CourtListener 10680387

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NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: February 20, 2024

S23A1042. FLOYD v. THE STATE.

BOGGS, Chief Justice.

Appellant Darnell Rene Floyd challenges his conviction for

felony murder predicated on possession of a firearm by a convicted

felon in connection with the shooting death of Telmo Ortiz. At trial,

Appellant contended that he acted in self-defense, and he was

acquitted of malice murder; felony murder predicated on attempted

armed robbery and aggravated assault; and two counts of

aggravated assault. 1 On appeal, Appellant challenges only the

1 The crimes occurred on September 9, 2017. On December 1, 2017, a

his trial counsel was constitutionally ineffective in several ways

related to counsel’s handling of the interplay between self-defense

and possession of a firearm by a convicted felon. We agree and

accordingly reverse, but because the evidence against him was

constitutionally sufficient to authorize the conviction, he may be

retried.2

against Croft and kidnapping); possession of a firearm by a convicted felon;
and cruelty to children in the third degree. Appellant was tried before a jury
from December 9-17, 2019. In addition to the counts set forth in the indictment,
the trial court charged the jury on two offenses under the malice murder count:
felony murder predicated on possession of a firearm by a convicted felon and
voluntary manslaughter. The jury found Appellant guilty of felony murder,
predicated on felon-in-possession. The jury also found Appellant guilty of
possession of a firearm by a convicted felon; fleeing or attempting to elude; a
single count of possession of a firearm during the commission of a felony (Count
8); and cruelty to children. The jury acquitted Appellant of all other charges.
The trial court sentenced Appellant to serve life in prison with the possibility
of parole for felony murder; consecutive terms of five years each for fleeing or
attempting to elude and possession of a firearm during the commission of a
felony; and a concurrent twelve-month term for cruelty to children. The felon-
in-possession count merged with the felony murder conviction. Appellant filed
a timely motion for new trial, which he subsequently amended with new
counsel on March 8, 2021. After an evidentiary hearing on May 18, 2021, before
a successor judge, the trial court entered an order denying the motion on
December 5, 2022. Appellant filed a timely notice of appeal, and the case was
docketed in this Court to the August 2023 term and orally argued on October
17, 2023.
2 Appellant also asserts that the trial court abused its discretion in

denying his motion to bifurcate the felon-in-possession count from the trial of

2
1. The evidence presented at trial showed the following. 3

The shooting took place on September 9, 2017, at the home of

Caitlyn Croft and her twin sister, Casie Croft, who was Ortiz’s

girlfriend. Caitlyn and Casie were present at the time, as was

Destiny Welch, a mutual friend of everyone present.

Over a year before the shooting, Appellant, who was a

convicted felon, 4 was at a bar and encountered Ortiz for the first

time. Words were exchanged between Appellant’s friends and

Ortiz’s friends, and Ortiz and one of his friends left the bar and

retrieved guns from a car. As Appellant and a friend left the bar,

Ortiz and his friend approached Appellant with guns in their hands

the other offenses; that the trial court erred in charging the jury on felony
murder based on felon-in-possession as a lesser included offense of malice
murder; and that the trial court committed plain error in failing to charge the
jury that self-defense shall be an absolute defense to possession of a firearm by
a convicted felon. Because we reverse and because these alleged errors are
either moot or unlikely to arise again upon retrial, we do not address them.
3 Because of the analysis of prejudice undertaken in Division 2, we set

out the evidence in detail, and “we weigh the evidence as we would expect
reasonable jurors to have done so as opposed to viewing it all in the light most
favorable to the jury’s verdict.” Moore v. State, 315 Ga. 263, 264 n.2 (882 SE2d
227) (2022) (cleaned up).
4 Prior to trial, the parties agreed to stipulate to Appellant’s status as a

convicted felon, and at trial, Appellant testified that he was a convicted felon.
His prior conviction was not introduced into evidence.
3
and made threatening gestures toward Appellant and Appellant’s

friend. Appellant’s friend pulled him away, and they got into

Appellant’s car and left. About a week later, Appellant saw Ortiz

again at the bar and told him, “[Y]ou can’t be out here pulling guns

on people because everyone is not just going to bow down.” Ortiz

responded, “I don’t give a f**k, I’m just the type of mother**cker that

you just going to have to bust me.” The two continued to talk for a

short while longer, and then Appellant went to a different area of

the bar.

About a month before the shooting occurred, Welch told

Appellant that Ortiz was offering to sell a gun, and Appellant and

Ortiz met at Casie and Caitlyn’s house to discuss the purchase.

Appellant declined to buy the gun because Ortiz had raised the price

of the gun from the earlier price he had quoted Welch. A short time

after this encounter, Ortiz’s brother, or another person, stole cell

phones from Welch and a friend of Welch’s; Ortiz later came into

4
possession of the phones.5 Welch’s friend, with the assistance of

Casie, was able to recover her phone from Ortiz by paying him for

it, and Ortiz likewise told Welch she would have to pay him to get

her phone back. Welch then communicated with Casie and Caitlyn

to try to recover the phone, but she was unable to get her phone

back.

At about 10:30 p.m. on the night the shooting occurred,

Appellant and Welch drove to the house where Casie and Caitlyn

lived so that Welch could try to get her phone back. When Appellant

and Welch arrived at the house, Appellant parked his SUV facing

the street, between the unpaved driveway and a large tree near the

front porch of the house. Welch stepped out of the SUV and spoke to

Caitlyn, who was on the front porch. Welch told Caitlyn that she

wanted to get her phone back and wanted to speak to either Casie

or Ortiz about it. Caitlyn told Welch that Casie and Ortiz were not

5 The evidence was conflicting as to whether Ortiz’s brother stole the

phones, or another individual stole the phones and then gave them to Ortiz’s
brother.

5
there, but Caitlyn contacted Ortiz to tell him that Appellant and

Welch were at the house. Caitlyn then went over to the SUV and

visited with Welch’s child, who was in a car seat in the backseat.

Caitlyn saw a “shotgun” in the backseat.

Shortly thereafter, Ortiz and Casie returned, drove past the

SUV, and parked behind the house. Before Casie and Ortiz exited

the car, she handed him a handgun, and he put it in the waistband

of his shorts. Ortiz walked to the SUV on the driver’s side where

Appellant was sitting, and Casie walked to the passenger side of the

SUV. Caitlyn returned to the front porch. The witnesses provided

conflicting pretrial statements and testimony about what happened

next.

According to Appellant’s testimony at trial, he drove Welch and

her child to Caitlyn and Casie’s house, believing that Welch was

going to be dropping her child off with Caitlyn and Casie to babysit.

Although he was aware that Ortiz had Welch’s stolen cell phone, he

did not know that Ortiz lived there as well. When Ortiz arrived at

the house, Ortiz approached the driver’s side window and asked,

6
“[W]hat’s up.” Appellant asked Ortiz about Welch’s cell phone, and

Ortiz responded that he had paid for it and that if Appellant wanted

it back, he would have to pay for it. Appellant accused Ortiz of

robbing women for cell phones and saw Ortiz lift the hem of his shirt

and reach for a firearm in his waistband. Appellant then opened the

car door to deflect the gun and stepped out of the car, carrying a

nine-millimeter handgun in his pocket and another handgun in his

waistband. The door hit Ortiz, who started pulling out his gun and

lunging at Appellant, but Ortiz’s gun seemed to get “stuck on

something.” Appellant pulled the nine-millimeter gun out of his

pocket and fired at Ortiz. Appellant did not point his gun at Ortiz’s

face or tell Ortiz to “run [his] pockets.” When Appellant saw Ortiz

with the gun in his hand and trying to pull it out of his waistband,

Appellant feared for his life; after Appellant fired one shot, Ortiz

continued to pull his gun out. Appellant fired another shot, and

Ortiz began to turn and run away, but Ortiz started to turn back,

and Appellant could see the gun “all the way out.” Appellant then

fired a third shot.

7
Appellant’s account was contradicted by Caitlyn’s statements

and testimony. Caitlyn made several statements at the scene to

officers, which were audio- and video-recorded on officers’ body

cameras; a portion of the videos was played for the jury. When the

first officer arrived at the scene in response to a 911 call, Caitlyn

said she had not seen anything. A few minutes later, in response to

questions from another officer, Caitlyn said she could explain what

happened. She said that Ortiz bought a phone that been stolen from

Welch. She told the officer that Appellant demanded the phone from

Ortiz and threatened him if he did not give Appellant the phone and

that Ortiz said he did not have it and told Appellant to “check my

pockets.” Then Ortiz started running, at which point Appellant shot

him. Later, after Caitlynn and Casie had been in the house together

outside of the officers’ presence, an officer asked Caitlyn to come out

to the porch and “walk me through it.” In this conversation, Caitlyn’s

description of the events was that Appellant confronted Ortiz about

the phone and then tried to rob Ortiz, and Appellant pulled a gun

first. Ortiz pulled out his gun in response to Appellant’s threat to

8
rob him, and Appellant told him, “Run your pockets.” Ortiz

responded, “[N]o,” and started to run toward the house, and

Appellant shot him in the back as he ran. Later that evening, in

response to a request to give a statement at the police station,

Caitlyn said “I didn’t see it, only my sister did.”

In her trial testimony, Caitlyn said that she was on the front

porch when Ortiz and Casie were standing by Appellant’s SUV; that

it was dark; and that there was some lighting allowing her partially

to see Ortiz and Casie, although the railing around the front porch

blocked her view in part. She did not hear the conversation between

Appellant and Ortiz until Appellant raised his voice. She saw

Appellant exit the car and pull a gun. Then she saw the door hit

Casie, who was standing next to Ortiz. Caitlyn saw Appellant point

the gun at Ortiz’s head and heard Appellant tell Ortiz to empty his

pockets. She also testified that Ortiz was holding his hands at his

side with his palms out and told Appellant he would not empty his

pockets. Appellant then told Ortiz he would shoot, and Ortiz

responded, “[S]hoot.” Appellant then shot Ortiz and fired the gun

9
two more times. Caitlyn said she heard Ortiz fall, she did not see

Ortiz holding his gun or gesture as if he were going to pull a gun,

and she did not hear Ortiz threaten Appellant.

On the evening of the shooting, Casie gave a statement to

officers at police headquarters; this statement was audio-recorded

and played for the jury. According to Casie, when she and Ortiz

heard Appellant and Welch were at Casie’s house, she believed it

was about Welch’s cell phone. When she and Ortiz arrived back at

the house, they walked up to the driver’s side of Appellant’s car;

Ortiz had his gun “behind his pants” at the time. Appellant asked

Ortiz where the phone was, demanded that Ortiz give it to him, said

he was not going to pay for it, and asked why Welch should have to

pay for her own phone. Ortiz responded that he had paid for it and

did not know it had been stolen. Appellant then jumped out of the

SUV with a pistol and told Ortiz to empty his pockets. Ortiz said he

would not do that and that he did not have the phone, and Appellant

said, “I don’t care, empty your pockets.” Ortiz did not pull out his

gun, but said, “[B]ro, you goin’ have to bust”; Appellant replied, “I’m

10
fixin’ to bust at you.” Appellant then fired at Ortiz. Ortiz turned and

started to run, and Appellant continued to shoot. Casie believed that

Ortiz’s gun fell out of his waistband when he fell to the ground.

In Casie’s trial testimony, she stated that Welch’s phone had

been stolen; that Ortiz had subsequently bought the phone; and that

Ortiz was trying to make money from Welch by selling her phone

back to her because Welch owed him money for drugs. Casie was

standing by the driver’s side of the SUV when Ortiz was talking to

Appellant about the cell phone. When Ortiz refused to return the

phone, Appellant’s tone of voice changed, and he opened the SUV

door, knocking Casie to the ground. Appellant had a “pistol” in his

hand. Casie stood up behind Ortiz, and Appellant, with the gun

pointed at Ortiz’s face, told Ortiz to “empty your pockets or I’ll shoot

you.” Ortiz had his hands up, but when he moved his arm “a little

bit,” Appellant shot him. Ortiz turned to run away, and Appellant

shot him two more times. When Ortiz fell to the ground, his gun fell

out of his waistband.

According to Welch’s statement to police on the night of the

11
shooting, which was audio- and video-recorded and played for the

jury, Appellant asked Ortiz if he would give Welch back her phone,

and Ortiz said she could buy it back. Appellant and Ortiz continued

to talk about the phone, and Ortiz said that if Welch did not pay for

the phone, then he had nothing for them. Appellant pulled out a gun

and although Welch could not really see what was happening and

did not see the gun, she guessed that Ortiz reached for a gun and

then she heard three shots fired. Then Appellant drove away very

quickly, and Appellant told her that Ortiz had pulled a gun on him

and tried to rob him. Law enforcement officers began to pursue the

SUV, and during the high-speed chase that ensued, Appellant spoke

with someone on the phone and told that person he shot someone

who had tried to rob him.

In her trial testimony, Welch stated that Ortiz and Appellant

argued loudly about the phones, with Ortiz saying he needed to be

paid for it. Ortiz was the first to pull a gun, and he had a gun in his

12
hand as he argued with Appellant. 6 She heard the gunshots and saw

Ortiz on the ground, and then Appellant got back in the SUV. Welch

also testified that prior to the trial, Casie told her that Ortiz “did

kind of have [the gun] out,” but Casie “didn’t think he was going to.”

After the shooting, Appellant and Welch drove away, with

Welch’s child still in the car. Police officers in the area heard the

gunshots, saw Appellant’s SUV drive by at a high rate of speed and

without the lights on, began to pursue the vehicle, and attempted to

initiate a traffic stop. Appellant did not stop and led officers on an

approximately 15-to-20-minute high-speed chase, which ended

when officers conducted a “PIT maneuver.” Appellant put his hands

outside of the car window, asked officers not to shoot, and told them

there was a baby in the car. As he was removed from the SUV,

6 Welch testified that she was not truthful in her recorded pretrial
statement because she was scared that her child would be taken away from
her and that before the cameras were turned on in the interview room, officers
suggested that she could be charged with a crime and that she would serve
more time if she said that she saw Ortiz with a gun. She also testified that
when she was interviewed by an investigator with the prosecutor’s office, she
told the investigator that Ortiz had a gun; that the investigator did not appear
to like that answer; and that when she was interviewed by the prosecutor, the
prosecutor told her she could be charged with giving a false statement to
officers or with perjury if she lied while testifying.
13
Appellant told officers he had a .40-caliber handgun in his front

waistband; that gun was in a holster. Officers took possession of the

holstered gun, as well as two additional firearms from the SUV — a

nine-millimeter handgun from underneath Appellant’s seat and an

AR-15 rifle from the back seat.

Meanwhile, back at the crime scene, a neighbor who had heard

gunshots and screaming arrived at the house before law

enforcement officers arrived. He testified that when he approached

the house, Casie was sitting on the ground next to Ortiz. When the

neighbor reached toward Ortiz to see if Ortiz was breathing or had

a pulse, he saw a handgun lying on the ground between Ortiz’s right

hand and his waist; the neighbor picked up the gun, moved it away

from Ortiz’s body, and when a law enforcement officer arrived on the

scene, the neighbor pointed out where he had placed the gun. The

officer cleared a bullet from the chamber of the gun.

Testimony from the medical examiner, a firearms expert, and

an officer established that Ortiz suffered three gunshot wounds —

one to the abdominal area, one to the back of his right arm, and one

14
to his upper back. The testimony also established that two of the

wounds were caused by bullets fired from the nine-millimeter

handgun recovered from Appellant’s car.

We have reviewed the record and conclude that, viewed in the

light most favorable to the verdict, the evidence presented at trial

was constitutionally sufficient to authorize a rational jury to find

beyond a reasonable doubt that Appellant was guilty of felony

murder predicated on possession of a firearm by a convicted felon

and possession of a firearm during the commission of a crime. See

Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LEd2d 560)

(1979).7

2. Appellant contends (asserting interrelated arguments)

that his trial counsel was constitutionally ineffective for failing to

request a jury instruction about self-defense under OCGA § 16-11-

7 Appellant does not challenge the legal sufficiency of the evidence
supporting his conviction for felony murder and does not challenge his other
convictions. However, we address the sufficiency of the evidence of the
conviction for felony murder predicated on felon-in-possession because this
issue affects the ability of the State to retry him. See Heard v. State, 309 Ga.
76, 83 n.10 (844 SE2d 791) (2020).
15
138. That statute 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 prohibiting the possession of firearms by a convicted

felon. See OCGA § 16-11-131 (b). OCGA § 16-11-138 became

effective in 2014, see Ga. L. 2014, p. 599 § 1-10,8 three years before

the shooting and five years before the trial of this case. We have

previously explained that OCGA § 16-11-138 (a) “potentially

justif[ies] not only threats or uses of force . . . but also the possession

or carrying of a weapon in violation of Title 16, Chapter 11, Article

4, Part 3.” Johnson v. State, 308 Ga. 141, 145 (839 SE2d 521) (2020).9

Thus, under this statute, if the jury believed that Appellant was

acting in self-defense when he shot Ortiz, the jury was required to

8 OCGA § 16-11-138 was amended in a non-substantive way in 2015. See

Ga. L. 2015, p. 9 § 16.
9 Prior to the enactment of OCGA § 16-11-138, justification was not

generally available as a defense for a convicted felon in possession of a gun,
although our case law recognized an exception “where, upon a sudden
emergency, one suddenly acquires actual possession of a pistol for the purpose
of defending himself.” Copeland v. State, 316 Ga. 452, 456 n.3 (888 SE2d 517)
(2023) (cleaned up). See also Johnson, 308 Ga. at 143 n.5.
16
acquit him of felony murder based on felon-in-possession. See

generally State v. Remy, 308 Ga. 296, 300 (840 SE2d 385) (2020)

(stating that under OCGA § 16-11-138, if defendant, who was

convicted felon, was acting in self-defense at the time of the

shooting, “it cannot be said that he was committing a felony when

he shot [the victim].” (cleaned up)).

The additional facts relevant to this claim are as follows.

Although Appellant was not indicted for felony murder based on

felon-in-possession, on the first day of the trial, the State requested

that the jury be charged that it could find Appellant guilty of felony

murder based on felon-in-possession, as a lesser-included offense of

malice murder, and the trial court so instructed the jury. Appellant’s

sole defense was that he was acting in self-defense when he shot

Ortiz. 10 However, Appellant’s trial counsel did not request a jury

instruction on OCGA § 16-11-138 and acknowledged during the

motion for new trial hearing that he was unfamiliar with OCGA §

10 Although the trial court charged the jury on voluntary manslaughter,

Appellant’s trial counsel relied solely on self-defense in his closing arguments
and did not request that the jury consider voluntary manslaughter.
17
16-11-138 at the time of the trial.11

During closing arguments, trial counsel told the jury that

Appellant was guilty of felon-in-possession and that self-defense did

not apply to the felon-in-possession count. Trial counsel argued,

“You’re absolved of criminal responsibility if you are reasonably

defending yourself. What he’s not able to apply to is clearly the

possession of a firearm by a convicted felon and fleeing the officers.”

Trial counsel did not explain that Appellant was justified in

possessing the gun at the time he shot Ortiz if Appellant was acting

in self-defense. In contrast, trial counsel argued that self-defense

applied to felony murder predicated on attempted armed robbery

and aggravated assault.

In the morning of the second full day of its deliberations, the

jury sent out the following note:

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?

In the eyes of Georgia law what has presidence [sic]:
- self defense (at all costs)

11 The trial court did not discredit trial counsel’s testimony on this point.

18
- fellon [sic] in possession of a weapon defending himself

During a brief discussion with the parties, the trial court indicated

its understanding of the note as asking “can a felon grab a gun and

shoot somebody in self-defense and does the self-defense still apply

in that situation,” and that the answer to that question was “yes.”

With the parties’ agreement, the trial court wrote under the first

question, “Yes if he reasonably fears for his life.” The trial court then

told the parties that in response to the second question posed, he

wrote, “That is an issue for you to decide.” Trial counsel responded

“correct” and stated he had no objection to the answer as given. The

note, with the trial court’s written responses, was returned to the

jury, and the trial court did not address the jury in person. That

afternoon12 the jury returned its verdicts, finding Appellant not

guilty of malice murder, aggravated assault against Ortiz, and

12 After the trial court responded to the jury’s question and before the

jury returned its verdicts, the jury sent out another note, stating that it could
not reach a unanimous verdict on felony murder predicated on felon-in-
possession but that it had reached a unanimous decision on all other counts.
In response, the trial court charged the jury on further deliberations. See
Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.70.70
(4th ed. 2007) (Jury (Hung)).

19
felony murder predicated on aggravated assault and attempted

armed robbery, but finding him guilty of felony murder predicated

on felon-in-possession, as well as on some of the indicted crimes. See

footnote 1 above.

To establish that his trial counsel was constitutionally

ineffective, Appellant must prove both deficient performance by his

counsel and resulting prejudice. See Strickland v. Washington, 466

U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To establish

deficient performance, Appellant must show that his attorney’s acts

or omissions were “objectively unreasonable . . . considering all the

circumstances and in the light of prevailing professional norms.”

Davis v. State, 299 Ga. 180, 182-183 (787 SE2d 221) (2016). The law

recognizes a “strong presumption” that counsel performed

reasonably, and the defendant bears the burden of overcoming this

presumption. Strickland, 466 U.S. at 689. To carry this burden,

Appellant must show that “no reasonable lawyer would have done

what his lawyer did, or would have failed to do what his lawyer did

not.” Washington v. State, 313 Ga. 771, 773 (873 SE2d 132) (2022).

20
To establish the required prejudice, Appellant must show that but

for his attorney’s unprofessional errors, there is a reasonable

probability that the result of the proceeding would have been

different. See Davis, 299 Ga. at 183. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694.

(a) Deficiency prong. As noted above, the record establishes

that trial counsel’s lack of understanding of the law governing a

convicted felon’s statutory right to use a firearm in self-defense

underlies his failure to request a charge on OCGA § 16-11-138, his

failure to argue that self-defense applied to felony murder based on

felon-in-possession, and his agreement with the trial court’s

response to the jury’s second question. “An attorney’s ignorance of a

point of law that is fundamental to his case combined with his

failure to perform basic research on that point is a quintessential

example of unreasonable performance under Strickland.” Hinton v.

Alabama, 571 U.S. 263, 274 (134 SCt 1081, 188 LE2d 1) (2014).

While counsel’s decisions based on a misunderstanding of the

21
applicable law are not per se deficient, “a defendant can carry his

burden of showing deficiency if, under the circumstances, the

challenged action cannot be considered a sound trial strategy.”

Swanson v. State, 306 Ga. 153, 158 (829 SE2d 312) (2019) (cleaned

up) (concluding that trial counsel performed deficiently in failing to

request a jury charge on defense of habitation, when that defense

was expressly authorized by statute and applicable to the

defendant’s defense of justification). Here, trial counsel testified at

the hearing on the motion for new trial that while it was his strategy

to concede Appellant’s guilt for felon-in-possession, he did not have

a clear understanding about how to structure the argument in light

of the trial court’s decision to instruct the jury on felony murder

predicated on felon-in-possession; he also had no strategic reason for

failing to request an instruction on OCGA § 16-11-138. And there is

nothing in the record or our case law that would support the

conclusion that under these particular circumstances, it could be a

reasonable strategic decision to fail to ensure that the jury knew —

either through an explicit instruction on OCGA § 16-11-138 or

22
through clear argument — that Appellant had an absolute defense

to felony murder predicated on felon-in-possession if the jury

believed that the shooting was in self-defense.13 See id.; Benham v.

State, 277 Ga. 516, 517-518 (591 SE2d 824) (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).

Moreover, the jury’s note indicated that there was confusion

about the application of self-defense to felony murder and felon-in-

possession. See generally Reese v. State, 314 Ga. 871, 872, 882 (880

SE2d 117) (2022) (recognizing that jury note indicated jury was

misled by misstatements of law in closing arguments); Flood v.

State, 311 Ga. 800, 805-807 (860 SE2d 731) (2021) (where jury was

13 Trial counsel testified at the motion for new trial hearing that because

Appellant had two additional guns in the SUV, conceding Appellant’s guilt for
felon-in-possession was a way to build credibility with the jury. We have
recognized that a similar concession may fall within the bounds of reasonable
professional assistance. See, e.g., Anthony v. State, 311 Ga. 293, 298 (857 SE2d
682) (2021) (counsel’s strategic decision to concede in closing argument that
his client was guilty of lesser charges and to focus on argument that his client
was not guilty of malice murder was not deficient performance). But as
described above, the circumstances here are not analogous to the facts of
Anthony.
23
charged on malice murder and lesser included offense of voluntary

manslaughter, recognizing that jury confusion was indicated by

jury’s note stating that 11 jurors were considering convicting the

defendant on “lesser charge of felony murder” or on involuntary

manslaughter). The confusion is evident here because despite being

instructed by the trial court that “[t]he fact that a person’s conduct

is justified is a defense to prosecution for any crime based on that

conduct,” the jury asked whether Appellant, as a convicted felon,

could be justified to use a gun in self-defense.14

In the face of this evident jury confusion, the trial court’s

response to the second question — “that is an issue for you to decide”

— did nothing to clarify the confusion, regardless of how the

question is interpreted. 15 If, as the State suggests on appeal, the

second question is duplicative of the first, then providing different

14 Trial counsel’s argument that self-defense did not apply to felon-in-

possession likely contributed to the jury’s confusion.
15 At trial, there was no discussion about the meaning of the second

question, and trial counsel testified at the motion-for-new-trial hearing that he
did not “know what the jury was asking” in the second question.

24
responses to the same question is obviously incorrect. If, however,

the second question is read as asking whether the jury may convict

on felon-in-possession even if it finds Appellant acted in self-defense,

the response utterly failed to inform the jury that Georgia statutory

law provides an absolute defense to felony murder based on felon-

in-possession if the jury believed that Appellant acted in self-

defense. See OCGA § 16-11-138. Finally, regardless of exactly how

the jury’s second question is understood, the two questions

themselves signaled that the jury was confused by the concession

that Appellant was a convicted felon and not permitted to possess a

gun and the claim that he was justified in using a gun in self-

defense. Especially 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 generally Reese, 314 Ga. at 879-883

25
(reversing conviction where trial court’s instructions on defendant’s

affirmative defense of justification were erroneous and trial court’s

response to jury’s note indicating confusion about those instructions

did not remedy the error); Hall v. Wheeling, 282 Ga. 86, 87 (646

SE2d 236) (2007) (failure to object to erroneous jury instruction that

allowed jury to convict on manner not alleged in indictment was

deficient performance). Compare Collins v. State, 312 Ga. 727, 749-

752 (864 SE2d 85) (2021) (trial counsel’s agreement that jury

question asking “Rule of Law Question” should not be answered was

not unreasonable strategic decision, where counsel indicated that

initial instructions covered principles outlined in question and

written copy was given to jury); Stepp-McCommons v. State, 309 Ga.

400, 407 (854 SE2d 643) (2020) (failure to object to trial court’s

legally correct response to jury question was not deficient

performance).

Accordingly, we conclude that trial counsel’s failure to request

a charge on OCGA § 16-11-138, coupled with his failure to clearly

explain that self-defense applied to felony murder based on felon-in-

26
possession and his agreement with the trial court’s response to the

jury’s second question, constitutes deficient performance.

(b) Prejudice prong. “Jury instructions are the lamp to guide

the jury’s feet in journeying through the testimony in search of a

legal verdict.” Henry v. State, 307 Ga. 140, 146 (834 SE2d 861) (2019)

(cleaned up). Given the importance of correctly instructing the jury

on the issues critical to a proper understanding of a defendant’s

theory of defense, trial counsel’s failure to request appropriate jury

instructions and to object to a trial court’s incorrect response to a

jury note is prejudicial if but for the errors, there is a reasonable

probability that the result of the proceeding would have been

different. See, e.g., Swanson, 306 Ga. at 161-162 (determining that

trial counsel’s deficient performance in failing to request instruction

on defense of habitation was prejudicial); Benham, 277 Ga. at 518

(same). See also Henry, 307 Ga. at 146 (instructional error related

to defense of justification was harmful); Woods v. State, 291 Ga. 804,

810-811 (733 SE2d 730) (2012) (instructional error that deprived

jury of “proper guidelines for determining guilt or innocence” was

27
harmful and reversible error (cleaned up)); Price v. State, 289 Ga.

459, 461-462 (712 SE2d 828) (2011) (instructional error that “failed

to fairly present [Appellant’s] defense to the jury” was harmful and

reversible error (cleaned up)).

Here, Appellant testified that he acted in self-defense, self-

defense was the only defense proffered, and the jury acquitted him

of the other offenses arising out of the shooting of Ortiz for which

self-defense was asserted — malice murder, felony murder based on

aggravated assault, and aggravated assault. In addition, the jury

note indicated that the jury was contemplating whether Appellant’s

claim of self-defense could apply to the felon-in-possession charge

and was confused about the subject. However, counsel’s deficiencies

deprived the jury of understanding that OCGA § 16-11-138 provided

an absolute defense to felony murder predicated on felon-in-

possession if it believed that Appellant was acting in self-defense

when he shot Ortiz. And viewing the jury instructions as a whole,

including the responses to the jury’s questions that indicated its

confusion, the jury was not otherwise clearly instructed that it was

28
required to acquit Appellant of felony murder based on felon-in-

possession if it believed he was acting in self-defense. Under these

unique facts, we conclude that Appellant has met his burden of

showing that but for the cumulative effect of counsel’s deficiencies,

there is a reasonable probability that the outcome of the trial would

have been different.

Accordingly, we reverse Appellant’s convictions and sentence

for felony murder and possession of a firearm by a convicted felon.

3. Because we are reversing the felony murder conviction,

which is the only conviction supporting the conviction for Count 8,

possession of a firearm during the commission of a felony, we also

reverse that conviction. See King v. Waters, 278 Ga. 122, 123-124

(598 SE2d 476) (2004) (habeas court erred in failing to vacate

weapons possession conviction when predicate was vacated).

Compare Mason v. State, 279 Ga. 636, 639 (619 SE2d 621) (2005)

(alleged erroneous jury instruction on aggravated assault would not

require reversal of weapons possession offenses under King v.

Waters where those offenses could be predicated on alternative

29
convictions).

Because, as discussed in Division 1 above, the evidence was

legally sufficient to support the jury’s guilty verdicts, the State may

retry Appellant for felony murder predicated on felon-in-possession

as well as for possession of a firearm during the commission of a

felony. See Heard v. State, 309 Ga. 76, 83 n.10 (844 SE2d 791)

(2020).16

Judgment reversed in part. All the Justices concur.

16 We express no opinion as to whether the State may reindict Appellant

on these charges. See, e.g., McCrary v. State, 252 Ga. 521, 525 (314 SE2d 662)
(1984) (reversing conviction on charge of felony murder based on robbery where
underlying robbery charge was not included in indictment, and noting State
could reindict) (“McCrary I”); McCrary v. State, 254 Ga. 382, 382-383 (329
SE2d 473) (1985) (after McCrary I and reindictment on felony murder
predicated on aggravated assault, holding, in part, that retrial under new
indictment did not violate double jeopardy). Compare Price v. Georgia, 398 U.S.
323, 324-325, 329-330 (90 SCt 1757, 26 LE2d 300) (1970) (holding, in part, that
retrial under original indictment for malice murder violated double jeopardy,
where first jury returned guilty verdict only as to voluntary manslaughter as
lesser included offense of malice murder).
30
LAGRUA, Justice, concurring.

I agree with the majority opinion that our prior cases on

ineffective assistance of counsel and felony murder require reversal

here, so I concur. Under OCGA § 16-11-138, Appellant indeed had

an absolute defense to felony murder predicated on possession of a

firearm by a convicted felon if the jury believed that he shot Ortiz in

self-defense. See Johnson, 308 Ga. at 145; Remy, 308 Ga. at 300. I

write separately because the jury’s confusion over the interplay

between self-defense and possession of a firearm by a convicted felon

is understandable. I question whether OCGA § 16-11-138 was

intended to protect felons who intentionally arm themselves and

then use those weapons in situations like this. If that was not the

intent, the General Assembly should clarify the statute.

Nonetheless, that is where the law stands, so we must apply it.

I am authorized to state that Justice Colvin joins in this

concurrence.

318 Ga. 312
FINAL COPY

S23A1042. FLOYD v. THE STATE.

BOGGS, Chief Justice.

Appellant Darnell Rene Floyd challenges his conviction for

felony murder predicated on possession of a firearm by a convicted

felon in connection with the shooting death of Telmo Ortiz. At trial,

Appellant contended that he acted in self-defense, and he was

acquitted of malice murder; felony murder predicated on attempted

armed robbery and aggravated assault; and two counts of

aggravated assault.1 On appeal, Appellant challenges only the

1 The crimes occurred on September 9, 2017. On December 1, 2017, a

Newton County grand jury indicted Appellant for malice murder, a single
count of felony murder predicated on attempted armed robbery and aggravated
assault; attempted armed robbery; two counts of aggravated assault with a
deadly weapon (against Ortiz and Casie Croft by brandishing a firearm);
fleeing or attempting to elude a police officer; kidnapping; possession of a
firearm during the commission of the felonies of “[m]urder,” aggravated
assault, and attempted armed robbery (“Count 8”); two additional counts of
possession of a firearm during the commission of the felony (aggravated assault
against Croft and kidnapping); possession of a firearm by a convicted felon;
and cruelty to children in the third degree. Appellant was tried before a jury
from December 9-17, 2019. In addition to the counts set forth in the indictment,
the trial court charged the jury on two offenses under the malice murder count:
felony murder and felon-in-possession convictions. He contends that

his trial counsel was constitutionally ineffective in several ways

related to counsel’s handling of the interplay between self-defense

and possession of a firearm by a convicted felon. We agree and

accordingly reverse, but because the evidence against him was

constitutionally sufficient to authorize the conviction, he may be

retried.2

felony murder predicated on possession of a firearm by a convicted felon and
voluntary manslaughter. The jury found Appellant guilty of felony murder,
predicated on felon-in-possession. The jury also found Appellant guilty of
possession of a firearm by a convicted felon; fleeing or attempting to elude; a
single count of possession of a firearm during the commission of a felony (Count
8); and cruelty to children. The jury acquitted Appellant of all other charges.
The trial court sentenced Appellant to serve life in prison with the possibility
of parole for felony murder; consecutive terms of five years each for fleeing or
attempting to elude and possession of a firearm during the commission of a
felony; and a concurrent 12-month term for cruelty to children. The felon-in-
possession count merged with the felony murder conviction. Appellant filed a
timely motion for new trial, which he subsequently amended with new counsel
on March 8, 2021. After an evidentiary hearing on May 18, 2021, before a
successor judge, the trial court entered an order denying the motion on
December 5, 2022. Appellant filed a timely notice of appeal, and the case was
docketed in this Court to the August 2023 term and orally argued on October
17, 2023.
2 Appellant also asserts that the trial court abused its discretion in

denying his motion to bifurcate the felon-in-possession count from the trial of
the other offenses; that the trial court erred in charging the jury on felony
murder based on felon-in-possession as a lesser included offense of malice
murder; and that the trial court committed plain error in failing to charge the
jury that self-defense shall be an absolute defense to possession of a firearm by

2
1. The evidence presented at trial showed the following.3 The

shooting took place on September 9, 2017, at the home of Caitlyn

Croft and her twin sister, Casie Croft, who was Ortiz’s girlfriend.

Caitlyn and Casie were present at the time, as was Destiny Welch,

a mutual friend of everyone present.

Over a year before the shooting, Appellant, who was a

convicted felon,4 was at a bar and encountered Ortiz for the first

time. Words were exchanged between Appellant’s friends and

Ortiz’s friends, and Ortiz and one of his friends left the bar and

retrieved guns from a car. As Appellant and a friend left the bar,

Ortiz and his friend approached Appellant with guns in their hands

and made threatening gestures toward Appellant and Appellant’s

friend. Appellant’s friend pulled him away, and they got into

a convicted felon. Because we reverse and because these alleged errors are
either moot or unlikely to arise again upon retrial, we do not address them.
3 Because of the analysis of prejudice undertaken in Division 2, we set

convicted felon, and at trial, Appellant testified that he was a convicted felon.
His prior conviction was not introduced into evidence.
3
Appellant’s car and left. About a week later, Appellant saw Ortiz

again at the bar and told him, “[Y]ou can’t be out here pulling guns

on people because everyone is not just going to bow down.” Ortiz

responded, “I don’t give a f**k, I’m just the type of motherf**ker that

you just going to have to bust me.” The two continued to talk for a

short while longer, and then Appellant went to a different area of

the bar.

About a month before the shooting occurred, Welch told

Appellant that Ortiz was offering to sell a gun, and Appellant and

Ortiz met at Casie and Caitlyn’s house to discuss the purchase.

Appellant declined to buy the gun because Ortiz had raised the price

of the gun from the earlier price he had quoted Welch. A short time

after this encounter, Ortiz’s brother, or another person, stole cell

phones from Welch and a friend of Welch’s; Ortiz later came into

possession of the phones.5 Welch’s friend, with the assistance of

5 The evidence was conflicting as to whether Ortiz’s brother stole the

phones, or another individual stole the phones and then gave them to Ortiz’s
brother.

4
Casie, was able to recover her phone from Ortiz by paying him for