HEARD v. THE STATE., 261 Ga. 262, 403 S.E.2.d 438 (1991)
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Summary
Judgment affirmed. All the Justices concur, except Smith, P. J., and Weltner, J., who concur in the judgment and dissent as to Division 3.
Summary
Judgment affirmed. All the Justices concur, except Smith, P. J., and Weltner, J., who concur in the judgment and dissent as to Division 3.
Text
Steven W. Reighard, for appellant.
Robert Heard shot and killed Larry Thompson with a handgun. He was indicted for malice murder and possession of a firearm by a convicted felon, and was convicted of malice murder. [1]
The evidence showed that Thompson had fathered the child of Heard's daughter. After an argument with Heard at the apartment of Heard's daughter, Thompson departed. He later returned with a satchel belt, and entered the apartment through a window. Heard and Thompson argued again, and Heard shot Thompson in the apartment hallway.
1. The evidence is sufficient to permit a rational trier of fact to find Heard guilty of malice murder, felony murder, and possession of a firearm by a convicted felon beyond a reasonable doubt. Jackson v. Virginia, 443 15. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Heard asserts that the trial court erred in refusing to expand the standard charge on "reasonable belief" to include reasonable belief that the victim was about to use unlawful force against a third person. The trial court charged that a person is justified in using deadly force if he reasonably believes it is "necessary to prevent death or great bodily injury to himself or to a third person or to prevent . . . a forcible felony," or if he reasonably believes that such force was necessary to prevent a violent intruder from assaulting "any person dwelling or being" within the apartment. The charge given substantially covers the same principles urged by Heard. There was no error. Myers v. State,
3. We agree with Heard's contention that the trial court erred by instructing the jury that self-defense is not a defense to felony murder. The legislature, in prohibiting the use of a defense of justification for one who is "attempting to commit, committing, or fleeing after the commission or attempted commission of a felony. . . ." OCGA
Moreover, a defendant, like the defendant here, is not precluded from raising justification merely because he is guilty of a status felony, that is, a felony which may be ongoing by reason of the possession of contraband, or which occurs because of the individual's status as a previously convicted felon. [3]
Nevertheless, we find the error harmless because the trial court merged Heard's felony murder conviction with his malice murder conviction. Accordingly, the malice murder conviction is affirmed.
WELTNER, Justice, dissenting in part.
I concur in the judgment affirming the trial court, and dissent as to Division 3 of the opinion.
1. Heard insists that it was error to instruct the jury as follows: "Self-defense is not a defense to felony murder." The record reflects that the trial court instructed the jury more than once on the defense of justification. The language objected to appears in the charge closely following the court's instruction concerning the offense of possession of a firearm by a convicted felon.
2. (a) The language of the charge is identical to our holding in Ely v. State,
Under Georgia law, a person commits the offense of felony murder when, in the commission of a separate felony, he causes the death of another human being irrespective of malice. OCGA
(b) OCGA
A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he: (2) Is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony. . . . [Emphasis supplied.]
I am authorized to state that Presiding Justice Smith joins in this dissent.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Joseph F. Burford, Assistant District Attorneys, C. A. Benjamin Woolf, for appellee.
1991
Notes:
1. The homicide occurred on December 3, 1988. Heard was indicted on June 16, 1989. He was found guilty of malice murder, felony murder and possession of a firearm by a convicted felon on May 23, 1990. On May 24, 1990, the trial court merged the underlying felony of possession of a firearm by a convicted felon with the felony-murder conviction, merged the felony-murder conviction with the malice-murder conviction, and sentenced Heard to life imprisonment for the malice-murder conviction. His motion for a new trial was filed on June 20, 1990. and denied on August 24, 1990. A notice of appeal was filed on September 19, 1990. The appeal was docketed on October 18, 1990, and submitted without oral argument on November 30, 1990.
2. The dissent's implication that this holding would allow a defense of justification to the felony of possession of a firearm by a convicted felon is incorrect. Rather, it simply allows a convicted felon in possession of a firearm to assert self-defense where that defense is authorized by the evidence. The dissent agrees that self-defense should apply to the felony of aggravated assault, even where aggravated assault is the underlying felony to a felony murder charge. But it would not allow Heard to assert self-defense to aggravated assault simply because of his status as a convicted felon. The dissent would preclude a convicted felon, under any set of circumstances, from employing the defense of justification to an aggravated assault charge -- if that convicted felon's asserted self-defense is accomplished by the use of a firearm, as opposed to any other kind of weapon.
3. It is both unfair and illogical to deny a defendant the defense of justification against a felony murder charge merely because of his status as a convicted felon in possession of a firearm. Using what is perhaps a more dramatic, though analogous example to that presented in this case, it is illogical, as would be required under this court's holdings in Ely v. State, 244 Ga., supra at 433 and Hall v. State, 259 Ga., supra at 244 (1) to deny a defendant a charge on self-defense if he happened to have 1.1 ounces of marijuana in his pocket when he killed someone while trying to defend himself.
4. We note, as the trial court charged, that justification is a defense to aggravated assault. Accordingly, justification might he a defense to the charge of felony murder while in the
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This document cites
- Supreme Court of Georgia - MYERS v. THE STATE., 260 Ga. 412, 395 S.E.2.d 811 (1990)
- Supreme Court of Georgia - HALL v. THE STATE., 259 Ga. 243, 378 S.E.2.d 860 (1989)
- Supreme Court of Georgia - ALEXANDER v. THE STATE., 259 Ga. 440, 383 S.E.2.d 877 (1989)
- Supreme Court of Georgia - JOLLEY v. THE STATE., 254 Ga. 624, 331 S.E.2.d 516 (1985)
- Supreme Court of Georgia - HEAD v. THE STATE., 253 Ga. 429, 322 S.E.2.d 228 (1984)
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