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: August 21, 2023
S23A0647. DEMURO v. THE STATE.
ELLINGTON, Justice.
A Chatham County jury found Joshua DeMuro guilty of
murder in the shooting death of Kevin Gilman. 1 DeMuro challenges
the sufficiency of the evidence and contends that the State failed to
prove beyond a reasonable doubt that the fatal shooting was not
justified. DeMuro also contends that the trial court gave incomplete
jury instructions on witness credibility, impeachment, and
1The shooting occurred on March 19, 2018. On April 18, 2018, a
Chatham County grand jury returned an indictment charging DeMuro with
malice murder (Count 1), felony murder predicated on aggravated assault
(Count 2), and aggravated assault (Count 3). Following a December 2021 trial,
a jury found DeMuro guilty on all three counts. On December 20, 2021, the
trial court sentenced DeMuro to serve life in prison on Count 1. Count 2 was
vacated by operation of law, and Count 3 merged with Count 1 for sentencing.
DeMuro filed a timely motion for a new trial, which, through new counsel, he
amended on October 21, 2022. The trial court denied DeMuro’s motion for a
new trial on February 1, 2023. DeMuro filed a timely notice of appeal, and the
case was docketed in this Court to the April 2023 term and submitted for a
decision on the briefs.
justification and that the trial court erred in refusing to send written
jury instructions out with the jury. For the reasons explained below,
we affirm.
1. DeMuro contends that the State failed to prove beyond a
reasonable doubt that the fatal shooting was not justified, and he
argues that no evidence supported an inference of either malice or
implied malice. When evaluating the sufficiency of evidence as a
matter of constitutional due process, the proper standard of review
is whether a rational trier of fact could have found the defendant
guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). “This Court will
uphold the jury’s verdict as long as there is some competent
evidence, even if contradicted, to support each fact necessary to
make out the State’s case.” Williams v. State, 316 Ga. 147, 150 (1)
(886 SE2d 818) (2023) (citation and punctuation omitted). “When a
defendant presents evidence that he was justified in using deadly
force, the State bears the burden of disproving the defense beyond a
reasonable doubt.” Id. (citation and punctuation omitted). “It is the
2
role of the jury to evaluate the evidence and, when doing so, 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 selfdefense.” Id. (citation and punctuation omitted).
(a) Viewed according to this standard, the evidence presented
at trial showed the following. Dylan Cribbs (“Dylan”) and Philipo
Mihailidis each testified about an encounter between the two of
them on March 19, 2018, in downtown Savannah that led to a fist
fight on Hurst Avenue. Dylan and Mihailidis had been acquainted
for years, beginning when Mihailidis lived near the Cribbses’ home
on Hurst Avenue. Dylan testified that, at the time of the encounter,
they were not on friendly terms. That night, Dylan drove downtown
to pick up his girlfriend, Brianna Bedgood, from work, and was
headed home when they encountered Mihailidis, who was driving in
that area with his girlfriend, Madison Brundage. Dylan testified
that Mihailidis began driving aggressively, trying to run him off the
road. Mihailidis testified that it was Dylan who tried to run his
vehicle off the road. Mihailidis testified that he followed Dylan’s
3
vehicle to Hurst Avenue, “to find out why [Dylan] had a problem
with [him].” Along the way, Mihailidis called Gilman, his best friend,
who was like a brother and mentor to him, and explained that he
was having an issue with Dylan and was headed to Hurst Avenue.
Gilman agreed to meet him there. Meanwhile Dylan called his
brother, Cody Cribbs (“Cody”), as he drove “[j]ust to be there, just in
case [Mihailidis] tried to come attack [him] or anything like that.”
Dylan testified that he reached his house, and then Cody and his
friend, DeMuro, pulled up in DeMuro’s truck. Dylan testified that
he and Cody confronted Mihailidis, where he was parked down the
street, while DeMuro stayed back at the house. A fight ensued.
Dylan and Mihailidis both testified that Gilman arrived in his car
and joined the fight. Dylan testified that Gilman knocked him
unconscious. When he came to, Cody and Mihailidis were still
fighting, and DeMuro was struggling with Gilman. Dylan testified
that he ran home and did not see the shooting. Mihailidis testified
that Gilman got DeMuro and Dylan “in a headlock” and took them
to the ground. Mihailidis testified that, as they fell, he saw a
4
handgun in DeMuro’s back pocket. While DeMuro was on the
ground, “the first shot went off.” Mihailidis testified that, after that
shot, Gilman got up, said to DeMuro, “Whoa, whoa . . . stop,” ran
back to his car, and turned to open the door. Mihailidis testified that
DeMuro then “unloaded,” shooting repeatedly in Gilman’s direction.
Mihailidis fled in his truck, with Brundage. Mihailidis testified that,
throughout the incident, he never saw Gilman holding a gun.
Brundage also testified about the “road rage kind of thing”
between Mihailidis and Dylan that preceded the fight on Hurst
Avenue. She testified about the first part of the fight, involving the
Cribbs brothers and Mihailidis, and testified that DeMuro “jumped
in” after the fight was in progress. Brundage testified that Gilman
arrived and put DeMuro and Dylan in a “headlock.” Brundage
testified that she heard Mihailidis yell, “There’s a gun.” She heard a
single gunshot and then more shots as Mihailidis drove them away,
but she did not see who was shooting or being shot.
Several neighbors called 911 to report hearing shots fired.
DeMuro immediately surrendered to the first responding officer and
5
said, “I shot him[.]” The officer asked, “[W]here is the gun?” DeMuro
answered, “I put them in the truck.” The forensics team located two
guns on the front seat of DeMuro’s truck, a Glock 30-S, which was
unloaded, and a Glock 20, which contained a fully loaded magazine.
On the night of the shooting, an investigator contacted a neighbor,
who lived a few houses down and had two security cameras mounted
on the front of his house. That neighbor’s security system recorded
the shooting and events surrounding it, and the security footage was
played for the jury. Because of the limited illumination, the video
did not show small objects, such as any weapon, and does not show
details such as facial features. The video showed a few people
fighting and then a flash. After the flash, the people began to walk
or run away from each other; there was another flash in proximity
to one person; and another person fell to the ground. The first person
approached the second person, who was still on the ground, and
stopped near him. Then there were several flashes between the first
person and the second person.
6
A forensic pathologist testified that he performed an autopsy
on Gilman’s body and found five penetrating gunshot wounds, plus
one graze wound, to Gilman’s face and torso. All of the wounds were
deemed wounds of indeterminate range, meaning the weapon was
fired from at least 18 inches away. There were no exit wounds; five
bullets were recovered from Gilman’s body. All of the penetrating
wounds traveled in an upward direction. One entrance wound was
on Gilman’s left upper back; the bullet traveled upward and across
the midline toward the right. That bullet did not strike any organs,
vertebrae, or other bones, and lodged in muscle tissue at the back of
Gilman’s neck, at the level of the seventh cervical vertebra, on the
right. Although the entrance wound was on Gilman’s back, the path
of travel of that bullet indicated that Gilman was shot from the side.
One wound to Gilman’s face caused serious injuries to his brain.
There were also two entrance wounds on Gilman’s chest, one on the
right and one on the left; a graze wound on his left chest; and an
entrance wound on his right upper abdomen. In response to a
hypothetical question, the pathologist testified that the injuries
7
were consistent with the wound to Gilman’s back being the first
inflicted. In addition, the pathologist testified that a person who
received such a wound by itself and who received prompt medical
attention most likely would have recovered.
A firearms examiner testified that three of the bullets removed
from Gilman’s body had been fired by the .45-caliber Glock 30-S that
had been seized from DeMuro’s truck; two of the bullets were too
damaged for comparison. The firearms examiner testified that ten
.45-caliber cartridge casings that had been collected at the location
of the shooting were fired by that same weapon.
An audio-video recording of DeMuro’s custodial statement on
the night of the shooting was played for the jury. In that statement,
DeMuro said that Gilman slammed him into Mihailidis’s truck,
knocking off his glasses. DeMuro stated that he is “about legally
blind without [his] glasses.” DeMuro said Gilman “bear-hugged” him
and took him to the ground and was choking him to the point that
DeMuro was “probably going to pass out,” so he drew his .45-caliber
Glock 30-S from his holster and fired a round in the air when the
8
gun was very close to his and Gilman’s heads. DeMuro thought, “I
just disorient[ed] him. I can go,” and he got up and walked a few feet
away. At that point, he “had this whitewashed feeling come over”
him, and he wondered where his second gun, the 10mm Glock 20,
was. DeMuro stated, “I turn around. My gun was in [Gilman’s] hand
. . . and I just unloaded every round I had in that magazine.” Before
DeMuro fired at Gilman, Gilman was “just standing there,” looking
“disorient[ed],” with the Glock 20 “still pointed at the ground,” but
DeMuro felt he needed to shoot Gilman because Gilman had come
and “just started assaulting people” and was now holding a loaded
weapon. DeMuro had heard “before from other people around town
that Kevin Gilman was kind of mental, kind of always liked
fighting.” DeMuro stated, “I tried everything in my power to try to
avoid a deadly situation like this.” When DeMuro fired the first shot
at Gilman, Gilman “was broadside” to DeMuro, not facing him. After
emptying his Glock 30-S in Gilman’s direction, DeMuro picked up
the Glock 20, which was still fully loaded, from the ground where it
had “dropped right next to” Gilman and put it and the now-empty
9
Glock 30-S he used to shoot Gilman in his truck. DeMuro stated, “I
hated to do it, but, honestly, I feared for my own life. I was already
assaulted pretty bad and I just thought, ‘There’s fifteen rounds in
that gun. He could kill everybody here.’” DeMuro did not know how
many shots he fired but stated, “[A]s I saw the gun in his hand[,] . .
. it was just instinct[,] and I said, ‘Just shoot and kill until he’s
dead,’” and, “I just shot him until I just knew he was dead because .
. . he had one good firearm and there were other people and the only
thing I could think of, like, ‘I’m not letting my . . . friends die because
somebody wanted to follow my friends from downtown.’”
At trial, DeMuro testified in support of his sole defense that the
shooting was justified in defense of himself and others and largely
reiterated his custodial statement. DeMuro testified that, on the
night he shot and killed Gilman, he and his friend, Cody, were
relaxing at DeMuro’s house on Hurst Avenue, several doors down
from the Cribbses’ home, watching a movie, when Cody received a
phone call, “and he seemed quite frantic” and “distraught.” Cody
said it was something with his little brother, and said, “We’ve got to
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go.” Cody grabbed DeMuro’s keys and ran out the door. DeMuro, who
had a concealed-carry permit and described himself as being
“passionate” about guns, was already carrying his .45-caliber Glock
30-S, loaded with 10 rounds of ammunition, inside his waistband in
a “belly holster.” Before following Cody out the door, DeMuro picked
up his 10mm Glock 20, loaded with 15 rounds, and stuck it in his
back pocket.
DeMuro testified that Cody drove DeMuro’s truck and stopped
beside Mihailidis’s truck in the middle of Hurst Avenue, and Cody
and Mihailidis exchanged “heated words” through their windows.
Cody then parked at the Cribbses’ house. Dylan was already at their
house. The two brothers ran down the street to where Mihailidis was
still parked a few houses down. DeMuro testified that he initially
hung back at the Cribbses’ house, and he told Bedgood and her
brother, Tim Treadwell, who were standing outside the house, to call
the police. DeMuro testified that he saw that Cody and Dylan were
fighting Mihailidis. Bedgood and Treadwell urged DeMuro to “go
down there,” and he responded that he could not do that. But then,
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DeMuro testified, he saw that “somebody was on the ground
probably getting hurt and so [he] wanted to go and try and stop it.”
He again told Bedgood and Treadwell to call the police and then
“proceeded to walk back down the street.” DeMuro verbally tried to
break up the fight but did not get physically involved in the scuffle
at first. Then Gilman arrived in his car; DeMuro testified that he
was familiar with Gilman only by reputation around the
neighborhood, which was “[t]hat he had a very violent attitude.”
DeMuro testified that Gilman ran up to Dylan, and knocked him out
with a punch to the face. From “several feet away,” DeMuro “asked
[Gilman] to stop. [Gilman] look[ed] at [DeMuro] and [said], ‘You
want some, too?’” DeMuro said, “no,” and backed away with his
hands raised. DeMuro testified that Gilman ran at him, slammed
him twice into the side of Mihailidis’s truck, causing DeMuro’s
glasses to fly off into the back of the truck, and then threw DeMuro
to the ground.
DeMuro testified that Gilman began choking him and he began
to lose consciousness. Fearing for his life, DeMuro “had to figure out
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a way to get [Gilman] to stop choking [him].” DeMuro drew his Glock
30-S out of his belly holster and “made the decision at that point not
to shoot anybody but to simply fire a warning shot in the only safe
direction that [he] thought was possible at that time, which was
straight [up] in the air.” After that shot, Gilman let go of DeMuro
and said, “Whoa.” DeMuro testified that he remained on the ground,
“trying to regain [his] faculties, [his] breathing and [his] vision. And
after a few seconds [he] began to stand and at that point [he] realized
that the weapon that was in [his] back pocket, the Glock 20, was no
longer there.” DeMuro testified that he observed that Gilman was
“broadside” of him, “facing the people behind and around
[Mihailidis’s] vehicle,” with “a pistol in his hand.” DeMuro testified
that, Gilman “[i]nitially” had the gun “pointed at the ground,” and
he never pointed it at DeMuro.
DeMuro testified that he decided to shoot at Gilman, because
he “had no indication that . . . [Gilman] was abandoning the fight
and now he was armed.” Gilman had driven up to the fight, knocked
out Dylan, attacked DeMuro, slammed him into the vehicle two
13
times, knocking off his glasses, thrown him to the ground, placed
him in a choke-hold until he nearly lost consciousness, and then
obtained his second handgun, “and it was based on all of those things
that [DeMuro] assumed that [Gilman] was going to use that firearm
to continue the fight.” DeMuro testified that, after he fired at Gilman
“broadside,” Gilman “hit the ground,” but “appeared to be getting
up,” and DeMuro could clearly see that Gilman still had the weapon
in his hand. DeMuro testified that, “[a]t that point [he] perceived
[Gilman] to still be a threat, and[,] considering now that [Gilman]
had been shot, [DeMuro] thought surely [Gilman] would shoot [him]
or somebody else. . . . That is why [DeMuro] fired the additional
rounds” while walking toward Gilman. DeMuro fired at Gilman
until he “dispensed the whole magazine” and Gilman “was no longer
a threat.” DeMuro testified that, after shooting Gilman, he walked
back to the Cribbses’ house and called 911 on Bedgood’s phone. He
decided to pick up his Glock 20 handgun that was on the ground
near Gilman “for safety reasons” because it was loaded. DeMuro put
14
the Glock 20 and the Glock 30-S he used to shoot Gilman in his truck
and waited for the police to come.
(b) Under OCGA § 16-3-21 (a),
a person is justified in using force which is intended or
likely to cause death or great bodily harm only if he or she
reasonably believes that such force is necessary to
prevent death or great bodily injury to himself or herself
or a third person or to prevent the commission of a forcible
felony.
Under OCGA § 16-3-21 (b) (1), “[a] person is not justified in using
force . . . if he . . . [i]nitially provokes the use of force against himself
with the intent to use such force as an excuse to inflict bodily harm
upon the assailant[.]” And under OCGA § 16-3-21 (b) (3), a person is
not justified in using force if he “[w]as the aggressor or was engaged
in a combat by agreement unless he withdraws from the encounter
and effectively communicates to such other person his intent to do
so and the other, notwithstanding, continues or threatens to
continue the use of unlawful force.”
The only evidence that Gilman ever held a gun was DeMuro’s
custodial statement and trial testimony that – while being “about
15
legally blind” because his glasses were knocked off, trying to recover
his breathing because Gilman had been choking him, and just after
DeMuro fired a warning shot with his .45-caliber gun very close to
his head – he saw Gilman holding his gun. But the jury was free to
reject DeMuro’s version of the facts in favor of witness testimony
that Gilman was unarmed.
Furthermore, even DeMuro never claimed to see Gilman
pointing the gun anywhere except the ground. DeMuro’s statements
and testimony showed that Gilman was turning away from him
when he first fired in Gilman’s direction. Mihailidis’s testimony
indicated that, between DeMuro’s warning shot and the next shot,
Gilman was running away from DeMuro, trying to get in his car.
The jury could infer from the security video that the flashes were
gunfire; that the first shot to strike a person caused that person to
fall to the ground; and that multiple shots were fired at that person
when he was on the ground. The evidence was sufficient for the jury
to find that any belief on DeMuro’s part that it was necessary to
shoot Gilman was not a reasonable belief and therefore could not
16
serve as a basis for justification under OCGA § 16-3-21 (a). The
evidence was also sufficient for the jury to find beyond a reasonable
doubt that DeMuro provoked any threat of the use of deadly force as
an excuse to shoot Gilman, or that he shot Gilman after Gilman was
trying to withdraw from the conflict, either or which would preclude
a justification defense pursuant to OCGA § 16-3-21 (b).2
Furthermore, pursuant to OCGA § 16-5-1, malice in the killing
of another may either be express, a “deliberate intention unlawfully
2 See Williams, 316 Ga. at 150-151 (1) (The evidence was sufficient to
authorize the jury to reject the defendant’s self-defense claim where the jury
could have concluded from a video recording of the incident that the victim was
walking to his girlfriend’s truck to leave the apartment complex where a fight
involving the defendant had taken place, when the defendant approached the
victim from the side, fired his gun at the victim, and then walked away.); Huff
v. State, 315 Ga. 558, 563 (1) (883 SE2d 773) (2023) (The jury was authorized
to reject the defendant’s self-defense claim where the jury could have concluded
from a video recording of the shooting that the victim’s conduct “did not give
rise to a reasonable belief that [the victim] was threatening to physically harm
[the defendant].”); Jackson v. State, 315 Ga. 543, 551 (1) (b) (883 SE2d 815)
(2023) (The jury was authorized to reject the defendant’s self-defense claim in
part because the first victim was not within close range of the defendant and
was walking away from the defendant’s porch toward his car when the
defendant shot him and the first victim’s girlfriend was merely getting out of
the car and walking to where the first victim lay, injured, and was not
threatening the defendant in any way at the time he shot her.); Gobert v. State,
311 Ga. 305, 309 (1) (a) (857 SE2d 647) (2021) (The jury was authorized to
reject the defendant’s defense of self and defense of others theory where the
defendant shot at the victims as they fled in a car and no one was “in any
danger or in any imminent threat of harm at that point.”).
17
to take the life of another human being which is manifested by
external circumstances capable of proof[,]” or implied, “where no
considerable provocation appears and where all the circumstances
of the killing show an abandoned and malignant heart.” The malice
necessary to establish malice murder “may be formed in an instant,
as long as it is present at the time of the killing. It is for a jury to
determine from all the facts and circumstances whether a killing is
intentional and malicious.” Coates v. State, 310 Ga. 94, 97-98 (849
SE2d 435) (2020) (citation and punctuation omitted). Evidence that
DeMuro shot Gilman in the back as Gilman was walking or running
away and then continued shooting Gilman as he lay motionless on
the ground until, as DeMuro stated, he knew Gilman was dead was
sufficient to support the jury’s finding of malice. 3
3 See Munn v. State, 313 Ga. 716, 720-721 (1) (873 SE2d 166) (2022) (The
evidence authorized the jury to find malice where the defendant argued with
the victim, became angry, and shot the victim multiple times, despite the
victim raising his hands and where the defendant admitted that the victim was
“unarmed and unthreatening.”); Williams v. State, 306 Ga. 674, 675 (1) (832
SE2d 843) (2019) (The evidence authorized the jury to find malice where the
defendant “shot at an unarmed man who was driving away, following an
argument,” and the jury was entitled to reject the defendant’s argument that
he was overcome with emotion and fired at the victim as a result of a sudden,
18
For the foregoing reasons, this claim of error fails.
2. DeMuro contends that the trial court erred in instructing the
jury. Specifically, he argues that the jury did not receive a complete
set of instructions before retiring to deliberate, because the jury
could not hear certain words and phrases in the court’s recitation of
the jury charge due to conditions in the courtroom. DeMuro points
to multiple notations by the court reporter that words or phrases
were “inaudible,” including during portions of the jury instructions
relating to witness credibility, impeachment, and justification.4
DeMuro concedes that, because he did not object to the jury
instructions as given, we review the alleged instructional error
under the plain-error standard of review. See Smith v. State, 315
Ga. 357, 362 (3) (882 SE2d 289) (2022).
violent, and irresistible passion.); Moran v. State, 302 Ga. 162, 164 (1) (b) (805 SE2d 856) (2017) (The evidence authorized the jury to find malice where the
defendant shot the victim in the back of the head at close range and where the
defendant admitted that she shot at the victim as he tried to escape and was
begging for his life.).
4 The court reporter noted at the beginning of the transcript that
“[n]otations of ‘(inaudible)’ indicate individuals speaking over each other
and/or background noise obscuring the spoken words and ‘(indiscernible)’
indicates that an individual is either speaking too rapidly or too softly as to not be discernable.
19
Review for plain error means that we will reverse the trial
court only if there was an instructional error that was not
affirmatively waived, was obvious beyond reasonable
dispute, likely affected the outcome of the proceedings,
and seriously affected the fairness, integrity, or public
reputation of judicial proceedings. [The appellant] has the
burden of showing a clear or obvious error and further
making an affirmative showing that the error probably
did affect the outcome below.
Id. (citations and punctuation omitted). See also Dolphy v. State, 288
Ga. 705, 710 (3) (707 SE2d 56) (2011) (Where “there was no
reversible error, . . . it follows that there could be no plain error
either (since plain error does not exist in the absence of reversible
error).”).
The trial court’s charge on witness credibility and
impeachment was transcribed, in pertinent part, as follows:
[T]he jury must determine the credibility of the
witnesses. In deciding this, you may consider all of the
facts and circumstances of the case, including the
witnesses’ manner of testifying, the witnesses’ means and
opportunity of knowing the facts about which they testify,
the nature of the facts about which they testify, the
probability or improbability of their testimony, the
witness[es]’ interest or lack of interest in the outcome of
the case, and the witness[es]’ personal credibility insofar
as may be shown in your presence and by the evidence,
any evidence of bias towards a witness, any (inaudible) or
20
motive to testify as shown by the evidence, and that would
provide your authorized decision of any pending
prosecution or (inaudible due to construction noise).
Whether a witness has been impeached: The
question of whether a witness has been impeached is
whether you, the jury, believe the witness has been
proven unworthy of belief. A witness may be impeached
by disproving the facts to which the witness testified.
Ladies and Gentlemen, in determining the credibility of
witnesses and any testimony by them in court, the
admission of facts or the (inaudible), you may consider
more acceptable (inaudible) in terms of the credibility or
the believability of any such witness. This may include,
Ladies and Gentlemen, evidence that proves that the
witness has been convicted of a felony offense. A felony
offense is one punishable of one year or more in prison.
I further charge you, to determine the credibility of
any witness, their credibility has been attacked, cast
doubt upon or challenged as I’ve described above, any
testimony (inaudible) court, you may consider where
applicable evidence helping to support the credibility or
believability of any such witness.
The charge on justification was transcribed, in pertinent part,
as follows:
[T]he State has the burden of proving beyond a
reasonable doubt Defendant’s actions were not justified.
If you decide Defendant’s actions were justified or the
State has failed to prove his actions were not justified
beyond a reasonable doubt, then your duty is to find the
Defendant not guilty.
I further charge you that Defendant is not justified
in the felony use of force if he provokes a threat for use of
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force against himself, intending to use that threat of force
as an excuse to harm the other person. It’s the initial
presence unless he withdraws from the encounter and
clearly communicates to the other person his intent to
withdraw, and the other person continues or a threat is
continued for use of unlawful force.[ 5]
Ladies and Gentlemen, for Defendant’s threat for
use of force to be justified: (1) Defendant must believe his
felony use of force is necessary; (2) That belief must be
reasonable, that is, a reasonable person would also
believe that the threat of use of force be necessary; and (3)
The Defendant’s legal belief must be what prompted him
(inaudible) of use of force.
I further charge you a person who is not the
aggressor does not require (inaudible) before being
justified in using force if he reasonably believes he
(inaudible). Defendant’s use of deadly force is justified
even when there has not been any physical contact or
injury. Defendant’s action as alleged is sufficient beyond
a reasonable doubt, Defendant’s or other (inaudible) in
imminent danger, Defendant on the -- is the Defendant in
imminent danger of serious bodily injury or in a forcible
felony (inaudible), then Defendant’s use of deadly force
may be justified. Worry is alone never justified in the use
of deadly force no matter how (inaudible). Even though
5 This appears to be a transcription error. Based on the court’s statement
at the jury charge conference about the instructions the court intended to give,
it appears that the court’s instruction here was modeled on the pattern
instruction regarding circumstances in which a defendant is not justified in the
use of force, including when he is the initial aggressor, unless he withdraws
from the encounter and clearly communicates to the other person his intent to
withdraw and the other person continues or threatens to continue the use of
unlawful force. See Suggested Pattern Jury Instructions, Vol. II: Criminal
Cases, § 3.10.10 (4th ed., 2022).
22
(inaudible) accompanied by some menacing action, may
justify the use of deadly force.
A forcible felony is a felony involved in the use of
force or (inaudible) against another.
Again, aggravated assault as used in this situation,
is a forcible felony and (inaudible) as defined here.
As noted above, DeMuro did not object to the jury charge as given,
on the basis that any part of the court’s verbal instructions were
hard to hear or on any other basis. Neither did the prosecutor raise
any issue about the audibility of the instructions. Likewise, no juror
voiced any concern about having difficulty hearing during the
charge. During jury deliberations, the jury sent a single note to the
court, which was a request to review specific trial exhibits. The jury
did not request written instructions or repetition of any particular
instructions.
DeMuro argues that it is error to give the jury an incomplete
charge and that the defect in the charge is not subject to dispute
because the transcript shows that the instructions were incomplete.
He argues that it is speculative to assume that the jury heard words
that the court reporter did not hear and record in the transcript.
23
DeMuro contends that this error affected his substantial right to a
fair trial because the subjects on which the jury was inadequately
charged (justification, witness credibility, and impeachment)
impacted how the jury considered his sole defense of justification
and the testimony from witnesses who were impeached. DeMuro
argues that this Court should exercise its discretion and reverse his
convictions because allowing them to stand seriously affects the
fairness, integrity, and public reputation of judicial proceedings.
We conclude, however, that DeMuro fails to meet the plainerror standard. He has not shown, and we cannot assume, that the
jurors could not hear the words or phrases that the court reporter
was unable to transcribe, especially since the jury did not ask for
repetition or clarification of any instruction, and there is no
indication in the record that counsel for the State or for DeMuro
were unable to hear the instructions. Under the circumstances, it is
not “obvious beyond reasonable dispute” that the verbal instructions
delivered by the trial court were actually incomplete in the respect
indicated by the court reporter’s inability to transcribe certain words
24
and phrases. See Smith, 315 Ga. at 362 (3). DeMuro has not met his
burden of establishing that the designated portions of the jury
charge constitute plain error, and this claim of error fails. See Sapp
v. State, 290 Ga. 247, 250 (2) (719 SE2d 434) (2011) (In the case of
allegedly incomplete jury instructions, the appellant’s burden under
the plain-error test includes showing that the designated omission
constituted an error that was clear or obvious, rather than one
subject to reasonable dispute.).6
3. DeMuro contends that the trial court erred by not sending
written jury instructions back with the jury. He argues that the
transcript shows that acoustics were poor during the trial, partly
because of Plexiglas barriers in place and people sitting further
apart than usual as part of precautions taken due to the COVID-19
6 The case DeMuro cites, Essuon v. State, 286 Ga. App. 869 (650 SE2d
409) (2007), even if it were binding on this Court, is distinguishable, in that
the appellant in that case showed that the jury charge at issue entirely omitted
two essential elements of the crimes charged. See id. at 872 (2) (Reversal of
convictions of criminal solicitation to commit a felony, the underlying felony
being murder, was required because the trial court failed to instruct the jury
on the legal definitions of “felony” and “murder,” which were essential elements
of the crime charged.).
25
pandemic. 7 In addition to the court reporter’s inability to completely
transcribe the jury instructions, as discussed in connection with the
previous claim of error, DeMuro points to multiple times that the
judge expressed difficulty hearing what was said by counsel or
witnesses and multiple times others expressed difficulty hearing the
judge. DeMuro argues, based on multiple instances where someone
expressed difficulty hearing another person speaking, “it was, or
should have been, apparent to the trial court that everyone in the
courtroom was having a hard time hearing what was being said
throughout the trial” and that the jury would need written
instructions during deliberations.
The transcript shows that, during the jury charge conference,
the judge expressed an inclination not to send a copy of the written
charge out with the jury. The prosecutor agreed. DeMuro’s counsel
stated, “I come from a different school of thought on that, Judge. I
don’t see any reason why they can’t have the law. It probably saves
7 We note that, in addition to references to Plexiglas barriers, the court
and counsel also referred to problems with hearing jurors during voir dire due
to the wearing of masks.
26
us some time in briefing meetings.” DeMuro’s counsel did not
comment on any acoustical issues that may have interfered with the
jury’s ability to hear the court’s charge. The trial court then
announced, “Initially I’m not going to give a copy of the charge to the
jury, but if they come back and request to have them recharged, I’ll
give it at that point.” DeMuro’s counsel did not object to that plan,
object at the end of the charge to any of the instructions, or
subsequently request that written instructions be sent out with the
jury. We assume without deciding that, despite DeMuro’s failure to
object, plain-error review is authorized on the basis that the failure
to provide the jury with written instructions constituted in this case
“a failure to charge the jury[.]” See OCGA § 17-8-58 (a), (b).8
8 OCGA § 17-8-58 provides:
(a) Any party who objects to any portion of the charge to the
jury or the failure to charge the jury shall inform the court of the
specific objection and the grounds for such objection before the jury
retires to deliberate. Such objections shall be done outside of the
jury’s hearing and presence.
(b) Failure to object in accordance with subsection (a) of this
Code section shall preclude appellate review of such portion of the
jury charge, unless such portion of the jury charge constitutes
plain error which affects substantial rights of the parties. Such
plain error may be considered on appeal even if it was not brought
27
We have held that “there is no requirement under Georgia law,
either statutory or otherwise, that the jury be given a written copy
of the court’s instructions for use in deliberations. Though trial
courts clearly have the authority to do so, they are not required to
do so.” Franklin v. State, 298 Ga. 636, 642 (4) (784 SE2d 359) (2016)
(citation omitted). DeMuro has not identified any precedent holding
that a trial court’s decision not to send written jury instructions out
with the jury is reversible error, even if the transcript ultimately
shows that courtroom acoustics were not ideal or that the court
reporter was unable to transcribe every word of particular
instructions. See Stewart v. State, 311 Ga. 471, 476 (1) (b) (858 SE2d
456) (2021) (Although the jury instructions at issue, in particular
the verdict form, deviated from the pattern instructions, the
instructions were not erroneous in view of the unequivocally clear
words of a statute or court rule or in view of controlling precedent.
In the absence of controlling authority establishing that any error in
to the court’s attention as provided in subsection (a) of this Code
section.
28
the jury instructions at issue was obvious beyond reasonable
dispute, the appellant could not meet the second prong of the plainerror test.). Therefore, DeMuro again has not met the plain-error
standard, and this claim of error fails. See id.; see also Walter v.
State, 304 Ga. 760, 767 (3) (b) (822 SE2d 266) (2018) (“An error is
plain if it is clear or obvious under current law. An error cannot be
plain where there is no controlling authority on point.” (citation and
punctuation omitted)).
Judgment affirmed. All the Justices concur.
29