concurring specially.
I fully concur in Divisions (b) and (c) of the majority opinion, and in the judgment affirming Patel’s conviction for felony murder. *755Division (a) addresses the contention that trial counsel was ineffective in failing to request a jury instruction on the defense of habitation. In finding that counsel was not ineffective, the majority distinguishes Benham v. State, 277 Ga. 516 (591 SE2d 824) (2004) on two grounds. I agree with respect to the first ground since, the law of the case as enunciated in Patel v. State, 278 Ga. 403, 404 (603 SE2d 237) (2004), established that there was no evidence that the entry into Patel’s storage building was “made or attempted in a violent and tumultuous manner.” OCGA § 16-3-23 (1). Thus, a charge on the defense of habitation by the use of deadly force under the circumstances enumerated in the first subsection of OCGA § 16-3-23 was not authorized. Compare Benham v. State, supra at 517.
The majority’s second basis for distinguishing Benham is primarily that Patel’s trial counsel made a reasonable tactical decision not to request a charge in accordance with OCGA § 16-3-23 (3). Pursuant to that subsection, a person is justified in using deadly force if he “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.” The majority relies on counsel’s testimony that he made a strategic decision to base the defense on Patel’s reasonable belief that deadly force was necessary to protect himself and his real property, and not to prevent the intruder from stealing beer. If, however, there had been evidence that the anticipated theft was sufficient to trigger the applicability of OCGA § 16-3-23 (3) in this case, then the defense of habitation could be much broader and more easily proved than either self-defense or the defense of real property. Thus, trial counsel’s failure to invoke the defense of habitation might then constitute ineffective assistance. See OCGA § 16-3-21 (a) (deadly force in self-defense justified by apparent necessity to prevent commission of a “forcible felony”); OCGA § 16-3-24 (b) (deadly force in defense of real property justified by apparent necessity to prevent commission of a “forcible felony”); Benham v. State, supra at 517-518.
Nevertheless, I believe that defense counsel was not ineffective, because Benham is clearly distinguishable on other grounds not mentioned in the majority opinion. Benham simply did not involve OCGA § 16-3-23 (3), and there is no evidence in the record before us to support a charge on that statutory method. Since there must be a reasonable belief that the entry was made or attempted for the purpose of committing a felony in the habitation, the entry itself cannot logically constitute the felony which the defendant reasonably fears. The only other possible crimes intended by the intruder in this case are assault and theft. However, an apparent purpose to commit misdemeanor theft is not sufficient under OCGA § 16-3-23 (3), and there is absolutely no evidence from which one can infer that the *756intruder intended to steal more than $500 worth of beer and thereby commit felony theft. See OCGA § 16-8-12 (a) (1). Compare OCGA § 16-7-1 (a) (one element of burglary is “the intent to commit a felony or theft” in the dwelling (emphasis supplied)). Furthermore, “any assault upon [Patel], and any justification, was over when [he] started shooting. [Cit.]” Patel v. State, supra at 405 (3). Thus, even assuming that there was evidence of an aggravated assault, Patel could not have reasonably believed that deadly force was “necessary to prevent the commission of the felony.” (Emphasis supplied.) OCGA § 16-3-23 (3). Therefore, the evidence does not authorize a charge on that method of the defense of habitation, and Patel’s attorney clearly was not ineffective in failing to request such a charge.
Decided September 19, 2005 Reconsideration denied October 24, 2005. Laurence H. Margolis, for appellant. Gwendolyn Keyes Fleming, District Attorney, Barbara B. Conroy, Assistant District Attorney, Thurbert E. Baker, Attorney General, Jason C. Fisher, Assistant Attorney General, for appellee.Even if Benham, were not distinguishable on the ground that it involves only subsection (1) of OCGA § 16-3-23, its language regarding the necessity for deadly force is not applicable here. Patel relies on the statement in Benham v. State, supra at 517, that trial counsel there failed to recognize that the defense of habitation by deadly force may have been available “even if that amount of force was not necessarily required to repel [the victim]’s attack.” The majority in Benham could only have been referring to absolute necessity for the use of deadly force, since subsection (1), as well as subsection (3), of OCGA § 16-3-23 explicitly requires an apparent necessity for the use of such force. It cannot now be inferred that this Court was confusing real necessity with apparent necessity. See Wayne v. State, 113 Ga. App. 281, 282 (2) (147 SE2d 814) (1966).
Because Benham should be cautiously and sensibly limited to its actual holding by the express terms of OCGA § 16-3-23, I concur specially in the judgment of affirmance.