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Shinholster v. State

The evidence did not support a charge on reckless conduct where the defendant shot the victim intentionally and claimed self-defense.

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Jamell Shinholster was convicted of aggravated assault. On appeal he contends that the trial court erred by failing to instruct the jury on reckless conduct, and that the court should have prevented the State from referring to reckless conduct during closing argument. Construed in favor of the verdict, the evidence shows that Shinholster intentionally fired a gun at another man in connection with an ongoing altercation between the two men. Shinholster admitted that he shot at the victim but claimed that he shot in self defense.

During the course of the jury charge conference, defense counsel orally requested a jury charge on reckless conduct as a lesser-included offense of aggravated assault. The court denied the request because Shinholster had failed to present a written request as required by OCGA § 5-5-24 b. During Shinholster’s closing argument, Shinholster’s counsel argued that although there would be no jury charge on the matter, the State should have charged Shinholster with reckless conduct only. The State objected, and the court prohibited defense counsel from referring to the law of reckless conduct. During its closing, the State noted that Shinholster had been charged with aggravated assault, and said, “It’s not reckless conduct. While it may be reckless, it fits into the parameters of what aggravated assault is. And that’s what he is charged with.” The defense attorney did not object to this statement during the closing itself but, rather, shortly thereafter.

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