☢ test - Í

Hammock v. State, 277 Ga. 612, 592 S.E.2d 415 (February 2, 2004). Habitation defense is available where victim is a cohabitant under OCGA § 16-3-23 (1) (entry made for purpose of assault) or (3) (entry made for purpose of felony), but not, by its express terms, subsection (2) (unlawful and forcible entry by a person not a member of the same family or household). “[F]or purposes of OCGA § 16-3-23, a person’s habitation can be a particular space in a jointly-occupied dwelling provided that such person has obtained the right to occupy that space and exclude his co- inhabitants therefrom.” In the present case, however, “the fact that Hammock sometimes locked herself in the master bedroom in the weeks preceding the shooting was insufficient to establish a clear agreement between herself and the victim that the victim could not enter the bedroom. Therefore, the bedroom was not Hammock’s habitation, and the victim’s breaking down the bedroom door was not an unlawful entry into or attack upon Hammock’s habitation. Accordingly, the trial court did not err by refusing to charge the jury on the defense of habitation.” Benham v. State, 277 Ga. 516, 591 S.E.2d 824 (January 12, 2004). In her trial for aggravated assault, defendant “was denied constitutionally effective assistance of trial counsel by counsel’s failure to request a jury instruction on the use of force in defense of habitation as provided in OCGA § 16-3-23,” instead of just self-defense pursuant to OCGA § 16-3-21. Defendant got in a fight with another woman while defendant was seated in her car; the other woman reached in the car window and threw the first punch. Defendant responded by repeatedly slashing the other woman with a box cutter. This use of deadly force would be justified as self-defense only if the jury “found that Benham reasonably believed her use of deadly force was necessary to prevent death or great bodily injury to herself or others, or to prevent a forcible felony,” and must be rejected if defendant provoked the attack “as an excuse to inflict bodily harm on her assailant.” Defense of habitation, however, “may have justified the use of deadly force in this case even if that amount of force was not necessarily required to repel [the] attack.” “Even 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.” Carley, J., dissents, arguing that deadly force in defense of habitation, like self-defense, must be shown to be necessary. Boggs v. State, 261 Ga.App. 104, 581 S.E.2d 722 (May 2, 2003). Since OCGA § 16-3-24.2 provides that one acting in defense of habitation (16-3-23) or other real or personal property (16-3-24) is generally immune from prosecution, “the decision as to whether a person is immune under OCGA § 16-3-24.2 must be determined by the trial court before the trial of that person commences. We find that the trial court did not err in refusing to charge OCGA § 16-3-24.2 since it had determined the question of immunity as a matter of law before the commencement of trial.” Accord, Fair (July 14, 2008), above. But see Bunn v. State , 284 Ga. 410, 667 S.E.2d 605 (October 6, 2008) (immunity may be raised both pre-trial and at trial). Stobbart v. State, 272 Ga. 608, 533 S.E.2d 379 (July 10, 2000). Malice murder and related convictions reversed on other grounds, but no error in declining to charge on defense of habitation. “OCGA § 16-3-23 authorizes use of force to terminate an ‘unlawful entry into or attack upon a habitation.’ The statute is clearly concerned with the use of deadly force to counter entry, or attempted entry, into the home. See Darden v. State, 233 Ga.App. 353, 354(1), 504 S.E.2d 256 (1998). DeFranks was already in the apartment when he was shot, and there is no evidence that he made any threats against the habitation. Further, he was there as a guest of Marchitelli, who was a resident of the apartment and signer of its lease, and defense of habitation is not a defense available to a defendant when the victim is a guest in the home. Stephens v. State, 71 Ga.App. 417, 31 S.E.2d 217 (1944).” M. DOUBLE JEOPARDY See CONSTITUTIONAL ISSUES – DOUBLE JEOPARDY, above N. DURESS See subheading COERCION, above O. ENTRAPMENT See elements in St. Jean (April 18, 2002), below. Murray v. State, 335 Ga.App. 634, 782 S.E.2d 694 (February 9, 2016). Convictions for possession of marijuana with intent to distribute, and giving false name to officers, affirmed; no error in declining to give charge on entrapment sua sponte . Using a false name, defendant accepted delivery of a package containing the marijuana. The package was mistakenly delivered to the residence of an innocent person, Howell, who contacted the police. Murray contacted Howell, looking for the package, and arranged to meet her at Home Depot to receive it. “Here, the evidence demonstrates that while the police provided the opportunity for Murray to pick up the package, they did not put the contraband in the package, mail the package, or induce Murray to track the package down. Murray visited Howell’s home several times and left his number for her to contact him so that he could pick up the package. This evidence does not demand a