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Giddens v. State

Any error in the trial court's charge on aggravated assault was harmless, since the defendant admitted that his actions would constituted aggravated assault, unless the jury found that he acted in self defense.

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Leonard Giddens shot and killed Winford McGatha during an altercation. At trial, Giddens admitted that he shot McGatha, but claimed that he did so in self defense. The jury acquitted Giddens of malice murder and felony murder and found him guilty of aggravated assault. He moved for a new trial, arguing that: 1 the State failed to prove his guilt beyond a reasonable doubt; 2 the trial court erred in instructing the jury; and 3 he received ineffective assistance of counsel. The trial court denied Giddens’ motion, and for reasons that follow, we affirm. 1. Giddens argues that there was insufficient evidence to support his conviction. On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict and do not presume that the defendant is innocent.1 Moreover, we do not weigh the evidence or determine witness credibility.2 Viewed in this manner, the evidence shows that on March 31, 2003, Giddens and McGatha were both driving tractor trailers on Highway 16 in Carroll County. When Giddens attempted to pass McGatha, McGatha swerved in front of him. Giddens saw McGatha talking on a cell phone. He then called McGatha on the CB radio and told him to “put that m_____ f______ cell phone down before you kill somebody.”

Sandy Elrod was speaking to McGatha on the cell phone and overheard Giddens’ comments on the CB radio. She heard the words “M F’er, if you do not pull your truck over, I’ll pull it over for you. I’m going to kill you.” She testified that McGatha did not respond to Giddens, but told her that “somebody’s fixing to get killed.” Although Elrod stayed on the cell phone, she heard no further conversation between McGatha and Giddens. Giddens contends, however, that the verbal exchange continued, and that McGatha used a racial epithet and threatened him.

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