Gear v. State
288 Ga. 500
| Ga. | 2011Background
- Gear was convicted of malice murder, aggravated assault, and firearm possession for the February 25, 2008 shooting death of Bryan Mough.
- Evidence shows Gear descended the steps with a .40 caliber pistol and fired multiple shots, including a fatal third shot.
- A confrontation occurred after Mough allegedly swerved toward Gear during a pursuit by Gear’s daughters in Athens.
- Defense claimed the third shot was to prevent a forcible felony and that the motorcycle could be a weapon.
- Trial involved venue-change and jury instruction disputes, and a bailiff-communication issue raised post-trial.
- The Georgia Supreme Court affirmed the convictions, rejecting the new-trial and venue challenges and other claimed errors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the evidence sufficient for guilt beyond a reasonable doubt? | Gear | Gear | Yes; evidence supported guilt beyond reasonable doubt. |
| Did pretrial publicity warrant a change of venue? | Gear | Gear | No abuse of discretion; venue denial affirmed. |
| Did jury-bailiff communications require reversal? | Gear | Gear | No; no improper communications shown and no harm presumption. |
| Was it error to refuse requested aggravated assault and motorcycle-as-weapon instructions? | Gear | Gear | No; adequate instructions on defense justified and pattern charges sufficient. |
| Do cumulative errors require reversal? | Gear | Gear | No; no basis for cumulative-error reversal. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency standard for convicting a verdict beyond a reasonable doubt)
- Edmond v. State, 283 Ga. 507 (Ga. 2008) (change of venue discretion; standard on prejudicial publicity)
- Chancey v. State, 256 Ga. 415 (Ga. 1986) (prejudice assessment focuses on jurors’ ability to be fair)
- Jenkins v. State, 268 Ga. 468 (Ga. 1997) (procedure for calculating excusals due to pretrial publicity)
- Miller v. State, 275 Ga. 730 (Ga. 2002) (pretrial publicity does not automatically require change of venue)
- Happoldt v. State, 267 Ga. 126 (Ga. 1996) (requirements for publicity to render trial inherently prejudicial)
- Turpin v. Todd, 271 Ga. 386 (Ga. 1999) (bailiff communications with jury; presumed harm if improper)
- Battle v. State, 234 Ga. 637 (Ga. 1975) (rebuttal burden when improper jury communication shown)
- McIlwain v. State, 287 Ga. 115 (Ga. 2010) (cumulative-error rule; no automatic reversal)
- Roper v. State, 281 Ga. 878 (Ga. 2007) (defense justification and forcible felony guidance in charges)