¶1NOTICE: 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.
¶2In the Supreme Court of Georgia
¶3 Decided: October 25, 2022
¶4 S22A0521. REESE v. THE STATE.
¶5 BOGGS, Chief Justice.
¶6 Appellant Jacarey Reese challenges his 2019 conviction for
¶7felony murder in connection with the shooting death of Stacy
¶8Devero.1 Appellant’s first trial ended with a hung jury. At his second
¶9trial, the defense argued both that Appellant did not shoot Devero
¶10and that, even if he did, he was legally justified in doing so.
¶11 Devero was killed on October 8, 2018. On December 18, 2018, a Laurens 1
¶12County 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
¶13when it denied his request to give a modified version of the former
¶14pattern jury instruction on affirmative defenses in light of this
¶15Court’s then-recent decision in McClure v. State, 306 Ga. 856 (834
¶16SE2d 96) (2019), and when it overruled his objections to the
¶17prosecutor’s repeated arguments in closing that Appellant was
¶18legally precluded from claiming justification because he never
¶19admitted that he shot Devero. Appellant also contends that the trial
¶20court committed plain error in responding to a jury note showing
¶21that the jury was swayed by the prosecutor’s improper arguments
¶22and therefore misunderstood the law of justification.
¶23 As explained below, under the facts of this case, the trial court
¶24erred in denying Appellant’s request to give a modified version of
¶25the former pattern jury instruction on affirmative defenses in light
¶26of McClure. As a result of that initial error, the trial court overruled
¶27Appellant’s objections to the prosecutor’s repeated misstatements of
¶28the law of justification during closing arguments, which the note
¶29sent out by the jury during deliberations showed had misled the
¶30 2 jury. Moreover, the court’s response to the jury’s note did nothing to
¶31correct the jury’s misunderstanding of the law and indeed may have
¶32worsened it. Accordingly, we cannot say that the court’s
¶33instructional error was harmless, and we therefore reverse
¶34Appellant’s conviction and sentence for felony murder. However, we
¶35also conclude that the evidence presented at trial was legally
¶36sufficient to support Appellant’s conviction, so the State may retry
¶37him if it so chooses.
¶38 1. Viewed in the light most favorable to the verdicts, the
¶39evidence at trial showed the following. On October 8, 2018,
¶40Appellant arranged through his friend Jamil Thompkins to buy two
¶41ounces of marijuana from Devero for about $450. Shortly before 6:00
¶42p.m., DaQuavius Stanley, Appellant’s half-brother, drove him to
¶43Thompkins’ apartment complex, where Appellant got out at
¶44Thompkins’ building and walked around to the back. Stanley drove
¶45on to Building D and backed into a spot at the far end of a row of
¶46parking spaces located directly in front of that building. A
¶47 3 surveillance camera trained on Building D and the parking area out
¶48front captured video that was later played for the jury.
¶49 A few minutes after Stanley arrived and parked at the far end
¶50of the row of parking spaces, Jonathan Linder arrived in a Toyota
¶51sedan with Devero in the front passenger seat, pulled into the first
¶52spot in the row of parking spaces, and parked. Linder and Devero
¶53got out, walked to the rear of the Toyota, and leaned on either side
¶54of the trunk. A minute later, Appellant, who was carrying a bright
¶55blue book bag, walked up to Linder, and Devero directed Appellant
¶56to go around the Toyota and stand by the front passenger-side door
¶57while they waited for Thompkins. A few minutes later, Thompkins,
¶58who was carrying a black book bag, walked up to Linder. Appellant
¶59then opened the door of the Toyota and started to get into the front
¶60seat but stopped when Thompkins’ cell phone rang and Thompkins
¶61answered the call. Thompkins stood there talking on his cell phone
¶62for the next several minutes.
¶63 A few minutes into the call, Devero said that they did not need
¶64to wait for Thompkins, and Appellant took off his book bag and sat
¶65 4 in the Toyota, leaving the door open. Linder walked to the front
¶66driver-side door, which also was open, stuck his head inside, and
¶67spoke to Appellant for about ten seconds before walking back
¶68towards the trunk. While Linder was talking to Appellant,
¶69Thompkins finished his call, took off his book bag, and reached
¶70inside it, leaving his hand there during what happened next.
¶71 A few seconds after Linder finished talking to Appellant,
¶72Appellant called to Devero, who had been leaning heavily on the
¶73trunk of the Toyota, and Devero walked up to the open front
¶74passenger-side door by Appellant. Devero put his right hand on the
¶75edge of the door, leaned in slightly for a couple of seconds, leaned
¶76back for a couple of seconds, and leaned in again for a couple seconds
¶77more. Suddenly, Devero stepped back quickly, reaching with his
¶78right hand for the nine-millimeter pistol on his right hip. As Devero
¶79started to lift his gun, Appellant bolted out of the car with a gun in
¶80his left hand and shot Devero once in the face. The bullet struck
¶81Devero on the right side of his chin, passed in a downward direction
¶82through his neck and his right carotid artery, and lodged under the
¶83 5 skin behind his right shoulder. Devero’s right arm went limp, and
¶84he fell to the ground on top of his gun as Appellant stumbled past
¶85him towards Stanley’s car. Linder ran to a grassy area behind the
¶86Toyota, and Thompkins slowly backed away.
¶87 It took Appellant several seconds to reach Stanley’s car, and he
¶88crouched down on the other side of it. Devero managed to get up, use
¶89his left hand to pick up his gun, and toss it clumsily to the grassy
¶90area where Linder had run. Stanley then sped off towards the rear
¶91of the apartment complex with Appellant in his car as Devero briefly
¶92walked towards Linder and Linder picked up Devero’s gun. After a
¶93few seconds, Linder and Devero turned around, ran back to the
¶94Toyota, got in, and drove out of the apartment complex. Once
¶95Stanley saw that the Toyota had left, he turned around, drove back
¶96past Building D, and exited the apartment complex headed in the
¶97opposite direction from the Toyota.
¶98 Linder drove Devero to Fairview Park Hospital, where Devero
¶99died. At approximately 6:15 p.m., Detective Allen Harris of the
¶100Dublin Police Department, who was at the hospital to investigate
¶101 6 another case, was informed that a man with a gunshot wound had
¶102just arrived. Detective Harris spoke with Linder, who told him
¶103where the shooting took place and said that Devero was shot during
¶104a drug deal that Thompkins set up. Detective Harris briefed
¶105Lieutenant Stacy Sapp on the situation, and Lieutenant Sapp went
¶106to Thompkins’ apartment complex with other officers and eventually
¶107arrested Thompkins. Detective Harris also went to the apartment
¶108complex but stayed only about ten minutes before leaving to go to
¶109the police station to formally interview Linder. Detective Harris
¶110showed Linder an array containing photographs of Appellant and
¶111Thompkins, but Linder did not identify either of them. Linder later
¶112fled the state and could not be located to testify at either of
¶113Appellant’s trials.
¶114 Detective Harris interviewed Thompkins later that evening at
¶115the police station. At the apartment complex, Sergeant Lee
¶116Washburn recovered a spent nine-millimeter shell casing from the
¶117space where the Toyota had been parked. The Toyota was towed
¶118from the hospital to the police station, where Officer Patti Fountain
¶119 7 found Appellant’s blood-soaked open blue book bag in the floorboard
¶120of the front passenger seat and Devero’s blood-covered nine-
¶121millimeter pistol in the floorboard of the driver’s seat.
¶122 Sometime before 6:00 a.m. on the day after the shooting,
¶123Detective Harris reviewed surveillance video from the apartment
¶124complex, which was later played for the jury at each of Appellant’s
¶125trials. Detective Harris knew Appellant and Thompkins from the
¶126community and recognized them on the video. Lieutenant Sapp also
¶127reviewed the video and was able to locate Stanley at his job based
¶128on the car that Stanley was driving in the video. Stanley was taken
¶129into custody shortly after 6:00 a.m. and interviewed by Detective
¶130Harris before being released.
¶131 At around 7:30 a.m., the police arrested Appellant at work and
¶132took him to the police station, where he waived his rights under
¶133Miranda v. Arizona, 384 U.S. 436, 444 (86 SCt 1602, 16 LE2d 694)
¶134(1966), and was interviewed for approximately 15 minutes. The
¶135interview was audio and video recorded and later played for the jury
¶136at each of Appellant’s trials. Detective Harris told Appellant at the
¶137 8 outset that he needed Appellant to be honest about everything; that
¶138if he lied, it would just get him “deeper into this”; that Detective
¶139Harris already knew that Appellant “was there”; and that he just
¶140needed to know what Appellant’s involvement was, starting from
¶141the previous afternoon.
¶142 Appellant provided a thorough account of his whereabouts and
¶143actions on the afternoon and evening of the previous day, including
¶144a detailed timeline from 2:30 p.m. to 9:50 p.m., but left out his trip
¶145to Thompkins’ apartment complex and the shooting.2 Detective
¶146Harris asked, “Is that it?” and Appellant replied, “Yeah.” Detective
¶147Harris told Appellant that he did not tell the truth and that he had
¶148 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. 9 Appellant “on video, plain as day, with the book bag on” at
¶149Thompkins’ apartment complex and asked Appellant to tell him the
¶150truth. Appellant said, “That’s the truth. I promise you, that’s the
¶151truth.”
¶152 Detective Harris then said, “It’s not. I’m telling you, I have you
¶153on video, with your brother, with a gun in your hand. That video is
¶154not going to lie. It shows the car you were in, your brother’s car.”
¶155Detective Harris said that he needed to know what happened the
¶156day before and what Appellant’s part was in it, and Appellant
¶157nodded towards the notes that Detective Harris was taking and said,
¶158“That’s the truth right there.” Detective Harris replied, “No, it’s not.
¶159I’m telling you, I have you on video. Are you hearing me?” Appellant
¶160said, “Yeah,” and Detective Harris repeated, “I have you on video”
¶161at Thompkins’ apartment complex “with a gun in your hand during
¶162a drug transaction. The result is we have one dead guy. Okay? So
¶163this is not true,” pointing to his notes.
¶164 Appellant said, “I know it’s true. I swear. You can call my
¶165brother.” Detective Harris replied, “I don’t have to. I have the video.
¶166 10 The person you was with, that you got out of the car with, has
¶167already told us everything, and we have the video.” Detective Harris
¶168continued, “So I’m telling you, unless you want another charge for
¶169giving me false information obstruction . . . .” Appellant interrupted
¶170and said, “I’m going to beat it. And that’s the truth, I promise you,
¶171that’s the truth right there.”
¶172 Lieutenant Sapp then entered the interview room and, after
¶173listening for less than half a minute, explained to Appellant at
¶174length the course of the investigation thus far, what the surveillance
¶175video showed, what physical evidence had been recovered, and what
¶176witnesses had told the police. Lieutenant Sapp then said, “I can’t tell
¶177if he shot at you first – because we’ve got a bullet casing – or you
¶178shot at him first.” Detective Harris asked Appellant, “So was it self-
¶179defense?” and Appellant replied, “Self-defense,” indicating that it
¶180was self-defense. Lieutenant Sapp then asked, “Did you even pull
¶181your trigger?” Appellant leaned over, hung his head, and said, “It
¶182was just crazy. It was just crazy.” Lieutenant Sapp got up and
¶183walked out of the interview room.
¶184 11 Detective Harris asked Appellant, “What did he say to you?”
¶185and then described, while writing on a piece of paper, where Devero,
¶186Linder, Thompkins, and Appellant were just before the shooting.
¶187Detective Harris continued, “You sit down in the car. He turns. He
¶188walks over . . . . It’s something that you say to him or he says to you,
¶189and from there everything went south. . . . What went wrong?”
¶190Appellant mumbled, “I don’t know. I mean, you already know. You
¶191already know what’s going on now, so I’m . . . ,” before trailing off.
¶192Detective Harris then said, “I mean, did he say something to you?
¶193Did he – I mean, something had to happen.” Appellant replied, “It
¶194just went crazy, it just, um, in one split second.” Detective Harris
¶195asked, “You saw him pull a gun? He saw you pull a gun?” and
¶196Appellant replied, “Yeah, he pulled it.” Detective Harris stated,
¶197“You’re going to have to tell me a little bit more for it to show self-
¶198defense.” Appellant then said, “I wanted to wait until I get a lawyer.
¶199I’m going to need one,” and Detective Harris ended the interview.
¶200 After Appellant’s first trial, which ended with a hung jury, but
¶201before his second trial, a GBI firearm examiner compared the nine-
¶202 12 millimeter shell casing recovered from the space where the Toyota
¶203had been parked to Devero’s nine-millimeter pistol recovered from
¶204the floorboard of the driver’s seat of the Toyota. At Appellant’s
¶205second trial, the firearm examiner testified that the ammunition
¶206stamp on the shell casing recovered from the apartment complex did
¶207not match the ammunition stamp on the seven unfired rounds found
¶208in the magazine of Devero’s gun; that she fired three test rounds
¶209from Devero’s gun; that the shell casing recovered from the
¶210apartment complex lacked distinctive microscopic markings that
¶211she observed on all three test-fired shell casings; and that in her
¶212expert opinion, the shell casing recovered from the apartment
¶213complex was not fired from Devero’s gun.
¶214 Appellant elected to testify at his first trial but not at his
¶215second trial. At Appellant’s second trial, the State introduced into
¶216evidence an audio recording of his testimony at his first trial, which
¶217was played for the jury with stipulated redactions. Appellant
¶218admitted that on the day of the shooting, he went to Thompkins’
¶219apartment complex to buy “a large amount of drugs,” got Stanley to
¶220 13 drive him there, and brought a gun with him, although he claimed
¶221that the gun was a .40-caliber Smith and Wesson that he just
¶222“happened to have . . . on [him]” that day. Appellant further claimed
¶223that he had never met Devero or Linder but trusted them because
¶224Thompkins had done deals with them before and trusted them.
¶225Appellant said that he sat down in the front passenger seat of the
¶226Toyota, opened his book bag, and called Devero over. According to
¶227Appellant, “as soon as [Devero] came from the back he seen my book
¶228bag” and pulled his gun and pointed it at Appellant. Appellant said
¶229that when he saw Devero’s gun, he thought that he was about to be
¶230robbed and that Devero was about to shoot him over a drug deal, so
¶231he “r[a]n beside the car,” and that was “when the shot went off.”
¶232Appellant claimed that he did not know if anyone had been shot, and
¶233he insisted that he did not shoot Devero, that he did not ever fire a
¶234shot, and that the only shot that was fired was not fired by him.
¶235 Appellant said that after the shooting, he and Stanley went to
¶236Stanley’s house, because they “just wanted to kind of chill for a
¶237second” and “to kind of recap.” According to Appellant, he then went
¶238 14 to his cousin’s house to get a haircut. Appellant acknowledged that
¶239when Detective Harris interviewed him, he deliberately left out his
¶240“whereabouts from roughly 4:30 to 7:00 [p.m.]” and “fast[-]forwarded
¶241it to 7:30 [p.m.] when [he] was getting [his] hair cut.” Appellant said
¶242that when Detective Harris was telling him that he needed “to be
¶243honest,” it felt like “they [were] trying . . . [to] pin the murder on
¶244me.” As for the gun that Appellant can be seen holding in the
¶245surveillance video, he claimed that he had it in the waistband of his
¶246basketball shorts, and when he got out of the car and started
¶247running, “I guess it was kind of slipping, so when I was stumbling,”
¶248the gun slipped out the bottom of his shorts and he grabbed it.
¶249Appellant said that he did not pull out his gun when he was sitting
¶250in the Toyota.3
¶251 On cross-examination, Appellant acknowledged that he went
¶252to Thompkins’ apartment complex to buy two ounces of marijuana
¶253from Devero for $450. Appellant claimed that he had the money in
¶254 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. 15 his pocket but never took it out. He acknowledged that Devero did
¶255not have his gun out as he approached Appellant and that Devero
¶256did not pull his gun until he “got in front of [Appellant],” which is
¶257when he claimed he first saw Devero’s gun. Appellant admitted that
¶258he grabbed his own gun and pulled it out as he lunged out of the car
¶259but said that he did so because he could feel his gun slipping.
¶260Appellant said that his gun was on his left side and that he used his
¶261left hand to pull it out, because he is left-handed. When asked how
¶262close the gunshot was, Appellant said, “It really felt like it was on
¶263my ear,” because it was “so loud.” Appellant added that he knew that
¶264he did not fire his gun, because every time he grabs his gun, he keeps
¶265his trigger finger on the side along the barrel as a safety measure.
¶266 Appellant acknowledged that it would be reasonable to think
¶267that he had his gun in his book bag; that once he sat down in the
¶268Toyota, he opened his book bag and pulled out his gun; and that the
¶269reason Devero can be seen on the surveillance video backing up
¶270quickly and starting to pull his own gun is because Devero had seen
¶271Appellant pull a gun out of his book bag. Appellant also conceded
¶272 16 that, given how close he was to Devero when the shot was fired and
¶273the fact that no one else was in close proximity to them, there were
¶274only two possibilities: either he shot Devero, or Devero shot himself.
¶275However, Appellant said that he had reason to conclude that Devero
¶276possibly could have shot himself, because the medical examiner who
¶277performed the autopsy on Devero said that was a possibility.4
¶278 The defense theory at the second trial was that the State failed
¶279to prove beyond a reasonable doubt that Appellant shot Devero (as
¶280opposed to Devero shooting himself), and that even if the State
¶281proved that Appellant shot Devero, the State failed to prove beyond
¶282a reasonable doubt that Appellant was not acting in self-defense.
¶283Appellant called four witnesses. Appellant’s older sister, Keyona
¶284 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 travelled 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. 17 Reese, testified that on the day of the shooting, she took Appellant
¶285to their grandfather’s house in the afternoon and left him there,
¶286because Appellant said that Stanley was coming to pick him up.
¶287Appellant’s mother, Ketika Williams, testified that on the day after
¶288the shooting, she asked Appellant if he knew anything about it, and
¶289he told her that he did not. Defense investigator Dru Watson
¶290testified about his efforts to locate Linder and his inability to do so.
¶291And Officer Amelia Johnston testified that she spoke with Linder at
¶292the hospital after the shooting; that Linder said that he drove
¶293Devero to the hospital but was not present during the shooting; that
¶294when she talked to Linder again, he described the shooter, said that
¶295the shooter ran off after the shooting, and told her where the
¶296shooting took place; that she assisted in securing the Toyota at the
¶297hospital; and that the Toyota was transported to the police station
¶298following proper procedures and protocol.
¶299 The jury was instructed, among other things, that “an
¶300affirmative defense is a defense that admits the doing of the act
¶301charged but seeks to justify, excuse, or mitigate it”; that “[o]nce an
¶302 18 affirmative defense is raised, the burden is on the State to disprove
¶303it beyond a reasonable doubt”; that “[t]he fact that a person’s conduct
¶304is justified is a defense to prosecution . . . for any crime based on that
¶305conduct”; and that the defense of justification includes the use of
¶306force in self-defense. The jury also was instructed that “[a] person is
¶307not justified in using force if that person . . . is attempting to commit,
¶308or is committing, or is fleeing after the commission or attempted
¶309commission of a felony.”
¶310 Appellant does not challenge the legal sufficiency of the
¶311evidence supporting his conviction for felony murder. Nevertheless,
¶312because we are reversing his conviction, we have reviewed the
¶313record and conclude that, when viewed in the light most favorable
¶314to the verdicts, the evidence presented at trial and summarized
¶315above was sufficient as a matter of due process to authorize a
¶316rational jury to find beyond a reasonable doubt that Appellant shot
¶317Devero, and not in self-defense, and that Appellant instead was
¶318guilty of felony murder. See Jackson v. Virginia, 443 U.S. 307, 319
¶319(99 SCt 2781, 61 LE2d 560) (1979). See also Neal v. State, 313 Ga.
¶320 19 746, 749 (873 SE2d 209) (2022) (“It was for the jury to determine the
¶321credibility of the witnesses and to resolve any conflicts or
¶322inconsistencies in the evidence.” (citation and punctuation omitted));
¶323Anthony v. State, 298 Ga. 827, 829 (785 SE2d 277) (2016) (“The jury
¶324is free to reject any evidence in support of a justification defense and
¶325to accept the evidence that the shooting was not done in self-
¶326defense.”).
¶327 2. Appellant contends that the trial court erred in denying
¶328his request to give a modified version of the pattern jury instruction
¶329on affirmative defenses in light of this Court’s then-recent decision
¶330in McClure. We review a claim that a trial court erred in refusing to
¶331instruct a jury on an applicable principle of law de novo. See Walker
¶332v. State, 311 Ga. 719, 722 (859 SE2d 25) (2021). See also McClure,
¶333306 Ga. at 863 (explaining that to “authorize a requested jury
¶334instruction, there need only be slight evidence supporting the theory
¶335of the charge,” and that “[w]hether the evidence presented is
¶336sufficient to authorize the giving of a charge is a question of law”
¶337that this Court reviews de novo (citations and punctuation omitted));
¶338 20 Collier v. State, 288 Ga. 756, 761, 763 (707 SE2d 102) (2011)
¶339(Nahmias, J., concurring specially) (noting that de novo review
¶340normally applies to properly preserved claims of instructional error).
¶341We hold that, given the evidence presented at Appellant’s second
¶342trial, the trial court erred in refusing to give the modified version of
¶343the pattern jury instruction on affirmative defenses that Appellant
¶344requested.
¶345 On the fourth day of Appellant’s second trial, Appellant gave
¶346the court a copy of this Court’s decision in McClure and asked the
¶347court to give the jury a modified version of the pattern jury
¶348instruction on affirmative defenses that incorporated language from
¶349McClure. Appellant argued that, as this Court said in McClure, the
¶350phrase “admits the doing of the act charged,” Council of Superior
¶351Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol.
¶352II: Criminal Cases § 3.00.00 (4th ed. 2007, updated January 2019),
¶353“can easily be misinterpreted.” 306 Ga. at 865. Appellant asked the
¶354trial court to instruct the jury as follows instead:
¶355 21 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.
¶356This language was taken almost verbatim from our opinion in
¶357McClure.5
¶358 The State objected, arguing that the modified instruction was
¶359not appropriate, as there was no evidence that Appellant had
¶360admitted to the shooting. The State further argued that although a
¶361defendant need not testify in order to receive a self-defense
¶362instruction, there must be slight evidence from some source that the
¶363defendant admitted to the underlying act, and there was no such
¶364evidence here. Appellant responded that McClure did not require
¶365the defendant to admit anything, and that because he had two
¶366alternate theories of defense – i.e., that Devero shot himself and that
¶367 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 added)). 22 Appellant shot Devero in self-defense – he was in the same position
¶368as the defendant in McClure. The trial court refused Appellant’s
¶369request, stating, “I’m sticking with the pattern charge.” Appellant
¶370renewed his objection to the use of the unaltered pattern jury
¶371instruction after the court charged the jury.
¶372 Although this Court said in McClure that the language “admits
¶373the doing of the act charged” in the former pattern instruction was
¶374a correct statement of the law as an abstract proposition, we also
¶375explained that this language can easily be misinterpreted, and that
¶376“wording more in line with our analysis herein would be advisable.”
¶377Id. at 865. And we made clear that “[a] criminal defendant is not
¶378required to ‘admit’ anything, in the sense of acknowledging that any
¶379particular facts are true, in order to raise an affirmative defense.”
¶380Id. at 857. Furthermore, we disapproved a long line of Court of
¶381Appeals decisions requiring a criminal defendant to admit the
¶382charged criminal act in order to get an affirmative defense
¶383instruction. See id. at 864 & n.17. Moreover, it is black-letter law
¶384that jury instructions must be adjusted to the evidence in the
¶385 23 particular case before the jury. See, e.g., Morris v. State, 308 Ga.
¶386520, 529 (842 SE2d 45) (2020) (“‘[A] jury instruction must be
¶387adjusted to the evidence and embody a correct, applicable, and
¶388complete statement of law.’” (alteration in original; citation
¶389omitted)).
¶390 Here, there was ample evidence to support the giving of an
¶391instruction on the affirmative defense of justification – far more than
¶392the slight evidence that is required to support the giving of a
¶393requested jury charge. See McClure, 306 Ga. at 863. However, the
¶394charge as given was not properly adjusted to the evidence. Although
¶395Appellant never “admitted” to firing his gun, the evidence could have
¶396supported a finding that he did so in self-defense, or at least that the
¶397State had not disproven that he did so beyond a reasonable doubt.
¶398As Appellant stated in his testimony at his first trial, which was
¶399admitted into evidence at his second trial, “the video speaks for
¶400itself.” The video showed that Devero pulled his gun, that Appellant
¶401bolted out of the car, that for an instant they passed or clashed, and
¶402that a shot was fired. Appellant told the police that Devero pulled
¶403 24 his gun, and when Detective Harris asked, “So was it self-defense?”
¶404Appellant replied, “self-defense.” Even putting aside Appellant’s
¶405ambiguous response to Detective Harris’ question about self-
¶406defense, the surveillance video alone provided slight evidence that,
¶407despite Appellant’s denials, Appellant did fire his gun and did so in
¶408self-defense after Devero pulled a gun on him. But because none of
¶409this evidence amounted to Appellant “admitting” that he fired his
¶410gun, the charge as given, by stating that an affirmative defense
¶411“admits the doing of the act charged,” was, at least post-McClure,
¶412not a “correct, applicable, and complete statement of law.” Morris,
¶414 Moreover, the trial court’s instructional error was not
¶415harmless. The test for nonconstitutional harmless error is whether
¶416it is highly probable that the trial court’s error did not affect the
¶417verdicts. See Smith v. State, 299 Ga. 424, 432 (788 SE2d 433) (2016).
¶418Here, the prosecutor blatantly and repeatedly misstated the law in
¶419his closing argument by telling the jury that it could not consider
¶420self-defense unless Appellant admitted that he fired his gun, an
¶421 25 argument that directly contravened our holding in McClure. See
¶422McClure, 306 Ga. at 863 (“Trial court error in rejecting requested
¶423and applicable affirmative defense instructions may be compounded
¶424by prosecutorial argument.”). As Appellant argued in renewing his
¶425objection to the pattern instruction after the charge was given,
¶426“literally, what was warned about in this case [i.e., McClure] is what
¶427came out in the [State’s] closing. It’s a – a direct result of not
¶428changing the instructions in the charge.” By the time the jury was
¶429deliberating, it had adopted the prosecutor’s misstatement of the
¶430law, which became clear when the jury sent a note to the trial court
¶431that said, “Your charge said defendant could not claim that [i.e., self-
¶432defense] because he did not admit to shooting [his] firearm.”
¶433(Emphasis in original.)
¶434 The court’s response to the jury – “I did not say whether or not
¶435the defendant admitted to shooting the firearm. That is a question
¶436of fact you must find.” (emphasis added) – arguably made matters
¶437worse by suggesting that in order to find that Appellant acted in self-
¶438defense, the jury had to determine whether Appellant ever admitted
¶439 26 to firing his gun. At the very least, the court’s response did nothing
¶440to remedy the misleading “admits the doing of the act charged”
¶441language contained in the pattern jury instruction. Thus, we cannot
¶442say that it is highly probable that the court’s instructional error did
¶443not contribute to the verdicts.6 Accordingly, we reverse Appellant’s
¶444conviction and sentence for felony murder. However, because the
¶445evidence was legally sufficient to sustain the jury’s guilty verdicts,
¶446the State may choose to retry Appellant. See Harris v. State, 314 Ga.
¶447238, 289 (875 SE2d 659) (2022).
¶448 Judgment reversed. All the Justices concur.
¶449 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 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 . . . .”).
¶450 27