Citation. 308 Ga. App. 76, 706 S.E.2d 604 (Ct. App. 2011) [2011 BL 52181]
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Appellant was convicted of second-degree murder for killing a police officer who he believed to be a burglar. Appellant argued that he was prejudiced by jury instructions given regarding the second-degree murder charge.
Synopsis of Rule of Law.
The right to defend one’s house is not absolute but subject to the standards of a reasonable, prudent and cautious person.
Facts.
Appellant Law, a black man, had recently moved into a predominantly white middle class neighborhood. Within two weeks of moving in, his house was burglarized and a substantial amount of property was stolen. The officer who investigated the burglary testified that Appellant said he would find the perpetrator and ‘take care of him’. Subsequently, Appellant purchased a shotgun. One the night in question the police were called by a neighbor of Appellant who heard noises at Appellant’s home. An altercation ensued where Appellant believed the police were the burglars and the police believed Appellant was the burglar. Appellant was convicted of second-degree murder for shooting and killing a police officer.
Issue.
Whether Appellant case was prejudiced by the instructions given to the jury regarding murder in the second degree.
Held.
Appellant was not prejudiced by the instructions given.
Most jurisdictions have taken the view that if an assault on a dwelling and an attempted forcible entry are made under circumstances which would create a reasonable apprehension that it is the design of the assailant to commit a felony or to inflict injury on the inhabitants and this danger is imminent, the lawful occupant may take the life of the intruder.
The killing must be necessary to prevent the commission of the felony, if other methods would prevent the commission, a homicide is not justified, and all other means must be exhausted.
The right to defend one’s home is not absolute but subject to the standards of a reasonable, prudent and cautious person.
Discussion.
The Court ruled first set out the framework regarding defense of one’s property. After doing so, the Court noted that this court would not find justifiable random shots fired upon a baseless apprehension by an unreasonable person. The Court ruled that the use of deadly force would be severely limited to violent felonies and would not involve an analysis of the subjective state of mind of the actor.
