CourtListener 10679783

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314 Ga. 871
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S22A0521. REESE v. THE STATE.

BOGGS, Chief Justice.

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.

Appellant contends that the trial court committed reversible error

when it denied his request to give a modified version of the former

1 Devero was killed on October 8, 2018. On December 18, 2018, a Laurens

County grand jury indicted Appellant for malice murder, two counts of felony
murder, and two counts of aggravated assault with a deadly weapon.
Appellant’s first trial took place in October 2019 and ended with a hung jury.
At Appellant’s second trial in December 2019, the jury acquitted him of malice
murder but found him guilty of the remaining charges. The trial court
sentenced him to serve life in prison for felony murder based on aggravated
assault for shooting Devero. The other felony murder count was vacated by
operation of law, and the aggravated assault verdicts merged for sentencing
purposes. Appellant filed a timely motion for new trial, which he amended with
new counsel on May 24, 2021. The trial court denied the motion on November
16, 2021. Appellant filed a timely notice of appeal, and the case was docketed
in this Court to the April 2022 term and submitted for a decision on the briefs.
pattern jury instruction on affirmative defenses in light of this

Court’s then-recent decision in McClure v. State, 306 Ga. 856 (834

SE2d 96) (2019), and when it overruled his objections to the

prosecutor’s repeated arguments in closing that Appellant was

legally precluded from claiming justification because he never

admitted that he shot Devero. Appellant also contends that the trial

court committed plain error in responding to a jury note showing

that the jury was swayed by the prosecutor’s improper arguments

and therefore misunderstood the law of justification.

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

jury. Moreover, the court’s response to the jury’s note did nothing to

correct the jury’s misunderstanding of the law and indeed may have

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worsened it. Accordingly, we cannot say that the court’s

instructional error was harmless, and we therefore reverse

Appellant’s conviction and sentence for felony murder. However, we

also conclude that the evidence presented at trial was legally

sufficient to support Appellant’s conviction, so the State may retry

him if it so chooses.

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

surveillance camera trained on Building D and the parking area out

front captured video that was later played for the jury.

A few minutes after Stanley arrived and parked at the far end

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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

in the Toyota, leaving the door open. Linder walked to the front

driver-side door, which also was open, stuck his head inside, and

spoke to Appellant for about ten seconds before walking back toward

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the trunk. While Linder was talking to Appellant, Thompkins

finished his call, took off his book bag, and reached inside it, leaving

his hand there during what happened next.

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 of

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 skin behind his right shoulder. Devero’s right arm went

limp, and he fell to the ground on top of his gun as Appellant

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stumbled past him toward Stanley’s car. Linder ran to a grassy area

behind the Toyota, and Thompkins slowly backed away.

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 toward the rear of

the apartment complex with Appellant in his car as Devero briefly

walked toward 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

another case, was informed that a man with a gunshot wound had

just arrived. Detective Harris spoke with Linder, who told him

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where the shooting took place and said that Devero was shot during

a drug deal that Thompkins set up. Detective Harris briefed

Lieutenant Stacy Sapp on the situation, and Lieutenant Sapp went

to Thompkins’ apartment complex with other officers and eventually

arrested Thompkins. Detective Harris also went to the apartment

complex but stayed only about ten minutes before leaving to go to

the police station to formally interview Linder. Detective Harris

showed Linder an array containing photographs of Appellant and

Thompkins, but Linder did not identify either of them. Linder later

fled the state and could not be located to testify at either of

Appellant’s trials.

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

found Appellant’s blood-soaked open blue book bag in the floorboard

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of the front passenger seat and Devero’s blood-covered nine-

millimeter pistol in the floorboard of the driver’s seat.

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

outset that he needed Appellant to be honest about everything; that

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if he lied, it would just get him “deeper into this”; that Detective

Harris already knew that Appellant “was there”; and that he just

needed to know what Appellant’s involvement was, starting from

the previous afternoon.

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

Appellant “on video, plain as day, with the book bag on” at

2 According to Appellant, he got off work at 2:30 p.m., went home, and

took a shower. At around 3:30 or 4:00 p.m., his older sister drove him and his
twin brother to his grandfather’s house, where he and his brother stayed while
his sister took his grandfather shopping. When they returned from shopping,
his sister went home, but he and his brother decided to stay for a little while
longer. The brother went to his girlfriend’s house, and Appellant “stayed on
the south side for a little while” — which is not the part of town where
Thompkins’ apartment complex was — and then “went and got a haircut at
about 7:30 [p.m.]” at his cousin’s house, which also is on the south side.
Appellant remembered that he was getting his haircut at 7:30 p.m., because
his mother called him as she was about to get off work, and she gets off work
at 7:30 p.m. At “about 8:00, 8:00 to 8:30 [p.m.],” he went to his “other brother”
Keondrick’s house, where they “were chilling until about 9:50 [p.m.],” when
Appellant called his sister, who came and got him and drove him home.
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Thompkins’ apartment complex and asked Appellant to tell him the

truth. Appellant said, “That’s the truth. I promise you, that’s the

truth.”

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 toward 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.

The person you was with, that you got out of the car with, has

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already told us everything, and we have the video.” Detective Harris

continued, “So I’m telling you, unless you want another charge for

giving me false information obstruction . . . .” Appellant interrupted

and said, “I’m going to beat it. And that’s the truth, I promise you,

that’s the truth right there.”

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.

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Detective Harris asked Appellant, “What did he say to you?”

and then described, while writing on a piece of paper, where Devero,

Linder, Thompkins, and Appellant were just before the shooting.

Detective Harris continued, “You sit down in the car. He turns. He

walks over . . . . It’s something that you say to him or he says to you,

and from there everything went south. . . . What went wrong?”

Appellant mumbled, “I don’t know. I mean, you already know. You

already know what’s going on now, so I’m . . . ,” before trailing off.

Detective Harris then said, “I mean, did he say something to you?

Did he — I mean, something had to happen.” Appellant replied, “It

just went crazy, it just, um, in one split second.” Detective Harris

asked, “You saw him pull a gun? He saw you pull a gun?” and

Appellant replied, “Yeah, he pulled it.” Detective Harris stated,

“You’re going to have to tell me a little bit more for it to show self-

defense.” Appellant then said, “I wanted to wait until I get a lawyer.

I’m going to need one,” and Detective Harris ended the interview.

After Appellant’s first trial, which ended with a hung jury, but

before his second trial, a GBI firearm examiner compared the nine-

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millimeter shell casing recovered from the space where the Toyota

had been parked to Devero’s nine-millimeter pistol recovered from

the floorboard of the driver’s seat of the Toyota. At Appellant’s

second trial, the firearm examiner testified that the ammunition

stamp on the shell casing recovered from the apartment complex did

not match the ammunition stamp on the seven unfired rounds found

in the magazine of Devero’s gun; that she fired three test rounds

from Devero’s gun; that the shell casing recovered from the

apartment complex lacked distinctive microscopic markings that

she observed on all three test-fired shell casings; and that in her

expert opinion, the shell casing recovered from the apartment

complex was not fired from Devero’s gun.

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

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drive him there, and brought a gun with him, although he claimed

that the gun was a .40-caliber Smith and Wesson that he just

“happened to have . . . on [him]” that day. Appellant further claimed

that he had never met Devero or Linder but trusted them because

Thompkins had done deals with them before and trusted them.

Appellant said that he sat down in the front passenger seat of the

Toyota, opened his book bag, and called Devero over. According to

Appellant, “as soon as [Devero] came from the back he seen my book

bag” and pulled his gun and pointed it at Appellant. Appellant said

that when he saw Devero’s gun, he thought that he was about to be

robbed and that Devero was about to shoot him over a drug deal, so

he “r[a]n beside the car,” and that was “when the shot went off.”

Appellant claimed that he did not know if anyone had been shot, and

he insisted that he did not shoot Devero, that he did not ever fire a

shot, and that the only shot that was fired was not fired by him.

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

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to his cousin’s house to get a haircut. Appellant acknowledged that

when Detective Harris interviewed him, he deliberately left out his

“whereabouts from roughly 4:30 to 7:00 [p.m.]” and “fast[-]forwarded

it into 7:30 [p.m.] when [he] was getting [his] hair cut.” Appellant

said that when Detective Harris was telling him that he needed “to

be honest,” it felt like “they [were] trying . . . [to] pin the murder on

me.” As for the gun that Appellant can be seen holding in the

surveillance video, he claimed that he had it in the waistband of his

basketball shorts, and when he got out of the car and started

running, “I guess it was kind of slipping, so when I was stumbling,”

the gun slipped out the bottom of his shorts and he grabbed it.

Appellant said that he did not pull out his gun when he was sitting

in the Toyota.3

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

3 The surveillance video does not reveal what happened inside the
Toyota. The recording captured some sounds, including the gunshot and a word
or two here and there, but the audio is otherwise largely unintelligible.
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his pocket but never took it out. He acknowledged that Devero did

not have his gun out as he approached Appellant and that Devero

did not pull his gun until he “got in front of [Appellant],” which is

when he claimed he first saw Devero’s gun. Appellant admitted that

he grabbed his own gun and pulled it out as he lunged out of the car

but said that he did so because he could feel his gun slipping.

Appellant said that his gun was on his left side and that he used his

left hand to pull it out, because he is left-handed. When asked how

close the gunshot was, Appellant said, “It really felt like it was on

my ear,” because it was “so loud.” Appellant added that he knew that

he did not fire his gun, because every time he grabs his gun, he keeps

his trigger finger on the side along the barrel as a safety measure.

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

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that, given how close he was to Devero when the shot was fired and

the fact that no one else was in close proximity to them, there were

only two possibilities: either he shot Devero, or Devero shot himself.

However, Appellant said that he had reason to conclude that Devero

possibly could have shot himself, because the medical examiner who

performed the autopsy on Devero said that was a possibility.4

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

Reese, testified that on the day of the shooting, she took Appellant

4 The medical examiner testified at Appellant’s first trial but was on

medical leave at the time of Appellant’s second trial and unavailable to testify.
At Appellant’s second trial, the State introduced into evidence an audio
recording of the medical examiner’s prior testimony, which was played for the
jury. On cross-examination, defense counsel asked whether, given the entry
point of the bullet and the path it traveled through Devero’s body, “it would be
possible for [Devero] to have been holding the gun that shot the bullet into his
chin?” The medical examiner replied, “That would be possible, yes.” She was
not asked whether it would have been possible for Devero to inflict the fatal
wound if he were holding the gun in his right hand in the usual firing position.
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to their grandfather’s house in the afternoon and left him there,

because Appellant said that Stanley was coming to pick him up.

Appellant’s mother, Ketika Williams, testified that on the day after

the shooting, she asked Appellant if he knew anything about it, and

he told her that he did not. Defense investigator Dru Watson

testified about his efforts to locate Linder and his inability to do so.

And Officer Amelia Johnston testified that she spoke with Linder at

the hospital after the shooting; that Linder said that he drove

Devero to the hospital but was not present during the shooting; that

when she talked to Linder again, he described the shooter, said that

the shooter ran off after the shooting, and told her where the

shooting took place; that she assisted in securing the Toyota at the

hospital; and that the Toyota was transported to the police station

following proper procedures and protocol.

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

affirmative defense is raised, the burden is on the State to disprove

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it beyond a reasonable doubt”; that “[t]he fact that a person’s conduct

is justified is a defense to prosecution . . . for any crime based on that

conduct”; and that the defense of justification includes the use of

force in self-defense. The jury also was instructed that “[a] person is

not justified in using force if that person . . . is attempting to commit,

or is committing, or is fleeing after the commission or attempted

commission of a felony.”

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

(III) (B) (99 SCt 2781, 61 LE2d 560) (1979). See also Neal v. State,

313 Ga. 746, 749 (1) (873 SE2d 209) (2022) (“It was for the jury to

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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 (1) (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 de novo a claim that a trial court erred in

refusing to instruct a jury on an applicable principle of law. See

Walker v. State, 311 Ga. 719, 722 (2) (859 SE2d 25) (2021). See also

McClure, 306 Ga. at 863 (1) (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)); Collier v. State, 288 Ga. 756, 761 (1) (a), 763

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(1) (c) (707 SE2d 102) (2011) (Nahmias, J., concurring specially)

(noting that de novo review normally applies to properly preserved

claims of instructional error). We hold that, given the evidence

presented at Appellant’s second trial, the trial court erred in

refusing to give the modified version of the pattern jury instruction

on affirmative defenses that Appellant requested.

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 (1). 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

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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 Appellant shot Devero in self-defense — he was in the same

5 There was only one small change: given that Appellant was charged by

indictment and not by accusation, Appellant’s requested instruction left out
the words “or accusation” after the word “indictment.” Cf. McClure, 306 Ga. at
857 (“[A]n 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.” (emphasis supplied)).
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position as the defendant in McClure. The trial court refused

Appellant’s request, stating, “I’m sticking with the pattern charge.”

Appellant renewed his objection to the use of the unaltered pattern

jury instruction after the court charged the jury.

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.”

306 Ga. at 865 (1). 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 (citation and punctuation omitted).

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 (1) & n.17. Moreover, it is black-letter law that jury

instructions must be adjusted to the evidence in the particular case

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before the jury. See, e.g., Morris v. State, 308 Ga. 520, 529 (4) (842

SE2d 45) (2020) (“‘(A) jury instruction must be adjusted to the

evidence and embody a correct, applicable, and complete statement

of law.’” (citation omitted)).

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 (1). 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 his gun, and when Detective Harris asked, “So was it

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self-defense?” Appellant replied, “Self-defense.” Even putting aside

Appellant’s ambiguous response to Detective Harris’ question about

self-defense, the surveillance video alone provided slight evidence

that, despite Appellant’s denials, Appellant did fire his gun and did

so in self-defense after Devero pulled a gun on him. But because

none of this evidence amounted to Appellant “admitting” that he

fired his gun, the charge as given, by stating that an affirmative

defense “admits the doing of the act charged,” was, at least post-

McClure, not a “correct, applicable, and complete statement of law.”

Morris, 308 Ga. at 529 (4) (citation and punctuation omitted).

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 (2) (d) (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 argument that directly contravened our holding in McClure.

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See McClure, 306 Ga. at 863 (1) (“Trial court error in rejecting

requested and applicable affirmative-defense instructions may be

compounded by prosecutorial argument.”). As Appellant argued in

renewing his objection to the pattern instruction after the charge

was given, “literally, what was warned about in this case [i.e.,

McClure] is what came out in the [State’s] closing. It’s a — a direct

result of not changing the instructions in the charge.” By the time

the jury was deliberating, it had adopted the prosecutor’s

misstatement of the law, which became clear when the jury sent a

note to the trial court that said, “Your charge said defendant could

not claim that [i.e., self-defense] because he did not admit to

shooting [his] firearm.” (Emphasis in original.)

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 supplied) — 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 to firing his gun. At the very least, the court’s

26
response did nothing to remedy the misleading “admits the doing of

the act charged” language contained in the pattern jury instruction.

Thus, we cannot say that it is highly probable that the court’s

instructional error did not contribute to the verdicts.6 Accordingly,

we reverse Appellant’s conviction and sentence for felony murder.

However, because the evidence was legally sufficient to sustain the

jury’s guilty verdicts, the State may choose to retry Appellant. See

Harris v. State, 314 Ga. 238, 289 (6) (875 SE2d 659) (2022).

Judgment reversed. All the Justices concur.

6 We note that the State did not request — and the trial court did not

give — an instruction informing the jury that purchasing any amount of
marijuana is a felony. See OCGA § 16-13-30 (j). See also Boothe v. State, 293
Ga. 285, 290 (2) (b) n.9 (745 SE2d 594) (2013) (“[H]armless error must be
assessed based on the review of the record of the trial whose verdict is
challenged on appeal . . . .”). Cf. OCGA § 16-13-2 (b) (“Notwithstanding any law
to the contrary, any person who is charged with possession of marijuana, which
possession is of one ounce or less, shall be guilty of a misdemeanor . . . .”).

27
Decided October 25, 2022.

Murder. Laurens Superior Court. Before Judge Gillis.

David J. Walker, for appellant.

L. Craig Fraser, District Attorney, Leslie L. Ray, Robert B.

Faircloth, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney

General, Paula K. Smith, Senior Assistant Attorney General,

Meghan H. Hill, Assistant Attorney General, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: October 25, 2022

S22A0521. REESE v. THE STATE.

BOGGS, Chief Justice.

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.

Devero was killed on October 8, 2018. On December 18, 2018, a Laurens
1

County grand jury indicted Appellant for malice murder, two counts of felony
murder, and two counts of aggravated assault with a deadly weapon.
Appellant’s first trial took place in October 2019 and ended with a hung jury.
At Appellant’s second trial in December 2019, the jury acquitted him of malice
murder but found him guilty of the remaining charges. The trial court
sentenced him to serve life in prison for felony murder based on aggravated
assault for shooting Devero. The other felony murder count was vacated by
operation of law, and the aggravated assault verdicts merged for sentencing
purposes. Appellant filed a timely motion for new trial, which he amended with
new counsel on May 24, 2021. The trial court denied the motion on November
16, 2021. Appellant filed a timely notice of appeal, and the case was docketed
in this Court for the April 2022 term and submitted for a decision on the briefs.
Appellant contends that the trial court committed reversible error

when it denied his request to give a modified version of the former

pattern jury instruction on affirmative defenses in light of this

Court’s then-recent decision in McClure v. State, 306 Ga. 856 (834

SE2d 96) (2019), and when it overruled his objections to the

prosecutor’s repeated arguments in closing that Appellant was

legally precluded from claiming justification because he never

admitted that he shot Devero. Appellant also contends that the trial

court committed plain error in responding to a jury note showing

that the jury was swayed by the prosecutor’s improper arguments

and therefore misunderstood the law of justification.

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

2
jury. Moreover, the court’s response to the jury’s note did nothing to

correct the jury’s misunderstanding of the law and indeed may have

worsened it. Accordingly, we cannot say that the court’s

instructional error was harmless, and we therefore reverse

Appellant’s conviction and sentence for felony murder. However, we

also conclude that the evidence presented at trial was legally

sufficient to support Appellant’s conviction, so the State may retry

him if it so chooses.

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

3
surveillance camera trained on Building D and the parking area out

front captured video that was later played for the jury.

A few minutes after Stanley arrived and parked at the far end

of the row of parking spaces, Jonathan Linder arrived in a Toyota