Georgia Supreme Court justices heard arguments concerning a man who claimed he mistakenly shot his wife of 37 years and the jury should have been instructed concerning lesser crimes.

According to Georgia Supreme Court records:

Clarence McCluskey shot and killed his wife Lisa McCluskey on Dec. 22, 2017. He had gone to a friend’s house and then to a street party to celebrate his birthday. By the time his wife picked him up he was drunk and they began arguing.

He shot her in the upper-left cheek with a .25 caliber pistol at their home on Bert Road. Their young grandchildren called 911. When officers arrived McCluskey threatened them and threatened to kill himself. Both grandchildren said they had heard their grandparents arguing but did not see their grandfather shoot their grandmother.

At his trial, McCluskey testified he shot her by mistake because he didn’t expect her to lean over while she was folding laundry. He also said he thought the gun was unloaded and pulled the trigger near her head so she could her the firing pin click — which he did to “mess with” her.

He was convicted of murder and sentenced to life plus 12 years in prison.

Among other things, McCluskey’s attorney Ryan Locke argued the judge should have included jury instructions concerning the lesser included offenses of reckless conduct and involuntary manslaughter. McCluskey maintains he killed his wife by mistake.

His attorney told the court since there was evidence that he may have shot his wife by mistake the jury should have been given instructions about those charges. Since they didn’t receive those instructions, they argue, the jury couldn’t find him guilty of the lesser offenses rather than murder.

The state, represented by Floyd County Assistant District Attorneys Luke Martin and Kayleigh Carter, argued since the act of attacking another person with a deadly weapon is a felony, the judge could not have instructed the jury concerning involuntary manslaughter.

“To support a charge on involuntary manslaughter, the unlawful act underlying the unintentional death of the victim must be an act other than a felony,” prosecutors wrote in a brief to the court.

Prosecutors argued the evidence that McCluskey shot his wife was “overwhelming” and if the trial judge committed any error it was not one that would justify reversing the conviction.

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