use of force defense in Georgia

2013(Citations and punctuation omitted.) Coleman v. State, 286 Ga. 291, 298 (6) ( 687 SE2d 427 ) (2009); see also Fair v. State, 288 Ga. 244, 254 (2) (a) ( 702 SE2d 420 ) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original).

2013(Citations and punctuation omitted.) Coleman v. State, 286 Ga. 291, 298 (6) ( 687 SE2d 427 ) (2009); see also Fair v. State, 288 Ga. 244, 254 (2) (a) ( 702 SE2d 420 ) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original).

2013(Citations and punctuation omitted.) Coleman v. State, 286 Ga. 291, 298 (6) ( 687 SE2d 427 ) (2009); see also Fair v. State, 288 Ga. 244, 254 (2) (a) ( 702 SE2d 420 ) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original).

2013(Citations and punctuation omitted.) Coleman v. State, 286 Ga. 291, 298 (6) ( 687 SE2d 427 ) (2009); see also Fair v. State, 288 Ga. 244, 254 (2) (a) ( 702 SE2d 420 ) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original).

2019See *682 State v. Johnson , 305 Ga. 237 , 824 S.E.2d 317 (2019).

2019See *682 State v. Johnson , 305 Ga. 237 , 824 S.E.2d 317 (2019).

2012See Darden, supra (court did not err in failing to charge the jury on the use of force in defense of habitation where victim was not attempting to enter appellant’s house at the time appellant stepped outside and shot him; appellant had stated that victim was standing at the comer of her house, not at her door, when she fired the gun); Harvard v. State, 162 Ga.App. 218, 219 (3) (290 SE2d202) (1982) (court did not err in refusing to charge the jury on the use of force in defense of habitation where there was no evidence that the victim was attempting to force entry into appellant’s habitation b

2012Thus, the trial court did not err in determining that Mays did not carry her burden of proof on her claim of ineffective assistance of counsel.11 Notably, Mays asserts that her counsel was ineffective because he acquiesced when the trial court stated an improper basis for refusing to give the charge – namely, 9 Coleman, supra at 298 (6). 10 See id. at 298 (6) (a). 11 Id.; Darden v. State, 233 Ga. App. 353, 354 (1) ( 504 SE2d 256 ) (1998). 6 that Mays could not avail herself of OCGA § 16-3-23 because she was a convicted felon.12 Mays is correct that her status as a convicted felon did not precl

2012Coleman, supra at 299 (6) (b); see generally McKee v. State, 280 Ga. 755, 756 (2) ( 632 SE2d 636 ) (2006) (no reversible error in court’s refusal to give appellant’s request to charge on the use of force in defense of habitation where the court charged the jury on self-defense and justifiable homicide and evidence of his guilt was overwhelming).

2012Coleman, supra at 299 (6) (b); see generally McKee v. State, 280 Ga. 755, 756 (2) ( 632 SE2d 636 ) (2006) (no reversible error in court’s refusal to give appellant’s request to charge on the use of force in defense of habitation where the court charged the jury on self-defense and justifiable homicide and evidence of his guilt was overwhelming).

2012See Hicks v. State, 287 Ga. 260, 262 (2) ( 695 SE2d 195 ) (2010) (“Because no construction of the evidence would support a finding that appellant shot in self-defense, the trial court properly refused to charge on that issue.”) (citations and punctuation omitted); Reese v. State, 289 Ga. 446, 447-448 (2) ( 711 SE2d 717 ) (2011); Fair v. State, 288 Ga. 244, 254 (2) (A) ( 702 SE2d 420 ) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original); Powell v. State, 154 Ga. App. 568, 570 (2) ( 269 SE2d 70 ) (1980) (no ne

2012See Hicks v. State, 287 Ga. 260, 262 (2) ( 695 SE2d 195 ) (2010) (“Because no construction of the evidence would support a finding that appellant shot in self-defense, the trial court properly refused to charge on that issue.”) (citations and punctuation omitted); Reese v. State, 289 Ga. 446, 447-448 (2) ( 711 SE2d 717 ) (2011); Fair v. State, 288 Ga. 244, 254 (2) (A) ( 702 SE2d 420 ) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original); Powell v. State, 154 Ga. App. 568, 570 (2) ( 269 SE2d 70 ) (1980) (no ne

2012See Hicks v. State, 287 Ga. 260, 262 (2) ( 695 SE2d 195 ) (2010) (“Because no construction of the evidence would support a finding that appellant shot in self-defense, the trial court properly refused to charge on that issue.”) (citations and punctuation omitted); Reese v. State, 289 Ga. 446, 447-448 (2) ( 711 SE2d 717 ) (2011); Fair v. State, 288 Ga. 244, 254 (2) (A) ( 702 SE2d 420 ) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original); Powell v. State, 154 Ga. App. 568, 570 (2) ( 269 SE2d 70 ) (1980) (no ne

2012See Hicks v. State, 287 Ga. 260, 262 (2) ( 695 SE2d 195 ) (2010) (“Because no construction of the evidence would support a finding that appellant shot in self-defense, the trial court properly refused to charge on that issue.”) (citations and punctuation omitted); Reese v. State, 289 Ga. 446, 447-448 (2) ( 711 SE2d 717 ) (2011); Fair v. State, 288 Ga. 244, 254 (2) (A) ( 702 SE2d 420 ) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original); Powell v. State, 154 Ga. App. 568, 570 (2) ( 269 SE2d 70 ) (1980) (no ne

2019Jackson v. Virginia , 443 U.S. 307 , 319, 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

2019Jackson v. Virginia , 443 U.S. 307 , 319, 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

2012See Hicks v. State, 287 Ga. 260, 262 (2) ( 695 SE2d 195 ) (2010) (“Because no construction of the evidence would support a finding that appellant shot in self-defense, the trial court properly refused to charge on that issue.”) (citations and punctuation omitted); Reese v. State, 289 Ga. 446, 447-448 (2) ( 711 SE2d 717 ) (2011); Fair v. State, 288 Ga. 244, 254 (2) (A) ( 702 SE2d 420 ) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original); Powell v. State, 154 Ga. App. 568, 570 (2) ( 269 SE2d 70 ) (1980) (no ne

2012See Hicks v. State, 287 Ga. 260, 262 (2) ( 695 SE2d 195 ) (2010) (“Because no construction of the evidence would support a finding that appellant shot in self-defense, the trial court properly refused to charge on that issue.”) (citations and punctuation omitted); Reese v. State, 289 Ga. 446, 447-448 (2) ( 711 SE2d 717 ) (2011); Fair v. State, 288 Ga. 244, 254 (2) (A) ( 702 SE2d 420 ) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original); Powell v. State, 154 Ga. App. 568, 570 (2) ( 269 SE2d 70 ) (1980) (no ne

2023We have explained that such an instruction “is required only when the issue of retreat is raised by the evidence or placed in issue.” Whittaker v. State, 317 Ga. 127, 133 ( 891 SE2d 849 ) (2023) (cleaned up). 7 Assuming without deciding that retreat was raised by the evidence or placed in issue, that the trial court’s failure to instruct the jury on no duty to retreat was a clear or obvious error, and that Appellant did not affirmatively waive the error, Appellant has not shown that the lack of a retreat instruction affected his substantial rights.

2023We have explained that such an instruction “is required only when the issue of retreat is raised by the evidence or placed in issue.” Whittaker v. State, 317 Ga. 127, 133 ( 891 SE2d 849 ) (2023) (cleaned up). 7 Assuming without deciding that retreat was raised by the evidence or placed in issue, that the trial court’s failure to instruct the jury on no duty to retreat was a clear or obvious error, and that Appellant did not affirmatively waive the error, Appellant has not shown that the lack of a retreat instruction affected his substantial rights.

2020See Newman I, supra, 305 Ga. at 797-798 (2) (a).

2020See Moore v. State, 205 Ga. 37, 45 ( 52 SE2d 282 ) (1949) (“[T]he requests to charge were not applicable to the facts of the case, for the reasons that there was no illegal arrest involved and no effort on the part of the defendant to resist an illegal arrest[.]”). (c) Calmer also contends that the trial court erred in refusing to give his requested instructions on self-defense3 and no duty to 3 The statute on the use of force in defense of self provides that a person “is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably belie

2020See Moore v. State, 205 Ga. 37, 45 ( 52 SE2d 282 ) (1949) (“[T]he requests to charge were not applicable to the facts of the case, for the reasons that there was no illegal arrest involved and no effort on the part of the defendant to resist an illegal arrest[.]”). (c) Calmer also contends that the trial court erred in refusing to give his requested instructions on self-defense3 and no duty to 3 The statute on the use of force in defense of self provides that a person “is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably belie

2018Floyd v. State , 277 Ga. App. 166 , 167, 626 S.E.2d 149 (2006) (in light of Barron , a defendant's request for a charge on justification by reason of defense of property concerning his use of force against his wife to recover the checkbook she took from his truck should have been denied); Mitchell , 187 Ga. App. at 43 (2), 369 S.E.2d 487 .

2018Floyd v. State , 277 Ga. App. 166 , 167, 626 S.E.2d 149 (2006) (in light of Barron , a defendant's request for a charge on justification by reason of defense of property concerning his use of force against his wife to recover the checkbook she took from his truck should have been denied); Mitchell , 187 Ga. App. at 43 (2), 369 S.E.2d 487 .

2018See Price v. State, supra, 289 Ga. at 460 (2).

2014See OCGA § 16-3-23 (“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: (1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence t

2014See OCGA § 16-3-23 (“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: (1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence t

2014See OCGA § 16-3-23 (“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: (1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence t

2014See OCGA § 16-3-23 (“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: (1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence t

2012See Hicks v. State, 287 Ga. 260, 262 (2) ( 695 SE2d 195 ) (2010) (“Because no construction of the evidence would support a finding that appellant shot in self-defense, the trial court properly refused to charge on that issue.”) (citations and punctuation omitted); Reese v. State, 289 Ga. 446, 447-448 (2) ( 711 SE2d 717 ) (2011); Fair v. State, 288 Ga. 244, 254 (2) (A) ( 702 SE2d 420 ) (2010) (“[G]enerally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original); Powell v. State, 154 3 Ga. App. 568, 570 (2) ( 269 SE2d 70 ) (1980) (no

2012See Darden, supra (court did not err in failing to charge the jury on the use of force in defense of habitation where victim was not attempting to enter appellant’s house at the time appellant stepped outside and shot him; appellant had stated that victim was standing at the comer of her house, not at her door, when she fired the gun); Harvard v. State, 162 Ga.App. 218, 219 (3) (290 SE2d202) (1982) (court did not err in refusing to charge the jury on the use of force in defense of habitation where there was no evidence that the victim was attempting to force entry into appellant’s habitation b

2012Coleman, supra; see generally Scott v. State, 290 Ga. 883, 889 (7) (a) ( 725 SE2d 305 ) (2012) (counsel’s failure to make a meritless objection is not evidence of ineffective assistance).

2012Coleman, supra; see generally Scott v. State, 290 Ga. 883, 889 (7) (a) ( 725 SE2d 305 ) (2012) (counsel’s failure to make a meritless objection is not evidence of ineffective assistance).

2011“The fact that [Smith] and his . . . present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that [Smith] received representation amounting to ineffective assistance of counsel.” (Citations and punctuation omitted.) Muller v. State, 284 Ga. 70, 73-74 (3) ( 663 SE2d 206 ) (2008). (d) Smith further argues that his trial attorney was ineffective in failing to request a jury charge on the use of force in defense of habitation. 3 In support of this argument he cites Benham v. State, 277 Ga. 516 ( 591 SE2d 824 )

2011“The fact that [Smith] and his . . . present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that [Smith] received representation amounting to ineffective assistance of counsel.” (Citations and punctuation omitted.) Muller v. State, 284 Ga. 70, 73-74 (3) ( 663 SE2d 206 ) (2008). (d) Smith further argues that his trial attorney was ineffective in failing to request a jury charge on the use of force in defense of habitation. 3 In support of this argument he cites Benham v. State, 277 Ga. 516 ( 591 SE2d 824 )

2005In refusing to extend the defense to crimes other than traditional theft *385 cases, we explained that “[t]o allow a ‘claim of right’ defense to an offense, such as robbery by sudden snatching, within which the use of force is implicit would sanction the use of force to claim the property.” Westmoreland v. State, 245 Ga. App. 482, 484 (1) ( 538 SE2d 119 ) (2000).

2005In refusing to extend the defense to crimes other than traditional theft *385 cases, we explained that “[t]o allow a ‘claim of right’ defense to an offense, such as robbery by sudden snatching, within which the use of force is implicit would sanction the use of force to claim the property.” Westmoreland v. State, 245 Ga. App. 482, 484 (1) ( 538 SE2d 119 ) (2000).

2005“In such an instance, the ends do not justify the means, regardless of whether the defendant thinks he has a right to the property.” Crowder v. State, 241 Ga. App. 818, 820 (2) (b) ( 527 SE2d 901 ) (2000) (claim of right defense not available for armed robbery).

2005“In such an instance, the ends do not justify the means, regardless of whether the defendant thinks he has a right to the property.” Crowder v. State, 241 Ga. App. 818, 820 (2) (b) ( 527 SE2d 901 ) (2000) (claim of right defense not available for armed robbery).