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McClure v. State

Supreme Court of Georgia

October 7, 2019


          Ellington, Justice.

         Following a jury trial, Carlos Richard McClure was found guilty of two counts of aggravated assault, see OCGA § 16-5-21 (a) (2), [1] based on an indictment that charged him with assaulting Armando Cuevas and Jamie Thun with a lever-action BB rifle by aiming the gun at them. McClure requested that the jury be instructed on the affirmative defenses of justification in defense of self and justification in defense of habitation. The trial court refused to give the requested instructions on justification on the basis that McClure, who testified that he carried the BB gun during an encounter with the victims but denied pointing the gun at them, could not both deny that he performed the act of pointing the gun at someone and at the same time argue that he was justified in performing that act. On appeal, the Court of Appeals affirmed, reasoning that, because McClure did not admit to aiming the BB gun at the victims, an element of aggravated assault as charged, he was not entitled to an instruction on any affirmative defense. McClure v. State, 347 Ga.App. 68, 70-71 (2) (815 S.E.2d 313) (2018).

         McClure petitioned for a writ of certiorari, and this Court granted his petition to consider the following questions:

What, if anything, must a criminal defendant admit in order to raise an affirmative defense? Must the defendant make any such admissions for all purposes or only for more limited purposes?

         As will be more fully explained below, an 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. In raising an affirmative defense, the defendant asks the finder of fact to find him not guilty of the offense charged regardless of whether he committed the underlying act. Circumstances that can support a determination that the defendant cannot or should not be held criminally liable include, but are not limited to, those that justify or excuse the prohibited act alleged. A defendant may assert alternative affirmative defenses and may assert one or more affirmative defenses while also arguing that the State failed to carry its burden of proving every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. In asserting an affirmative defense, a criminal defendant may accept for the sake of argument that the evidence authorizes a finding that he committed the act alleged in the charge at issue. Based on these principles, we answer the certiorari questions as follows:

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. To the extent a defendant in raising an affirmative defense accepts for the sake of argument that he committed the act alleged in a charge, the defendant may do so only for the limited purpose of raising the affirmative defense at issue.

         1. Under Georgia law, many, but not all, affirmative defenses are statutory and are set out in Chapter 3 of Georgia's Criminal Code (Title 16).[2] Title 16 includes the term "affirmative defense" in its list of definitions that apply generally throughout the Criminal Code. OCGA § 16-1-3 (1) provides in pertinent part: "'Affirmative defense' means, with respect to any affirmative defense authorized in [Title 16], unless the state's evidence raises the issue invoking the alleged defense, the defendant must present evidence thereon to raise the issue." This provision defines "affirmative defense" only in terms of the defendant's burden of production.[3] As we have explained,

this rule of affirmative defenses authorized in the Criminal Code follows the general rule in this State that, "If the defense is made out by the witnesses on the part of the prosecution, then the defendant need not call any; but if not, then the defendant must call witnesses, and make out his defense by proof."

Chandle v. State, 230 Ga. 574, 576 (3) (198 S.E.2d 289) (1973), quoting Crawford v. State, 12 Ga. 142, 149 (5) (1852) (other citations omitted). In other words, to raise an affirmative defense under Title 16, the defendant must present evidence supporting the affirmative defense only if the State's evidence does not support the defense.

         For matters other than the burden of production, Georgia courts have often defined an "affirmative defense" as a defense "that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it." Williams v. State, 297 Ga. 460, 464 (3) (773 S.E.2d 213) (2015) (citation omitted; emphasis supplied).[4] In Williams, we noted that "the first articulation" in Georgia jurisprudence of this principle "in its current form" was "taken from a definition that appeared at [former] 21 AmJur2d 204, § 135," citing Chandle, 230 Ga. at 576 (3). Williams, 297 Ga. at 465 n.4 (3). As we noted in Williams, this definition of "affirmative defense" appears in Georgia's pattern jury instructions[5] and has been approved in multiple opinions of our appellate courts since our decision in Chandle. Id. at 465 (3).

         But, as then-Presiding Judge McFadden observed in his partial dissent in McClure, defining an affirmative defense as a defense that "admits" the doing of the act charged does not explain whether the "admission" necessary to an affirmative defense is a legal admission that is binding upon the defendant[6] or merely a non-binding assumption of facts for the sake of argument. 347 Ga.App. at 73 (McFadden, P.J., dissenting in part). Commentary surrounding the definition in the American Jurisprudence treatise from which the language quoted in Chandle was drawn suggests that, when a defendant raises or asserts an affirmative defense, "admit[ting] the doing of the act charged" does not entail stipulating to the truth of the facts alleged in the indictment or accusation:

An affirmative defense is defined as a matter which, assuming the charge against the accused to be true, constitutes a defense to it; an "affirmative defense" does not directly challenge any element of the offense. Otherwise stated, an affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it. . . . [A]n affirmative defense goes beyond the elements of the offense to prove facts which somehow remove the defendant from the statutory threat of criminal liability.

         21 AmJur2d Criminal Law § 177 (2d ed.) (formerly 21 AmJur2d § 135) (footnotes omitted; emphasis supplied). Stated another way, in raising an affirmative defense, a defendant argues that he should be acquitted of the offense regardless of whether he committed the act charged because of circumstances other than those that make out the material allegations of the charging instrument.[7] Some affirmative defenses reflect a policy determination that persons with certain characteristics should not be punished for acts that would otherwise bring consequences, including persons who, at the time of the act, are too young or lack the mental capacity to be held responsible.[8] Perhaps the most used affirmative defenses are those where the circumstances are deemed to justify or excuse the commission of the prohibited act.[9]

         Criminal defendants, like other litigants, are entitled to pursue alternative theories, even when those theories are inconsistent.[10] As then-Presiding Judge McFadden pointed out in McClure, requiring a defendant to admit the crime for all purposes in order to raise an affirmative defense and secure a jury instruction "creates practical quandaries for defendants who, like McClure, have both a viable claim that he committed no crime and a viable claim that, if the jury believes him to have committed a crime, the act was justifiable or subject to another affirmative defense." 347 Ga.App. at 77-78 (1) (McFadden, P.J., dissenting in part). The limited nature of an "admission" for purposes of raising an affirmative defense is illustrated by cases involving a shooting death where the defendant raises the alternative defenses of accident and self-defense.[11] By asserting the affirmative defense of justification, the defendant accepts for the sake of argument that the jury could find that he fired the gun at the victim intentionally but asks the jury to conclude that his use of force against the victim was justified by a reasonable belief that such force was necessary to defend himself against the victim's imminent use of unlawful force. By asserting the defense of accident, on the other hand, the defendant does not "admit" intentionally firing the gun at the victim; rather he accepts for the sake of argument only that he caused the victim's fatal gunshot injuries and asks the jury to conclude that he did so accidentally.[12] By asserting the alternative defenses of accident and justification in this scenario, the defendant in essence tells the jury, "I didn't mean to shoot the victim. But if you find that I shot him intentionally, I was justified in doing so, because it was the only way to stop him from seriously injuring me." This type of argument in the alternative is entirely permissible under such circumstances. See Williams, 297 Ga. at 461-462 (2).

         As cases involving both accident and justification illustrate, the key procedural moment in asserting an affirmative defense will often be securing the trial court's approval of relevant jury instructions so that counsel can argue the affirmative defense to the jury. In one such case, Turner v. State, 262 Ga. 359 (418 S.E.2d 52) (1992), we held that, "where the court finds evidence of the involvement of [two distinct affirmative defenses], and there has been a timely request for instruction as to both, the court should charge the jury as to both. The defendant should not be forced to elect between the two" affirmative defenses. Id. at 360 (2) (c) (footnote omitted).[13] In that case, the defendant, who testified that his gun accidentally discharged during a struggle when he was defending himself from the victim's knife attack, requested jury instructions on both accident and justification. Id. at 359-360 (2) (a). The trial court gave an instruction on justification, but refused to give one on accident. Id. at 360 (2) (a). The case of Koritta v. State, 263 Ga. 703 (438 S.E.2d 68) (1994), presented the mirror situation - the trial court gave a requested instruction on accident but refused to give one on justification. In that case, the defendant testified that the victim was drunkenly playing with the defendant's loaded gun; the defendant believed that he and his children were at risk of being shot; the defendant got control of the gun; the victim threatened the defendant and came at him as if to strike him; and, the gun went off as the defendant turned his body to ward off the anticipated blow. Id. at 704. In both Turner and Koritta, we determined that instructions on both accident and justification were warranted by the evidence, and it was harmful error to give one but not the other. Koritta, 263 Ga. at 705; Turner, 262 Ga. at 360-361 (2) (b), (c).[14]

         Trial court error in rejecting requested and applicable affirmative-defense instructions may be compounded by prosecutorial argument. In Williams, the prosecutor argued that the affirmative defense of justification was not, as a matter of law, available to the defendant, who testified that he only fired a warning shot above the victim, because he did not admit that he fired the shot that struck and killed the victim. 297 Ga. at 461-462 (2). We determined that the prosecutor's argument misstated the law because the defendant could pursue the seemingly contradictory defenses of lack of causation and self-defense, so long as some evidence supported each theory. Id. at 463 (2). That is, the defendant could deny firing the fatal shot for the purpose of his lack-of-causation defense even if he "admitted" the act for the sake of argument in raising and presenting his affirmative defense of justification. Although the trial court gave both jury instructions and we found that prosecutor's argument was harmless under the circumstances, we noted that the prosecutor's incorrect statement of the law could "potentially mislead the jury." Id. at 463 (2) (citation omitted). See alsoMcLean v. ...

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