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Georgia Supreme Court Clarifies What a Defendant Must ‘Admit’ Before Raising an Affirmative Defense

by Douglas Ankney

The Supreme Court of Georgia clarified that a criminal defendant need not “admit” anything — in the sense of acknowledging that any facts alleged in the charges against him are true — in order to raise an affirmative defense.

Carlos Richard McClure was found guilty of violating OCGA § 16-5-21(a)(2) for assaulting Armando Cuevas and Jamie Thun by aiming a BB rifle at them. McClure testified that he had the BB gun during his encounter with the men, but he denied pointing it at them.

When McClure requested jury instructions on the affirmative defenses of self-defense and defense of habitation, the trial court denied his request on the grounds that McClure could not deny he pointed the gun at the men and at the same time argue he was justified in pointing the gun at the men. McClure was convicted, and he appealed. The Court of Appeals affirmed, and the Georgia Supreme Court granted certiorari.

The Court observed that “affirmative defense means, with respect to any affirmative defense authorized in [Title 16], unless the state’s evidence raises the issue invoking the alleged defense, the defendant must present evidence thereon to raise the issue.” OCGA § 16-1-3(1). However, “[i]f the defense is made out by the witnesses on the part of the prosecution, then the defendant need not call any; but if not, then the defendant must call witnesses, and make out his defense by proof.” Chandle v. State, 198 S.E.2d 289 (Ga. 1973). “In other words, to raise an affirmative defense under Title 16, the defendant must present evidence supporting the affirmative defense only if the State’s evidence does not support the defense,” the Court explained. An “affirmative defense” is a defense “that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it.” Williams v. State, 773 S.E.2d (Ga. 2015).

But is this “admission” a legal admission that is binding upon the defendant or merely a non-binding assumption of facts for the sake of argument? The Court reasoned that when a defendant raises an affirmative defense, “admit[ting] the doing of the act charged” does not entail stipulating to the truth of the facts alleged in the indictment because: “An affirmative defense is defined as a matter which, assuming the charge against the accused to be true, constitutes a defense to it; an ‘affirmative defense’ does not directly challenge any element of the offense. Otherwise stated, an affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it.... [A]n affirmative defense goes beyond the elements of the offense to prove facts which somehow remove the defendant from the statutory threat of criminal liability.” 21 AmJur2d Criminal Law § 177 (2d ed.).

Criminal defendants, like other litigants, are entitled to pursue alternative theories, even when those theories are inconsistent. Shah v. State, 793 S.E.2d 81 (Ga. 2016). For example, in Turner v. State, 418 S.E.2d 52 (1992), the defendant testified that his gun accidently discharged during a struggle where he was defending himself from the victim’s knife attack, and the defendant requested jury instructions on both accident and self-defense. The trial court instructed on self-defense but refused to instruct on accident. The Supreme Court reversed, determining that instructions on both accident and self-defense were warranted.

As is generally the case, “to authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge.” Garner v. State, 815 S.E.2d 36 (Ga. 2018). And the defendant need not present evidence to support the theory of an affirmative defense if the State’s evidence raises the issue. Adams v. State, 707 S.E.2d 359 (Ga. 2011).

In the instant case, the victims testified McClure pointed the gun at them. If there was sufficient evidence to raise the affirmative defense, then McClure was entitled to argue that if the jury believed he pointed the gun at the victims and disbelieved his testimony that he did not point the gun, then he must be permitted to argue he was justified in doing so in defense of himself and in defense of his property.

Accordingly, the Court vacated the judgment and remanded to the Court of Appeals for consideration of whether the trial court erred in failing to give the requested instructions regarding the affirmative defenses of justification, i.e., whether the theory of the instructions was supported by at least slight evidence and whether any such instructional error was harmful. See: McClure v. Georgia, 834 S.E.2d 96 (Ga. 2019). 

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McClure v. Georgia



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