MCNEIL v. THE STATE
S08A1221
Supreme Court of Georgia
NOVEMBER 3, 2008
284 Ga. 586 | 669 SE2d 111
MELTON, Justice.
Judgment affirmed. All the Justices concur.
DECIDED NOVEMBER 3, 2008.
Callaway, Neville & Brinson, William J. Neville, Jr., for appellants.
Nelson, Gillis & Smith, James F. Nelson, Jr., Cheney & Cheney, Curtis V. Cheney, Jr., for appellees.
S08A1221. MCNEIL v. THE STATE.
(669 SE2d 111)
MELTON, Justice.
Following a jury trial, John G. McNeil was found guilty of aggravated assault and felony murder in connection with the shooting death of Brian Epp.1 On appeal, McNeil contends that the evidence was insufficient to sustain his conviction, that the trial court erred in failing to include on the verdict form a requirement that the jury determine whether justification existed as to each count, that the trial court erred in its pattern jury instructions on
1. Viewed in the light most favorable to the verdict, the evidence reveals that, in September 2005, McNeil contracted to buy an unfinished home from Epp Elevations, a small building company owned by Epp and his wife. On December 6, 2005, Epp went to McNeil‘s house to complete required work. McNeil‘s son, La‘Ron, was home and called McNeil to report that someone was in the backyard. Believing that Eрp was a trespasser, La‘Ron confronted Epp and asked him to leave, and an argument ensued during which Epp pointed a knife at La‘Ron. La‘Ron called McNeil to report this incident to him.
In response, McNeil headed home in his car. On the way back he reported to an emergency 911 operator that a man was on his property and had pulled a knife on his son. Moments later, McNeil told the operator, “I‘m at the property now . . . and there‘s the builder and I may get ready to whip his ass right now. So get the cops here now.” As McNeil was pulling into his driveway, he retrieved an automatic handgun from his car‘s glove compartment, removed it from its case, and loaded it with ammunition.
An eyewitness who was across the street heard McNeil and Epp arguing loudly. A few minutes later he heard a loud pop and saw smoke and McNeil pointing his hand toward the ground and stepping backward. Epp was in the yard between McNeil‘s house and the one next door and walking toward McNeil. McNeil continued to back up with his hands pointed toward the ground and said “Back up, I am not playing with you.” Epp increased his speed toward McNeil and McNeil raised his gun and fired at Epp‘s head. Epp‘s hands were at his sides, and the eyewitness did not see him raise his hands or see any weapons in his hands.
Later, an officer arrived at the scene and found Epp on the ground with a fatal gunshot wound to the head. McNeil informed the officer that Epp had pulled a knife on him and then McNeil shot him. The officer saw a knife clipped inside the right hand pocket of Epp‘s pants. A forensic investigator from the Cobb County Medical Examiner‘s Office also responded to the scene and noticed that the knife in Epp‘s pocket was folded. Dr. Brian Frist, the Chief Medical Examiner of Cobb County, later determined that the abrasions on Epp‘s face indicated that he had been shot at a distance of less than three feet. There were no abrаsions on Epp‘s hands to indicate that he had raised his hands to defend himself.
2. McNeil contends that the trial court erred by failing to include on the verdict form a requirement that the jury dеtermine whether justification was found as to each count. However, the record reveals that McNeil‘s counsel specifically informed the trial court that he had “no objection to the [verdict] form as is,” without any changes having to be made to it. McNeil has therefore waived review of this
3. Similarly, McNeil has waived the specific issue that he attempts to raise on appeal with respect to the pattern jury charges on aggravated assault and felony murder. Although McNeil‘s counsel purported to reserve a general objection to the jury charges below, he also specifically informed the trial court that he was “solid on” and had no objection to “any pattern charges.” Indeed, even where there is no “general waiver of the right to urge error in any of the trial court‘s charges . . . a defendant will not be allowed to take inconsistent positions, originally urging in the trial court that a charge is not error, but subsequently urging on appeal that the charge is error.” Roulain v. Martin, 266 Ga. 353, 354 (2) (466 SE2d 837) (1996). Because McNeil acquiesced to the use of the pattern charges below, he cannot now complain on appeal that the use of the pattern charges was erroneous. See id.
4. McNeil argues that the trial court erred in failing to recharge the jury as to justification and self-defense upon his request. The record reveals, however, that the jury requested a recharge on malice murder and voluntary manslaughter only, which the trial court gave. “When a jury requests a recharge on a particular point, the trial court has the discretion to recharge in full or only as to the points requested. [Cit.]” Johnson v. State, 281 Ga. 770, 773 (3) (642 SE2d 827) (2007). The trial court did not abuse its discretion by declining defense counsel‘s request that the court also recharge the jury on justification and self-defense. Id.
5. McNeil‘s contention that an aggravated assault charge cannot be used as the underlying felony to support a conviction for felony murder is without merit, as this Court has already decided that the use of an aggravated assault charge in this manner is proper. Baker v. State, 236 Ga. 754 (1) (225 SE2d 269) (1976).
Judgment affirmed. All the Justices concur, except Sears, C. J., who dissents.
SEARS, Chief Justice, dissenting.
Because my examination of the record shows that the State failed to disprove John McNeil‘s claim of self-defense beyond a reasonable doubt, I respectfully dissent to the Court‘s affirmance of McNeil‘s conviction for murder.
1. The evidence shows that in the fall of 2005, the victim, Brian Epp, wаs building two houses on neighboring lots on Earlvine Way in Kennesaw, Georgia. One of the houses, a $450,000 custom home, was for McNeil and his wife, Anita McNeil. Ms. McNeil testified that, because they had had numerous difficulties with Epp, they decided to close on the house early in order to have [Epp] out of [their] lives.”
La‘Ron McNeil (“La‘Ron“), the McNeils’ son, was nineteen years old at the time of the shooting. La‘Ron testified that, on December 6, 2005, he was at the family‘s home at 505 Earlvine Way to meet some men to do some work. He said that he saw a man he did not recognize walking in the backyard of the house and called his father. McNeil told his son to ask the person to leave the property. La‘Ron then went outside and asked the man, who was the victim Epp, to leave the property. Epp refused to do so, and La‘Ron stated that they were arguing, standing about three or four feet from each other. McNeil was still on the phone with La‘Ron and recognized that Epp was the man with whom La‘Ron was arguing. La‘Ron testified that, as he and Epp were arguing, Epp pulled out a folding utility knife, pointed it at La‘Ron‘s face, and stated “[w]hy don‘t you make me leave?” La‘Ron told his father that Epp had pulled a knife on him, and his father told La‘Ron to go into the house and that he (McNeil) would call 911. Other evidence presented at trial shows that McNeil did, in fact, call 911 immediately.
La‘Ron added that he then went into the house and that he saw his father pull into the driveway shortly thereafter. According to La‘Ron, Epp had gone to the next door neighbor‘s house where Epp was doing some work. La‘Ron testified that hе saw Epp reach into his truck and put something into his pocket and “rush[ ]” toward the McNeils’ driveway. At that point, La‘Ron went to the front door to go outside, but before he could do so, he heard, but did not see, gunshots.
McNeil testified that, after he spoke with La‘Ron, he called 911 and told the operator that a man that he thought was his builder was on his property and had pulled a knife on his son. When McNeil pulled into his driveway, he was still on the phone with the 911 operator and told her he saw thе builder and was going to “whip his ass.” McNeil added that, when he pulled into his driveway, Epp was standing in the next door neighbor‘s driveway leaning on his truck. McNeil said that, when Epp saw him, Epp opened the door of his truck, reached in, grabbed something out, and stuck it in his right pocket before moving toward him. According to McNeil, he got his gun out of the glove compartment and showed it to Epp, who was coming toward him “fast.” McNeil testified that he then quickly jumped out of his car, leaving the car door oрen, and kept telling Epp to back up. Epp, however, kept coming and saying “come on.” McNeil testified that he kept backing up, fired a warning shot, and
On cross-examination, McNeil admitted that, when he pulled into his driveway, the gun was in its case in his glove compartment and was unloaded. He added that he had to get the gun out of the glove compartment, open the case, and put а magazine in the bottom of the gun. He testified, however, that he was able to do that by the time he got out of his car and walked around it.
Bobby Smith testified that he was detailing a Ferrari in a driveway across the street from where the shooting occurred. He stated that he heard McNeil and Epp arguing loudly and that he then heard a pop that sounded like a firecracker. Smith looked across the street and “saw [McNeil] pointing his hands [and a gun] toward the ground and waving and stepping backwards.” Smith added that Epp was in the yard between McNeil‘s house and a neighbor‘s house; that Epp kept walking “up the yard into [McNeil‘s] driveway“; and that McNeil was “backing up with his hands towards the ground.” According to Smith, McNeil told Epp to “back up, I‘m not playing with you.” Smith testified that Epp then increased his speed toward McNeil and that McNeil then raised his gun and shot Epp in the head. Smith added that Epp did not ever raise his hands and that he did not see a weapon on Epp.
Officer John Friedlander of the Cobb County Police Department testified that he received a call from dispatch directing him to go to the location of the crime because of a dispute between a homeowner and a builder. Friedlander testified that he arrived at the scene within several minutes of the call and that, at that time, Epp had been shot in the head and McNeil and his son were standing in the driveway. McNeil told Friedlander that Epp had pulled a knife on him and that he had shot him. Officer Friedlander testified that he found a folding knife in the right pocket of Epp‘s pants. Forensic evidence showed that Epp had been shot from a distance of less than three feet and that there was no stippling on his hands, thus indicating that they were not raised when he was shot.
Brad McEntyre, a detective in the homicide unit of the Cobb County Police Department, was the lead detective in the case and testified as a defense witness. He stated that phone company records confirmed that McNeil and his son had talked shortly before the 911 call and that he made the decision not to arrest McNeil.
David Samson testified that he and his wife, Libby Jones, had contracted with Epp to build them a home in April 2004, that they ran into numerous problems with Epp, and that they fired him in December 2004. They had a lawyer write Epp a letter informing him that, if he came on the property, it would be considered a trespass. Shortly after Epp received the letter, he came onto the рroperty and
Samson further testified that he became so concerned about Epp‘s behavior that he always took a gun with him when he went to the house. In explaining the need for the gun, Samson testified as follows:
When we first met [Epp], he was fine, everything was okay. As we started encountering problems with the construction, we ran into some very significant problems, [and] that is when the hostility started coming out. And that started escalating. And it got to the point where my wife and I were in total fear оf this man. And so after we terminated him, I did not know what he was capable of doing. . . . Just as a precaution, I carried the gun.
Samson added that, after he terminated Epp, Epp would park his car across from his property and would sit and watch what was going on at the house.
Samson and Jones also testified that, in October 2005, the McNeils came to speak with them about problems they were having with their house. At that point, Samson and Jones were involved in litigation with Epp and told the McNeils that they could not talk about specific problems with Epp. They did counsel the McNeils that they should “just finish the house, go to the closing,” and let the agent “deal with everything else” and “do all the talking.”
2. Under
At the outset, I note that McNeil wаs not under a duty to retreat either when he drove onto his property or when Epp charged him by coming from the neighbor‘s property onto McNeil‘s property.6 Although the majority correctly states that McNeil told the 911 operator that he wanted to “whip [Epp‘s] ass” and that McNeil retrieved a gun from his glove compartment,7 in analyzing whether the evidence is sufficient to support the verdict, the majority fails to acknowledge that the undisputed evidence shows that the shooting occurred on McNeil‘s property, that McNeil never left his property, that Epp was on a neighbor‘s property when McNeil drove into his driveway, and that Epp left the neighbor‘s property and crossed over the neighbor‘s yard and onto McNeil‘s property. As for whether McNeil could have reasonably believed that deadly force was necessary,8 the majority also fails to acknowledge that Bobby Smith, a neutral witness, testified that McNeil was on his propеrty and in his driveway when Epp began approaching him from the neighbor‘s yard. Smith added that McNeil fired a shot into the ground and verbally warned Epp not to come any closer. According to Smith, despite these warnings, Epp increased his speed in moving toward McNeil. McNeil‘s son testified that Epp pulled a knife on him in his own backyard, that he told his father this, and that Epp rushed at McNeil from the next door neighbor‘s yard. McNeil gave testimony that was similar in relevant respects to that given by his son and Smith, and he added that Epp reached into his truck and put something in his right pocket before he rushed toward McNeil and onto his property.
Even viewed in the light most favorable to the verdict, the evidence was overwhelming in showing that a reasonable person in McNeil‘s shoes would have believed that he was subject to an imminent physical attack by an aggressоr possessing a knife and that it was necessary to use deadly force to protect himself from serious bodily injury or a forcible felony.10 Under the facts of this case, it would be unreasonable to require McNeil to wait until Epp succeeded in attacking him, thereby potentially disarming him, getting control of the gun, or stabbing him before he could legally employ deadly force to defend himself. This is not what Georgia law requires. To the contrary,
[i]t is not essential to justify a homicide that there shоuld be an actual assault made upon th[e] defendant. Threats accompanied by menaces, though the menaces do not amount to an actual assault, may in some instances be sufficient to arouse a reasonable belief that one‘s life is in imminent danger or that one is in imminent danger of great bodily harm or that a forcible felony is about to be committed upon one‘s person.11
DECIDED NOVEMBER 3, 2008.
Tony L. Axam, Danielle P. Roberts, for appellant.
Patrick H. Head, District Attorney, Jesse D. Evans, Dana J. Norman, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Elizabeth A. Harris, Assistant Attorney General, for appellee.