Woodard v. State

In the Supreme Court of Georgia

Decided: March 27, 2015

S14A1532. WOODARD v. THE STATE.

NAHMIAS, Justice.

Appellant William Woodard was convicted of malice murder and other

crimes in connection with the shooting deaths of two DeKalb County police

officers, Eric C. Barker and Ricky L. Bryant Jr. Although the State sought the

death penalty, the jury recommended sentences of life without parole. Appellant

now contends that several jury instructions improperly undermined his defense

of justification by lessening the State’s burden of proof, and he asserts that his

trial counsel were ineffective in failing to object to the trial court’s instruction,

tracking the language of OCGA § 16-3-21 (b) (2), that a person is not justified

in using force in self-defense if he is committing a felony. We affirm.1

1
The crimes occurred around midnight on the night of January 15-16, 2008. On April 7,
2008, Appellant was indicted for two counts of malice murder, two counts of felony murder, two
counts of possession of a firearm during the commission of a felony, and two counts of possession
of a firearm by a convicted felon. On May 6, 2008, the State filed a notice of intent to seek the death
penalty. On April 12, 2010, this Court granted Appellant’s application for interim review, but on
September 10, 2010, the case was dismissed as moot based on a concession made by the State during
oral argument. See Case No. S10A1192. On remand, the trial court authorized a second application
for interim review; on June 30, 2011, this Court entered an order remanding the case to the trial court
for further inquiry. See Case No. S11R1352. After weeks of jury selection, testimony in the guilt-
innocence phase of Appellant’s trial began on October 1, 2012. On October 12, the jury returned
 1. Viewed in the light most favorable to the verdicts, the evidence at

trial showed the following. At about 9:00 p.m. on January 15, 2008, Appellant

and his friend Mario Westbrook went to a sparsely occupied apartment complex

in south DeKalb County to visit Yanita Payne, the mother of one of Appellant’s

friends. While Appellant was talking on Payne’s telephone, he took out a

handgun and put it on her table. When she asked why he had the gun, Appellant

explained that he knew that off-duty police officers worked security at the

complex and patrolled the parking lot and said, “They tote theirs, I tote mine.

They draw theirs, I draw mine.” Appellant, who had several prior felony

convictions, had also told his girlfriend on numerous occasions that he carried

his gun “everywhere he go[es],” and whenever they were together and

Appellant’s girlfriend mentioned that she saw a police officer, he would tell her

“that he was under [the] recidivist act and that he wasn’t going back to jail, he

verdicts finding Appellant guilty of all charges. On October 19, the jury returned its verdicts in the
penalty phase, recommending a sentence of life in prison without the possibility of parole for the
murder of each officer. On October 22, the trial court sentenced Appellant to serve consecutive
terms of life in prison without parole on the two malice murder convictions plus five years on each
conviction for possession of a firearm during the commission of a felony. The felony murder
verdicts were vacated by operation of law, and the remaining guilty verdicts merged. On November
14, 2012, Appellant filed a motion for new trial, which his new appellate counsel amended on
September 17 and 30, 2013. After an evidentiary hearing, the trial court entered an order denying
the motion on February 4, 2014. Appellant filed a timely notice of appeal, and the case was docketed
in this Court for the September 2014 term and submitted for decision on the briefs.

2
would have court in the street.”

After visiting Payne, Appellant and Westbrook left the apartment

complex, but they returned around midnight in a car driven by Herbie Durham

to buy beer at an illegal “shot house” run by Major Fields from his apartment

across the hallway from Payne’s unit. Durham parked the car, which had dark-

tinted windows, in front of the building, and Appellant got out and walked up

the stairs to the shot house. Appellant went inside and bought beer, cigarettes,

and cigars from Fields using a counterfeit $50 bill. After receiving his change

in genuine currency, Appellant left the apartment, but Fields, who by then had

realized that the bill was counterfeit, caught up with Appellant before he

descended the stairs back to the parking lot. Appellant told Fields that the police

were outside, so Fields went back into his apartment.

Officer Barker and Officer Bryant were working off-duty security, in

uniform, at the complex. When Appellant walked down the stairs, he

encountered Officer Barker in front of Durham’s car. The officer said

something to Appellant, but Appellant ignored him and got into the front

passenger seat. Officer Barker then approached the driver’s side of the car.

Durham rolled down his window, and the officer told him to turn off the car and

3
present his driver’s license; Durham complied. Officer Barker said that he

smelled marijuana and asked if there was any marijuana in the car, which

Durham denied. The officer then requested identification from Appellant, who

reached in his pocket but did not produce any identification.

At this point, Officer Bryant arrived to assist Officer Barker and

approached the passenger side of the car. Officer Bryant opened the front door

and asked Appellant to get out, but Appellant did not comply. The officer then

pulled Appellant out of the car and placed him with his hands on the vehicle.

Standing behind Appellant, Officer Bryant started to frisk him, but he began to

scuffle, trying to avoid the pat-down. Officer Barker ran around the car to assist

Officer Bryant, but as Officer Barker reached the passenger side, Appellant

managed to break free from Officer Bryant and draw his gun. Appellant then

fired repeatedly at the officers, striking each of them three times before fleeing

into the night. Officer Bryant died at the scene, and Officer Barker was

pronounced dead at the hospital. Appellant testified at trial, admitting that he

shot the officers but claiming that they were beating him when he did so,

causing him to fear for his life.

Appellant does not challenge the legal sufficiency of the evidence

4
supporting his convictions. Nevertheless, in accordance with this Court’s

practice in murder cases, we have reviewed the record and conclude that the

evidence presented at trial and summarized above was sufficient to authorize a

rational jury to find Appellant guilty beyond a reasonable doubt of the crimes

for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt

2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d

223) (2009) (“‘It was for the jury to determine the credibility of the witnesses

and to resolve any conflicts or inconsistencies in the evidence.’” (citation

omitted)).

2. Appellant contends first that several of the trial court’s jury

instructions improperly undermined his sole defense of justification by lessening

the State’s burden of disproving his self-defense claim beyond a reasonable

doubt. In particular, Appellant challenges the instructions that a police officer

has a general duty to enforce the law 24 hours a day, that he lawfully discharges

that duty when he arrests an individual who has committed a crime in his

presence, and that probable cause for an arrest does not require the quantum of

proof necessary for proof of guilt in a trial. Appellant also challenges the

instructions regarding police-citizen encounters and the legal requirements for

5
a valid detention or arrest, and he contends that the court erred in instructing the

jury that the mere odor of marijuana establishes probable cause for an arrest.

We note that Appellant’s defense was clearly not, in fact, limited to a customary

self-defense claim, but rather focused on his right under Georgia law to forcibly

resist an unlawful arrest or an arrest made using excessive force. See Ramirez

v. State, 279 Ga. 569, 577 (619 SE2d 668) (2005); Mullis v. State, 196 Ga. 569,

577-579 (27 SE2d 91) (1943).

Because Appellant did not object to these jury charges on the grounds he

now raises before the jury retired to deliberate, appellate review of his claims is

precluded unless the particular jury instruction in question was “plain error

which affects [his] substantial rights.” OCGA § 17-8-58 (b); State v. Kelly, 290

Ga. 29, 33 (718 SE2d 232) (2011).2

2
OCGA § 17-8-58 says:

(a) Any party who objects to any portion of the charge to the jury or the failure
to charge the jury shall inform the court of the specific objection and the
grounds for such objection before the jury retires to deliberate. Such
objections shall be done outside of the jury’s hearing and presence.
(b) Failure to object in accordance with subsection (a) of this Code section shall
preclude appellate review of such portion of the jury charge, unless such
portion of the jury charge constitutes plain error which affects substantial
rights of the parties. Such plain error may be considered on appeal even if it
was not brought to the court’s attention as provided in subsection (a) of this
Code section.

6
 An appellate court may . . . reverse a trial court for plain error if the
instructional error was not affirmatively waived by the defendant,
was obvious beyond reasonable dispute, likely affected the outcome
of the proceedings, and seriously affected the fairness, integrity, or
public reputation of judicial proceedings.

Wells v. State, 295 Ga. 161, 167 n.4 (758 SE2d 598) (2014). See also Kelly,

290 Ga. at 33. In evaluating claims of instructional error, we examine the jury

charge as a whole. See Laster v. State, 276 Ga. 645, 650 (581 SE2d 522)

(2003).

Appellant has failed to demonstrate error, much less plain error, in the jury

instructions he now disputes. Law enforcement officers have a general duty to

enforce the law and maintain the peace, and this duty exists 24 hours a day,

including when an officer is working a private security job. See Duncan v.

State, 163 Ga. App. 148, 148-149 (294 SE2d 365) (1982). “An arrest for a

crime may be made by a law enforcement officer . . . [w]ithout a warrant if . . .

[t]he offense is committed in such officer’s presence or within such officer’s

immediate knowledge . . . .” OCGA § 17-4-20 (a) (2). See Mullis, 196 Ga. at

576. And there is “a great difference between what is required to prove guilt in

a criminal case and what is required to show probable cause for arrest.” Banks

v. State, 277 Ga. 543, 544 (592 SE2d 668) (2004) (citation and quotation marks

7
omitted). Accord Brinegar v. United States, 338 U.S. 160, 173 (69 SCt 1302,

93 LE 1879) (1949). The trial court’s instructions incorporating these principles

of law were not erroneous. Likewise, in Ramirez, another case where a

defendant shot and killed a police officer and claimed self-defense, this Court

approved jury instructions on police-citizen encounters and the standards for

legal detention and arrest nearly identical to the ones given in this case. See

Ramirez, 279 Ga. at 577.

Finally, Appellant’s claim that the trial court instructed the jury that the

mere odor of marijuana establishes probable cause for arrest is not supported by

the record. What the court actually said was:

Probable cause for an arrest without a warrant exists when the facts
and circumstances within the arresting officer’s knowledge are
sufficient to warrant a belief by a man of reasonable caution that a
crime has been committed. . . . To justify an arrest without a
warrant an officer need not see the act which constitutes the crime
take place if by any of the officer’s senses the officer has personal
knowledge of its commission. Odor, as well as sight, hearing, taste,
or touch can be used to establish probable cause for arrest.

The last sentence was essentially a direct quote from O’Keefe v. State, 189 Ga.

App. 519, 526 (326 SE2d 406) (1988). The instruction did not refer explicitly

to the odor of marijuana, nor did it say that odor alone establishes probable

8
cause. Instead, the court correctly advised the jury that the information that a

police officer obtains through all five senses, including smell, may be

considered in determining whether, under the totality of the circumstances, an

arrest was permitted. See id. See also State v. Folk, 238 Ga. App. 206, 208

(521 SE2d 194) (1999) (whole court).

In sum, the jury instructions now at issue were needed for the jury to

decide whether Appellant reasonably believed that his actions were necessary

to resist an unlawful arrest or an arrest made with excessive force. Contrary to

Appellant’s contention, the jury was not directed to find that the victims were

engaged in the lawful discharge of their duties at the time of the shootings.

Instead, the trial court repeatedly instructed the jury that the State had the

burden of proving beyond a reasonable doubt that the officers’ conduct towards

Appellant was lawful and that it was for the jury to decide under all the facts and

circumstances whether Appellant’s actions were justified.

3. Appellant also claims that the trial court erred in instructing the jury

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.” This instruction is part of the pattern jury instruction

9
on “Justification; Use of Force in Defense of Self or Others.” See Council of

Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol.

II: Criminal Cases § 3.10.10 (4th ed. 2007 & Supp. 2013). It recites, nearly

verbatim, Georgia’s statute establishing when the use of force is justified in

defense of oneself or others. OCGA § 16-3-21 (b) (2) says:

A person is not justified in using force under the circumstances
specified in subsection (a) of this Code section [i.e., defense of self
or others] if he: . . . [i]s attempting to commit, committing, or
fleeing after the commission or attempted commission of a felony.

One would think that a trial court could not err in instructing the jury using the

language of the applicable statutory law.

Appellant bases his counterintuitive argument on Heard v. State, 261 Ga.

262 (403 SE2d 438) (1991), where a majority of this Court held that OCGA §

16-3-21 (b) (2) should apply only “where it makes sense to do so, for example,

to a burglar or robber who kills someone while fleeing,” and not to a defendant

who killed someone while committing the felony of possessing a firearm as a

convicted felon. Heard, 261 Ga. at 263. According to Appellant, it does not

make sense to apply § 16-3-21 (b) (2) in this case either, because the felony that

he was found guilty of committing when he shot and killed the officers was

10
again possession of a firearm by a convicted felon, which he says is a “status”

felony that had no nexus to the officers’ use of force against him.3

(a) At trial, Appellant’s counsel did not object to the portion of

the self-defense instruction tracking OCGA § 16-3-21 (b) (2), and indeed they

requested that the trial court give the pattern charge including that language. As

discussed above, when a defendant fails to object to an alleged instructional

error before the jury begins its deliberations, appellate review is precluded

unless the alleged defect amounts to “plain error,” OCGA § 17-8-58 (b), and

there is no plain error where the defendant “affirmatively waived” the alleged

error. Wells, 295 Ga. at 167 n.4. The concept that even a plain error can be

waived is often referred to as “invited” error. See, e.g., Shaw v. State, 292 Ga.

871, 873 n.3 (742 SE2d 707) (2013). However, looking to the federal plain-

error decisions on which this Court has relied in articulating the scope of plain-

error review under OCGA § 17-8-58, we have cautioned that a “waiver” in this

context differs from the “forfeiture” that results from the mere failure to timely

3
The crime of possession of a firearm by a convicted felon is not truly a “status” offense in
the way the law normally uses that term. True status offenses, such as the crime of “being a felon,”
are unconstitutional because they lack an “actus reas,” while possession crimes require the offender
to act to obtain and possess the prohibited item – acts that may be criminally punished. See Shivers
v. State, 286 Ga. 422, 427-428 (688 SE2d 622) (2010) (Nahmias, J., concurring specially).

11
assert a legal right. See Cheddersingh v. State, 290 Ga. 680, 684 (724 SE2d

366) (2012). An affirmative waiver requires the “‘“intentional relinquishment

or abandonment of a known right.”’” Id. (emphasis added) (quoting United

States v. Olano, 507 U.S. 725, 733 (113 SCt 1770, 123 LE2d 508) (1993)).

We note that whether a defendant’s request that the trial court give a jury

instruction is properly held to affirmatively waive all alleged errors regarding

language included in or omitted from the instruction, or only errors regarding

language that the record shows the defendant included or omitted after

considering the controlling law, is a question that has divided the federal courts

of appeals.4 This Court has not squarely addressed this question with respect to

review under OCGA § 17-8-58, although we have recognized the possibility that

4
Compare, e.g., United States v. Perez, 116 F3d 840, 844-845 (9th Cir. 1997) (en banc)
(explaining that, after Olano, an instructional error no longer may be deemed invited merely because
the defendant proposed the instruction in question; instead, to establish the waiver of a “known
right,” the record must show that “the defendant considered the controlling law . . . and in spite of
being aware of the applicable law, proposed or accepted a flawed instruction”), with, e.g., United
States v. Frank, 599 F3d 1221, 1240 (11th Cir. 2010) (holding, without reference to the Olano
standard, that “when a party agrees with a court’s proposed instructions,” including when a party
requests the instructions, “the doctrine of invited error applies, meaning that review is waived even
if plain error would result”). See also United States v. Mariano, 729 F3d 874, 881 (8th Cir. 2013)
(suggesting that even “[i]f proposing an instruction is not waiver of the right to challenge it on
appeal, then [the Eighth Circuit’s] ‘invited error’ cases also could be understood as a categorical
conclusion that a conviction based on a mistaken jury instruction that was specifically requested by
the defendant does not result in a miscarriage of justice” and thus fails under the final prong of the
plain-error test).

12
our cases applying the “invited error” concept broadly to preclude review of

requested jury instructions, if decided before or without reference to the

enactment of § 17-8-58, may not remain viable. See Shaw, 292 Ga. at 873 n.3.

This case does not require us to delve deeper into this question, however,

because even under the more forgiving of the federal circuit approaches to error

invited by requesting a jury instruction, Appellant waived his claim of error

based on Heard. Appellant did not merely request the pattern jury instruction

on self-defense, including the now-disputed language from OCGA § 16-3-21 (b)

(2). At the charge conference, Appellant’s counsel asked that one portion of that

language (the phrase discussing flight) be deleted on evidentiary grounds, and

in the course of discussing another requested charge relating to felons who

possess firearms, Appellant’s counsel, the prosecutor, and the trial court

specifically discussed Heard and its application to this case. The court

ultimately decided to leave in the flight language and declined to give the

additional charge (rulings that are not challenged on appeal), and Appellant’s

counsel, despite their awareness and discussion of Heard, did not withdraw the

request that the court give the full self-defense pattern instruction. Under these

circumstances, Appellant clearly invited the error that he now alleges based on

13
Heard and affirmatively waived appellate review of that error.

(b) Nevertheless, because Appellant also claims that his trial

counsel provided ineffective assistance with respect to the alleged Heard error,

see Division 4 below, we will go ahead and address the Heard issue on the

merits, as we often do when an issue for which direct appellate review has been

waived is alternatively raised as a claim that trial counsel performed

ineffectively in failing to preserve a meritorious issue for appeal. See, e.g., Ross

v. State, No. S14A1278, slip op. at 6-9 (decided Feb. 2, 2015); Dyer v. State,

295 Ga. 173, 177-179 (758 SE2d 301) (2014); Hartsfield v. State, 294 Ga. 883,

886-887 (757 SE2d 90) (2014). We conclude that the trial court did not commit

reversible error in charging the jury using the language of OCGA § 16-3-21 (b)

(2), because Heard is not good law.5

5
It is particularly appropriate to take this approach in this case, because contrary to the
assertion made in Justice Benham’s special concurrence, the question of prejudice under Strickland
v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984), is very close – if, as Justice
Benham assumes, Heard is good law and Appellant’s trial counsel therefore performed deficiently
in not arguing that the trial court should have omitted the language of §16-3-21 (b) (2) from the self-
defense instruction. The State was required to disprove Appellant’s self-defense claim beyond a
reasonable doubt, and while the credibility of Appellant’s testimony supporting that claim was
certainly challenged, so too was much of the testimony from the eyewitnesses to which Justice
Benham refers without acknowledging any credibility issues. The witness who testified that he
believed Appellant was trying to get away from the officers as they attempted to frisk him, for
example, was Major Fields, the operator of the illegal shot-house, who also testified that the officers
were not in uniform, when in fact they were, and admitted that he had lied to the police in his
interview after the shooting and that he had a disability that caused long-term memory problems.

14
 Heard’s holding was criticized at the time by two Justices who dissented,

see 261 Ga. at 264-265 (Weltner, J., dissenting in relevant part, joined by Smith,

P.J.), and more recently by three more Justices, see Smith v. State, 290 Ga. 768,

Similarly, while the testimony of Appellant’s girlfriend indicated that he had armed himself in
anticipation of an encounter with the police, it does not prove that he did so for the express purpose
of initiating a shootout with police officers, particularly when considered in conjunction with the
testimony about what Appellant told the woman he visited in the complex earlier on the evening of
the shooting. “They draw theirs, I draw mine” is an indication that Appellant would act only after
facing a drawn gun.
As a matter of judicial review for compliance with due process under the standard set forth
in Jackson v. Virginia, 443 U.S. at 319, the jury was fully entitled to reject Appellant’s testimony
and to otherwise determine the credibility of the witnesses and resolve conflicts and inconsistencies
in the evidence. That is the standard of review we properly apply in Division 1 above in
summarizing the evidence presented at trial, and it is why we hold there that the evidence was
sufficient to support Appellant’s convictions. It is also the standard that was being applied in all of
the cases cited on page 3 of the special concurrence. But it is not the standard that courts use in
determining whether a legal error caused prejudice to a defendant; if it were, then there would be
harmful error or Strickland prejudice only in cases where the evidence was insufficient and the
convictions already reversible on due process grounds. In the context of determining prejudice, “we
review the record de novo. In doing so, we weigh the evidence as we would expect reasonable jurors
to have done so, as opposed to assuming that they took the most pro-guilt possible view of every bit
of evidence in the case.” Boothe v. State, 293 Ga. 285, 289-290 & n.8 (745 SE2d 594) (2013)
(citation and quotation marks omitted) (explaining the difference between the way courts review the
harm caused by errors and the way courts conduct due process review of the sufficiency of the
evidence). See also Strickland, 466 U.S. at 695 (“In making [the prejudice] determination, a court
hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”);
Humphrey v. Morrow, 289 Ga. 864, 870 (717 SE2d 168) (explaining that when the court assesses
the effect of evidence that was not presented to the jury at trial due to defense counsel’s deficient
performance – which is the basis for many ineffective assistance claims – “our assessment of how
a jury might have reacted to the additional evidence . . . is an assessment of the legal question of
prejudice, which we perform de novo”). Properly reviewing the entire record using the correct
standard of judicial review, one might say that the evidence disputing Appellant’s claim of self-
defense was substantial, but no one would fairly call it “overwhelming.” Even the State’s briefs do
not call the evidence “overwhelming,” and indeed the State does not argue that any Heard error in
the self-defense instruction did not cause prejudice; it argues only that there was no error. For these
reasons, we appropriately address whether there was error under Heard, which involves deciding
whether Heard is good law.

15
776-779 (723 SE2d 915) (2012) (Nahmias, J., concurring, joined by Carley, P.J.,

and Hines, J.). In this case, the State has expressly asked us to reconsider and

overrule Heard.6 As the State correctly reminds us, Heard disregarded the plain

language of § 16-3-21 (b) (2), which refers to the commission of “felony”

offenses without exception or limitation; overruled multiple precedents holding

broadly that a defendant cannot assert self-defense if he used deadly force while

“committing . . . a felony”; undermined the policy-making authority of the

General Assembly; and was unnecessary to prevent most of the “unfair”

applications that concerned the Heard majority. See Smith, 290 Ga. at 776-779

(Nahmias, J. concurring). Thus, we must decide whether considerations of stare

decisis counsel against overruling Heard.

“Stare decisis is the preferred course because it promotes the
evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and contributes to
the actual and perceived integrity of the judicial process. . . .
Nevertheless, when governing decisions are unworkable or are
badly reasoned, this Court has never felt constrained to follow
precedent. . . . Stare decisis is not an inexorable command; rather,
it is a principle of policy and not a mechanical formula of adherence
to the latest decision. . . .”

6
In Smith, the State did not ask us to reconsider Heard, as the concurrence emphasized. See
Smith, 290 Ga. at 776 (Nahmias, J., concurring). See also id. at 779 (“For the reasons discussed
above, if we are asked to overrule Heard, the request would require serious consideration.”).

16
State v. Hudson, 293 Ga. 656, 661 (748 SE2d 910) (2013) (citation omitted).

“In considering whether to reexamine a prior erroneous holding, we must

balance the importance of having the question decided against the importance

of having it decided right.” State v. Jackson, 287 Ga. 646, 658 (697 SE2d 757)

(2010). In doing so, we consider factors such as the antiquity of the precedent,

the reliance interests at stake, the workability of the decision, and, most

importantly, the soundness of its reasoning. See Hudson, 293 Ga. at 661;

Jackson, 287 Ga. at 658.

These factors weigh heavily in favor of overruling Heard. Heard is not yet

25 years old, and it overruled prior well-established precedent without engaging

in any analysis of stare decisis. See Hudson, 293 Ga. at 661-662 (overruling 38-

year-old constitutional interpretation precedent); Jackson, 287 Ga. at 658-659

(overruling statutory interpretation precedent that was nearly three decades old);

Durrence v. State, 287 Ga. 213, 216 n. 5 (695 SE2d 227) (2010) (overruling, in

a footnote, a 26-year-old statutory interpretation precedent). See also Smith,

290 Ga. at 779 (Nahmias, J., concurring) (noting that “the holding in Heard has

not been deeply embedded in our law”). Eliminating Heard also would not

upset reliance interests of the sort that the law usually recognizes in the stare

17
decisis analysis. See Hudson, 293 Ga. at 661 (overruling precedent that, like

Heard, did not create meaningful reliance interests because it did not involve

property or contract issues and established no substantive rights). Heard has

been cited infrequently and has never actually resulted in a conviction being

reversed by this Court (even in Heard itself).7 As for workability, the “standard”

that Heard established – whether the application of OCGA § 16-3-21 (b) (2)

“makes sense” to a majority of the Justices of this Court – provides nebulous

guidance for the participants in the criminal justice system that must apply it,

such as trial judges confronted with objections to jury instructions and criminal

defense attorneys advising their clients. See Georgia Dept. of Natural Resources

v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 602 (755 SE2d 184) (2014)

(overruling 19-year-old precedent applied only four times by appellate courts,

in part because having a “bright line rule” was preferable to the precedent’s

“scheme [of] allowing judicially created exceptions”).

7
The Heard majority held that the error that it identified in the jury instructions as to felony
murder was harmless because the trial court “merged” the felony murder count into the malice
murder conviction, mooting any felony murder errors. See 261 Ga. at 263. In this case, while
Appellant was convicted of malice murder, with the felony murder counts properly vacated, the trial
court’s instruction was not limited to the felony murder charges. In nearly 25 years, the Court of
Appeals has relied on Heard to reverse a defendant’s convictions only once. See Jones v. State, 220
Ga. App. 784, 785-786 (470 SE2d 326) (1996).

18
 The final and most important factor in the stare decisis analysis – the

soundness of the precedent’s reasoning – cuts most strongly against retaining

Heard.

Under our Constitution and legal tradition, judges are supposed to
apply the law enacted by the legislature based on what a statute
says, not based on whether the judges believe it “makes sense” to
apply the statute to the case at hand or instead feel it would be
“unfair” to do so.

Smith, 290 Ga. at 775 (Nahmias, J., concurring). Heard departed from this

principle, and did so without any “analysis of the statutory language or other

canons of statutory construction, such as a need to avoid a constitutional

violation.” Id. at 777. Whether the policy established by the Heard majority is

good or bad is beside the point, because it is not the policy established by the

body that is constitutionally entitled to establish the laws of Georgia. See id. at

778; Ga. Const. of 1983, Art. III, Sec. VI, Par. I (“The General Assembly shall

have the power to make all laws not inconsistent with this Constitution, and not

repugnant to the Constitution of the United States, which it shall deem necessary

and proper for the welfare of the state.”). If a law enacted by the General

Assembly is not unconstitutional – and the Heard majority identified nothing

unconstitutional about OCGA § 16-3-21 (b) (2) – the obligation of this Court is

19
to apply the law by its terms, whether we like it or not.8

We could endeavor to distinguish this case from Heard on the ground that

it “makes sense” to us to apply § 16-3-21 (b) (2) to Appellant because there is

evidence indicating that he was not just a felon who illegally armed himself, but

one who did so for the specific purpose of confronting the police.9 However,

the majority opinion in Heard was a stark departure from settled law and takes

the untenable position that this Court should apply statutes only when it seems

fair and sensible to us to do so. The better course is simply to overrule Heard

now, before it becomes any more entrenched. Accordingly, we hereby overrule

Heard and restore the law to its pre-Heard condition.10 It follows that the trial

8
It is worth noting that the special concurrence does not even try to support the reasoning
of the Heard majority.
9
Our prior cases distinguishing Heard, however, have not looked to the particular facts of
the case but rather the general type of felony the defendant was committing at the time of the killing.
See Smith, 290 Ga. at 771-772 (“Based on the evidence supporting Smith’s participation in a felony
drug transaction at the time of the fatal shooting, the trial court was authorized to instruct the jury
pursuant to OCGA § 16-3-21 (b) (2) . . . .”); Davis v. State, 290 Ga. 757, 763 (725 SE2d 280) (2012)
(same). See also Shivers, 286 Ga. at 428 (Nahmias, J., concurring specially) (discussing “the
General Assembly’s determination that it is inherently dangerous for a convicted felon to possess
a gun,” a crime that is punished by a prison term of one to five years even if the possession of the
gun does not injure anyone).
10
We note, as did the dissenting opinion in Heard, that the jury instruction given in that case
– “Self-defense is not a defense to felony murder” – is too broad. See Heard, 261 Ga. at 264 n.4
(Weltner, J., dissenting in part). If the jury finds that the felony allegedly underlying a felony murder
charge was justified, then it was not a crime at all, and it could not be the foundation for a felony
murder conviction. See Demery v. State, 287 Ga. 805, 809 (700 SE2d 373) (2010) (“[I]f [a

20
court did not err in instructing the jury in the words of OCGA § 16-3-21 (b) (2).

4. Appellant asserts that he received ineffective assistance of trial

counsel. To prevail on this claim, he must show that the performance of his

counsel was professionally deficient and that, but for the deficiency, there is a

reasonable probability that the outcome of the trial would have been more

favorable to him. See Strickland v. Washington, 466 U.S. 668, 687, 694 (104

SCt 2052, 80 LE2d 674) (1984). At trial, Appellant was represented by two

very experienced criminal defense attorneys, William Morrison and Dwight

Thomas, who managed to convince the jury to spare Appellant the death penalty

notwithstanding his murdering not one but two police officers. Nevertheless,

Appellant contends that his counsel were professionally deficient in failing to

object to the trial court’s instruction that a person is not justified in using force

if he is committing a felony. As explained in Division 3 (b) above, however,

this instruction tracking OCGA § 16-3-21 (b) (2) was not legally improper.

defendant] is justified in killing under OCGA § 16-3-21, he is guilty of no crime at all.”). See also
State v. Green, 289 Ga. 802, 804 (716 SE2d 194) (2011) (affirming the finding that the defendant
was immune from prosecution for felony murder based on aggravated assault where he defended
himself with a butcher knife, “[b]ecause the trial court was authorized to find that [the defendant]
acted in self-defense pursuant to OCGA § 16-3-21”). But whether the underlying felony can be
justified turns on the application of the law as expressed in OCGA § 16-3-21.

21
Accordingly, Appellant’s ineffective assistance claim fails. See Vergara v.

State, 287 Ga. 194, 198 (695 SE2d 215) (2010) (“Counsel cannot be ineffective

for failing to make a meritless objection to a proper charge.”).

Judgment affirmed. All the Justices concur, except Benham, Hunstein,

and Melton, JJ., who concur specially.

22
 S14A1532. WOODARD v. THE STATE.

BENHAM, Justice, concurring specially.

1. I concur fully with Divisions 1, 2, and 3 (a) of the majority opinion, but

I take issue with the decision to overrule Heard v. State, 261 Ga. 262 (403 SE2d

438) (1991) in Division 3 (b), and also with Division 4. The proper resolution

of appellant’s argument that the trial court erred in instructing the jury 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,” does not require overruling Heard. As set forth in detail in the majority

opinion, the record reflects appellant affirmatively waived his claim of error

based on Heard and invited the alleged error. Accordingly, “even where plain

error appears, reversal is not warranted if the error was invited by the appellant.

Shank v. State, 290 Ga. 844, 845 (2) (725 SE2d 246) (2012).” Shaw v. State, 292

Ga. 871, 873 n.3 (742 SE2d 707) (2013).

Because the alleged error was affirmatively waived in this case, we need

go no further in analyzing whether Heard remains good law. In fact, in my

opinion, it is not prudent to overrule a long-standing opinion of this Court when
it is entirely unnecessary to do so. Just as Justice Nahmias recognized in his

concurrence in Smith v. State, 290 Ga. 768, 775-779 (723 SE2d 915) (2012), this

Court need not decide whether Heard is good law where the case, as here, can

be resolved without reaching that issue.

2. With respect to whether we must nevertheless reach the issue of

whether Heard should be overruled in our analysis of appellant’s ineffective

assistance of counsel claim, again I say it is not necessary to address this issue.

Ineffective assistance of counsel requires both a showing that counsel’s

performance was deficient, and that, but for the deficient performance, a

reasonable probability exists that the outcome of the trial would have been

different. Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80

LE2d 674) (1984). In this case, the only evidence to support a finding of

justification is found in appellant’s testimony that he shot the officers in self-

defense because one of them pulled him to the ground and commenced beating

him, and he feared for his life. The testimony of eye-witnesses, however,

disputed appellant’s account and described that a scuffle between appellant and

the officers began when appellant resisted efforts to frisk him. One witness

testified he believed appellant was trying to get away from the officers. The

2
testimony of his girlfriend permitted the jury to conclude appellant was carrying

a firearm for the express purpose of initiating a shootout with any law

enforcement officer who might try to detain him.

The trial court instructed the jury on appellant’s justification defense. It

also instructed the jury on the statutory exception to the justification defense, to

which trial counsel did not object. Even if that instruction was erroneous and

counsel’s failure to object constituted deficient performance, appellant failed to

demonstrate that, but for counsel’s failure to object, a reasonable probability

exists that the result of the trial would have been different. The jury was not

required to accept appellant’s testimony that he was rightfully resisting arrest or

that he was justified in shooting the officers. See Murray v. State, 295 Ga. 289,

292 (1) (759 SE2d 525) (2014); Allen v. State, 290 Ga. 743, 744 (1) (723 SE2d

684) (2012). Of course, it is for the jury, and not this Court, to determine the

credibility of witnesses and resolve conflicts or inconsistencies in the evidence.

See Grissom v. State, ___ Ga. ___(1) (___ SE2d ___) (Case No. S14A1431,

decided January 20, 2015). Here, however, the evidence overwhelmingly

disputed appellant’s assertion of self-defense, and thus overwhelmingly

supported the jury’s finding of guilt. See Hill v. State, 290 Ga. 493 (722 SE2d

3
708) (2012) (where evidence of guilt was overwhelming, appellant failed to

establish how counsel’s failure to seek a jury charge on a defense to the crime

would have raised a reasonable probability of a different outcome); Holsey v.

State, 281 Ga. 177 (637 SE2d 32) (2006) (given overwhelming evidence of

appellant’s guilt, appellant was not able to show sufficient prejudice from alleged

deficient performance of counsel for failing to request an appropriate instruction

on receiving evidence of prior convictions in a case involving possession of a

firearm by a convicted felon).

If either one of the two prongs of the Strickland test is not met, the

assertion of ineffective assistance of counsel fails. Smith v. State, ___ Ga. ___

(___SE2d ___) (Case No. S14A1715, decided March 16, 2015). The

enumeration of error alleging ineffective assistance of counsel is without merit

as a result of appellant’s failure to demonstrate prejudice. Again, it is

unnecessary to reach the issue of whether Heard should be overruled because it

is unnecessary to reach the issue of whether an objection to the instruction, if

made at trial, would have been meritless.

I am authorized to state that Justices Hunstein and Melton join in this

special concurrence.

4