IN THE SUPERIOR COURT OF BALDWIN COUNTYSTATE OF GEORGIA

JOHN GARRETT MCNEIL ,Petitioner

V.

SHEILA OUBRE,Respondent.

CASE NO.: 12CV45654

Habeas Corpus

iFiLED IN

PROPOSED FINAL ORDER

Before the Court is John McNeil's Petition for a Writ of Habeas Corpus,

originally filed in this Court' on January 10, 2012, and amended three times, the

final time on May. 2, 2012, prior to commencement of the Court's hearing.

McNeil is challenging his life sentence for felony murder, imposed on November

8, 2006 and subsequently affirmed by the Georgia Supreme Court on direct

appeal. See McNeil v. State, 284 Ga. 586, 669 S.E.2d 111 (2008). For the

'Following the hearing and submission of post-hearing briefs, the parties jointlyinformed the Court that McNeil had been transferred from Baldwin State Prison,where he was housed at the time he filed the original petition until approximatelyMonday, August 27, 2012, to Macon State Prison, which is not within thejurisdiction of this Court. At the same time the parties brought this matter to theCourt's attention, they jointly requested that the Court retain jurisdiction and ruleover the matter. See Wilkes v. Terry, 290 Ga. 54, 717 S.E.2d 644 (2011). The Courtagrees that, under the authority acknowledged in Wilkes, the Court has thediscretion to retain jurisdiction in this matter following McNeil's transfer and, withthe consent of both parties, has chosen to retain jurisdiction in order to rule.

rEICE FHB

DEPUTY CLERK SUPERIOR COURT,BALDWIN COUNTY, GEORGIA

foregoing reasons, and based on the record of the case, including an evidentiary

hearing held on May 2,2012, the Court grants relief:

FINDINGS OF FACT

The facts giving rise to McNeil's conviction were recited in the Supreme

Court's order on McNeil's appeal and are substantially not in dispute. See

McNeil, 284 Ga. at 587-588. The Court notes that McNeil's primary defense at

trial was justification, arguing that he used deadly force to repel an attack by

Brian Epp which occurred on his own property, with his teenage son inside the

family's home.

Certain facts were not addressed by the Supreme Court because they were

not germane to any issues raised on appeal, but are relevant to the present

proceedings. At trial, Epp's wife, Kari, testified, regarding the events of the day

when Epp was shot:

Brian got out of the shower, and he asked me -- he was such a fineperson, you would have to know him. And he came out and he had ablue shirt on and black T-shirt over it and said: Look at me, you thinkI don't match, do you? (emphasis added). (Habeas Hearing Transcript,("H.") 720-21)

McNeil's testimony regarding his confrontation with Epp revealed that

McNeil had, "seen [Epp] put something in his pocket and know earlier from my

son he had a knife at him." (H. 1314). See also McNeil at 587. Testimony from

both McNeil and Bobby Smith, an eyewitness, confirms that the confrontation

between McNeil and Epp occurred entirely on McNeil's property, in his

driveway. (H. 896; 1314-15). Smith's testimony indicates that, as Epp advanced

aggressively toward McNeil, McNeil was backing up toward his home where, the

evidence shows, his son was hiding after Epp had earlier threatened him with a

knife. 2 (H. 896; 1308). See also McNeil at 591 (Sears, C.J. dissenting).

In its instructions, the trial Court informed the jury that, "aggravated

assault is a felony and is defined as follows: A person commits the offense of

aggravated assault when that person assaults another with a deadly weapon," later

adding, "[a] person commits aggravated assault as I described it to you." (H.

1555; 1557). The Court added, "to constitute an assault ... [i]t is only necessary

that the evidence show beyond a reasonable doubt that the Defendant attempted

to cause a violent injury to the victim." (H. 1557).

Regarding justification, the Court charged the jury that, "[a] person is

justified in using force that is intended or likely to cause death or great bodily

harm only if that person reasonably believes that such force is necessary to

2 As the Supreme Court notes in its order, McNeil's teenage son, La'Ron, hadearlier confronted Epp in the backyard of the family's home and told him to leave.McNeil, 284 Ga. at 587. Epp responded by brandishing a knife at La'Ron, whoreported the incident to McNeil, who was not present at the home. The eventssurrounding McNeil's confrontation with Epp and the shooting occurred whenMcNeil arrived home to aid his son. Id.

prevent death or great bodily harm to himself or to prevent the commission of a

forcible felony." (H. 1560). It continued, "[On this connection, I charge you that

aggravated assault is a forcible felony. And that aggravated assault as used in the

justification code section means that if there is an aggravated assault being

attempted upon the Defendant in the case, that he is justified in resisting that with

whatever force under the facts would be necessary." Id.. The Court noted:

[a] utility knife has been referred to in the evidence as being inpossession of the deceased in the case. An aggravated assault with autility knife would be aggravated only if the weapon that has beenidentified would be considered a deadly weapon. If it would not be adeadly weapon, it would not be an aggravated assault if, in fact, therewas an assault, which is for the jury to determine based upon theevidence in the case. (H. 1561).

The Court gave no additional instructions regarding the definition of aggravated

assault (or simple assault) in its jury charge.

This Court also adduced additional facts pertinent to these proceedings at

its hearing, held on May 2, 2012.

Jesse Evans, Cobb County's lead prosecutor in the case, testified at the

hearing. (II 8). Evans identified a certified copy of the conviction Epp had

received from Forsyth County in 1990 for possession of methamphetamine, a

felony, along with an indictment and a questionnaire Epp filled out at the time he

entered the plea. (H. 12-14; Pet. Ex. 1-3). Evans also identified certified copies of

a petition for revocation of Epp's probation on that conviction, alleging that he

consumed alcohol while on probation and also lied to his probation officer

thereabout, as well as a waiver of hearing on that revocation signed by Epp. (H.

16-17; Pet. Ex. 4-5).

Evans testified that he was not familiar with any of these documents prior

to the day of the hearing. (H. 12; 17; 24). He expounded on the point by testifying

that it was, "extremely rare that [the Cobb County District Attorney's Office

would] run criminal histories for our witnesses or for our victims," whereas the

office does run such checks on defense witnesses. (H. 18; 23). Evans testified that

he did not ask Kari Epp about whether or not she or her husband had any prior

criminal convictions, nor did she volunteer any such information. (H. 22-23).

Evans testified that, had he been personally aware of the documents, he would

have provided them to defense counsel, then moved to have them excluded as

irrelevant. (H. 25; 29-30).

McNeil's trial and appellate counsel, Tony Axam, also testified. (H. 34).

Counsel testified that he had employed the services of a private investigator to

assist him in his preparation for the trial. (H. 35). Counsel had, "no memory and I

have nothing that tells me that I knew of a conviction of [Brian] Epps that was — I

know of no conviction of Epps," and specifically could not recall receiving any

information regarding such a conviction in discovery. (H. 36-37). Axam had

never seen the records evincing Epp's criminal record and probation revocation

prior to the day of the Habeas hearing. (H. 39). The jury in McNeil's trial heard

no evidence or testimony regarding Epp's prior criminal conviction.

Counsel, summarized his trial strategy as:

[flustification. He shot and killed Mr. Epps after giving him a warningshot, after Mr. Epps had threatened his son. Mr. Epps had been thebuilder for the home that Mr. McNeil was living in. He gave him awarning shot. After a warning shot, Mr. Epps continued to advance.He shot him once and he died as a result of that shooting. (T. 42).

Counsel sought to portray Epp as the aggressor in the matter:

[b]ecause the shot was a warning shot and Mr. Epp kept advancing, Ibelieve that either he was high on drugs or, to use loosely, there'ssomething wrong with him. Nobody in the face of a man holding agun shooting it in the ground and telling that man, 'don't advance,don't come forward towards me,' he shoots it in the ground, and hecontinues to advance, my theory was that Epp must have hadsomething — some intoxicant, some drug, something that gave him thefearlessness to approach a man with a gun. So that's part of mytheory. The other part is that he's already threatened Mr. McNeil'sson. He was justified in giving him a warning shot because he hadthreatened his son with either cutting him or shooting him, but therewas some threat that was both imminent and physical and then he'sapproaching Mr. McNeil the same way. (H. 45).

Counsel summarized Epp's action in charging McNeil after McNeil had already

fired a warning shot into the ground by arguing that, "Mt doesn't fit any logical

pattern. I don't know the answer to that. I don't know why he would do that." (H.

68). Therefore, counsel agreed that it would have assisted his strategy, with

regard to Epp, to have been able to show the jury that he had received a

conviction for violation of the Georgia Controlled Substances Act. (H. 46).

Counsel specifically recalled that Kari Epp had, "testified that [Epp] was a good

man." Id.. Counsel agreed that it would have assisted his defense to be able to

impeach Kari Epp's comment about Brian's good character with proof of a prior

felony drug conviction, which counsel also believed would allow him to bring

further attention to Epp's possession of marijuana in his vehicle on the day he

was shot, and believed that Kari's comment opened the door to such

impeachment. (H. 47; 49; 76-77).

Counsel agreed that McNeil feared, not only for his own safety, but for that

of his son as well, particularly when reminded of McNeil's testimony at trial that,

"[m]y first reaction is somebody has pulled a knife on my baby." (H. 79; 1347).

In this regard, counsel acknowledged that justification in Georgia meant not only

defending one's self, but also of third parties and one's habitation. (H. 55).

The Court finds that the record evidence from McNeil's trial would have

authorized counsel to argue — and a rational trier of fact to conclude — that, at the

time McNeil shot Epp: Epp was trying to enter McNeil's home; Epp was

approaching McNeil's home to assault somebody; Epp was approaching the

home to offer personal violence; Epp was attempting to enter the home to commit

a felony and that Epp's behavior was violent and tumultuous immediately before

being shot. (H. 56).

The Court finds, as the record of the case makes clear, that counsel did not

request jury charges for either defense of habitation or defense of property, nor

did he request an instruction on the defense of third parties. (H. 58; 70). The

Court further finds, consistent with counsel's testimony, that each of these

instructions would not only have been appropriate, based on the facts adduced at

trial, but also would have been consistent with, and supportive of, the defense's

theory that McNeil was justified in shooting and killing Epp on his property. Id..

Counsel testified that he could give, "no reason," why he failed to request an

instruction regarding defense of third parties, and similarly testified that he had

not rejected defense of habitation as a theory of defense, on which he wished to

have the jury charged, as a matter of trial strategy. (H. 60; 70-72).

The same can also be said of counsel's failure to request an instruction as

to the complete law of aggravated assault, as opposed the instruction which was

given, which only informed the jury of the law as it pertained to the indicted

offense of aggravated assault. (H. 61-64).

CONCLUSIONS OF LAW

McNeil alleges six separate claims of ineffective assistance of counsel and

one claim of prosecutorial misconduct.

The Sixth Amendment to the United States Constitution states:

[i]n all criminal prosecutions, the accused shall enjoy the right to aspeedy and public trial, by an impartial jury of the State and districtwherein the crime shall have been committed, which district shallhave been previously ascertained by law, and to be informed of thenature and cause of the accusation; to be confronted with thewitnesses against him; to have compulsory process for obtainingwitnesses in his favor, and to have the Assistance of Counsel for hisdefence.

A claim of ineffective assistance of counsel in a collateral proceeding is

judged by the standard established by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Under Strickland, a petitioner must satisfy a two-part test to demonstrate

ineffectiveness: first, that the work of trial counsel's performance was deficient,

i.e. not reasonable under all of the circumstances; and second, that trial counsel's

deficiency created "a reasonable probability ... that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 688, 693.

A Court analyzes performance with a background presumption that

counsel, has, "rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment." Strickland, at 690. The Court

must also, per Strickland, "judge the reasonableness of counsel's challenged

conduct on the facts of the particular case, viewed as of the time of counsel's

conduct," rather than based on hindsight. Id..

"The combined effects of counsel's errors are considered in determining the

prejudice prong of a claim of ineffective assistance of counsel." Phillips v. State,

285 Ga. 213, 218(5), 675 S.E.2d 1 (2009)(citing Schofield v. Halsey, 281 Ga. 809,

811 n.1, 642 S.E. 2d 56 (2006)). In Strickland the Supreme Court held, "[title

result of a proceeding can be rendered unreliable, and hence the proceeding itself

unfair, even if the errors of counsel cannot be shown by a preponderance of the

evidence to have determined the outcome." 466 U.S. at 694. Thus, concluded the

Court, "a defendant need not show that counsel's deficient conduct more likely

than not altered the outcome in the case." Id. at 693. See also Miller v. State, 285

Ga. 285, 676 S.E.2d 173 (2009).

The Georgia Supreme Court has clarified the prejudice prong as it is

applies in this State:

[(]yer the years, our appellate courts have on occasion deviated fromthis standard by eliminating the 'reasonable probability' language andrequiring a defendant to show that but for counsel's error, theoutcome of the case would have been different. Miller, 285 Ga. at285.

Consequently, the Court wrote, lclases which have ignored the reasonable

probability requirement of Strickland have placed a more stringent burden on the

defendant — an unconditional showing that the defendant would have been

acquitted had counsel not performed deficiently." Id.. Further, "where the same

attorney represented the petitioner at trial and on direct appeal, the petitioner may

raise an ineffective assistance of counsel claim for the first time in a habeas

corpus proceeding." Henderson v. Hennes, 287 Ga. 534, 697 S.E.2d 798

(2010)(citing Turpin v. Christianson, 269 Ga. 226, 231, 497 S.E.2d 216 (1998)).

In his first two grounds, McNeil collectively asserts that he was prejudiced

when Kari Epp's testimony about her husband's good character was not

impeached by his prior felony conviction. Petitioner's Exhibits 1-5 from the

Habeas hearing show that Epp was indicted in Forsyth County on or about July

9, 1990, for a Violation of the Georgia Controlled Substances Act (possession of

methamphetamine and possession of marijuana, less than one ounce). (H. 101).

See 0.C.G.A. §16-13-30. Epp entered a plea, assertively accepting responsibility

for the drugs found in the vehicle. (H. 107 at 1132). He received a sentence of five

years' probation, which he subsequently violated by consuming alcohol on May

27, 1991, causing his probation to be revoked. (H. 104-113). The revocation

resulted in a brief term of incarceration. (H. 110).

McNeil argues that these facts were not available for impeachment,

alternatively because of prosecutorial misconduct, for failing to disclose the

conviction as possible Giglio material after Kari Epp testified that he was, "such

a fine person," or ineffective assistance by his trial counsel, who failed to

discover the conviction in his pretrial investigation.

As an initial matter, the Court finds that introduction of Brian Epp's

conviction for possession of methamphetamine, a crime of moral turpitude,

would have been an acceptable means of impeaching any assertion of his good

character by a witness. See Al/stock v. State, 159 Ga. App. 4820), 283 S.E.2d

698 (1981). See also In re Inquiry Concerning Judge Roberson, 277 Ga. 831,

833, 596 S.E.2d 2 (2004). Further, the Court finds that Kari Epp's testimony that

her husband, "was such a fine person, you would have to know him," was subject

to impeachment. See e.g. Anthony v. State, 236 Ga. App. 257, 258(2), 511 S.E.2d

612 (1999)(holding that witness opened the door to impeachment by testifying,

"l'm a good man."). See also United States v. Cooper, 15 U.S.C.M.A. 322, 324,

35 C.M.R. 294 (1965)(noting that testimony about an individual being, "a fine

man," had "placed in issue the question of [his] good character").

ADA Evans, lead counsel in McNeil's prosecution, testified that he had no

knowledge of Epp's felony conviction prior to the Habeas hearing. The Court

finds this testimony credible. This negates a claim that any such information was

purposefully concealed by the State and, therefore, the Court concludes that

McNeil has not proven any intentional action which would constitute

prosecutorial misconduct in this matter. See e.g. Chandler v. State, 309 Ga. App.

611, 613(1), 710 S.E.2d 826 (2011).

Trial counsel, on the other hand, testified that he had obtained an

investigator to, "[t]ell me everything about Mr. Epps that I can find out so that I

can use it for impeachment purposes to be able to show that it was a justified

shooting when John McNeil shot Epps," specifically including a criminal

background check of Epp. Yet counsel had, "nothing that tells me that I knew of

a conviction of Epps that was — I know of no conviction of Epps." (H. 36).

Trial counsel understood that the State's portrayal of Epp at trial, versus

the defense's portrayal of McNeil, would be crucial in persuading the jury that

McNeil was justified in killing Epp. At the Habeas hearing, he testified:

[w]e're competing with who John McNeil is and who Mr. Epps is.And so the jury is weighing those. It's not always as simple as wewould have it be. So clearly, I want to impeach Kari and also want toshow that the deceased is not such a good man as someone wouldbelieve he would be. (H. 49).

That counsel made this a focus of his investigation and tasked a private

investigator with finding out its existence demonstrates its significance to

counsel's pretrial investigation. Counsel's choice of words in his testimony, that

he was seeking, "everything ... that I can find out" is especially important as it

rightfully places the ultimate responsibility of investigating such information with

counsel, as opposed to his assistants. The task was not monumental, either: in a

different context, the United States Supreme Court described obtaining and

reviewing a "rap sheet," as a, "limited investigation." Rompilla v. Beard, 545

U.S. 374, 385 n. 3, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). See also Porter v.

McCollum, U.S. , 130 S.Ct. 447, 452-453, 175 L.Ed.2d 398

(2009)(noting that counsel was ineffective for failing to review public records

pertinent to his client's sentencing proceedings).

That counsel did not discover the conviction, a public record which, among

other things, would have been available to counsel (or his investigator) upon

request to the Georgia Crime Information Center (GCIC), demonstrates a pretrial

investigation which was deficient according to Strickland, supra, and its progeny.

See Wynn v. State, 228 Ga. App. 124, 129(3)(c), 491 S.E.2d 149 (1997).

Counsel's failure to obtain this impeachment evidence prejudiced

McNeil's justification defense and, should give any Court pause in judging his

conviction reliable. Compare Skaggs-Ferrell v. State, 266 Ga. App. 248, 253, 596

S.E.2d 743 (2004). Unaware of this conviction, the jury heard Kari Epp praise

her late husband, whom McNeil attempted to portray as an erratically behaved

aggressor. At a minimum, impeaching Kari Epp's good character testimony

would have negated its effect on the jury, something trial counsel himself

believed, and the Court agrees, was of crucial importance in the case.

McNeil's third and fourth grounds relate to errors counsel failed to

preserve at trial, but nonetheless presented in his Supreme Court appeal. See

McNeil at 589. This fact alone suggests deficient performance, as counsel clearly

intended to raise the issues on appeal, but nonetheless waived or failed to raise

the issues at trial. See generally Shorter v. Waters, 278 Ga. 558, 604 S.E.2d 472

(2004). Particularly noteworthy was counsel's position that, though the jury

instruction on malice murder notes that it is the result of "an unlawful intent to

kill without justification," no such parallel language exists in the felony murder

charge. (H. 1576-77).

The Supreme Court has insisted throughout the years that, imiurder is

[an] offense which can be committed ... either with malice aforethought or while

in the commission of a felony," and, therefore, that, It]hroughout our Criminal

Code, the offenses of felony murder and malice murder are frequently treated

together as 'murder.' In these statutes, the term 'murder' is consistently construed

as applying to both felony and malice murder." Miller v. State, 275 Ga. 730,

733(2), 517 S.E.2d 788 (2002)(quoting State v. Jones, 274 Ga. 287, 288, 553

S.E.2d 612 (2001)). The jury in McNeil's trial asked for several clarifications

regarding the law governing the elements of both aggravated assault and murder.

(H. 1607-1608; 1613; 1620-1621). At no point was it instructed that justification

was a defense to felony murder or aggravated assault and, as the record

demonstrates, the jury acquitted McNeil of malice murder, the instruction for

which did include the "without justification" language.

The Court concludes that this is significant, and demonstrates that the jury,

which had abundant evidence that McNeil acted in self-defense, may have been

confused by the pattern charges' failure to note that McNeil would only be guilty

of felony murder and/or aggravated assault if the jury concluded that the acts

were committed without justification. The Court therefore concludes that

counsel's failure to preserve his objection to the trial Court's erroneous jury

instructions on aggravated assault, as well as felony murder, prejudiced McNeil.

See generally Stanford v. Stewart, 274 Ga. 468, 471(1), 554 S.E.2d 480 (2001).

For similar reasons, McNeil's fourth ground, that counsel was ineffective

for failing to preserve his objection to the jury verdict form, is similarly well

taken. As counsel pointed out, the verdict form did not require a specific finding

by the jury as to whether or not McNeil's actions were justified according the

law, justification is an absolute defense to criminal liability and, "[i]f ... appellant

was acting in self-defense, this would not be just a mitigating factor, but would

constitute an absolute defense to any criminal liability whatsoever." (emphasis

added) McKissic v. State, 201 Ga. App. 525, 526, 411 S.E.2d 516 (1991) cert.

denied (November 15, 1991). See also Canada v. State, 275 Ga. 131, 133(2), 562

S.E.2d 508 (2002)(holding that withdrawal of lesser included instruction requests

was consistent with "complete defense to ... criminal liability"). Raising the

defense should result either in a jury finding that the admitted acts were justified

by the circumstances set out in C.C.G.A. §16-3-21, thus absolving the defendant

from criminal liability for any acts committed pursuant thereto, or that they were

not and unmitigated criminal liability should attach. See McKissic, 201 Ga. App.

at 526.

In McNeil's case, the jury acquitted him of malice murder, while

convicting him of felony murder and aggravated assault, in spite of the fact that

his defense to all three was the same: justification. As noted, supra, the jury may

well have not understood that they would only be authorized to convict McNeil

of those two crimes if they were committed, "without justification," and the

means of insuring that the jury understood the same could have been requiring

them to affirm whether or not McNeil's admitted actions were justified, making

the requested verdict form entirely appropriate. See generally Rucker v. State,

270 Ga. 431, 435(5), 510 S.E.2d 816 (1999).

Counsel's failure to preserve his argument deprived McNeil of the

opportunity to present that error to the Supreme Court, and thereby prejudiced his

case.

McNeil's remaining grounds all pertain to claimed errors in the jury

charge.

Jury instructions are the lamp to guide the jury's feet in journeyingthrough the testimony in search of a legal verdict. The office of acharge by the court is to give to the jury such instruction touching therule of law pertinent to the issues involved in a pending trial as willenable them intelligently to apply thereto the evidence submitted andfrom the two constituents law and fact make a verdict. (citations andinternal quotations omitted) Chase v. State, 277 Ga. 636, 639(2), 592S.E.2d 656 (2004).

In ground five, McNeil points out that the trial Court did not give the jury a

complete instruction as to the law of aggravated assault. The Court's aggravated

assault charge stated, "[a] person commits the offense of aggravated assault when

that person assaults another with a deadly weapon," adding, "[a] person commits

aggravated assault as I described it to you." (H. 1555; 1557). It stated additionally

that, "I charge you that to constitute an assault ... [i]t is only necessary that the

evidence show beyond a reasonable doubt that the Defendant attempted to cause

a violent injury to the victim." (H. 1557). In its justification charge, the Court

instructed the jury that, "[a] person is justified in using force that is intended or

likely to cause death or great bodily harm only if that person reasonably believes

that such force is necessary to prevent death or great bodily harm to himself or to

prevent the commission of a forcible felony," specifying that, "aggravated

assault," was such a "forcible felony," without further elaboration. (H. 1560).

McNeil argues that a complete instruction was necessary because he he

reasonably believed that Epp was about to commit an aggravated assault upon

him and/or his son and, therefore, was justified in shooting Epp. Consequently,

rather than have the jury's charge limited strictly to the assault described in the

indictment, that is, "when that person assaults another with a deadly weapon,"

McNeil argues that he was entitled to have the jury informed, at a minimum, that

it could also find that Epp had placed McNeil, "in reasonable apprehension of

immediately receiving a violent injury." 0.C.G.A. §16-5-21.

The trial record would authorize a reasonable jury to conclude that McNeil,

who testified that Epp reasonably believed he was about to receive a violent

injury. Smith testified that, after the warning shot, "the builder increased his

speed towards the homeowner," and was, "close enough [to McNeil] that the

homeowner had to take a few steps back to keep him from falling on him,"

having closed a distance of, "[a]pproximately 8 to 10 feet," to "within arm's

reach" before the second shot was fired. (H. 896; 898-899). Although the Court

gave extensive instructions to the jury regarding assault and justification, its

instruction never informed the jury that it could conclude that McNeil was in

reasonable apprehension Epp inflicting a violent injury on him and therefore

could acquit McNeil, based on his justification defense. The omission of this

instruction cannot be viewed as harmless, even in light of the entire charge given.

See e.g. Coney v. State, 290 Ga. App. 364, 365-66(1), 659 S.E.2d 768, 770

(2008)(holding that jury should have received charge as to entire definition of

assault as predicate for aggravated assault).

If jury instructions are the, "lamp to guide the jury's feet in journeying

through the testimony in search of a legal verdict," then trial counsel is the party

responsible for fueling and lighting that lamp. Chase, 277 Ga. at 639(2). Here,

counsel did not request a plenary instruction on assault, did not testify as to any

strategic reason for his failure to do so and conceded that the facts enabled him to

argue that Epp had committed an aggravated assault on McNeil and could do so,

"with every definition that relates to assault," not merely by the definition given

in the Court's charge. (H. 62-63).

Counsel agreed that an instruction as to the complete law of assault, as a

predicate to McNeil's claim that Epp had committed aggravated assault, would

have been consistent with his trial strategy. Id.. Therefore, counsel's failure to

request a complete instruction on aggravated assault is viewed by this Court as

deficient. See West v. State, 265 Ga. App. 339, 341(4), 593 S.E.2d 874 (2004).

See also Pearson v. State, 216 Ga. App. 333, 334, 454 S.E.2d 205 (1995).

McNeil's defense relied substantially on the premise that he had shot Epp

because he, "believe[d] that such force [was] necessary to prevent death or great

bodily harm to himself or to prevent the commission of a[n aggravated assault]."

0.C. G.A. §16-3-21. The jury was only aware that an aggravated assault was an,

"attempt[] to cause a violent injury to the victim" with a deadly weapon, which

the jury was told could be a utility knife. The jury had no reason to know that Epp

could have assaulted McNeil by "plac[ing McNeil] in reasonable apprehension of

immediately receiving a violent injury," by use of a deadly weapon, which would

therefore have justified McNeil's shooting of Epp. 0.C.G.A. §16-5-20(a)(2).

"[W]ithout the statutory definition of 'assault,' the final charge was fatally

insufficient because it did not instruct on substantive points or issues involved in

the case," and the Court therefore concludes that counsel's error was both

significant and impactful upon McNeil's case, to the point where it was

prejudiced thereby. Coney 290 Ga. App. at 369(1).

McNeil, in ground six, argues that counsel was ineffective for his failure to

request charges based on the theories of defense of habitation and/or defense of

property. 3 0.C.G.A. §16-3-23 permits assertion of defense of habitation,

specifically including the use of deadly force, "to prevent or terminate such

other's ... attack upon a habitation," when, "Nile entry is ... attempted in a

violent and tumultuous manner and he or she reasonably believes that the entry is

attempted or made for the purpose of assaulting or offering personal violence to

any person dwelling or being therein and that such force is necessary to prevent

the assault or offer of personal violence," or "[t]he person using such force

reasonably believes that the entry is made or attempted for the purpose of

committing a felony therein and that such force is necessary to prevent the

commission of the felony."

3 LaRon McNeil testified that the family was more or less between its old homeand the new one where this incident took place and, "[w]e had moved in, but wenever slept there." (H. 1126). McNeil testified that the family was in the processof selling — but had not yet sold — its other home at the time of this incident. (H.1306). Arguably, the State could have taken the position that the new home wasnot McNeil's habitation, within the meaning of that statute, based on his and hisson's testimony about the family's use of their old home. Even assuming thecorrectness of such an argument, McNeil could have asserted a theory of defenseof property, "other than a habitation or personal property," instead of defense ofhabitation and the analysis, including the Court's conclusions, would not havechanged.

In Benham v. State, 277 Ga. 516, 591 S.E.2d 824 (2004), the Supreme

Court considered a case with facts very analogous to the present. A conflict

erupted between two women with, "a history of animosity," when the alleged

victim left a friend's apartment to confront the Defendant in her vehicle, which

was parked nearby. 277 Ga. at 516. A physical altercation ensued, with the

alleged victim throwing a punch at the defendant through her car window.

Benham at 516. Eyewitnesses testified that the alleged victim had encroached on

the Defendant's property, i.e. reached into her vehicle, and the Defendant

responded by slashing her with a box cutter. Id.. Trial counsel, who did argue that

the defendant's actions were justified, "did not request a jury instruction on

defense of habitation under 0.C.G.A. §16-3-23(1), and none was given." Id..

The Supreme Court, found that trial counsel, "failed to appreciate that the

defense of habitation may have justified the use of deadly force in this case even

if that amount of force was not necessarily required to repel [the alleged victimrs

attack." Id. It noted that, "[elven assuming that trial counsel in this case

knowingly made the tactical decision to forego requesting a charge on defense of

habitation, it is not a reasonable decision a competent attorney would have made

under the same circumstances." Id. at 518. The Court therefore reversed

defendant's conviction, based on ineffective assistance of counsel. /d..

The present case is indistinguishable from Benham in any legally

significant way, so the result also should be the same. Smith testified that the

altercation between McNeil and Epp occurred within the shadow of McNeil's

home, as counsel described it, "within yards and feet of the side door to enter the

house that the McNeils live in." (H. 44). Epp was charging directly toward

McNeil, who was retreating toward the house, meaning Epp was charging directly

toward the house. Counsel was aware of the theory of defense of habitation.

Counsel believed that the evidence authorized him to argue that Epp was trying to

enter McNeil's home, was approaching the home to assault somebody (either

McNeil or his son), was approaching the home to offer personal violence and/or

commit a felony and that Epp's behavior was violent and tumultuous immediately

before he was shot. (H. 56). The Court credits counsel's testimony and

specifically agrees with him as to each of these points.

Counsel nonetheless did not request a jury instruction as to defense of

habitation. Counsel stated that he had, "no good answer to [the] question" of why

he did not request such a charge. (H. 70). Counsel also went to great lengths to

explain that, had he considered asserting defense of habitation, but then

strategically decided not to pursue it, he would have informed his client, McNeil,

of that decision, and did not recall doing so in this case. (H. 70; 71-72; 81). As

such, the Court concludes that counsel's failure to request an instruction on

defense of habitation was not a matter of strategy (at least, reasonable strategy),

but was, in fact, a matter of deficient performance. See Benham, supra.

Benham controls this situation, as the evidence, at a minimum, would have

authorized counsel to argue that Epp was attempting to enter the dwelling in a

"violent and tumultuous manner;" and was attempting to do so, "for the purpose

of assaulting or offering personal violence to any person dwelling or being

therein and that such force is necessary to prevent the assault or offer of personal

violence." 0.C.G.A. §16-3-23. That Epp charged McNeil on his own property

after McNeil had actually fired a warning shot demonstrates conclusively that

Epp's behavior was both violent and tumultuous. This, as well as McNeil's

knowledge of Epp's prior assault of his son, would have reasonably informed

McNeil that Epp's purpose was to offer personal violence to him or his son, who

was inside the home. McNeil's proximity to the home also would have

reasonably informed him that he had to shoot Epp to prevent his entry into the

home, where La'Ron, whom Epp had earlier threatened with a knife, was hiding.

If the so-called "castle doctrine" means anything, it is that a homeowner

like McNeil, confronted with a hostile adversary with the clear intent to "offer

personal violence" to both him and his teenage son, can use deadly force when he

C,

is backed up to his home and that adversary is charging directly at him and

reaching for a weapon, all after McNeil fire a warning shot in his immediate

presence. As such, counsel prejudiced McNeil's justification defense by failing to

assure that the jury was aware that McNeil had every right to defend his home,

i.e. his castle, from Epp's attack. Id..

In his seventh and final ground, McNeil argues that the trial court never

informed the jury that McNeil would have been justified in killing Epp if he was

doing so "to prevent death or great bodily injury to ... a third person." 0.C.G.A.

§16-3-21(a). This omission is particularly surprising, since the record clearly

establishes that McNeil had returned to the property and was being confronted by

Epp because he was defending a third party, his son La'Ron. See McNeil at 587.

McNeil's testimony makes clear that he fired on Epp because he continued, after

the warning shot, to approach McNeil, who by this point was backed up to the

home where La'Ron, whom McNeil referred to as, "my baby," was inside hiding.

The Court finds that the trial record indisputably would have authorized an

instruction to the jury regarding justification, as it regarded defense of third

parties, specifically McNeil's son.

Trial counsel was aware that the defense of justification includes, "defense

of others." (H. 55). Counsel was further aware that, though related, the defenses

are legally distinct. (H. 57). Counsel agreed that the defense of justification

extends to the defense of, "others, if you believe they're in — if there's imminent

harm that's probably going to happen to them." (H. 59-60). However, counsel,

"c[ould] give no reason" why he did not request an instruction on this theory,

even though it was consistent with his trial strategy (in truth, possibly even more

consistent than a theory of self-defense). (H. 60; 75).

References to the knife being brandished at McNeil's son abound in

counsel's closing, where he argued "John McNeil, the dad, believed that there

was a knife to his son," then implored the jurors to put themselves in McNeil's

shoes, where they would see, "a man over in a driveway who has just pulled a

knife on my son." (H. 1489; 1493). The logical conclusion from these arguments

is that counsel wanted to remind the jury that McNeil's primary motive in

returning to the house, arguing with Epp and ultimately shooting him was the

defense of his teenage son.

Benham, supra, controls this situation. While that case dealt with counsel's

failure to request a charge on defense of habitation (addressed, supra) as opposed

to defense of third persons, legally the scenarios are indistinguishable, if not more

favorable to McNeil. Id. The attorney in Benham claimed to have omitted

defense of habitation in order to focus the jury's attention on justification, though

asserting both would have been legally and factually appropriate. Id. The

Supreme Court acknowledged that this strategy made no sense because the

habitation defense simply added another way in which the Defendant's case

might be justified, if not possibly fitting the evidence better than the justification

defense. Id.. McNeil was at his home on that day in those circumstances for the

purpose of defending his son. Yet counsel made no request to charge on the

defense of third persons, nor made any objection to the charge given, although it

omitted such language. Counsel offered no explanation for this failure, and

denied any claim that it was a strategic decision. Under these circumstances,

counsel's failure constitutes deficient performance. Id..

Again, the prejudice McNeil suffered from the jury not being instructed

that he could be acquitted, based on his justified defense of his son, is manifest.

So much of the defense's evidence, and even counsel's closing argument,

focused on McNeil's actions in defending his son that it would be difficult to

envision a better example of prejudice when the jury returned to its deliberations

without knowing that it was authorized to acquit McNeil based on his defense of

a third party. Id.. The circumstances clearly demonstrate prejudice and counsel

was therefore ineffective. Id..

CONCLUSION

Accordingly, for all reasons set forth above, McNeil's petition for a writ of

habeas corpus is granted.

So Ordered this ;1 5 day of Car 1-0,,k9 2012.

e Honorable Hulane E. Lorge

Prepared by:Mark Yurachek, Esq.Ga. Bar #783599Attorney for Petitioner

CERTIFICATE OF SERVICE

I, Joy D. Honeycutt, Judicial Secretary to Judge Hulane E. George, do hereby

certify that I have this day served the within order upon the individuals listed below by

mailing a true copy of said order to them by U. S. Mail in envelopes having sufficient

postage thereon to insure delivery and addressed as follows:

Mr. Mark A. YurachekMark Allen Yurachek & Assoc., LLCAttorneys at Law79 B Poplar StreetAtlanta, GA 30303

Ms. Elizabeth HarrisAssistant Attorney GeneralGeorgia Department of Law40 Capitol SquareAtlanta, GA 30334

Original Filed with Clerk's Office

This day of September, 2012.

1iØy". Honeycuttial Secretary

P. O. Box 1050Milledgeville, GA 31059