Reese v. StateReese v. State
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Appellant Jacarey Reese challenges his 2019 conviction for felony murder in connection with the shooting death of Stacy Devero.1 Appellant’s first trial ended with a hung jury. At his second trial, the defense argued both that Appellant did not shoot Devero and that, even if he did, he was legally justified in doing so.
As explained below, under the facts of this case, the trial court erred in denying Appellant’s request to give a modified version of the former pattern jury instruction on affirmative defenses in light of McClure. As a result of that initial error, the trial court overruled Appellant’s objections to the prosecutor’s repeated misstatements of the law of justification during closing arguments, which the note sent out by the jury during deliberations showed had misled the
1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On October 8, 2018, Appellant arranged through his friend Jamil Thompkins to buy two ounces of marijuana from Devero for about $450. Shortly before 6:00 p.m., DaQuavius Stanley, Appellant’s half-brother, drove him to Thompkins’ apartment complex, where Appellant got out at Thompkins’ building and walked around to the back. Stanley drove on to Building D and backed into a spot at the far end of a row of parking spaces located directly in front of that building. A
A few minutes after Stanley arrived and parked at the far end of the row of parking spaces, Jonathan Linder arrived in a Toyota sedan with Devero in the front passenger seat, pulled into the first spot in the row of parking spaces, and parked. Linder and Devero got out, walked to the rear of the Toyota, and leaned on either side of the trunk. A minute later, Appellant, who was carrying a bright blue book bag, walked up to Linder, and Devero directed Appellant to go around the Toyota and stand by the front passenger-side door while they waited for Thompkins. A few minutes later, Thompkins, who was carrying a black book bag, walked up to Linder. Appellant then opened the door of the Toyota and started to get into the front seat but stopped when Thompkins’ cell phone rang and Thompkins answered the call. Thompkins stood there talking on his cell phone for the next several minutes.
A few minutes into the call, Devero said that they did not need to wait for Thompkins, and Appellant took off his book bag and sat
A few seconds after Linder finished talking to Appellant, Appellant called to Devero, who had been leaning heavily on the trunk of the Toyota, and Devero walked up to the open front passenger-side door by Appellant. Devero put his right hand on the edge of the door, leaned in slightly for a couple of seconds, leaned back for a couple of seconds, and leaned in again for a couple seconds more. Suddenly, Devero stepped back quickly, reaching with his right hand for the nine-millimeter pistol on his right hip. As Devero started to lift his gun, Appellant bolted out of the car with a gun in his left hand and shot Devero once in the face. The bullet struck Devero on the right side of his chin, passed in a downward direction through his neck and his right carotid artery, and lodged under the
It took Appellant several seconds to reach Stanley’s car, and he crouched down on the other side of it. Devero managed to get up, use his left hand to pick up his gun, and toss it clumsily to the grassy area where Linder had run. Stanley then sped off towards the rear of the apartment complex with Appellant in his car as Devero briefly walked towards Linder and Linder picked up Devero’s gun. After a few seconds, Linder and Devero turned around, ran back to the Toyota, got in, and drove out of the apartment complex. Once Stanley saw that the Toyota had left, he turned around, drove back past Building D, and exited the apartment complex headed in the opposite direction from the Toyota.
Linder drove Devero to Fairview Park Hospital, where Devero died. At approximately 6:15 p.m., Detective Allen Harris of the Dublin Police Department, who was at the hospital to investigate
Detective Harris interviewed Thompkins later that evening at the police station. At the apartment complex, Sergeant Lee Washburn recovered a spent nine-millimeter shell casing from the space where the Toyota had been parked. The Toyota was towed from the hospital to the police station, where Officer Patti Fountain
Sometime before 6:00 a.m. on the day after the shooting, Detective Harris reviewed surveillance video from the apartment complex, which was later played for the jury at each of Appellant’s trials. Detective Harris knew Appellant and Thompkins from the community and recognized them on the video. Lieutenant Sapp also reviewed the video and was able to locate Stanley at his job based on the car that Stanley was driving in the video. Stanley was taken into custody shortly after 6:00 a.m. and interviewed by Detective Harris before being released.
At around 7:30 a.m., the police arrested Appellant at work and took him to the police station, where he waived his rights under Miranda v. Arizona, 384 U.S. 436, 444 (86 SCt 1602, 16 LE2d 694) (1966), and was interviewed for approximately 15 minutes. The interview was audio and video recorded and later played for the jury at each of Appellant’s trials. Detective Harris told Appellant at the
Appellant provided a thorough account of his whereabouts and actions on the afternoon and evening of the previous day, including a detailed timeline from 2:30 p.m. to 9:50 p.m., but left out his trip to Thompkins’ apartment complex and the shooting.2 Detective Harris asked, “Is that it?” and Appellant replied, “Yeah.” Detective Harris told Appellant that he did not tell the truth and that he had
Detective Harris then said, “It’s not. I’m telling you, I have you on video, with your brother, with a gun in your hand. That video is not going to lie. It shows the car you were in, your brother’s car.” Detective Harris said that he needed to know what happened the day before and what Appellant’s part was in it, and Appellant nodded towards the notes that Detective Harris was taking and said, “That’s the truth right there.” Detective Harris replied, “No, it’s not. I’m telling you, I have you on video. Are you hearing me?” Appellant said, “Yeah,” and Detective Harris repeated, “I have you on video” at Thompkins’ apartment complex “with a gun in your hand during a drug transaction. The result is we have one dead guy. Okay? So this is not true,” pointing to his notes.
Appellant said, “I know it’s true. I swear. You can call my brother.” Detective Harris replied, “I don’t have to. I have the video.
Lieutenant Sapp then entered the interview room and, after listening for less than half a minute, explained to Appellant at length the course of the investigation thus far, what the surveillance video showed, what physical evidence had been recovered, and what witnesses had told the police. Lieutenant Sapp then said, “I can’t tell if he shot at you first – because we’ve got a bullet casing – or you shot at him first.” Detective Harris asked Appellant, “So was it self-defense?” and Appellant replied, “Self-defense,” indicating that it was self-defense. Lieutenant Sapp then asked, “Did you even pull your trigger?” Appellant leaned over, hung his head, and said, “It was just crazy. It was just crazy.” Lieutenant Sapp got up and walked out of the interview room.
After Appellant’s first trial, which ended with a hung jury, but before his second trial, a GBI firearm examiner compared the nine-
Appellant elected to testify at his first trial but not at his second trial. At Appellant’s second trial, the State introduced into evidence an audio recording of his testimony at his first trial, which was played for the jury with stipulated redactions. Appellant admitted that on the day of the shooting, he went to Thompkins’ apartment complex to buy “a large amount of drugs,” got Stanley to
Appellant said that after the shooting, he and Stanley went to Stanley’s house, because they “just wanted to kind of chill for a second” and “to kind of recap.” According to Appellant, he then went
On cross-examination, Appellant acknowledged that he went to Thompkins’ apartment complex to buy two ounces of marijuana from Devero for $450. Appellant claimed that he had the money in
Appellant acknowledged that it would be reasonable to think that he had his gun in his book bag; that once he sat down in the Toyota, he opened his book bag and pulled out his gun; and that the reason Devero can be seen on the surveillance video backing up quickly and starting to pull his own gun is because Devero had seen Appellant pull a gun out of his book bag. Appellant also conceded
The defense theory at the second trial was that the State failed to prove beyond a reasonable doubt that Appellant shot Devero (as opposed to Devero shooting himself), and that even if the State proved that Appellant shot Devero, the State failed to prove beyond a reasonable doubt that Appellant was not acting in self-defense. Appellant called four witnesses. Appellant’s older sister, Keyona
The jury was instructed, among other things, that “an affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it”; that “[o]nce an
Appellant does not challenge the legal sufficiency of the evidence supporting his conviction for felony murder. Nevertheless, because we are reversing his conviction, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient as a matter of due process to authorize a rational jury to find beyond a reasonable doubt that Appellant shot Devero, and not in self-defense, and that Appellant instead was guilty of felony murder. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Neal v. State, 313 Ga. 746, 749 (873 SE2d 209) (2022) (“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (citation and punctuation omitted)); Anthony v. State, 298 Ga. 827, 829 (785 SE2d 277) (2016) (“The jury is free to reject any evidence in support of a justification defense and to accept the evidence that the shooting was not done in self-defense.”).
2. Appellant contends that the trial court erred in denying his request to give a modified version of the pattern jury instruction on affirmative defenses in light of this Court’s then-recent decision in McClure. We review a claim that a trial court erred in refusing to instruct a jury on an applicable principle of law de novo. See Walker v. State, 311 Ga. 719, 722 (859 SE2d 25) (2021). See also McClure, 306 Ga. at 863 (explaining that to “authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge,” and that “[w]hether the evidence presented is sufficient to authorize the giving of a charge is a question of law” that this Court reviews de novo (citations and punctuation omitted));
On the fourth day of Appellant’s second trial, Appellant gave the court a copy of this Court’s decision in McClure and asked the court to give the jury a modified version of the pattern jury instruction on affirmative defenses that incorporated language from McClure. Appellant argued that, as this Court said in McClure, the phrase “admits the doing of the act charged,” Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 3.00.00 (4th ed. 2007, updated January 2019), “can easily be misinterpreted.” 306 Ga. at 865. Appellant asked the trial court to instruct the jury as follows instead:
An affirmative defense is one in which the defendant argues that, even if the allegations of the indictment are true, there are circumstances that support a determination that he cannot or should not be held criminally liable.
This language was taken almost verbatim from our opinion in McClure.5
The State objected, arguing that the modified instruction was not appropriate, as there was no evidence that Appellant had admitted to the shooting. The State further argued that although a defendant need not testify in order to receive a self-defense instruction, there must be slight evidence from some source that the defendant admitted to the underlying act, and there was no such evidence here. Appellant responded that McClure did not require the defendant to admit anything, and that because he had two alternate theories of defense – i.e., that Devero shot himself and that
Although this Court said in McClure that the language “admits the doing of the act charged” in the former pattern instruction was a correct statement of the law as an abstract proposition, we also explained that this language can easily be misinterpreted, and that “wording more in line with our analysis herein would be advisable.” Id. at 865. And we made clear that “[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.” Id. at 857. Furthermore, we disapproved a long line of Court of Appeals decisions requiring a criminal defendant to admit the charged criminal act in order to get an affirmative defense instruction. See id. at 864 & n.17. Moreover, it is black-letter law that jury instructions must be adjusted to the evidence in the
Here, there was ample evidence to support the giving of an instruction on the affirmative defense of justification – far more than the slight evidence that is required to support the giving of a requested jury charge. See McClure, 306 Ga. at 863. However, the charge as given was not properly adjusted to the evidence. Although Appellant never “admitted” to firing his gun, the evidence could have supported a finding that he did so in self-defense, or at least that the State had not disproven that he did so beyond a reasonable doubt. As Appellant stated in his testimony at his first trial, which was admitted into evidence at his second trial, “the video speaks for itself.” The video showed that Devero pulled his gun, that Appellant bolted out of the car, that for an instant they passed or clashed, and that a shot was fired. Appellant told the police that Devero pulled
Moreover, the trial court’s instructional error was not harmless. The test for nonconstitutional harmless error is whether it is highly probable that the trial court’s error did not affect the verdicts. See Smith v. State, 299 Ga. 424, 432 (788 SE2d 433) (2016). Here, the prosecutor blatantly and repeatedly misstated the law in his closing argument by telling the jury that it could not consider self-defense unless Appellant admitted that he fired his gun, an
The court’s response to the jury – “I did not say whether or not the defendant admitted to shooting the firearm. That is a question of fact you must find.” (emphasis added) – arguably made matters worse by suggesting that in order to find that Appellant acted in self-defense, the jury had to determine whether Appellant ever admitted
Judgment reversed. All the Justices concur.