A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(Laws 1833, Cobb's 1851 Digest, p. 785; Code 1863, § 4229; Code 1868, § 4266; Code 1873, § 4332; Code 1882, § 4332; Penal Code 1895, § 72; Penal Code 1910, § 72; Code 1933, § 26-1013; Code 1933, § 26-903, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2001, p. 1247, § 2.)
Cross references.- Criminal trespass, § 16-7-21.
Habitation and personal property defined, § 16-3-24.1.
Immunity from civil liability for using force in defense of habitation, § 51-11-9.
Law reviews.- For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004). For annual survey on criminal law, see 61 Mercer L. Rev. 79 (2009). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. (2001). For note, "Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police," see 26 Ga. St. U. L. Rev. 585 (2010). For article, "Vigilant or Vigilante? Procedure and Rationale for Immunity in Defense of Habitation and Defense of Property Under the Official Code of Georgia Annotated §§ 16-3-23,16-3-24,16-3-24.1, and16-3-24.2," see 59 Mercer L. Rev. 629 (2008).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions decided under former Code 1933, §§ 26-1011 and 26-1012 are included in the annotations for this Code section.
Rules governing liability of one injuring trespasser are same whether proceedings are civil or criminal.
- Rules of law governing liability of one who injures another in an attempt to prevent or end a trespass on one's property are same whether proceedings are civil or criminal in nature. Goerndt v. State, 144 Ga. App. 93, 240 S.E.2d 711 (1977).
When relevant, principle of justifiable homicide should be charged, even without request.
- When evidence renders principle relating to justifiable homicide in preventing forceful attack and invasion of property or habitation applicable, court should charge justifiable homicide, even without written request. Frazier v. State, 88 Ga. App. 82, 76 S.E.2d 70 (1953).
Charging justifiable homicide where not applicable is not harmful error.
- Even where provisions regarding justifiable homicide in repelling forcible attack and invasion of property of another are not applicable to facts of case, inclusion of such charge is not harmful error. Grier v. State, 212 Ga. 248, 91 S.E.2d 749 (1956) (decided under former Code 1933, § 26-1011).
Justification, if established, should always result in acquittal. Gordy v. State, 93 Ga. App. 743, 92 S.E.2d 737 (1956) (decided under former Code 1933, § 26-1011).
Erroneous charge on justification not cured by verdict of guilty of lesser grade of offense.
- Erroneous charge or failure to charge on accused's defense or defenses of justifiable homicide is not cured by verdict finding accused guilty of some lesser grade of offense than murder. McKibben v. State, 88 Ga. App. 466, 77 S.E.2d 86 (1953) (decided under former Code 1933, § 26-1011).
Defense of habitation makes it necessary that forcible attack and invasion concur in order for that defense to apply. Gresham v. State, 70 Ga. App. 80, 27 S.E.2d 463 (1943).
Fear justifying homicide must be that of a reasonable man.
- When justification for a homicide is sought in defense of oneself or one's property, against one who manifestly intends or endeavors by violence or surprise to commit felony on either, it is proper for trial court in connection therewith to charge provisions to the effect that bare fear of any of the offenses, to prevent which homicide is alleged to have been committed, shall not be sufficient to justify killing, but that it must appear that circumstances were sufficient to excite fears of a reasonable man, and that party killing really acted under those fears and not in spirit of revenge. Crolger v. State, 88 Ga. App. 566, 77 S.E.2d 98 (1953) (decided under former Code 1933, § 26-1012).
Unreasonable or delusory fear may negate malicious intent.
- Unreasonable or delusory fear, while not that of a reasonable man and therefore not sufficient to constitute justification, may negate idea of malicious and intentional wrongdoing. Perry v. State, 104 Ga. App. 383, 121 S.E.2d 692 (1961) (decided under former Code 1933, § 26-1012).
Homicide may be justified to prevent nonfelonious assault upon defendant in his habitation.
- One may permissibly, acting under fears of a reasonable man, kill to prevent commission of a felony in defense of habitation, property, or person; one may also kill one riotously attempting to enter one's habitation for purpose of assaulting one, although assault be less than a felony. Leverette v. State, 104 Ga. App. 743, 122 S.E.2d 745 (1961) (decided under former Code 1933, § 26-1011).
Feelings of malice or revenge on part of one defending self or habitation.
- When one contends that one acted under fears of a reasonable man, that is, under apparent rather than absolute necessity, it must appear that one did act under such fears and not in a spirit of revenge. However, if one must take one's adversary's life in order to save own or to prevent commission of a felony upon one's person, property, or habitation, then it matters not what feelings of malice or revenge one may also entertain. Crolger v. State, 88 Ga. App. 566, 77 S.E.2d 98 (1953) (decided under former Code 1933, § 26-1012).
Use of force caused by something wholly independent of trespass.
- When difficulty resulting in homicide was purely of a personal nature and had no connection with the house where the homicide occurred, former Code 1873, § 4332 was not relevant. Wilson v. State, 69 Ga. 224 (1882).
When difficulty was caused by a matter wholly independent of invasion, mere fact that person assaulted entered habitation of assailant would be no defense. Love v. State, 14 Ga. App. 49, 80 S.E. 209 (1913).
Where difficulty during which fatal shot was fired, killing an innocent bystander, was caused by profane and unbecoming language wholly independent of and disconnected from invasion of property by defendant's antagonist, mere fact that this person entered yard or premises of defendant and that fight occurred in yard would be no defense upon theory of invasion of property. Jackson v. State, 69 Ga. App. 707, 26 S.E.2d 485 (1943) (decided under former Code 1933, § 26-1013).
Section inapplicable where deceased was guest or visitor of defendant.
- Section refers only to homicides having their origin in forcible attack and invasion of property or habitation of another and, where there was no evidence tending to show that any attack or invasion of habitation of defendant was intended by deceased, as where deceased was a guest or visitor at defendant's residence before beginning of difficulty, a charge upon former Code 1933, § 26-1013 was unauthorized and erroneous. Stephens v. State, 71 Ga. App. 417, 31 S.E.2d 217 (1944) (decided under former Code 1933, § 26-1013).
O.C.G.A.
§ 16-3-23 inapplicable if deceased was visitor or guest of roommate. - Defense of habitation was not available to defendant since the victim was already in defendant's apartment when shot, there was no evidence that the victim made any threats against the habitation, and further, the victim was there as a guest of defendant's roommate, who was a resident of the apartment and signer of the apartment's lease. Stobbart v. State, 272 Ga. 608, 533 S.E.2d 379 (2000).
Victim was child living in home.
- In the defendant's trial for cruelty to a child and false imprisonment, O.C.G.A. §§ 16-5-70(c) and16-5-41(a), respectively, based on the defendant's locking the defendant's seven-year-old son in a wooden box the defendant built for the purpose and also binding the child in a sleeping bag, the trial court did not err in failing to instruct the jury on self-defense, defense of habitation, and defense of property other than habitation, nor was counsel ineffective in failing to request these instructions. Leslie v. State, 341 Ga. App. 731, 802 S.E.2d 674 (2017).
Inapplicable when violent acts committed by someone other than victim.
- Trial court did not err by excluding evidence that the defendant was attacked by a third party during a previous home invasion, which the defendant sought to introduce to support an affirmative defense of justification in using force to defend the habitation, because the defense was not available to a defendant for violent acts or abuse committed against a defendant by someone other than the victim. Watson v. State, 328 Ga. App. 832, 763 S.E.2d 122 (2014).
Justifiable homicide did not exist when the defendant invited the victim into defendant's home, and when there was no evidence the victim entered the house for the purpose of obtaining money from the defendant by committing a felony. Lee v. State, 202 Ga. App. 708, 415 S.E.2d 290, cert. denied, 202 Ga. App. 906, 415 S.E.2d 290 (1992).
Section does not provide justification for homicide to prevent adultery.
- Purpose of section is to provide justification only for repulsion of forcible felonies. Adultery, in addition to fact that it is not a felony, is a consensual and nonviolent crime. Except in extreme circumstances, adultery cannot stand as a complete justification for homicide, although always relevant to degree of the crime. Henderson v. State, 136 Ga. App. 490, 221 S.E.2d 633 (1975).
No evidence of forcible entry.
- Where there was no evidence that the deceased was attempting to force entry into defendant's habitation and the defendant testified that the victim stood outside and called to appellant to come out, charge of use of force in defense of habitation was not authorized by the evidence. Harvard v. State, 162 Ga. App. 218, 290 S.E.2d 202 (1982).
O.C.G.A. § 16-3-23 did not apply where evidence showed that the victim was not attempting to enter defendant's house when defendant stepped outside and shot the victim. Darden v. State, 233 Ga. App. 353, 504 S.E.2d 256 (1998).
Houseguest.
- Evidence was sufficient to support a conviction for aggravated assault in a case where the defendant, an occasional houseguest, became angry at a relative, retrieved a meat cleaver, and attacked the relative, who grabbed a pool cue to defend against the attack; the defendant's conduct amounted to a reasonable imminent threat of the use of deadly force and the relative, under the circumstances, was entitled to use force in defense of habitation pursuant to O.C.G.A. § 16-3-23. Robison v. State, 277 Ga. App. 133, 625 S.E.2d 533 (2006).
Excessive force used against lessor.
- Evidence supported a simple battery conviction under O.C.G.A. § 16-5-23 when the defendant slammed a door on the victim, the defendant's lessor, knocking the victim down a short flight of stairs. As the defendant's oral tenancy had always been subject to the right of realtors to enter the residence, the victim, who sought to enter the home upon two hours' notice to show the property to a new realtor, was within the victim's rights to enter the premises; even if this were not the case, because the defendant might have simply denied the victim reentry by warning the victim not to proceed further and closing the door, the defendant's use of force exceeded that permissible under O.C.G.A. § 16-3-23 had there been no right of reentry. Young v. State, 291 Ga. App. 460, 662 S.E.2d 258 (2008).
"Tumultuous" entry by unarmed victim.
- Defendant's voluntary manslaughter conviction was affirmed, where, although there was evidence that the victim's entry into defendant's home was "tumultuous," the jury was authorized to conclude that the victim was unarmed and that deadly force was not necessary for defendant's protection. Zachery v. State, 199 Ga. App. 891, 406 S.E.2d 243 (1991).
Homicide resulting from use of "spring gun" to defend habitation was not justified where defendant was working and not at home when the gun activated. Bishop v. State, 257 Ga. 136, 356 S.E.2d 503 (1987).
Use of force not justified.
- Defendant was not entitled to a directed verdict of acquittal on a voluntary manslaughter count predicated on the defendant's claim of defense of habitation, O.C.G.A. § 16-3-23, because the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of voluntary manslaughter in violation of O.C.G.A. § 16-5-2(a) and to find that the defendant's stabbing of the victim was not justified in defense of the defendant's habitation; the jury was authorized to rely upon the defendant's prior inconsistent statement to the defendant's relative to conclude that the victim's entry into the defendant's apartment was not "violent and tumultuous," and based upon the eyewitness testimony of a neighbor, the jury also was authorized to find that the victim was unarmed and that deadly force was not necessary for the defendant's protection. Muckle v. State, 307 Ga. App. 634, 705 S.E.2d 721 (2011).
Defendant's claim that the evidence was insufficient to convict the defendant of malice murder because the state failed to disprove the defense of habitation beyond a reasonable doubt failed because the jury was authorized to conclude that the use of deadly force was unreasonable given that the victim only slapped the defendant once and did not use any aggressive words, and the struggle that followed was like child's play. Clark v. State, 307 Ga. 537, 837 S.E.2d 265 (2019).
Charge using statutory language.
- Where defendant contended the trial court erred by failing to give defendant's requested charge on self-defense, since the court charged the jury on self-defense in the language of O.C.G.A. §§ 16-5-21 and16-5-23, which is the law in Georgia, and those code provisions cover the same principles requested by defendant, it was not error to deny defendant's request to charge. Cade v. State, 180 Ga. App. 314, 348 S.E.2d 769 (1986).
No evidence existed to support jury charge on justification under O.C.G.A. § 16-3-21 because the defendant was on the victim's premises unlawfully and initiated violence by lunging at the victim; pursuant to O.C.G.A. §§ 16-3-23 and16-3-24, the victim's efforts to defend the house and a mail truck were entirely legal. Robinson v. State, 270 Ga. App. 869, 608 S.E.2d 544 (2004).
Defendant not required to admit criminal conduct to be entitled to charge on justification.
- In the defendant's aggravated assault trial, O.C.G.A. § 16-5-21(a)(2), based on the defendant aiming a BB rifle at two victims, the trial court erred in denying the defendant's requested jury instructions on the defense of self and habitation, on the basis that the defendant did not admit aiming at the victims; if slight evidence supported the defenses, the charges should have been given. Defendant was not required to admit the elements of the crime in order to argue the defendant's theory of defense. McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
Officers' entry lawful.
- In a capital murder case involving the shooting death of a deputy while executing a no-knock warrant with other officers involved in a drug task force, the immunity from prosecution prescribed by O.C.G.A. § 16-3-24.2 did not apply to the defendants because the officers' entry was lawful. Fair v. State, 288 Ga. 244, 702 S.E.2d 420 (2010).
Mistake of fact defense not separate from defense of habitation.
- Because the mistake of fact that the defendant argued to the jury was not separate from the defense of habitation argument as the asserted mistake was the defendant's belief that the victim actually was an unknown intruder, and that the defendant was thus justified in shooting the victim in defense of the defendant's home, the trial court was not required to give an instruction on mistake of fact. Winters v. State, 303 Ga. 127, 810 S.E.2d 496 (2018).
Request for immunity defense properly denied.
- Trial court's denial of immunity from prosecution based on defense of habitation was supported by a victim's testimony that the victims did not enter the defendant's home in a violent and tumultuous manner for the purposes of committing a felony therein, but were invited in by the defendant, who threatened and assaulted them. Inman v. State, 294 Ga. 650, 755 S.E.2d 752 (2014).
Plain error not shown for failing to charge on no duty to retreat.
- When the rightful owner of the parcel on which the defendant resided hired a tow truck company to enter the property to remove old vehicles parked on the parcel, and the defendant shot and killed one of the tow truck company employees, the trial court's failure to instruct the jury that a person who was justified in using force to defend a habitation had no duty to retreat did not constitute plain error because the trial court's instructions covered the law of justification in general, and specifically covered the law of justification with respect to use of force in defense of habitation; and the defendant failed to make an affirmative showing that the alleged erroneous instructions likely affected the outcome of the proceedings. Reed v. State, 304 Ga. 400, 819 S.E.2d 44 (2018).
Jury charge on defense of habitation.
- If the jury had been properly charged on defense of habitation (as opposed to only a self-defense instruction), it was reasonably probable that they would have accepted the substantial evidence that the victim unlawfully entered the defendant's car in a violent and tumultuous manner for the purpose of offering personal violence to the occupants, and that the defendant was justified under the circumstances in using deadly force to repel the attack; thus, the defendant established that but for counsel's error there was a reasonable probability the result of the proceeding would have been different and that counsel was ineffective. Benham v. State, 277 Ga. 516, 591 S.E.2d 824 (2004).
Because the defendant challenged one of the victims to get the victim's guns, adding that the defendant was already carrying a pistol, the defendant was an aggressor who was engaged in mutual combat, and the defendant was not justified in using force in defense of habitation when the defendant then began shooting, wounding one victim and killing another; the trial court did not err in refusing the defendant's request to charge on defense of habitation; if even that refusal was error, there was no reversible error because the trial court charged the jury on self-defense and justifiable homicide and the evidence of the defendant's guilt was overwhelming. McKee v. State, 280 Ga. 755, 632 S.E.2d 636 (2006).
In a prosecution for aggravated assault, while the trial court charged the jury regarding the details of the defense of justification, because the evidence did not authorize the charge of defense of habitation, the instruction was properly denied; moreover, no evidence was presented to suggest that the victim used coercion or threats to gain entry into the defendant's residence. Brimidge v. State, 287 Ga. App. 23, 651 S.E.2d 344 (2007).
Trial court did not err in refusing to instruct the jury on the law of defense of habitation in the context of an automobile because under the facts of the case there could be no reasonable belief that firing a pistol at the driver of another car while driving on the road was necessary to prevent or terminate the driver's unlawful entry into or attack upon a motor vehicle as that term was used in the pattern jury instructions; the evidence showed that the defendant did not use deadly force until the justification for the use of deadly force was over. Kendrick v. State, 287 Ga. 676, 699 S.E.2d 302 (2010).
Trial court did not err in refusing to instruct the jury on the law of defense of habitation in the context of an automobile because the defendant did not supply the trial court with a written request to charge specific language on the legal concept of defense of habitation; the defendant's only written submission stated that the defendant wished the trial court to give the "following pattern requests to charge numbered 1 through 23," and then "22. Justification: Use of Force in Defense of Motor Vehicle," but such a request failed to comply with the requirements of Ga. Unif. Super. Ct. R. 10.3. Kendrick v. State, 287 Ga. 676, 699 S.E.2d 302 (2010).
Trial court did not err by failing to charge the jury on the defense of justification under O.C.G.A. §§ 16-3-21(a) and16-3-23 because counsel for the defendant characterized the defense as an "imperfect self-defense," a form of voluntary manslaughter that was not recognized in Georgia. Reese v. State, 289 Ga. 446, 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Trial court did not err by failing to give the jury the defendant's request to charge on the defense of habitation under O.C.G.A. § 16-3-23 because the evidence that the victim was intoxicated and had cursed at the defendant earlier that evening simply did not meet the statutory standard; there was no evidence presented at trial that the victim's act of opening the front door was in any way an unlawful entry into or attack upon the victim's mother's house, that the victim opened the door in a violent and tumultuous manner, or that the defendant could have reasonably believed that the victim intended to attack or offer personal violence toward anyone inside the house. Reese v. State, 289 Ga. 446, 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Trial counsel was not ineffective for failing to request a jury charge on the defense of habitation under O.C.G.A. § 16-3-23(1) because there was no basis for an instruction on defense of habitation; the jury was charged on the law of self-defense, but rejected that defense, and the defendant did not establish how a jury charge on the defense of habitation would have raised a reasonable probability that the outcome of the case would have been different. Hill v. State, 290 Ga. 493, 722 S.E.2d 708 (2012).
Although the defendant indicated that the defendant believed a civilian code enforcement officer and a police officer were "stealing" the defendant's vehicles, that belief was unfounded because the vehicles were being removed after the defendant failed to clean up property; thus, there was no evidence of an unlawful entry into the defendant's habitations that would have justified the defendant's use of force under O.C.G.A. § 16-3-23. Adcock v. State, 317 Ga. App. 468, 731 S.E.2d 365 (2012).
Trial testimony did not provide the slight evidence necessary to support an instruction on the defense of habitation because the evidence showed that the defendant exited the van and began fighting after the van stopped, at a time when no attack was even arguably being made on the van. Andrade v. State, 319 Ga. App. 75, 733 S.E.2d 474 (2012).
Trial court did not err in failing to charge the jury on the defense of habitation under O.C.G.A. § 16-3-23(2), despite the defendant's failure to request charge, because it was not the defendant's sole defense and the omission of the unrequested charge was not clearly harmful as a matter of law. Barrett v. State, 292 Ga. 160, 733 S.E.2d 304 (2012).
Trial court did not err in not charging the jury on defense of a habitation because the victim neither entered the defendant's home unlawfully nor attacked the defendant's home; the victim was on the defendant's porch by permission; and the witnesses testified that the victim had been stabbed and was on the ground when the victim's friends started throwing things at the defendant's apartment and around the porch. Neverson v. State, 324 Ga. App. 322, 750 S.E.2d 397 (2013).
Defendant was not entitled to a charge on the defense of habitation because the defense did not apply to the use of force against another person's property and there was no evidence that the victim attempted to enter or attack the defendant's habitation. Fleming v. State, 324 Ga. App. 481, 749 S.E.2d 54 (2013).
Trial court erred by refusing to charge the jury on the defense of habitation because the defendant testified that when the defendant returned to the vehicle with the victim to obtain the defendant's insurance card, after a vehicle collision, the victim reached through the defendant's window and began grabbing the defendant's shoulder and accusing the defendant of not having insurance; that the defendant became nervous and frightened, and that the defendant's son began to cry; and that the defendant drove away from the victim to escape the victim reaching through the window and grabbing the defendant while the victim was verbally accosting the defendant. Salazar-Balderas v. State, 343 Ga. App. 201, 806 S.E.2d 644 (2017).
Trial court did not commit plain error by not instructing the jury on the defense of habitation theory of justification as there was no evidence of any entry or attempted entry by the victim into the vehicle when the defendant opened fire. Walker v. State, 301 Ga. 482, 801 S.E.2d 804 (2017).
Trial court did not plainly err in instructing the jury on the defense of habitation form of justification where the habitation being defended was the victim's and not the defendant's because the court of appeals rejected the argument that the defense was for the use of a defendant, not a victim; further, the supreme court had not ruled on that issue. Beasley v. State, 305 Ga. 231, 824 S.E.2d 311 (2019).
Although the jury was not specifically instructed on the defense of habitation, the jury was, in fact, instructed on self-defense as well as accident, and the jury rejected all of the appellant's conflicting stories and those defenses and in light of compelling evidence of the appellant's guilt, an alleged error did not likely affect the outcome of the trial court proceedings. State v. Newman, 305 Ga. 792, 827 S.E.2d 678 (2019).
No error in failing to charge on defense of habitation.
- Trial court erred in failing to give the pattern jury charge on defense of habitation because the state's evidence did not show that the deputies entered the defendant's home unlawfully and the defendant did not present evidence raising the issue. Calmer v. State, Ga. , 846 S.E.2d 40 (2020).
Counsel was not ineffective for failing to present defense.
- Defendant did not receive ineffective assistance of counsel during a trial on a charge of felony murder; trial counsel properly declined to request an instruction on use of force in defense of habitation, O.C.G.A. § 16-3-23, as it was sound strategy to try to steer the jury away from thinking that the defendant shot the victim for breaking into a storage building. Patel v. State, 279 Ga. 750, 620 S.E.2d 343 (2005).
Defendant and codefendant were not denied their constitutional right to effective assistance of counsel due to trial counsel's failure to request a jury instruction on the use of force in defense of habitation found in O.C.G.A. § 16-3-23 because the defendant's testimony did not provide the slight evidence necessary to support a charge on defense of habitation, and in light of the evidence that the codefendant exited the codefendant's vehicle and repeatedly shot an unarmed man, there was no reasonable probability that instructing the jury on the law of defense of habitation would have resulted in a different outcome; while counsel's failure to request an instruction constituted deficient performance, it did not constitute ineffective assistance of counsel in light of the evidence against the codefendant since there did not exist a reasonable probability that, but for counsel's errors, the outcome of the trial would have been different. Coleman v. State, 286 Ga. 291, 687 S.E.2d 427 (2009).
Trial counsel was not ineffective for failing to request a charge on the defense of habitation, O.C.G.A. § 16-3-23, because there was no evidence that the victim attempted to enter an apartment to harm anyone inside the building, and the evidence demonstrated that the victim went inside the apartment to escape from the defendant when the victim saw that the defendant had a gun; the evidence did not reflect that the victim's intent was other than to change the locks of the apartment. Mubarak v. State, 305 Ga. App. 419, 699 S.E.2d 788 (2010).
Because there was no evidence to support a justification defense pursuant to O.C.G.A. § 16-3-21(a), including defense of habitation under O.C.G.A. § 16-3-23, trial counsel's performance could not be considered deficient for failure to pursue those defenses. Reese v. State, 289 Ga. 446, 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Trial court did not err in denying the defendant's motion for new trial on the ground of ineffective assistance of counsel because there was no evidence to support an instruction on defense of habitation pursuant to O.C.G.A. § 16-3-23 and, thus, trial counsel did not perform deficiently in failing to request such an instruction; there was no evidence that the victim was attempting to unlawfully enter or attack the defendant's vehicle at the time the defendant stabbed the victim, and under the facts, there could be no reasonable belief that stabbing the victim was necessary to prevent or terminate the other's unlawful entry into or attack upon a motor vehicle. Philpot v. State, 311 Ga. App. 486, 716 S.E.2d 551 (2011).
Defendant failed to show that trial counsel was ineffective for failing to assert a defense of justification by defense of habitation because during the incident neither victim "entered" the vehicle, as the victims were already inside at the time defendant entered the vehicle and it was doubtful in any event whether the defendant could claim the victims' vehicle as the defendant's "habitation" as opposed to the "habitation" of the victims, the driver and owner. Brooks v. State, Ga. , S.E.2d (Aug. 24, 2020).
Counsel was ineffective for failing to present defense.
- Defendant's trial counsel rendered constitutionally ineffective assistance by failing to request a jury charge on the use of force in defense of habitation because counsel knew the defense of self-defense that the defendant did pursue was legally foreclosed, counsel testified that the defendant was unaware that "habitation" referred to a motor vehicle, and no reasonable trial counsel would have made a strategic decision not to request such an instruction. Swanson v. State, 306 Ga. 153, 829 S.E.2d 312 (2019).
Cited in White v. State, 129 Ga. App. 353, 199 S.E.2d 624 (1973); Chambers v. State, 134 Ga. App. 53, 213 S.E.2d 158 (1975); Colson v. State, 138 Ga. App. 366, 226 S.E.2d 154 (1976); Murray v. State, 138 Ga. App. 776, 227 S.E.2d 428 (1976); Adams v. State, 139 Ga. App. 670, 229 S.E.2d 142 (1976); Johnson v. State, 142 Ga. App. 526, 236 S.E.2d 493 (1977); Leach v. State, 143 Ga. App. 598, 239 S.E.2d 177 (1977); Aufderheide v. State, 144 Ga. App. 877, 242 S.E.2d 758 (1978); Todd v. State, 149 Ga. App. 574, 254 S.E.2d 894 (1979); Burton v. State, 151 Ga. App. 176, 259 S.E.2d 176 (1979); Washington v. State, 245 Ga. 117, 263 S.E.2d 152 (1980); Lemley v. State, 245 Ga. 350, 264 S.E.2d 881 (1980); Davis v. State, 158 Ga. App. 594, 281 S.E.2d 344 (1981); Brown v. State, 163 Ga. App. 209, 294 S.E.2d 305 (1982); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982); Fannin v. State, 165 Ga. App. 24, 299 S.E.2d 72 (1983); Price v. State, 175 Ga. App. 780, 334 S.E.2d 711 (1985); Parrish v. State, 182 Ga. App. 247, 355 S.E.2d 682 (1987); Hicks v. State, 211 Ga. App. 370, 439 S.E.2d 56 (1993); Gilchrist v. State, 270 Ga. 287, 508 S.E.2d 409 (1998); Fair v. State, 284 Ga. 165, 664 S.E.2d 227 (2008); Bunn v. State, 284 Ga. 410, 667 S.E.2d 605 (2008); State v. Burks, 285 Ga. 781, 684 S.E.2d 269 (2009); Oliver v. State, 329 Ga. App. 377, 765 S.E.2d 606 (2014); Virger v. State, 305 Ga. 281, 824 S.E.2d 346 (2019); Johnson v. State, 350 Ga. App. 478, 829 S.E.2d 652 (2019); State v. Hamilton, 308 Ga. 116, 839 S.E.2d 560 (2020); Newman v. State, Ga. , 844 S.E.2d 775 (2020).
What Constitutes Habitation
Trailer which is home of defendant is a habitation, and right to defend it against trespassers is same as for any other habitation. Goerndt v. State, 144 Ga. App. 93, 240 S.E.2d 711 (1977).
Landlord cannot forcibly enter rented premises without right of reentry.
- As against tenant in possession, where right of reentry is not contained in rental agreement, landlord is without right to force the landlord's way into rented premises. Goerndt v. State, 144 Ga. App. 93, 240 S.E.2d 711 (1977).
Forcible entry without legal process by landlord against will of tenant renders landlord mere trespasser. Goerndt v. State, 144 Ga. App. 93, 240 S.E.2d 711 (1977).
Motor vehicles.
- Defendant's own testimony established that the victim was not directing any threats upon defendant's vehicle at the time defendant struck the victim; thus, O.C.G.A. § 16-3-23 was not applicable. If, in fact, dirt was thrown on defendant's vehicle, the attack had ended before defendant exited the vehicle to inspect it. Indeed, that defendant's first inclination was to inspect the vehicle, rather than protect it by restraining the victim from committing further violence against the vehicle, belies any argument that any action was needed on defendant's part to stop the victim from attacking defendant's vehicle. Defendant's proper defense was self-defense, not defense of habitation and the court's failure to instruct on habitation was not error. Wike v. State, 262 Ga. App. 444, 585 S.E.2d 742 (2003).
Because trial counsel was not ineffective for failing to predict either the addition of the definition of habitation (which included automobiles) to the statutory scheme, or Georgia Supreme Court precedent, appellate counsel was not ineffective for failing to argue that trial counsel was ineffective on that ground. Cochran v. Frazier, F.3d (11th Cir. May 3, 2010)(Unpublished).
Space in jointly occupied dwelling.
- For purposes of O.C.G.A. § 16-3-23, a person's habitation can be a particular space in a jointly-occupied dwelling provided that such person has obtained the right to occupy that space and exclude co-inhabitants therefrom. Hammock v. State, 277 Ga. 612, 592 S.E.2d 415 (2004).
RESEARCH REFERENCES
ALR.
- Duty to retreat to wall as affected by illegal character of premises on which homicide occurs, 2 A.L.R. 518.
Homicide or assault in defense of habitation or property, 25 A.L.R. 508; 32 A.L.R. 1541; 34 A.L.R. 1488.
Pleading self-defense or other justification in civil assault and battery action, 67 A.L.R.2d 405.
Homicide: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.
Use of set gun, trap, or similar device on defendant's own property, 47 A.L.R.3d 646.
Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.
Homicide: duty to retreat where assailant is social guest on premises, 100 A.L.R.3d 532.
Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 A.L.R.5th 637.