Return to Transcripts main page

At This Hour

Jury to Begin Deliberations in Arbery Killing Trial. Aired 11- 11:30a ET

Aired November 23, 2021 - 11:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[11:00:00]

(JOINED IN PROGRESS)

JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, STATE OF GEORGIA: -- as well as the following factors: one, the validity of the theory of identification by fingerprint comparison;

Two, the credibility of the witness who performs other necessary functions in making the comparison, such as inked finger impressions and latent lifts;

And, three, the accuracy of procedures in identifying, preserving, recording and maintaining integrity of the physical evidence, all of which are questions for the jury.

Now the defendants are charged with crimes against the laws of this state. A crime is a violation of a statute of this state, in which there is a joint operation of an act and intention.

Intent is an essential element of any crime and must be proved by the state beyond a reasonable doubt. Intent may be shown in many ways, provided you, the jury, believe that it existed from the proven facts before you.

It may be inferred from the proven circumstances or by acts and conduct. Or it may be, in your discretion, inferred when it is the natural and necessary consequence of the act.

Whether or not you draw such an inference is a matter solely within your discretion. Criminal intent does not mean an intention to violate the law or to violate a penal statute but means simply the intention to commit the act that is prohibited by the statute.

The defendants will not be presumed to have acted with criminal intent but you may find such an intention upon a consideration of words, conduct, demeanor, motive and other circumstances connected with the act for which the accused are being prosecuted.

Now every party to a crime may be charged with and convicted of commission of the crime. A person is a party to a crime only if that person, A, directly commits the crime; B, intentionally helps in the commission of the crime or, C, intentionally advises, encourages, hires, counsels or procures another to commit the crime. Any party to a crime who did not directly commit the crime may be

prosecuted for commission of the crime upon proof that the crime was committed and that the person was a party to it, even though the person alleged to have directly committed the crime has not been prosecuted or convicted, has been convicted of a different crime or degree of crime, is not amenable to justice or has been acquitted.

Knowledge on the part of the defendant that a crime was being committed and that a defendant knowingly and intentionally participated in or helped in the commission of such crime must be proved by the state beyond a reasonable doubt.

If you find, from the evidence in this case, that a defendant had no knowledge that a crime was being committed or that a defendant did not knowingly and intentionally commit, participate or help in the commission of the alleged offense, then it would be your duty to acquit that defendant.

On the other hand, should you find, beyond a reasonable doubt, that a defendant had knowledge that a crime was being committed and that a defendant knowingly and intentionally participated or helped in the commission of it, then you would be authorized to convict that defendant.

A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by misapprehension of fact that, if true, would have justified the act or omission.

Now the law provides that a criminal action shall be tried in the county where the crime was committed. Venue -- that is that the crime was committed in Glynn County -- is a jurisdictional fact that must be proved by the state beyond a reasonable doubt as to each crime charged in the indictment, just as any element of the offense.

Venue must be proved by direct or circumstantial evidence or both.

The defendants are charged with the offenses of malice murder; felony murder in four counts; aggravated assault, two counts; and false imprisonment -- I'm sorry -- false imprisonment and criminal attempt to commit a felony.

I will now define the offenses for you.

For malice murder, the state must prove that the defendant, one, caused the death of another person; two, unlawfully and three, with malice aforethought. The killing must have been done with malice to be murder.

[11:05:00]

WALMSLEY: Malice, as the term is used here, is not necessarily ill will or hatred; rather, it is the unlawful intent to kill without justification.

You may find malice when the circumstances show that the defendant acted in the deliberate -- or, I'm sorry -- with the deliberate intention to unlawfully take the life of another person.

You may also find malice when there does not appear to be significant provocation and all the circumstances of the killing show an abandoned and malignant heart.

The state does not have to prove premeditation to prove murder. If the killing is done with malice, it is murder, regardless of how briefly the malicious intent existed. No specific length of time is required for malice to arise in a defendant's mind.

Malice may be formed in a moment and, instantly, a fatal wound may be inflicted. If malice was in a defendant's mind at the time of the act or the killing and moved a defendant to do it, that is enough for the killing to be murder.

The state does not have to prove motive to prove murder. Any evidence of modus -- modus, excuse me -- any evidence of motive has been admitted for your use in determining a defendant's state of mind at the time of the killing.

A person also commits the crime of felony murder when, in the commission of a felony, that person causes the death of another human being. Under the laws of Georgia, aggravated assault, false imprisonment and criminal attempt to commit false imprisonment are all felonies that will be defined later in this charge.

You may find a defendant guilty of felony murder if you believe that he caused the death of another person by committing one of the felonies just described, regardless of whether he intended the death to occur. There must be some causal connection between the felony and the death.

Felony murder is not established simply because the death occurred at the same time as or shortly after the felony was attempted or committed. The felony must have directly caused the death or played a substantial and necessary part in causing the death, regardless of when the death ultimately occurred.

A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon or with any object, device or instrument that, when used offensively against a person, is likely to or actually does result in serious bodily injury.

To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show, beyond a reasonable doubt, that the defendant attempted to cause a violent injury to the alleged victim or intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury.

As to count six of the indictment, the state must prove, as a material element of aggravated assault as alleged in this case, that the assault was made with a deadly weapon.

As to count seven of the indictment, the state must prove, as a material element of aggravated assault as alleged in this case, that the assault was made with an object, device or instrument that, when used offensively against a person, is likely to or does actually result in serious bodily injury.

A firearm, when used in the way a firearm is ordinarily used, is a deadly weapon.

In deciding whether a pickup truck is an offensive weapon in this case, you may consider all of the following factors: the nature and extent of any injury inflicted, the character or capabilities of the weapon, the manner in which it was used, any display of it to the jury, any other circumstances and any other circumstances of the case.

Whether or not, under all of the facts and circumstances of this case, a pickup truck, as alleged in this bill of indictment, did, in fact, constitute a weapon likely to cause serious bodily injury is a matter to be solely -- I'm sorry -- is a matter to be decided by the jury from the evidence in this case.

Now on count seven, as to defendant William R. Bryan, you may consider the following lesser offenses, which will be presented on his verdict form: simple assault. A person commits simple assault when that person attempts to commit a violent injury to the person of another.

[11:10:00]

WALMSLEY: Reckless conduct: a person commits reckless conduct when that person endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of another person and the disregard constitutes a gross deviation from the standard of care, which a reasonable person would exercise in the situation.

Reckless driving: a person commits the offense of reckless driving by driving any vehicle in reckless disregard for the safety of persons or property.

If you do not believe beyond a reasonable doubt that the defendant, William R. Bryan, is guilty of aggravated assault, as alleged in count seven of the indictment, but you do believe beyond a reasonable doubt that the defendant, William R. Bryan, is guilty of the lesser offenses just listed, you would be authorized to find the defendant, William R. Bryan, guilty of the lesser and should so indicate on the verdict form.

Continuing now with the charges set forth in the indictment, a person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines or detains such person without legal authority.

A person commits criminal attempt to commit false imprisonment when, with intent to commit false imprisonment, that person performs any act that constitutes a substantial step toward the commission of the crime of false imprisonment, which has been previously defined for you.

Now ladies and gentlemen, I charge you that where, as here in count seven and nine of the indictment, the state alleges that the defendants committed a crime in more than one way, the state need not prove that the defendants committed the crime in each way charged; rather, it is sufficient if you, the jury, should find beyond a reasonable doubt that the defendants committed the crime in at least one of the ways alleged.

Now, ladies and gentlemen, the defendants have raised a defense that, even if they committed the acts described in the indictment, there are circumstances that justify it.

Once this defense is raised, the state must disprove it beyond a reasonable doubt. The fact that a person's conduct is justified is a defense to prosecution for any crime based on that conduct.

The defense of justification can be claimed, A, when the person's conduct is justified as the use of force in defense of self or when the person's conduct is reasonable and is performed in the course of making a lawful arrest.

A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.

The terms "in his presence" and "within his immediate knowledge" are synonymous in a crime committed in one's presence, only if, by the exercise of any of his senses, he has knowledge of its commission or by the accused admitting that such a crime is being or has been committed.

A private person may not act on the unsupported statement of others alone.

A private citizen's warrantless arrest must occur immediately after the perpetration of the offense or, in the case of felonies, during escape. If the observer fails to make the arrest immediately after the commission of the offense or during escape, in the case of felonies, his power to do so is extinguished.

A private person may arrest an offender upon reasonable and probable grounds of suspicion; that is, on probable cause, which is defined as facts and circumstances that are sufficient to warrant a prudent person or one of reasonable caution in believing in the circumstances shown that the suspect has committed an offense.

The facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial.

The test merely requires a probability, less than a certainty but more than a mere suspicion or possibility. In determining whether probable cause exists, the totality of the circumstances must be considered.

[11:15:00]

WALMSLEY: Whether probable cause existed is for the determination of the jury.

Now an arrest is defined as the taking, seizing or detaining of the person of another, either by touching or putting hands on him or by any act, indicating an intention to take such person into custody and which subjects such person to the actual control and will of the person making the arrest.

An arrest can occur even when a subject is not told that he is under arrest.

A person is authorized to use, in making a lawful arrest, only that degree of force that is reasonably necessary to accomplish the arrest. The mere fact that a lawful arrest is being made does not give the person the right to use excessive force or an unlawful degree of force upon the person being arrested.

One upon whom an illegal or unlawful arrest is being made has the right to resist the arrest if such force as is reasonably -- let me read that again.

One upon whom an illegal or unlawful arrest is being made has the right to resist the arrest with such force as is reasonably necessary to prevent the arrest.

A person commits the offense of criminal trespass when that person knowingly and without authority, A, enters upon the land or premises of another person for an unlawful purpose; B, enters upon the land or premises of another person after receiving, prior to entry, notice from the owner, rightful occupant or, upon proper identification, an authorized representative of the owner or rightful occupant, that entry is forbidden; or remains upon the land or premises of another person after receiving notice from the owner, rightful occupant or, upon proper identification, an authorized representative of the owner or rightful occupant, to depart.

A person commits the offense of burglary in the first degree, when, without authority and with the intent to commit a theft therein, that person enters or remains within the dwelling of another.

For purposes of this law, a dwelling includes a house, building or structure, which is designed or intended for occupancy for residential use.

It makes no difference whether the building or structure was occupied, unoccupied or vacant. However, you may consider occupation status in determining whether or not the structure in question was designed or intended for residential use.

To constitute the offense of burglary, it is not necessary that it be shown that a break-in occurred.

To constitute entry, the evidence need only show a breaking of the plane of the structure alleged by the offender or by any part of his body or by any instrument controlled by him.

The evidence need not show that an actual theft was accomplished. However, an intent to commit a theft -- that is, an intent to steal -- is an essential element of burglary. You may infer an intent to steal where the evidence shows an unlawful entry without authority into the place of another, where items of some value are present or kept inside and whether there -- and where there is no other apparent motive for the entry.

Whether or not you make such an inference is a matter solely for you, the jury, to determine.

A person commits the crime of hijacking a motor vehicle in the second degree when such person obtains a motor vehicle from an individual without his or her consent.

Now the defendants have raised affirmative defenses, claiming that, even if the acts described in the indictment were committed, there are circumstances that justify them. Once an affirmative defense is raised, the state must disprove it beyond a reasonable doubt.

The fact that a person's conduct is justified is a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed as self-defense and as citizen's arrest.

Sometimes a defendant's threat or use of force is legally justified, so is not a crime. Let me read that again.

Sometimes a defendant's threat or use of force is legally justified and so is not a crime. A defendant is justified in threatening or using force against another when, one, he reasonably believes that the threat or use of force is necessary; two, to defend himself or a third person; three, against the other person's imminent use of unlawful force.

[11:20:00]

WALMSLEY: The defendant is justified in using force that is intended or likely to cause death or serious bodily injury when, one, he reasonably believes that the use of such force is necessary; two, to prevent, A, death or serious bodily injury to himself or a third person or, B, the commission of a forcible felony, which means a felony that involves the use of force or violence against another.

Aggravated assault is, again, a felony which can occur by use of fists if they are used as an offensive weapon.

The state has the burden of proving beyond a reasonable doubt that the defendant's actions were not justified. If you decide a defendant's actions were justified, then it would be your duty to find the defendant not guilty.

A defendant is not justified in threatening or using force if he provokes the threat or use of force, intending to use that threat or force as an excuse to harm the other person; is committing a felony -- aggravated assault, false imprisonment and criminal attempt to commit false imprisonment are felonies that have been previously defined -- or is the unjustified 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.

For a defendant's threat or use of force to be justified, one, the defendant must believe that his threat or use of force is necessary; two, that belief must be reasonable -- that is, a reasonable person would also believe that the threat or use of force is necessary -- and three, the defendant's reasonable belief must be what prompts him to threaten or use force.

A person who is not the aggressor is not required to retreat before being justified in using force he reasonably believes to be necessary.

A defendant is not justified in using excessive force while acting in self-defense. If you decide that a defendant used more force than was reasonably necessary to defend against the alleged victim's threats or use of force, then the defendant's actions would not be justified.

Now if, after considering the testimony and evidence presented to you, together with the charge of the court, you should find and believe beyond a reasonable doubt that a defendant in Glynn County, Georgia, did, on February 23rd, 2020, commit the offenses as alleged in the indictment, you would be authorized to find the defendant guilty.

In that event, the form of your verdict would be, "We, the jury, find the defendant guilty."

If you do not believe that a defendant is guilty or if you have any reasonable doubt as to the defendant's guilt, then it would be your duty to acquit the defendant, in which event the form of your verdict would be, "We, the jury, find the defendant not guilty."

Though you may consider all of the evidence as a whole, conviction of one defendant does not necessarily require conviction of another or all. You, the jury, must determine the guilt or innocence of each defendant separately.

You will be given a special verdict form for each defendant to use when you retire. You are to consider each count separately. In the space provided on the verdict form, you will indicate guilty or not guilty, depending on your verdict for that count and that defendant.

Now I want to emphasize that anything the court did or said during the course of this case was not intended to and did not intimate, hint or suggest to you which of the parties should prevail in this case.

Whichever of the parties is entitled to a verdict is a matter entirely for you to determine. And whatever your verdict, it must be agreed upon by all of you.

The court's interest in the matter is that the case be fairly presented, according to the law, and that you, as honest, conscientious, impartial jurors, consider the case as the court has instructed you and return verdicts that speaks the truth, as you find the truth of the case to be.

Your verdict should be a true verdict, based upon your opinion of the evidence, according to the laws given you in this charge. You are not to show favor or sympathy to one party or the other. It is

your duty to consider the facts objectively, without favor, affection or sympathy to any party. In deciding this case, you should not be influenced by sympathy or prejudice because of race, creed, color, religion, national origin --

[11:25:00]

WALMSLEY: -- sexual preference, local or remote residence or economic status for or against either party.

Now you are only concerned with the guilt or innocence of each defendant. You are not to concern yourselves with punishment. One of your first duties in the jury room will be to choose one of you to be the foreperson, who will manage your deliberations and who will sign the verdict, to which all of 12 of you freely and voluntarily agree.

You should start your deliberations with an open mind. Talk with each other and consider each other's views. Each of you must decide this case for yourself. But you should do so only after a discussion and consideration of the case with your fellow jurors.

Do not hesitate to change an opinion if you are convinced that it is wrong. However, you should never surrender an honest opinion in order to be congenial or to reach a verdict solely because of the opinions of the other jurors.

During deliberations, you must not communicate with anyone other than your fellow jurors about this case. You may not use any electronic device or media, such as a telephone, cell phone, smartphone, iPhone -- I still have BlackBerry on this -- the computer, internet, any internet service or any text or instant messaging service or any internet chat room, blog or website, such as Facebook, MySpace, LinkedIn, YouTube, Twitter -- the list goes on and on.

You cannot use any of those to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Whatever your verdict is, it must be unanimous; that is, agreed by all as to each count of the indictment and as to each defendant. Each verdict must be in writing and signed by one of your members as foreperson, dated and returned to be published in open court.

I do ask whoever the foreperson is, please write in pen. Please don't sign the verdict form in pencil.

Now ladies and gentlemen, you may retire to the jury room but do not begin your deliberations until you have received the indictment and the evidence that has been admitted in the case.

We do need to separate out the three alternates. Three of you are alternates, which we will separate out for deliberations. The three alternates will continue to be jurors in this case and still subject to all of the instructions of the court. If, at some point during the proceedings, one of the deliberating

jurors is not able to complete their duty for the court, then the alternate will be brought into deliberations and deliberations will begin again with that alternate.

So with that, ladies and gentlemen, I ask that you retire to the jury room.

UNIDENTIFIED MALE: All rise for the jury.

Be seated.

WALMSLEY: All right. The all matter (ph) is already raised in the charge conference.

Any objection to the charge as read from the state?

UNIDENTIFIED FEMALE: None, Your Honor.

WALMSLEY: From Travis McMichael.

UNIDENTIFIED MALE: Just renewing our previous objections, Your Honor.

WALMSLEY: From Greg McMichael.

UNIDENTIFIED MALE: Yes, just renewing the previous objections and exceptions -- excuse me -- which include the reasonable doubt charge, the one sentence (ph). And then later in the charge, the last sentence of the paragraph, concerning the synonymous terms in his presence and within his immediate knowledge, (INAUDIBLE) accepted to (ph) a private person may not act on an unsupported statement of -- statements of others alone.

And then the entire next paragraph concerning contemporaneity of events and the actions of the person making the arrest.

And I believe the court has already indicated that the arguments made by email on Saturday -- 22 -- November 20th, I believe it was -- will be put into the record in support of those exceptions.

WALMSLEY: (INAUDIBLE) with notice of filing (ph).

For Mr. Bryan.

UNIDENTIFIED MALE: On behalf of Mr. Bryan, we renew the objections to the charge and exceptions made thereto. And although I don't think it's necessary, we will also renew the main motions for mistrial that were made during the trial of the case.

WALMSLEY: All right. Let's go ahead and check the evidence, then.