MARIETTA - The Georgia Supreme Court is scheduled to listen to arguments Monday in the appeal of the murder conviction of John McNeil of Kennesaw.

McNeil was found guilty in November 2006 of felony murder and aggravated assault by a Cobb Superior Court jury in the shooting death of west Cobb homebuilder Brian Epp in December 2005.

He was sentenced to life in prison by Superior Court Judge Dorothy Robinson.

On Monday, the state's highest court will hear arguments from McNeil's attorney, Tony Axam of Atlanta, based on his premise that McNeil was acting in self-defense when he admittedly shot Epp once in the head with a 9mm handgun.

Epp was the owner of a small building company, Epp Elevations. McNeil and his wife purchased an unfinished home in Kennesaw's Carriage Gates subdivision from Epp, and both parties closed without a certificate of occupancy and with $5,000 held in escrow until work was complete.

After the McNeils moved into the home in December 2005, a confrontation between Epp and McNeil erupted in the driveway of McNeil's home over a disagreement about the uncompleted work.

During the trial, a neighbor testified that he saw two men arguing, heard a gunshot and saw McNeil with a gun pointed downward and backing away from Epp, who was walking toward him.

The neighbor testified that McNeil warned Epp to back up. But, when Epp charged at him, the neighbor said McNeil fired the gun at Epp's face.

Both police and the county medical examiner said Epp was not armed when he was shot. A utility knife the homebuilder carried remained clipped to his pocket.

The Cobb District Attorney's Office argues that the fact the knife was clipped to Epp's pocket refutes McNeil's claim of self-defense.

Axam argues that McNeil did not intend to injure Epp because he called 911 after the incident.

His appeal to the court is partly based on his argument that the state failed to prove intent when it argued McNeil murdered Epp.

Under the law, the District of Attorney's office argues that intent is not a prerequisite for murder.

Axam also argues that the investigating detective recommended to Cobb District Attorney Pat Head that McNeil not be charged with anything.

The case will be heard during the court's 10 a.m. session in Atlanta.

mhoward@mdjonline.com

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