by a DeKalb County jury and convicted of the murder of LaTonya Jones, an aggravated assault upon Shevella Geddis, and the unlawful possession of a firearm during the commission of a felony. McLean appeals, contending that the trial court improperly commented on the evidence when it charged the jury and that he was denied the effective assistance of counsel. Upon our review of the record and briefs, we see no error, and we affirm.
[297 Ga. 82] 1. Viewed in the light most favorable to the verdict, the evidence shows that on April 29, 2012, McLean drove his girlfriend, Ashley Cochran, to pick up her young son at the home of her former boyfriend, Willie Geddis, Jr. After McLean pulled into the driveway and parked some distance from the house, he stood outside his car while Cochran went inside. Geddis, Jr. then arrived with Jones -- who had been his girlfriend for about a year -- and confronted McLean, ordering him to leave. When McLean exposed a gun that was tucked into his shorts, Geddis, Jr. went inside, only to return later with his mother and two of his brothers.
Upon being told again to leave the property, McLean backed up his car, but it became stuck in the ditch beside the street, and he exited the vehicle a second time. Cochran and Jones -- who were at least 30 feet away -- began to fight while much of the Geddis family came near McLean, mocking him and telling him to leave and call a tow truck. McLean became angry, refused to leave without his car, and fired several shots into the crowd in the direction of Geddis, Jr. One bullet struck Jones, fatally wounding her, and the other struck and injured Geddis, Jr.'s sister, Shevella. Geddis, Jr. and his brothers wrestled McLean to the ground, took his gun, and held McLean until police arrived.
McLean does not dispute that the evidence is sufficient to sustain his convictions, but we nevertheless have independently reviewed the record, with an eye toward the legal sufficiency of the evidence. We conclude that the evidence adduced at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that McLean was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. We turn next to McLean's contention that the trial court erroneously instructed the jury that, by raising an affirmative defense, McLean had admitted the charged acts. Pursuant to OCGA § 17-8-57, " [i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused."  In this case, the trial court instructed the jury that an affirmative defense [297 Ga. 83] " is a defense that admits doing the act that is charged in the bill of indictment, but the affirmative defense seeks to justify, excuse, or mitigate the act. Now, once an affirmative defense is raised by the evidence, the burden is on the State to disprove any affirmative defense beyond a reasonable doubt." This instruction is substantially identical to the pattern charge, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.00.00 (4th ed. 2007, updated through January 2015), and it is a correct statement of law. Lightning v. State, 297 Ga.App. 54, 59-60 (5) (676 S.E.2d 780) (2009). Indeed, to assert an affirmative defense, " a defendant must admit the act, or he is not entitled to a charge on that defense." Id. (citation omitted). McLean complains, however, that the trial court went on to charge the jury that " McLean has raised the affirmative defenses of justification for what is commonly known as self-defense and accident." (Emphasis supplied.) But " [i]t is permissible for the trial court to charge on
the defendant's contentions." Williams v. State, 180 Ga.App. 854, 854 (1) (350 S.E.2d 837) (1986) (citation omitted).
McLean argues that the latter charge -- when considered together with the earlier pattern charge on affirmative defenses -- amounted to an instruction that McLean had admitted doing the charged acts. To the contrary, McLean asserts, he did not admit the act because there was some evidence that he did not cause the gun to fire and because this possibility was argued to the jury. Although that may have been an alternative defense theory, McLean requested charges on self-defense and accident and argued those affirmative defenses to the jury, and the trial court charged on them immediately following the instruction about which McLean now complains. See Williams, 180 Ga.App. at 854 (1). The existence of an alternative defense does not change the fact that the defendant admits the charged act for purposes of raising and presenting his affirmative defense, even if he denies it for other purposes. Consequently, it would not have been error for the trial court to directly tell the jury that McLean admitted the shooting for purposes of his defenses of justification and accident. See Johnson v. State, 30 Ga. 426, 431 (5) (1860). ...