State Attorney General Sam Olens filed notice Wednesday that he will appeal a decision that a Kennesaw man did not get a fair trial when he was convicted of murdering his contractor despite his claim he shot in self-defense.
“This is an emotional case,” Olens said in a news release announcing his decision to appeal.
John McNeil was convicted of murder a year after shooting Brian Epp to death in McNeil’s driveway. McNeil said he shot Epp in defense of his teenage son inside the house, of his home and of himself because the contractor had a knife in his pocket and continued to charge McNeil even after the homeowner fired a warning shot into the ground.
Cobb County police detectives did not charge McNeil immediately after the Dec. 6, 2005, fatal shooting, and the lead detective testified during the 10-day-long trial in the fall of 2006 that he did not think McNeil committed a crime. A jury still convicted McNeil of murder, and he was sentenced to life in prison.
The Georgia Supreme Court upheld his conviction in his first appeal. But a Baldwin County judge ruled last month that McNeil may not have had a fair trial because his defense attorney did not push to have the jury told McNeil had the right to use deadly force to defend his son and his home as well as himself. That judge’s decision meant McNeil could be retried if the state did not appeal.
The appeal only looks at the trial and does not address whether the jury reached the correct decision. The judge in Baldwin County, who got the case because McNeil was in a prison in that county when he filed, did not determine if McNeil “was innocent of the charges brought against him, or that the prosecutor or jury acted out of prejudice or bias in the handling of his case,” Olens said.
“It is not our job to second-guess the jury,” Olens said.
McNeil’s lawyers argued then and now that he was justified to shoot Epp in defending himself because Epp had already threatened his son with a knife and then charged McNeil in his own front yard even after McNeil fired a warning shot.
Olens also noted that McNeil and Epp “had a long-running feud” over some of the work done on the house Epp was building for the McNeils.
The incident on Dec. 6, 2005, began when McNeil’s teenage son, Laron, called his father to report a man in the backyard, according to court testimony. Laron called again to say Epp had threatened him with a box cutter.
McNeil, frightened for his son’s safety, called 911 as he drove home. McNeil told the dispatcher that he planned to “whip (Epp’s) ass” and he ignored the operator’s request that he wait for police. Even though officers were just moments behind him, McNeil got out of his car, loaded a gun with hollow-point bullets and confronted Epp as the contractor walked over from the house next door.
Witnesses said Epp didn’t stop even after McNeil fired a shot into the ground. The second time he fired, McNeil shot the contractor in the face, killing him.
Mark Yurachek, McNeil’s lawyer, said he was “obviously disappointed” that the state is appealing Baldwin County Judge Hulane George’s decision, but “we’re perfectly happy” to make an argument before the Georgia Supreme Court.
“We’re confident they (the justices) will see it the way Judge George does,” Yurachek said Wednesday.
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