347 Ga. App. 68
Ga. Ct. App.2018Background
- On April 2, 2015, two victims went to McClure’s home to pick up a friend; an argument occurred and McClure displayed a BB rifle that victims believed was a long gun. Victims left and called police.
- A Griffin police corporal inspected the weapon at McClure’s home and determined it was a BB gun; McClure admitted showing the gun but denied pointing it at anyone. McClure testified he grabbed the BB gun as a club and kept it over his shoulder.
- Grand jury indicted McClure on four counts of aggravated assault (two variations: with a deadly weapon and with an object likely to cause serious bodily injury—one of each per victim) and two counts of terroristic threats.
- Jury convicted McClure of two counts of aggravated assault (both for use of an object likely to cause serious bodily injury) and two counts of reckless conduct (merged into the aggravated-assault convictions for sentencing); acquitted on terroristic threats.
- McClure appealed, arguing (1) double jeopardy violation from charging alternative variations of aggravated assault, (2) trial court refused to instruct jury on justification/self-defense, and (3) prosecutor’s closing contained an impermissible "golden rule" argument.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McClure) | Held |
|---|---|---|---|
| Double jeopardy under OCGA §16-1-7 for charging two variations of aggravated assault | Prosecution: permissible to charge alternate theories; convictions can stand if distinct crimes established | McClure: convicting on two variations of aggravated assault violates §16-1-7 | Court: Affirmed — convictions for the object-likely-to-injure variant (one per victim) are proper; §16-1-7 bars multiple convictions only when one crime is included in another for same conduct |
| Refusal to instruct on affirmative defense of justification (self-defense/defense of habitation) | State: defendant did not admit the element of aiming/pointing the gun, so no entitlement to a justification charge | McClure: entitled to jury instruction on justification because his testimony supported self-defense/defense of habitation | Court: Affirmed — Georgia precedent requires the defendant admit the charged act (here, aiming the gun) to obtain an affirmative-defense instruction; McClure did not admit aiming |
| Prosecutor’s closing argument (alleged "golden rule") | State: asked jurors to consider whether a reasonable person would fear injury seeing the barrel pointed in the dark | McClure: prosecutor asked jurors to place themselves in victims’ position, violating the golden-rule prohibition | Court: Found the statement was a golden-rule violation and the trial court abused discretion in overruling objection, but error was harmless given remedial wording and strength of evidence |
| Scope of rule requiring admission to raise affirmative defenses | State: long-standing Georgia rule requires admission of the act to obtain charge on justification | McClure (dissent): rule should not compel admission of the specific facts in the indictment; defendants should be able to pursue alternative/inconsistent defenses | Court: Majority declined to expand/reverse rule; concurrence/dissent urges disapproval or at least not extending the rule |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing sufficiency of evidence)
- Lightning v. State, 297 Ga. App. 54 (Ga. Ct. App. 2009) (affirmative-defense jury charge principles)
- Hightower v. State, 224 Ga. App. 703 (Ga. Ct. App. 1997) (articulation that defendant must admit act to raise affirmative defense)
- Chitwood v. State, 170 Ga. App. 599 (Ga. Ct. App. 1984) (distinction that §16-1-7 forbids conviction of more than one crime established by the same conduct)
- McClain v. State, 267 Ga. 378 (Ga. 1997) (harmless-error analysis for improper argument)
- Moore v. State, 280 Ga. App. 894 (Ga. Ct. App. 2006) (definition and prohibition of golden-rule argument)