306 Ga. 153 FINAL COPY
S19A0360. SWANSON v. THE STATE.
WARREN, Justice.
A jury found Sean Swanson guilty of felony murder, and of the
predicate felony of sale of marijuana, in the shooting death of Noel
Reed. On appeal, Swanson contends that his trial counsel was
ineffective for failing to request a jury charge on use of force in
defense of habitation and for withdrawing a request to charge the
jury on voluntary manslaughter. Based on the facts and
circumstances of this case, we conclude that Swanson’s trial counsel
rendered constitutionally ineffective assistance by failing to request
a jury charge on use of force in defense of habitation and therefore
reverse Swanson’s felony murder conviction.1
1 The killing occurred on August 19, 2016. On September 28, 2016, a Gwinnett County grand jury indicted Swanson (and his friend Tia Coleman) for sale of marijuana and felony murder predicated on that sale. At the conclusion of a trial held from June 12-15, 2017, a jury found Swanson guilty of both counts. The trial court sentenced Swanson to serve life in prison for felony murder and merged the sale-of-marijuana count for sentencing 1. Viewed in the light most favorable to the jury’s verdicts,
the evidence presented at trial showed the following. On August 19,
2016, Swanson’s close friend, Tia Coleman, received a call from an
acquaintance asking if Coleman would sell marijuana to Noel Reed.
Swanson and Coleman arranged a meeting to sell a half-pound of
marijuana, plus an ounce, to Reed at an apartment complex in
Gwinnett County. Swanson drove his red car to the apartment
complex; Coleman and three other friends were in the vehicle with
him. Swanson parked his car to wait on Reed, who arrived shortly
thereafter and approached Swanson’s car on foot. At some point
during the encounter, Reed pulled out an Intratec 9-millimeter
handgun (more commonly known as a TEC-9); Swanson then pulled
out his own Sig Sauer 9-millimeter pistol and, from the driver’s seat,
shot Reed twice, killing him. Before driving out of the apartment
purposes. Swanson filed a timely motion for new trial, which was later amended through new counsel. Following a March 23, 2018 hearing, the trial court denied the motion, as amended, on September 13, 2018. Swanson filed a timely notice of appeal on September 20, 2018. The appeal was docketed in this Court to the term beginning in December 2018 and submitted for a decision on the briefs.
2 complex, Swanson got out of his car and took back the bag of
marijuana (which was lying on the ground) from near Reed’s body.
Two residents of the apartment complex called 911 after they
heard multiple gunshots and saw someone get out of a red car and
take the bag that was lying next to Reed before driving away.
Officers stopped Swanson’s car soon afterward and arrested him.
From Swanson’s car, officers recovered a large bag of marijuana, a
Sig Sauer 9-millimeter pistol, and a .460 Smith & Wesson Magnum
revolver. From near Reed’s body, officers recovered a TEC-9 pistol,
a backpack, and two 9-millimeter shell casings that matched the
bullets in the pistol found in Swanson’s car.
At trial, Coleman testified for the State in exchange for
testimonial immunity. She testified that when Reed arrived for the
sale, Swanson got out of the car, the two men spoke briefly, and then
Swanson got back in the driver’s seat of the car. Reed was standing
outside the car near the rear tire on the driver’s side and began
rummaging through a backpack that he was carrying. Coleman
testified that she tried to warn Swanson and “screamed [Swanson’s]
3 name” when she saw Reed holding a gun; Reed possibly “snatched”
the bag of marijuana at that time, though Coleman was not sure of
this detail; and Swanson “shook violently before he turned around,
he saw the gun and out of instinct, he pulled out his gun and shot
[Reed] twice.” Coleman also testified that she thought Reed “took a
few steps back” before Swanson shot him, and that she feared that
Reed would shoot Swanson and the other vehicle occupants.
Coleman further testified that after they drove away, Swanson told
her to tell the police that Coleman was selling the marijuana to
Reed, that Reed tried to rob her, and that Swanson shot Reed to
defend Coleman; Swanson also relayed this story when police
interviewed him on the night of Reed’s killing.
After the State finished presenting its case-in-chief, Swanson
testified in his own defense. According to Swanson, he was sitting
in his car with his door open and was using an application on his
phone as Reed approached. Reed asked if Coleman was in the car
and then walked toward the back, driver’s-side tire while Swanson
was still looking at his phone. Suddenly, one of Swanson’s friends
4 said “yo, watch out, he has a gun,” and when Swanson “look[ed] up,”
Reed already had a gun pointing at Swanson’s chest. Reed told
Swanson to “run it, I need everything or I’m going to shoot someone,”
and then reached in and “snatched” the bag of marijuana while
pointing the gun at Swanson. Swanson testified, “I was scared. I
was terrified. I didn’t want to die that day,” and also that he thought
Reed may hurt the other vehicle occupants. Swanson testified that
even after Reed took the marijuana, Reed did not leave and “still has
the gun pointed at me wanting more stuff, and he — he — for a
second, looked away toward the apartment area” as he took a step
back, and that is when Swanson retrieved his own pistol from
between the driver’s seat and the console and fired three shots in
“quick succession,” first a warning shot and then two shots that
struck Reed, who was only a few feet away. With respect to timing,
Swanson testified that Reed pointing a gun at Swanson, reaching
into Swanson’s car to grab the marijuana, and saying “run it[,] I
want everything or I’m shooting” happened “simultaneously,” and
that the entire interaction — starting with Reed walking up to
5 Swanson’s car — “happened fast, real fast.” Swanson does not
contest the legal sufficiency of the evidence supporting his
conviction. Nevertheless, in accordance with this Court’s practice in
murder cases, we have reviewed the record and conclude that, when
viewed in the light most favorable to the verdicts, the evidence
presented at trial and summarized above was sufficient to authorize
a rational jury to find Swanson guilty beyond a reasonable doubt of
the crimes for which the jury found him guilty. See Jackson v.
Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).
2. Swanson contends that his trial counsel was ineffective
for failing to request a jury charge on use of force in defense of
habitation. For the reasons explained below, we agree.
To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant. Strickland v. Washington, 466 U. S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,
356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a
6 defendant must demonstrate that his attorney “performed at trial in
an objectively unreasonable way considering all the circumstances
and in the light of prevailing professional norms.” Romer v. State,
293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 U.
S. at 687-688. This requires a defendant to overcome the “strong
presumption” that trial counsel’s performance was adequate.
Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation
and punctuation omitted). To satisfy the prejudice prong, a
defendant must establish a reasonable probability that, in the
absence of counsel’s deficient performance, the result of the trial
would have been different. Strickland, 466 U. S. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
To authorize a jury instruction, there need only be slight
evidence at trial supporting the theory of the charge. State v.
Newman, 305 Ga. __ (__ SE2d __) (2019). Under Georgia law, “[a]
person is justified in threatening or using force against another
when and to the extent that he or she reasonably believes that such
7 threat or force is necessary to prevent or terminate such other’s
unlawful entry into or attack upon a habitation.” OCGA § 16-3-23.
However, “in the use of force which is intended or likely to cause
death or great bodily harm” a person is justified “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 to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence; (2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or (3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.
Id. “Habitation,” as used in OCGA § 16-3-23, includes “any dwelling,
motor vehicle, or place of business.” See OCGA § 16-3-24.1.
At trial, Swanson’s counsel did not request, and the trial court
did not provide, a jury instruction on use of force in defense of
habitation under OCGA § 16-3-23. Counsel did request, and the
8 trial court did provide, a jury instruction on use of force in defense
of self or others under OCGA § 16-3-21. However, the statute
pertaining to the justification of use of force in defense of self or
others expressly provides, and the jury was accordingly charged,
that “[a] person is not justified in using [such] force . . . if he . . . [i]s
attempting to commit, committing, or fleeing after the commission
or attempted commission of a felony,” OCGA § 16-3-21 (b) (2), and
Swanson admitted to committing a felony (sale of marijuana) when
he testified at trial. Notably, the defense-of-habitation statute
contains no such limitation. See OCGA § 16-3-23.
(a) Deficiency prong. Swanson contends that the evidence
presented at trial included at least slight evidence that would have
supported a jury instruction on defense of habitation. Indeed, the
evidence was undisputed that Swanson was inside his car when he
shot at Reed, who was pointing a gun at Swanson and (Swanson
argues) was in the process of committing an armed robbery against
Swanson and the passengers inside Swanson’s car. To that end,
Swanson testified that Reed — the aggressor — brandished a
9 firearm, threatened Swanson and the other passengers in the car,
and reached into Swanson’s car to steal marijuana from him.
Swanson testified that he feared that Reed, who kept his gun
pointed at Swanson as Reed stepped back, was “wanting more stuff,”
prompting Swanson — who remained in his car — to shoot. Because
the defense-of-habitation statute concerns entry “made or attempted
in a violent and tumultuous manner . . . for the purpose of assaulting
or offering personal violence to any person dwelling or being therein”
and also entry “made or attempted for the purpose of committing a
felony therein” — the situation Swanson argues he was in at the
time he shot Reed — Swanson contends that his counsel was
deficient when he failed to request a jury charge on defense of
habitation. See OCGA § 16-3-23 (1), (3).2
2 Citing Coleman v. State, 286 Ga. 291, 297 (687 SE2d 427) (2009), Swanson also reasons that because OCGA § 16-3-23 “speaks of an ‘attack’ and ‘prevent[ing] and terminat[ing]’ an entry or attack, the statute recognizes an ongoing attempt to unlawfully attack or enter.” But Coleman does not appear to stand for that proposition, at least as Swanson portrays it, and the State does not meaningfully analyze the “attack” language in the first sentence of OCGA § 16-3-23. However, because we determine that the specific facts in this record constitute slight evidence of defense of habitation under OCGA § 16-3- 23 (1) or (3), we need not address whether the “attack” language in OCGA
10 We agree. The evidence presented at trial and described above
constituted at least slight evidence that Swanson acted in defense of
habitation. Important to this conclusion is Swanson’s testimony
that Reed had—while pointing a gun at Swanson—threatened, “I
need everything or I’m going to shoot someone” (emphasis supplied),
and then reached into the car to “snatch” the bag of marijuana.
Given Swanson’s additional testimony that Reed continued to point
a gun at a “terrified” Swanson and others in the car even after Reed
took the marijuana, and that Reed “still ha[d] the gun pointed at me
wanting more stuff,” Swanson reasonably could have believed that
Reed would again attempt entry into Swanson’s car to “assault[ ] or
offer[ ] personal violence” to the occupants of the car, or that Reed
would again attempt entry to “commit[ ] a felony.” OCGA § 16-3-23
(1), (3). Based on this evidentiary record, there was at least slight
evidence supporting defense of habitation, and a jury instruction on
that defense was therefore authorized.
§ 16-3-23 provides a separate basis for which slight evidence existed warranting an instruction on defense of habitation. 11 Moreover, given this record, a reasonable attorney would have
pursued a justification defense on Swanson’s behalf. And, indeed,
Swanson’s trial counsel did pursue such a defense. But the defense
he elected to pursue — self-defense — was legally foreclosed, see
OCGA § 16-3-21 (b) (2), and trial counsel essentially admitted at the
hearing on Swanson’s motion for new trial that he knew the jury
legally could not apply a self-defense justification in Swanson’s case,
requested the instruction anyway, and sought instruction on no
other defense.3 These admissions were significant because there
was a justification defense available that was not foreclosed as a
matter of law: defense of habitation. Indeed, the statute governing
defense of habitation, unlike that governing self-defense, does not
contain an express exclusion for people using force while in the
3 Specifically, at the hearing on Swanson’s motion for new trial, trial
counsel admitted that he knew that (a) selling marijuana was a felony; (b) a self-defense theory can be precluded as a matter of law if a defendant is involved in a felony at the time he uses force; (c) Swanson was engaged in the sale (or was at least a party to the sale) of marijuana when he shot Reed; and (d) trial counsel nonetheless sought a jury instruction on self-defense.
12 commission of a felony. Compare OCGA § 16-3-23 (defense of
habitation) to OCGA § 16-3-21 (self-defense).4
We can identify no reasonable basis for an attorney failing to
request a jury instruction on defense of habitation under OCGA
§ 16-3-23 under these circumstances. Yet trial counsel failed to do
so here, and even admitted at Swanson’s hearing on a motion for
new trial that he did not request such a charge because at that time,
he “did not know about” the statute defining “habitation” to mean a
“motor vehicle”; that he “didn’t realize” that “habitation was
expanded to the point of dealing with a car”; and that “[i]t did not
appear to” him “that use of force and defense of habitation applied.”5
And although decisions of counsel made based on a
4 As noted above, Georgia law precludes justification by use of force in
defense of self or others in cases where the person using that force is also involved in the commission of a felony. See OCGA § 16-3-21 (b) (2). If the General Assembly believes that same policy should apply to justification by use of force in defense of habitation, it is for that body, and not this Court, to pass a law stating as much.
5 We note, however, that “it is the conduct of the lawyer, not his thinking,
that we assess for reasonableness, even though the thinking of the lawyer may inform the reasonableness of his conduct.” Powell v. State, 291 Ga. 743, 748 n.2 (733 SE2d 294) (2012) (emphasis in original). 13 misunderstanding of the law are not automatically deficient, see
State v. Patel, 280 Ga. 181, 182-183 (626 SE2d 121) (2006); Shields
v. State, 307 Ga. App. 830, 832-833 (706 SE2d 187) (2011), a
defendant can carry his burden of showing deficiency if, under the
circumstances, the challenged action cannot “‘be considered a sound
trial strategy.’” Johnson v. State, 286 Ga. 787, 791 (692 SE2d 575)
(2010) (punctuation omitted) (quoting Strickland, 466 U. S. at 689).
That is the case here, where reasonable trial counsel would not have
made the same strategic decision if he properly understood the law.
See Shields, 307 Ga. App. at 832-833. For these reasons, Swanson
has met the burden of showing that his attorney “performed at trial
in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.”
Romer, 293 Ga. at 344; see also Strickland, 466 U. S. at 687-688.
This conclusion is consonant with relevant precedent. For
example, in Coleman v. State, 286 Ga. 291 (687 SE2d 427) (2009),
we concluded that one of the two co-defendants, Jackson, was
entitled to a jury charge on defense of habitation and that his trial
14 counsel was deficient for failing to request it because Jackson
testified that while he was sitting in the driver’s seat of his co-
defendant’s car, someone struck him from outside the vehicle and,
fearing he would be struck again, Jackson “retrieved his gun from
under the front seat, stuck it out the door of the [vehicle], and fired.”
Id. at 298-299. There,
Jackson’s testimony that he remained in the vehicle and
fired his weapon through the vehicle’s open door or
window at someone who had struck him while he was in
the vehicle and who he believed was preparing to strike
him again was the ‘slight evidence’ necessary to authorize
a jury charge on defense of habitation. Id. at 299.6
Similarly, in Benham v. State, 277 Ga. 516 (591 SE2d 824)
(2004), we concluded that there was at least slight evidence
6 In Coleman, the Court went on to conclude that co-defendant Jackson
did not suffer prejudice from his counsel’s deficient performance “in light of the evidence against Jackson” — and in particular, testimony from a “disinterested observer” whose testimony contradicted Jackson’s. That testimony suggested that “Jackson exited his vehicle and repeatedly shot an unarmed man.” See Coleman, 286 Ga. at 299. No such contradictory testimony exists in this case. 15 supporting the theory of defense of habitation and that counsel’s
failure to request a jury instruction was constitutionally deficient.
In that case, witness testimony corroborated Benham’s testimony
that she sat in her car with her eight-year-old son in the front
passenger seat when someone approached the driver’s side window
and began arguing with her. When the person outside the car
reached into the driver-side window and struck Benham, she
grabbed a box cutter and repeatedly slashed the assailant. Counsel
argued that Benham’s actions were a justifiable use of force in
defense of self or others, but did not request a jury instruction on
defense of habitation, and the jury returned a verdict of guilty on
aggravated assault. Id. at 516-517. At Benham’s hearing on a
motion for new trial, trial counsel testified that she had strategic
reasons for choosing not to request a charge on defense of habitation,
including that she “wanted the jury to believe Benham was in fear
for her safety and the safety of her children, not that she was merely
protecting her vehicle.” Id. at 517. On appeal, we concluded that
Benham’s trial counsel was deficient because it was “evident that
16 defense counsel failed to appreciate that the defense of habitation
may have justified the use of deadly force in this case even if that
amount of force was not necessarily required to repel [the victim’s]
attack.” Id. As a result, “[i]n failing to adequately research and
understand the defenses available to her client, defense counsel
rendered assistance that fell below the minimum standard set forth
in Strickland.” Id. at 517-518. We further explained that “[e]ven
assuming that trial counsel in this case knowingly made the tactical
decision to forego requesting a charge on defense of habitation, it is
not a reasonable decision a competent attorney would have made
under the same circumstances.” Id. at 518 (emphasis in original).
Here, as in Coleman, Swanson’s “testimony that he remained
in the vehicle and fired his weapon through the vehicle’s open door
or window at someone who had” pointed a gun at him “while he was
in the vehicle and who he believed was preparing to” rob and injure
him was the type of evidence necessary to authorize a jury charge
on defense of habitation. Coleman, 286 Ga. at 299. And just as in
Benham, it is “evident that defense counsel failed to appreciate that
17 the defense of habitation may have justified the use of deadly force
in this case.” 277 Ga. at 517.
The State, however, advances a different argument. Relying
on Kendrick v. State, 287 Ga. 676 (699 SE2d 302) (2010), the State
contends that it is critical to evaluate “‘the moment in time at which
the defendant resorts to deadly force and the act being performed by
the victim at that moment.’” Id. at 679 (quoting Coleman, 286 Ga. at
298).7 According to the State, the evidence at Swanson’s trial did
not support the theory of defense of habitation because it showed
that at the moment Swanson shot Reed, Reed had already reached
into Swanson’s car, taken the marijuana, and taken a “few steps
away from” Swanson’s car. Under this view, “‘there is no evidence
that the victim was attempting to enter or attack the habitation at
the time he was injured by the defendant,’” and Swanson did “‘not
7 The State also argues, through the District Attorney’s brief on appeal,
that trial counsel was not deficient because Swanson did not testify that he “belie[ved] that he was defending his habitation.” That argument discounts record evidence that would support a defense-of-habitation instruction, and ignores the possibility that Swanson’s testimony could support such a charge even without referencing the phrase “defense of habitation.” 18 use deadly force until the justification for the use of deadly force
[was] over,’” meaning that “‘the defense of habitation is not
available.’” Id. at 679-680 (quoting Coleman, 286 Ga. at 298).
But the facts of Kendrick make that case inapposite. See
Kendrick, 287 Ga. at 680 (“Under the facts of this 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 other’s unlawful entry into or attack upon a motor vehicle.”)
(punctuation omitted).8 Unlike in Kendrick, we cannot say that the
record in this case does not support a “reasonable belief” that force
was “necessary to prevent or terminate the other’s unlawful entry
into or attack upon a motor vehicle.” Id. at 680 (punctuation
omitted). Because the failure to request a jury instruction on
defense of habitation was “objectively unreasonable . . . in the light
8 Kendrick cites to the portion of Coleman where a defense-of-habitation
charge was denied with respect to one of the two co-defendants in that case. But in Coleman, our determination that one of the two co-defendants was not entitled to a charge on defense of habitation was based on the co-defendant’s own admission that he began shooting only after he and the victim were both outside of the vehicle and the victim was no longer attempting to enter it. 286 Ga. at 298. That factual scenario is distinguishable from this case. 19 of prevailing professional norms,” Romer, 293 Ga. at 344, counsel
was constitutionally deficient under the circumstances. See
Coleman, 286 Ga. at 298-299; Benham, 277 Ga. at 517-518.
(b) Prejudice prong. Having determined that Swanson’s
counsel performed deficiently, we must turn to the second prong of
the Strickland analysis. To support his claim of prejudice, Swanson
asserts that “it is reasonably probable that [the jury] would have
accepted the substantial evidence that Noel Reed made an entry or
attempted entry” in the manner required by OCGA § 16-3-23 (1), (3).
We consider whether the record shows a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U. S. at 694.
We first look to the record evidence cutting against Swanson’s
prejudice arguments. The State contends that even if the jury had
been charged on defense of habitation, it still would have returned
a guilty verdict for felony murder. It reasons that the jury was
charged on self-defense yet returned a guilty verdict, which shows
that the jury already considered and rejected a similar (and even
20 “more applicable”) justification defense. The State also argues that
even if slight evidence supported a theory of defense of habitation,
that evidence was so slight that the jury would have rejected that
defense even if it had been instructed on it.
We do not agree that these points are dispositive of the
prejudice analysis here. To the contrary, the record shows that there
is a “probability sufficient to undermine confidence in the outcome”
of Swanson’s trial. See Strickland, 466 U. S. at 694.
First, the State, in its closing argument, focused heavily on the
inapplicability of a self-defense theory to the facts of Swanson’s case.
As just one example, the State argued in closing: “Let that sink in.
Not justified in using force if that person is committing a felony.”
Indeed, the State even conceded in closing that if Swanson had not
been selling marijuana but had instead been “hanging out in the
parking lot, Mr. Reed rolled up on them, put that gun to him and
said run it, I’m robbing you, Mr. Swanson would have had every
right to defend himself with deadly force.” But, argued the State,
because Swanson was selling marijuana when he shot Reed, “What
21 you forfeit is your right to claim self-defense, to have a jury grant
you justification.” These aspects of the State’s closing argument are
significant not only because they capitalize on trial counsel’s
deficiency, see Division 2 (a) above, but also because they effectively
concede that if a justification defense that was not precluded by law
were available, then Swanson would have had a strong defense at
trial. This supports the notion that there is a reasonable probability
the jury would have returned a different verdict had it been
instructed on defense of habitation.
Second, the record shows that the jury was paying close
attention to the defense on which it was instructed, and that it
carefully considered whether it could apply that defense in
Swanson’s case. To that end, the trial court charged the jury on self-
defense, including an instruction — consistent with Georgia law —
that “a person is not justified in using force if that person is
attempting to commit, is committing, or is fleeing after the
commission or attempted commission of a felony.” During
deliberations, the jury sent a note to the court asking: “GA law states
22 a person cannot claim self-defense while committing a felony. Are
we bound to this? Y or N.” This note suggests that — at least at
that point in their deliberations — the jury felt enough discomfort
about their instructions that they asked the trial judge whether they
were, in fact, legally bound to reject a self-defense claim if the
evidence showed that Swanson was committing a felony when he
shot Reed, even if the jury believed that Swanson was acting
reasonably in defense of himself and the car’s other occupants. The
judge’s response to the jury, after consulting with the parties, was
to re-charge the jury that it was “bound by these instructions,” and
the jury ultimately returned a guilty verdict on felony murder.
Given how closely the jury was paying attention to the self-defense
theory on which it was actually instructed, and in light of the record
evidence authorizing an instruction on a justification defense that
did not contain an express statutory exclusion, it is reasonably
probable that the jury would have returned a different verdict had
it been instructed on defense of habitation. Indeed, the question
posed in the jury’s note underscores the jury’s apparent disquiet
23 with the unavailability of a self-defense theory for Swanson and
dispels any question about whether a different result was
reasonably probable had the jury been instructed on the available
defense of defense of habitation.
Our conclusion that Swanson has demonstrated prejudice is
consistent with our precedent. In Benham, for example, we
concluded that the defendant was prejudiced by her counsel’s failure
to request a jury charge on defense of habitation because it was
reasonably probable that the jury would have accepted the
substantial evidence, which included witness testimony, that the
victim “unlawfully entered Benham’s car in a violent and
tumultuous manner for the purpose of offering personal violence to
the occupants.” 277 Ga. at 517-518. And although our appellate
courts have concluded in other cases that a defendant was not
prejudiced by counsel’s failure to request a jury charge on defense of
habitation, those cases are generally distinguishable because, for
example, the record showed the defendant used force against a
victim who was no longer attempting to enter a habitation, see
24 Barrett v. State, 292 Ga. 160, 178-180 (733 SE2d 304) (2012)
(evidence showed that defendant was outside of residence when he
shot unarmed victim, who posed no threat of re-entering the
residence, in the back of the head, and an eyewitness testified that
the defendant mercilessly beat the much smaller, unarmed victim);
Coleman, 286 Ga. at 298-299 (evidence showed that defendant
exited his vehicle, stood outside of it, and repeatedly shot unarmed
victim who was no longer trying to enter vehicle), or that the jury
was instructed on a viable justification defense that was not
foreclosed by the defendant’s theory of the case, see, e.g., Hill v.
State, 290 Ga. 493, 500 (722 SE2d 708) (2012); Mays v. State, 317
Ga. App. 24, 28 (730 SE2d 651) (2012); Smith v. State, 309 Ga. App.
241, 249 (709 SE2d 823) (2011).
Here, by contrast, given the record evidence recounted above,
the jury — having been instructed on defense of habitation, and
after weighing the evidence and credibility of the witnesses — could
have reasonably concluded that Swanson justifiably used deadly
force in defense of habitation. See Debelbot v. State, 305 Ga. 534,
25 541-542 (826 SE2d 129) (2019) (“[I]n examining whether a
defendant has shown Strickland prejudice, we review the record de
novo and weigh the evidence as we would expect reasonable jurors
to have done.” (citing Woodard v. State, 296 Ga. 803, 810 n.5 (771
SE2d 362) (2015)). To be sure, there are some differences between
Coleman’s testimony and Swanson’s, including about which
passenger told Swanson to turn around because Reed was pointing
a gun at him, and how exactly Reed obtained the bag of marijuana
from Swanson’s car. And Coleman’s credibility must be viewed in
light of the testimonial immunity the State offered her. Even so,
Coleman’s and Swanson’s testimony aligned with respect to the core
evidence presented at trial establishing that Reed pulled a TEC-9
handgun on Swanson and aimed it at Swanson (who was sitting with
others in his car) before Swanson shot Reed. Moreover, Coleman’s
testimony that Reed “possibly” reached into the car to take the bag
of marijuana, and her lack of certainty on that point, did not
contradict Swanson’s testimony that Reed in fact did so. We thus
conclude that, even weighing the divergence in testimony and
26 witness credibility, it is reasonably probable that the jury would
have returned a different verdict had it been properly instructed on
defense of habitation.
In sum, when viewed as a whole, the record here shows that
there is a reasonable probability that, but for counsel’s deficient
performance, the outcome of Swanson’s trial would have been
different. In other words, Swanson has established a “probability
sufficient to undermine confidence in the outcome” in Swanson’s
trial. See Strickland, 466 U. S. at 694. Because we hold that counsel
rendered constitutionally ineffective assistance in failing to seek a
jury instruction on defense of habitation, Swanson’s conviction for
felony murder is reversed. Consequently, Swanson is entitled to a
new trial.9
3. Swanson contends that his trial counsel was ineffective
for withdrawing a request to charge the jury on voluntary
manslaughter. Given that we have already reversed Swanson’s
9 We note that if the State elects not to retry Swanson, then his guilty
verdict for sale of marijuana will stand unmerged and require sentencing. See Calloway v. State, 303 Ga. 48, 49 (810 SE2d 105) (2018). 27 conviction for felony murder, however, we need not reach this
enumeration of error. See, e.g., Taylor v. State, 297 Ga. 132, 136
(772 SE2d 630) (2015).
Judgment reversed. All the Justices concur.
Decided June 10, 2019.
Murder. Gwinnett Superior Court. Before Judge Hutchinson.
Juwayn Haddad, for appellant.
Daniel J. Porter, District Attorney, John A. Warr, Lee F.
Tittsworth, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
28 Vanessa T. Sassano, Assistant Attorney General, for appellee.