Wynn v. State

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
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official text of the opinion.
In the Supreme Court of Georgia
Decided: June 1, 2022
S22A0103. WYNN v. THE STATE.
COLVIN, Justice.
Bobby Leon Wynn appeals following his conviction for malice
murder in connection with the death of Demontae Ware.1 Wynn
raises six enumerations of error, challenging allegedly improper
impeachment evidence, the exclusion of mental-health testimony,
the failure to charge the jury on a lesser-included offense, allegedly
improper legal testimony, an allegedly improper self-defense charge,
1Ware died on September 7, 2014. On December 5, 2014, a Fulton
County grand jury indicted Wynn on charges of malice murder (Count 1),
felony murder predicated on aggravated assault (Count 2), and aggravated
assault (Count 3). At a trial held from March 29 to 31, 2016, the jury found
Wynn guilty of all three counts. The trial court sentenced Wynn to serve life
in prison without the possibility of parole for malice murder, and the remaining
counts were either merged for sentencing purposes or vacated by operation of
law. Wynn filed a timely motion for new trial on April 26, 2016, and amended
the motion on January 17, 2020. After conducting a hearing on April 22, 2021,
the trial court denied the motion on April 28, 2021. The case was docketed in
this Court for the term beginning in December 2021 and submitted for a
decision on the briefs.
and cumulative error. We affirm.
The evidence presented at trial showed that Wynn, who was an
inmate at the Fulton County Jail, shared a cell with Ware on
September 7, 2014. In the early hours of that morning, Wynn used
cloth to strangle Ware to death.
Following the strangling, a detention officer tasked with
delivering food to the inmates arrived at Wynn’s cell. The cell was
dark, and he instructed Wynn to turn the lights on. Wynn complied
and then calmly told him, “I had to do it.” The officer asked, “You
had to do what?” Wynn responded, “I had to kill him.” The officer
observed Ware on the ground but believed Wynn and Ware were
playing a joke on him. He completed his task of delivering food trays
before returning to the cell. At that point, the officer determined
that Ware was not responding and called for assistance.
When medical personnel arrived, they found cloth pieces tied
around Ware’s neck and hands. The cloth was tied so tightly that it
could not be removed without the use of special medical tools. Ware
was taken to the hospital, where he was pronounced dead.
2
According to a medical examiner, strangulation could cause
unconsciousness in 12 to 15 seconds, but it would not cause death
absent several minutes of consistent pressure. An autopsy later
revealed that Ware’s strangulation had caused a hemorrhage in his
neck muscles and a fracture in the hyoid bone at the top of his neck.
Testifying in his own defense, Wynn claimed that he woke up
to find Ware punching him in the back of the head and biting him.
Wynn claimed that he tried to fight Ware off but got pushed up
against the door, where he jammed his shoulder and scraped his
back. 2 At that point, he said, “I was like, well, I got to do something
[because] this guy’s going to kill me.” According to Wynn, he
unraveled cloth strips that had been wrapped around his hands as
makeshift boxing gloves, wrapped the strips around Ware’s neck,
and pulled until Ware passed out. Once Ware was “knocked out,”
Wynn said, he tied the strips around Ware’s neck, and Ware fell to
the ground. Wynn said that he then used additional cloth to tie
2 However, an investigator who met with Wynn following the killing
observed that he had only a minor abrasion on his shoulder and a bumped or
scraped knee.
3
Ware’s hands behind his back so Ware could not remove the
restraint on his neck and harm Wynn again. Wynn claimed that he
had hit the panic button in his cell and screamed for help during the
altercation and again after tying Ware’s hands, but officers did not
come.
An inmate who was in a nearby cell during Ware’s
strangulation testified that he heard Wynn yell “he’s attacking me”
and “help” a few times but that he did not believe Wynn’s calls for
help were serious because he did not think Ware would attack
Wynn. The inmate further said that, although the detention officers
would have known that Wynn had pushed the panic button, they
likely would not have heard him yelling, and they did not respond.
1. Wynn argues that the trial court plainly erred in
permitting the State to use allegations that Wynn had committed a
prior sexual assault against another inmate in 2011 to impeach
Wynn and in failing to instruct the jury to disregard the resulting
4
testimony.3 We disagree.
On cross-examination of Wynn, the State sought to impeach
him by asking about his prior convictions for being a felon in
possession of a firearm, criminal damages to property, entering an
automobile, and theft by taking. 4 Wynn admitted that he had pled
guilty to the charges. On redirect examination, defense counsel
asked Wynn, “Have you ever had any convictions where you hurt
anyone?” Wynn responded, “No, I never actually hurt anyone
before.” The following exchange then occurred on re-cross:
Q: You also just testified that you’d never hurt anyone
before; is that right?
A: No.
Q: In 2011, you were actually investigated and the jail
actually brought administrative charges against you for
assaulting another cellmate of yours; is that right?
A: No. I have not been – I have not assaulted anybody in
2011.
3 Although the State filed a pretrial motion under OCGA § 24-4-404 (b)
to admit evidence that Wynn had allegedly raped a fellow inmate in 2011 to
show motive and intent, the State later withdrew its motion, conceding that
there was no evidence of sexual assault in this case.
4 Before trial, the State filed notices of intent to introduce the prior
convictions for impeachment purposes.
5
Q: So are you saying that in 2011 you didn’t sexually
assault Roger Thomas in your cell on June 14th, 2011?
A: No, sir. He just said that so he could get out of the cell.
...
Q: So are you saying you didn’t rape your cellmate in
2011?
A: No, I didn’t rape anyone.
Defense counsel did not object to this line of questioning but instead
followed up by asking Wynn, “you’re saying that [the inmate] made
[the rape allegation] up?” Wynn responded, “Yeah.”
During its closing argument, the State argued that Wynn had
not testified credibly. The State noted that Wynn had “a motive to
shade and color his testimony and exaggerate it” because “[h]e’s got
an interest in the outcome of the case.” The State further argued
that, based on his trial testimony, “we already know that [Wynn is]
prone to exaggerating and lying himself out of trouble.” To support
this contention, the State cited instances in which Wynn had lied or
otherwise denied responsibility for conduct on the stand, including
6
when he claimed that he “didn’t rape [his] cellmate.”
On appeal, Wynn argues that the trial court should have
excluded the impeachment evidence. He contends that the evidence
was clearly inadmissible because the allegations that he committed
sexual assault were irrelevant, see OCGA § 24-4-401, unfairly
prejudicial, see OCGA § 24-4-403, testimonial statements that
violated the Confrontation Clause of the Sixth Amendment to the
United States Constitution, and hearsay without an exception, see
OCGA § 24-8-801 (c). He further argues that the trial court should
have sua sponte given a curative instruction to address unfair
prejudice arising from the impeachment evidence.
Because Wynn did not raise any objection regarding the
impeachment evidence at trial and did not request a curative
instruction, we review these issues only for plain error. See Grier v.
State, 313 Ga. 236, 240 (3) (869 SE2d 423) (2022) (unpreserved
Confrontation Clause and hearsay objections reviewed for plain
error); Dunn v. State, 312 Ga. 471, 477 (2) (b) (863 SE2d 159) (2021)
(unpreserved relevance objection reviewed for plain error); Castillo-
7
Velasquez v. State, 305 Ga. 644, 652 (4) (827 SE2d 257) (2019)
(unpreserved Rule 403 objection reviewed for plain error); Davis v.
State, 302 Ga. 576, 582 (3) (805 SE2d 859) (2017) (failure to sua
sponte give curative instruction regarding impeachment evidence
reviewed for plain error). To establish plain error, a defendant must
show that (1) an error occurred, which was not affirmatively waived,
(2) the error was clear and obvious, (3) the error “affected his
substantial rights,” and (4) the error “seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Grier, 313
Ga. at 240 (3) (citation and punctuation omitted).
Here, Wynn’s claim fails on the first prong of plain-error review
because he has not identified any error. “When the criminal
defendant takes the stand, any discrepancies in his testimony may
be fully explored on cross-examination regardless of their relevance
or the fact that it may reflect poorly on the defendant’s character.”
Taylor v. State, 302 Ga. 176, 180 (3) (805 SE2d 851) (2017) (citation
and punctuation omitted). By testifying that he had “never actually
hurt anyone before,” Wynn invited the State to cross-examine him
8
on the matter in an attempt to contradict and discredit his
testimony. See OCGA § 24-6-621 (“A witness may be impeached by
disproving the facts testified to by the witness.”). The State did just
that, asking targeted questions intended to elicit testimony that
Wynn had in fact hurt someone before. See Taylor, 302 Ga. at 180(3) (“The prosecutor’s cross-examining appellant about the nature of
the altercation with his girlfriend was admissible for the purpose of
impeachment inasmuch as appellant testified dishonestly about the
reasons why he had been ejected from his girlfriend’s car.”); see also
Anderson v. State, 307 Ga. 79, 82 (2) (b) (834 SE2d 830) (2019)
(holding that the State was permitted to admit an interview
recording “to impeach [the witness] by contradiction”).
Nor did the court err in failing to exclude the impeachment
evidence under OCGA § 24-4-403 (“Rule 403”), which provides:
Relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury
or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
“[T]he exclusion of relevant evidence under Rule 403 is an
9
extraordinary remedy that should be used only sparingly.”
Venturino v. State, 306 Ga. 391, 395 (2) (b) (830 SE2d 110) (2019)
(citation and punctuation omitted). Here, although Wynn argues
that the State’s questions “suggested that it was Wynn’s nature to
commit serious violent felonies against his cellmates,” the State
never argued to the jury that the evidence demonstrated Wynn’s
propensity for violence but rather that his testimony about the
alleged sexual assault reflected badly on his credibility. Moreover,
Wynn’s testimony that he had “never actually hurt anyone before”
suggested that he lacked a propensity for violence, opening the door
to the State’s limited impeachment. See OCGA § 24-4-405 (b).
Given the limited and probative nature of the State’s inquiry, the
impeachment evidence was not substantially more prejudicial than
probative. See Dunbar v. State, 309 Ga. 252, 255-256 (2) (845 SE2d
607) (2020) (holding that Rule 403 did not require the trial court to
exclude evidence of an AK-47 rifle found during a search of the
defendant’s home, which was admitted as impeachment evidence
“only after [the defendant] herself opened the door for its admission”
10
by testifying that she “never wanted to see a gun in her life”
(punctuation omitted)).
Moreover, the record belies Wynn’s contention that the State’s
questions introduced out-of-court statements that might run afoul
of the Confrontation Clause and hearsay rules. See OCGA § 24-8-
801 (c) (“‘Hearsay’ means [an out-of-court] statement . . . offered in
evidence to prove the truth of the matter asserted.” (emphasis
supplied)); Wilson v. State, ___ Ga. ___, ___ (2) (a) (869 SE2d 384)
(2022) (“[T]he Confrontation Clause . . . applies only to testimonial
statements[.]” (emphasis supplied)). Rather than asking Wynn
about what the inmate had said about the alleged sexual assault,
the State asked whether Wynn had in fact sexually assaulted the
inmate and been charged with doing so.
We discern no error in the trial court’s permitting the
testimony, and a curative instruction was unnecessary.
2. Wynn argues that the trial court erred in excluding as
irrelevant testimony from Racquel McGee, a mental-health-services
provider at the Fulton County Jail. Although we conclude that the
11
testimony was relevant, we also conclude that the trial court’s error
in excluding the testimony was harmless.
At trial, the court conducted a hearing outside the presence of
the jury to determine whether the State could use statements Wynn
had made to several investigators for impeachment purposes. The
court heard testimony from the investigators, as well as from
McGee. Lieutenant Audrey Payton, a jail unit manager tasked with
handling an administrative investigation into Ware’s death, spoke
with Wynn shortly after the incident. According to the lieutenant,
Wynn told her, among other things, that Ware had urinated on him
in the middle of the night and that Ware had ignored Wynn’s
requests not to use the water fountain, even though Ware “had a
nasty sore on his mouth.” The lieutenant testified that, when he
made his statement, Wynn was articulate and calm and appeared to
understand what was going on.
Sergeant Sandra Reese testified that she had interviewed
Wynn about two weeks after the incident in connection with an
administrative disciplinary hearing. Wynn told Sergeant Reese that
12
he was set up by staff and had not killed Ware. According to
Sergeant Reese, Wynn said that Ware was alive when an officer
escorted him out of the cell, and that, when the officer returned him
to the cell, Ware was on the floor with his neck and hands tied.
Wynn further told Sergeant Reese that the officer locked Wynn in
the cell with Ware, and Wynn put a sheet over Ware’s body.
Sergeant Reese said that Wynn “was very eager to talk about the
situation,” was talking in an appropriate manner the way a normal
person would, and appeared to understand what was going on.
The court also heard testimony from McGee, who said that she
had observed Wynn in the psychiatric observation unit on several
occasions both before and after Ware’s death. According to McGee,
Wynn was placed in the unit immediately after Ware’s death, and
McGee observed that he was acting as he typically did, being loud,
yelling at people, and punching in the air. McGee testified that she
had only briefly conversed with Wynn because it was difficult for
most people to talk with him, and he appeared not to like her.
McGee further said that, when medicated, Wynn was like a normal
13
person and would speak, but that he was on and off his medication
around the time of the incident. McGee admitted that she was not
present when investigators spoke with Wynn and that she had no
opinion as to whether the conversations Wynn had with
investigators were similar to her own conversations with him or
whether he acted appropriately during those interviews.
Based on the above testimony, the court found by a
preponderance of the evidence that Wynn’s statements to
investigators were voluntary. The court further ruled that McGee’s
testimony was irrelevant. Accordingly, the court permitted the
State to use Wynn’s prior statements to investigators for
impeachment purposes and excluded McGee’s testimony.
On cross-examination, the State questioned Wynn about
several of his prior statements. Among other things, Wynn denied
telling Lieutenant Payton that Ware had urinated on him and
admitted that he lied to Sergeant Reese about Ware being alive
when he left the cell “because [he] wanted to get [the officers] in
trouble” and frame them for murder. Wynn claimed that he “wasn’t
14
really in a good state of mind” when he made up the story he told to
Sergeant Reese. On redirect, Wynn elaborated on his state of mind,
saying that he suffered from bipolar disorder and that he was “pretty
much out of control” when he gave his statement to Sergeant Reese
because he was not properly medicated at the time.
After the defense rested, the State called Sergeant Reese in
rebuttal. In her testimony, Sergeant Reese reiterated what she had
previously told the court about the statements Wynn had made
during his administrative disciplinary hearing. Wynn then testified
in surrebuttal that, when he spoke to Sergeant Reese, he “was very
bipolar” and “wasn’t on [his] medicine, so [he] was just saying
anything.”
On appeal, Wynn argues that the trial court erred in excluding
McGee’s testimony as irrelevant. He contends that McGee’s
testimony tended to show that his prior statements to investigators
were involuntary because he was incompetent at the time and that
deciding whether his statements were voluntary was ultimately a
question for the jury to decide. See State v. Tye, 276 Ga. 559, 561 (2)
15
(580 SE2d 528) (2003) (noting that, in determining the voluntariness
of a statement, “mental condition is surely relevant to an
individual’s susceptibility to police coercion” (citation and
punctuation omitted)); Volkova v. State, 311 Ga. 187, 190-191 (2)
(855 SE2d 616) (2021) (“[D]etermining the voluntariness and,
consequently, the admissibility of a defendant’s statement in a
criminal case is a two-step process. Initially, the trial court
addresses the issue outside the presence of the jury and, if the
statement is determined to be voluntary, it is admitted for the jury
to make the ultimate determination as to its voluntariness and,
thus, its probity as inculpatory evidence.” (citation and punctuation
omitted)); Robles v. State, 277 Ga. 415, 420 (7) (589 SE2d 566) (2003)
(noting that a “court [must] make a determination as to the
voluntariness of [a defendant’s custodial] statement” before
admitting the statement for impeachment purposes). 5
Although McGee’s testimony was relevant to whether Wynn’s
The trial court charged the jury that it needed to find that Wynn’s prior
5
statements were voluntary before it could rely upon them.
16
statements to investigators were voluntary, “we conclude that its
exclusion was harmless.” Walker v. State, 296 Ga. 161, 168 (2) (766
SE2d 28) (2014). “The test for determining nonconstitutional
harmless error is whether it is highly probable that the error did not
contribute to the verdict.” Smith v. State, 299 Ga. 424, 432 (2) (d)
(788 SE2d 433) (2016) (citation and punctuation omitted).
Here, Wynn introduced through his own testimony evidence
that he suffered from bipolar disorder and that he was “pretty much
out of control” and “just saying anything” to investigators because
he was not properly medicated at the time. In light of this
testimony, McGee’s proposed testimony was of little probative value.
At most, McGee could have bolstered Wynn’s claim that he did not
act normally when not properly medicated and that he might not
have been properly medicated when investigators interviewed him.
Because McGee was not present for the interviews and did not know
whether he was medicated at the time, however, she could not opine
on Wynn’s mental condition when he spoke to investigators. Thus,
on the point that was key to Wynn’s argument that his statements
17
were involuntary, McGee had no firsthand knowledge. Moreover,
the combination of McGee’s testimony that Wynn appeared normal
when properly medicated and Sergeant Reese’s testimony that
Wynn appeared normal when giving his statement undermined
Wynn’s claim that he was off his medication at the time.
Further, “any error is harmless in this case given the
substantial evidence of appellant’s guilt.” Parks v. State, 300 Ga.
303, 308 (2) (794 SE2d 623) (2016). The evidence showed that Wynn
not only strangled Ware with cloth but tied the cloth so tightly that
it caused a hemorrhage and broke a bone in Ware’s neck. The
evidence further showed that, although Wynn could have rendered
Ware unconscious by strangulation in 12 to 15 seconds, causing
Ware to die from strangulation required Wynn to apply consistent
pressure on Ware’s neck for several minutes. Moreover, Wynn
admitted at trial that, after Ware passed out, Wynn tied Ware’s
hands behind his back such that it would have been impossible for
him to relieve the tension on the cloth tied around his neck even if
he regained consciousness. Given the strong evidence of Wynn’s
18
guilt, we conclude that “it is highly probable” that any error in
excluding McGee’s proposed testimony from the jury’s consideration
“did not contribute to the verdict.” Smith, 299 Ga. at 432-433 (2) (d).
3. Wynn argues that the trial court erred in failing to
instruct the jury on involuntary manslaughter as a lesser-included
offense of malice murder. Specifically, Wynn argues that the court
should have charged the jury on subsection (a) of OCGA § 16-5-3,
which provides:
A person commits the offense of involuntary
manslaughter in the commission of an unlawful act when
he causes the death of another human being without any
intention to do so by the commission of an unlawful act
other than a felony. . . .
OCGA § 16-5-3 (a). Wynn did not object to the court’s failure to give
an involuntary manslaughter instruction after the court charged the
jury. “[C]onsequently, review of the issue by this Court is precluded
by OCGA § 17-8-58 unless plain error is shown.” Barron v. State,
297 Ga. 706, 707-708 (2) (777 SE2d 435) (2015) (footnote omitted)
(reviewing the trial court’s failure to give a requested jury charge for
plain error because the defendant did not renew his objection after
19
the court charged the jury); see also OCGA § 17-8-58 (b) (noting that
this Court reviews for plain error unpreserved objections to a jury
charge).
Wynn has not carried his burden to show plain error because
he has not established that the asserted error “was obvious beyond
reasonable dispute.” Horton v. State, 310 Ga. 310, 319 (3) (849 SE2d
382) (2020) (citation and punctuation omitted). Wynn contends that
the court should have given an involuntary manslaughter charge
because his testimony at trial provided more than slight evidence
supporting the charge. See Soto v. State, 303 Ga. 517, 520 (2) (813
SE2d 343) (2018) (“A written request to charge a lesser included
offense must always be given if there is any evidence that the
defendant is guilty of the lesser included offense.” (citation and
punctuation omitted)). Specifically, Wynn points to his testimony
that, “when [he] tied that [cloth string] around [Ware’s] neck, [he]
didn’t mean to kill [Ware,]” which he contends could have supported
a finding that he “cause[d] the death of [Ware] without any intention
to do so.” OCGA § 16-5-3 (a).
20
This argument, however, takes Wynn’s testimony out of
context. First, it ignores what he said immediately following these
statements—“I [was] just trying to defend myself”—which indicated
that he intended to kill Ware in self-defense. Second, the argument
ignores Wynn’s conflicting admission that he “intentionally tied the
string” around Ware’s neck after Wynn had passed out from the
strangulation and “wasn’t moving” anymore and that “the point” of
tying Ware’s hands behind his back was to prevent Ware from
removing the cloth around his neck so Ware could not strike Wynn
again. 6
While Wynn’s testimony provided slight evidence supporting a
self-defense charge, there was no evidence supporting a charge that
Wynn unintentionally killed Ware, given Wynn’s admission that he
intentionally strangled Ware and intentionally took additional steps
to prevent Ware from untying the cloth that had rendered Ware
6 The fact that Wynn tied the cloth around Ware’s neck after Ware had
passed out was not slight evidence that Wynn believed Ware was already dead
and thus that Wynn did not intend to kill him because Wynn testified that he
believed Ware was only “knocked out” and not dead when he tied the cloth
around Ware’s neck and hands.
21
unconscious. See Williams v. State, 301 Ga. 712, 718 (5) (804 SE2d
31) (2017) (holding that “a charge under OCGA § 16-5-3 (a) was not
warranted” because the defendant “admitted that he intentionally
shot the victim”). Much like “[t]he intentional use of a gun[,] the
deadly force of which is known to all,” the force involved in
strangling a person to the point of unconsciousness, tying cloth
tightly around that person’s neck, and then tying the person’s hands
in a way designed to prevent that person from relieving tension from
the neck restraint “is simply inconsistent with the lack of intent to
kill which is a prerequisite in involuntary manslaughter.” Harris v.
State, 272 Ga. 455, 456 (3) (532 SE2d 76 (2000) (citation and
punctuation omitted). Further, because the evidence at best
supported a finding that Wynn intentionally strangled Ware in self-
defense, “the crimes were either committed as charged or not
committed at all, and there was no evidence that [Wynn] was
committing a non-felonious unlawful act,” as required by OCGA
§ 16-5-3 (a). Stepp-McCommons v. State, 309 Ga. 400, 404 (2) (b)
(845 SE2d 643) (2020). Accordingly, Wynn has not shown that the
22
trial court plainly erred in failing to instruct the jury on involuntary
manslaughter.
4. Wynn argues that the trial court erred in failing to
instruct the jury to disregard allegedly improper legal testimony
offered by Detective Scott Demeester, who investigated the
homicide, both when Detective Demeester offered the testimony and
when the State referenced the testimony in closing argument. We
disagree.
At trial, the State sought to rebut Wynn’s justification defense
by showing that he was not the victim of a forcible felony. To that
end, the State asked Detective Demeester to explain the offenses of
aggravated battery, misdemeanor battery, and simple battery.
After Detective Demeester testified that “aggravated battery can be
losing a member, losing a finger, losing an eye, losing a tooth, you
know, being shot, losing your liver,” Wynn objected that Detective
Demeester was giving improper legal testimony. The court
overruled the objection but told the jury, “I will instruct you as to
what the law is at the conclusion of this case.” Detective Demeester
23
then testified that misdemeanor battery “mean[s] a visible injury
like a bloody lip, a black eye, bruising,” and that “simple battery
would be . . . like the threat of an assault.” Detective Demeester also
testified that, when meeting with Wynn following the incident, he
did not observe any “visible injuries, abrasions, lacerations, or
bruising” on Wynn other than a minor abrasion on Wynn’s shoulder
and a bumped or scraped knee.
Outside the presence of the jury, Wynn objected again that
Detective Demeester was giving improper legal testimony about
statutory requirements and asked “that the court instruct the
prosecutor to ask the witness factual questions only and not legal
questions, questions where he’s defining what this statute is or what
this offense is.” The trial court sustained the objection, noting that
it would not permit Detective Demeester to testify about what legal
conclusions the evidence would support. Wynn did not ask the court
to strike Detective Demeester’s testimony about the law or request
a curative instruction, and the court did not tell the jury that the
objection was sustained.
24
During closing arguments, the State reminded the jury that
Detective Demeester “did not see any marks” on Wynn. When the
State argued that “there’s no evidence that [Wynn] was the victim
of a forcible felony,” and, “[a]t most, it was a misdemeanor offense,”
the court sustained Wynn’s objection but did not take further action.
The State then argued that Detective Demeester’s testimony showed
that “at most [Ware committed] a minor offense” because “[Wynn]
didn’t have any injuries that would have risen to the level of felony
assault.”
Because Wynn never requested a curative instruction for the
jury to disregard Detective Demeester’s testimony about the law, we
review his argument for plain error. See Franklin v. State, 306 Ga.
872, 876 (2) (834 SE2d 53) (2019). Wynn has not carried his burden
to show plain error.
Considering the issue in the context of the trial as a whole, we
discern no need for a curative instruction specifically directing the
jury to disregard Detective Demeester’s legal testimony. Although
Wynn is correct that Detective Demeester’s testimony included
25
“incorrect statement[s] of law,” the court specifically instructed the
jury during Detective Demeester’s testimony that the court, not
Detective Demeester, was responsible for instructing the jury on the
law. Moreover, when charging the jury that deadly force could be
used in self-defense to prevent the commission of a forcible felony,
the court correctly defined “forcible felony” as “any felony which
involves the use o[r] threat of physical force or violence against any
person.” While the court did not expressly tell the jury to disregard
Detective Demeester’s legal definitions, the court’s instructions,
considered together, amounted to such a charge.
Further, Wynn’s argument fails on the second prong of plain-
error review. We have held that, “[w]here the objection to the
prejudicial matter is sustained, the court has no duty to rebuke
counsel or give curative instructions unless specifically requested by
the defendant.” Stephens v. State, 307 Ga. 731, 734 (1) (a) (838 SE2d
275) (2020). Accordingly, the alleged error was not “clear or obvious
under current law.” Simmons v. State, 299 Ga. 370, 374 (788 SE2d
494) (2016) (citation and punctuation omitted). This enumeration of
26
error therefore fails.
5. Wynn challenges a portion of the trial court’s self-defense
jury charge regarding the use of excessive force. In relevant part,
the court charged the jury as follows:
A person is justified in using force against another person
when and to the extent that he reasonably believes that
such force is necessary to defend himself against the
other’s imminent use of unlawful force. A person is
justified in using force that is intended or likely to cause
death or great bodily harm only if that person believes
that such force is necessary to prevent death or great
bodily injury to himself or to prevent the commission of a
forcible felony. . . .
[A] person is not justified in using force if that person
initially provokes the use of force against himself with the
intent to use such force as an excuse to inflict bodily harm
upon the assailant; is attempting to commit, or is
committing, aggravated assault; or was the aggressor. . . .
[T]he use of excessive or unlawful force while acting in
self-defense is not justifiable, and the defendant’s conduct
in this case would not be justified if you find that the force
exceeded that which the defendant reasonably believed
was necessary to defend against the victim’s use of
unlawful force, if any. . . .
When the force used exceeds that necessary for self-defense,
the law considers the defender to be the aggressor. Self-
defense is a lawful act, but if excessive force is used, the act
becomes unlawful.
27
(Emphasis supplied.) On appeal, Wynn argues that the court erred
in including the italicized language in its jury charge. Wynn
objected to this language at the charge conference and again after
the court charged the jury, preserving the issue for ordinary review
on appeal. “When determining whether a charge is erroneous, we
look to the charges given as a whole.” Grimes v. State, 296 Ga. 337,
343 (1) (b) (766 SE2d 72) (2014).
Here, we conclude that the trial court did not err in giving the
self-defense jury charge. We have held that, because “[a] homicide
is not justified if the force used by the defendant exceeds that which
a reasonable person would believe was necessary to defend against
the victim’s unlawful act,” a defendant who “use[s] excessive force
. . . in response to the victim[’s use of force]” is not justified. Nelson
v. State, 283 Ga. 119, 120 (1) (657 SE2d 201) (2008). The self-defense
charge here adequately captured this principle of law. Although the
challenged portion of the jury charge failed to specify that only force
exceeding “that which a reasonable person would believe was
28
necessary” would make a person the aggressor, id., the portion of the
charge immediately preceding the challenged portion included this
language. Specifically, the court stated that “the defendant’s
conduct in this case would not be justified if you find that the force
exceeded that which the defendant reasonably believed was
necessary to defend against the victim’s use of unlawful force.”
(Emphasis supplied.) Thus, the instruction, when viewed as a
whole, was proper. See Hill v. State, 290 Ga. 493, 497-498 (5) (722
SE2d 708) (2012) (rejecting a challenge to a portion of a self-defense
charge providing that, “[w]here the force used exceeds that
necessary for defense of the person, the law will consider the
defender the aggressor,” because the charge as a whole encompassed
the “reasonable belief” standard).
Wynn raises two arguments as to why the excessive-force
charge was erroneous, but neither is persuasive. First, Wynn argues
that the instruction required the jury to find him guilty of the
charged offenses if it found that he used excessive force at any point
during the incident. However, this argument misconstrues the
29
excessive-force charge, which did not instruct the jury to find Wynn
guilty of a charged offense if it found that he used excessive force but
rather to reject Wynn’s justification defense if the jury found that
the force he used was unreasonable and excessive.
Second, Wynn argues that the charge would have prevented
the jury from acquitting him “even if it found that Wynn only used
excessive force at the beginning of the combat but later used
reasonable, justifiable force when he ultimately killed Ware.” This
argument, too, is misguided, based on the record evidence. The only
evidence as to the sequence of events leading to Ware’s death came
from Wynn’s testimony. Wynn claimed that Ware was the initial
aggressor, that Ware was going to kill him, and that he responded
by strangling Ware to unconsciousness and then tying Ware’s neck
and hands. On these facts, there was no basis for finding that Wynn
initially responded with unreasonable force but later used
reasonable force to kill Ware. As described in Division 3 above,
Wynn’s description of his own conduct was inconsistent with a
finding that he used force without an intent to kill Ware. Thus, if
30
the jury credited Wynn’s claim that Ware was the initial aggressor,
it could have found only that Wynn reasonably or unreasonably
responded with deadly force. There was no room for the jury to find
that Wynn initially responded to Ware’s aggression with
unreasonable force and later used reasonable force to kill him.
Accordingly, this enumeration of error lacks merit.
6. Finally, Wynn argues that he is entitled to a new trial due
to the cumulative prejudicial impact of the trial court’s errors. See
State v. Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020) (holding that
“Georgia courts considering whether a criminal defendant is entitled
to a new trial should consider collectively the prejudicial effect of
trial court errors”). A cumulative error analysis, however, requires
an appellant to show that “at least two errors were committed in the
course of the trial.” Flood v. State, 311 Ga. 800, 808 (2) (d) (860 SE2d
731) (2021) (citation and punctuation omitted). Here, there is no
basis for evaluating the cumulative effect of errors because we have
identified only one error and rejected Wynn’s other claims. See id.
at 808-809 (2) (d).
31
Judgment affirmed. All the Justices concur, except Warren, J.,
who concurs in judgment only as to Division 4.
32