by Anthony W. Accurso

The Supreme Court of Georgia ruled that defense counsel was ineffective for failing to argue that self-defense is a complete defense to felony murder based on a felon-in-possession charge based on Georgia’s self-defense statute, OCGA § 16-11-138.

On the evening of September 9, 2017, Darnell Rene Floyd drove to the home of Caitlyn and Casie Croft to confront Casie’s boyfriend, Telmo Ortiz. Floyd was traveling with Destiny Welch and her young child for the purpose of confronting Ortiz because he possessed Welch’s stolen cellphone and was demanding payment for its return.

There was an argument outside the home between Floyd and Ortiz that involved gunfire, which left Ortiz dead from three gunshot wounds. Floyd fled the scene in his vehicle with Welch and her child. Floyd was stopped after police executed a PIT maneuver, and he surrendered. Around that time, a neighbor responded to the scene of the shooting and found Casie near Ortiz, with a pistol laying on the ground between his waistband and his hand.

The three women gave testimony at trial that was at odds with the statements they made to investigators shortly after the shooting, though Welch testified investigators pressured her to say that Ortiz didn’t have a gun during the altercation and that her child could be taken from her if she “lied while testifying.”

At trial, Floyd contended he acted in self-defense and was “acquitted of malice murder; felony murder predicated on attempted armed robbery and aggravated assault; and two counts of aggravated assault.” He was convicted on the count of felony murder predicated on his possession of a firearm as a felon.

After his conviction, Floyd filed a habeas corpus motion alleging his trial attorney failed to raise the argument that Georgia’s self-defense statute justified his possession of a firearm when he shot Ortiz.

The Georgia Supreme Court noted the governing standard for ineffective assistance of counsel claims is the deficiency and prejudice test from Strickland v. Washington, 466 U.S. 668 (1984). Deficiency requires the defendant to prove his attorney’s acts or omissions were “objectively unreasonable … considering all the circumstances and in light of prevailing professional norms.” Davis v. State, 787 S.E.2d 221 (Ga. 2016).

In 2014, Georgia passed OCGA § 16-11-138, which provides that “[d]efense of self or others, as contemplated by and provided for under Article 2 of Chapter 3 of this title, shall be an absolute defense” to various statutes criminalizing the carrying and possession of firearms in specified ways, including, according to the Court, those “prohibiting the possession of firearms by a convicted felon.”

This law was passed three years before the shooting and five years before Floyd’s trial. Yet, in a habeas hearing, Floyd’s counsel admitted he was “unfamiliar with OCGA [Section] 16-11-138 at the time of the trial” and “did not have a clear understanding about how to structure the [self-defense] argument in light of the trial court’s decision to instruct the jury on felony murder predicated on felon-in-possession.”

This admission established deficient performance, according to the Court. See Benham v. State, 591 S.E.2d 824 (Ga. 2004) (trial counsel’s failure to request defense-of-habitation instruction was due to counsel’s failure to understand the available defenses and constituted deficient performance). The Court explained that § 16-11-138 provides a complete defense to possessing or carrying a weapon by a felon, so if the jury believed that Floyd was acting in self-defense when he shot the victim, the jury was required to acquit him of felony murder predicated on felon-in-possession. See State v. Remy, 840 S.E.2d 385 (Ga. 2020). Thus, the Court ruled the fact that defendant’s trial counsel was not aware of this rule of law constitutes deficient performance.

As for prejudice, the trial record showed the jury was confused whether the self-defense claim applied to the charge of being a felon-in-possession of a firearm. On its second day of deliberations, the jury asked two questions of the trial court: (1) “Can Darnell, as a convicted fellon [sic] with a weapon, be justified to use a weapon (gun) to defend himself if he fears for his life?” and (2) “In the eyes of Georgia law what has presidence [sic]: self defense (at all costs) [, or] fellon [sic] in possession of a weapon defending himself.”

The answers the trial court returned, after discussion with the parties, were: (1) “Yes if he reasonably fears for his life” and (2) “That is an issue for you to decide.”

Due to defense counsel’s ignorance of § 16-11-138 and the resulting confusion by the jury, the Court concluded there was a reasonable probability Floyd was prejudiced by his trial counsel’s deficient performance.

The Court stated, “[e]specially given that self-defense was Appellant’s sole defense to felony murder based on felon-in-possession, we conclude that no reasonable attorney would have agreed with the trial court’s response to the jury’s second question, which at best was a non-answer, and at worst, authorized the jury to convict on felony murder based on felon-in-possession even if it believed Appellant’s claim of self-defense.” See Price v. State, 712 S.E.2d 828 (Ga. 2011) (instructional error that “failed to fairly present [Appellant’s] defense to the jury” was harmful and reversible error (cleaned up)).

Thus, the Court held that Floyd was entitled to reversal on his conviction for felon-in-possession and the felony murder conviction based upon that charge. However, because “the evidence was legally sufficient to support the jury’s guilty verdicts,” the Court ruled that he may be retrial.

Accordingly, the Court reversed his convictions and remanded the case for proceedings consistent with its opinion. See: Floyd v. State, 898 S.E.2d 431 (Ga. 2024).

Editor’s note: Anyone with an interest in the interplay between Georgia’s self-defense statute in question and felon-in-possession issues is encouraged to read the Court’s full opinion.   

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