Mosby v. State

796 S.E.2d 277, 300 Ga. 450, 2017 WL 279529, 2017 Ga. LEXIS 1
CourtSupreme Court of Georgia
DecidedJanuary 23, 2017
DocketS16A1580
StatusPublished
Cited by40 cases

This text of 796 S.E.2d 277 (Mosby v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mosby v. State, 796 S.E.2d 277, 300 Ga. 450, 2017 WL 279529, 2017 Ga. LEXIS 1 (Ga. 2017).

Opinion

BENHAM, Justice.

Appellant Leslie Mosby was convicted of murder and other offenses arising out of the shooting death of Theisen Wynn.1 Viewed in the light most favorable to the verdict, the trial evidence showed that at the time of the shooting, Mosby and Pat Burns had been in a romantic relationship for over a year, but the women began having difficulties in their relationship, and Burns moved out and befriended Wynn. At approximately 5:00 a.m. on November 13, 2012, as Wynn and Burns were driving into a parking space in the parking lot of a suites hotel in Fulton County, Mosby drove up and partially blocked Wynn’s car. Mosby angrily confronted Burns and Wynn about whether they were involved in a relationship and made threats against Burns. During this confrontation, Mosby pointed a gun toward Burns and fired it. Burns was not struck and ran into the hotel lobby, but more shots were fired, including return fire by Wynn. According to the evidence, Mosby fired a total of four bullets from her gun and Wynn fired a total of eleven. Wynn sustained four bullet wounds in the gun battle and later died during surgery Mosby was also shot four times, and she fled to a [451]*451friend’s house from which she was transported to a hospital by ambulance. As she was fleeing the scene, Mosby threw away her weapon. In fact, neither gun was recovered. Mosby underwent surgery to treat her wounds, and immediately after she awoke from surgery she was read her rights, informed about why she was being restrained to her hospital bed, and then questioned by an officer who made an audio recording of the interview that was played to the jury.

At trial, Mosby testified that while she and Burns were arguing in the parking lot, she saw Wynn “fumbling” with what she believed to be a gun that he placed in a cloth bag, such as a whiskey bottle bag, and then put in his coat pocket. Mosby stated she pulled her gun and started backing away to her car, and that she fired a warning shot at Burns because she wanted her to back off. Mosby then heard a shot ring out and realized Wynn was shooting at her through his coat pocket. Mosby testified she took cover in her car and fired back in self-defense.

1. Mosby asserted the affirmative defense of self-defense, and points to her own testimony and certain other evidence which she claims supports this defense, including a security surveillance videotape that captured the events in question. When a defendant effectively raises an affirmative defense such as self-defense the State bears the burden of disproving the asserted defense beyond a reasonable doubt. Bennett v. State, 265 Ga. 38, 39 (1) (453 SE2d 458) (1995). With respect to the sufficiency of the evidence, Mosby asserts the evidence was insufficient to disprove that she acted in self-defense. For example, according to the medical examiner’s testimony, the victim sustained a muzzle imprint wound to his left thigh, and she explained such a wound would be caused by the muzzle of a weapon being in contact with the body at the time the gun was fired. Mosby asserts the videotape shows she was never close enough to the victim to cause such a contact wound. Instead, she argues this wound supports her testimony that the victim reached for a gun in his pocket, and she further argues this explains that the shot she heard, which caused her to start firing back and retreat to her car, was the victim accidentally shooting himself with his own gun as he reached for it. The evidence shows, however, that the victim’s fatal wound was sustained from a gunshot to his right groin which severed an artery Consequently, the State argues that a self-inflicted wound from a muzzle imprint to the victim’s left thigh “changes nothing,” and, in light of the other evidence, does not support Mosby’s claim of justification. Mosby, however, asserts that regardless of the initial “warning shot” she fired toward Burns, once the victim commenced firing his gun she shot back only in self-defense.

[452]*452The record reflects that the video was played to the jury multiple times as various witnesses testified about what the video portrayed, and was also played at least three times during the jury’s deliberations at its request. The parties agree that the speed of the video was slowed down for the jury to view, and possibly that it was played frame by frame. Having reviewed the video recording, we agree with the State that a jury reasonably could have found that Mosby’s version of the events was not supported by the video and other evidence. Instead, the video supports the State’s assertion, and Mosby’s own testimony, that Mosby fired the first shot. Burns testified the altercation started when Mosby verbally threatened Burns, and the video appears to show that Mosby pushed Burns before any shooting began. Burns also testified that Mosby fired the first shot. The security video appears to show a gun muzzle flash from Mosby’s weapon as the first evidence of any shot being fired. The video then shows a short gun battle between Mosby and the victim.

When evaluating the sufficiency of the evidence, this Court does not reweigh the evidence or resolve conflicting testimony Instead, this Court reviews the evidence in a light most favorable to the verdict and defers to the jury’s assessment of the weight and credibility of the evidence. See Anthony v. State, 298 Ga. 827, 829 (1) (785 SE2d 277) (2016). An aggressor is not entitled to a finding of justification. See OCGA § 16-3-21 (b) (3). Further, the question of whether the circumstances of an alleged confrontation between a defendant and a victim were such as to excite the fears of a reasonable person to believe it was necessary to use deadly force against the victim is an issue for the jury. Howard v. State, 298 Ga. 396, 398 (1) (782 SE2d 255) (2016). It is obvious from the verdict that the jury disbelieved Mosby’s testimony that she was justified in firing at Wynn, and that the jury relied upon other evidence, including Burns’s testimony and the events shown on the videotape, to reach its verdict, as it was entitled to do. See Berrian v. State, 297 Ga. 740, 741-742 (1) (778 SE2d 165) (2015). The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Mosby did not act in self-defense and was not otherwise justified when she shot the victim. See Slaughter v. State, 278 Ga. 896 (608 SE2d 227) (2005). We also conclude the evidence was otherwise sufficient to sustain the guilty verdict on all other counts for which Mosby was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

2. Mosby asserts she is entitled to a new trial due to ineffective assistance of trial counsel. She argues trial counsel’s performance was deficient, and failed to meet an objective standard of reasonable professional judgment, because counsel failed to consult with a crime scene reconstruction or firearms expert prior to trial or to retain such [453]*453an expert as a witness to challenge the testimony or other evidence relating to the shootout. According to Mosby, an expert’s assistance in reviewing the ballistics evidence would have enabled counsel to support Mosby’s defense more effectively Further, Mosby claims counsel’s failure to present expert testimony to explain the events seen in the security video rendered counsel’s presentation of Mosby’s justification defense incompetent.

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Bluebook (online)
796 S.E.2d 277, 300 Ga. 450, 2017 WL 279529, 2017 Ga. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mosby-v-state-ga-2017.