Heard v. State

Hunt, Justice.

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 U. 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, 260 Ga. 412, 413 (2) (395 SE2d 811) (1990).

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 § 16-3-21 (b) (2), did not intend that section to preclude the defense of justification in all felony murder cases. We hold that, regardless of the felony specified by the state as the underlying felony to a felony murder charge, where there is sufficient evidence of a confrontation between the defendant and the victim, or other circumstances which ordinarily would support a charge on justification, the defendant is not precluded from raising justification as a defense.² Thus, in the most common type of felony murder charge, where the underlying felony is aggravated assault, the defendant may raise the defense of justification if that defense is authorized by the facts, and the prohibition of OCGA § 16-3-21 (b) (2) does not apply. Rather, that section applies where it makes sense to do so, for example, to a burglar or robber who kills someone while fleeing. To the extent Hall v. State, 259 Ga. 243 (378 SE2d 860) (1989) and Ely v. State, 244 Ga. 432 (260 SE2d 345) (1979) conflict with the holding in this division, those cases are overruled. See Head v. State, 253 Ga. 429, 433 (322 SE2d 228) (1984) (Chief Justice Hill, concurring specially); see also Alexander v. State, 259 Ga. 440 (2) (383 SE2d 877) (1989); Jolley v. State, 254 Ga. 624, 627 (3) (331 SE2d 516) (1985).

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.

Judgment affirmed.

All the Justices concur, except Smith, P. J., and Weltner, J., who concur in the judgment and dissent as to Division 3.

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.