Legal News Headlines

 
Copyright 2008 Columbus Ledger-Enquirer

 Distributed by McClatchy-Tribune Business News

 May 12, 2008 Monday

SECTION: STATE AND REGIONAL NEWS

ACC-NO: 20080512-CO-Law-protects-armed-homeowners-0512

LENGTH: 1112 words

BYLINE: Jim Houston, Columbus Ledger-Enquirer, Ga.

BODY: 

May 12--It's 3 a.m. and you hear a noise downstairs, but the dog's at the vet's clinic and you're supposed to be alone in your home.

Your sidearm in hand, you make your way downstairs and see two furtive figures sacking up your family's valuables.

When you yell, "Halt!" one of the figures runs toward you and you fire. The figure falls to the floor -- dead of a single gunshot wound -- and the other flees.

So what happens when the police arrive? Are you in trouble with the law, or is the law on your side?

In Georgia and more than 18 other states, you would be in no legal troubles, because those states have similar versions of a "defense of habitation" law, sometimes known as the Castle Doctrine or, by its pejorative, the "Make My Day" law.

Modeled after a law passed in 1987 by the Oklahoma Legislature, and a similar one in Florida years later, the Georgia version has been tweaked and amended in recent years.

Instead of justifying the use of deadly force only when the intruder makes a "violent and tumultuous" entrance that causes the resident to expect to be assaulted, or causing the resident to believe that the intruder is about to commit a felony, Georgia in 2001 added a section to its defense of habitation law authorizing use of deadly force against any intruder -- not a family member -- who forcibly enters a residence.

"It does give (a resident) a little more leeway to defend himself without having to ask so many questions," said University of Georgia Law Professor Donald E. Wilkins Jr. "You shouldn't have to ask questions of intruders and then shoot to protect yourself. You ought not to have to interview them."

Georgia's law change means you can shoot first and ask questions later. You don't have to put your life in danger first. After all, it's your home the intruder is forcing his way into. You don't have to stop to divine his purpose.

But the Georgia lawmakers didn't stop there. In 2006, they further amended the state code to provide that anyone who uses deadly force under the defense of habitation statute shall be immune from criminal prosecution, unless the person is in possession of an unlawful weapon.

Another 2006 amendment provides that in defending a habitation, one is not required to retreat and has the right to "stand his or her ground" and use deadly force to stop the intruder.

And don't think that defense of habitation only means your home. In Georgia, it applies equally to any person's dwelling, motor vehicle or place of business.

You can expect to see the "defense of habitation" justification raised in two upcoming murder cases in Muscogee County Superior Court, with both defendants likely to ask a judge to toss their murder charges out without even proceeding to trial.

Habitation defense

The most recent case now making its way to the Muscogee County grand jury involves a Columbus woman who was shot to death after she kicked in the bedroom door of a man allegedly running around on his girlfriend.

Jolena Seldon, 22, went to Dywane Lamont Turner's 4845 Allen St. home about 5 a.m. April 24, accompanied by a girl who was dating Turner, according to Columbus police. Turner's brother let the two women into the home.

But when the two women reached Turner's bedroom door, it was locked. Seldon kicked the door in and both rushed inside.

Turner, who was in bed with another woman, told police he awoke to the sound of the door being forced, reached for his nearby rifle, and fired.

Seldon was hit in the head and chest and died.

Police charged Turner with murder. Detectives said the bathroom light was on and the TV in the bedroom was on, which should have allowed Turner to see Seldon's face.

Although defense attorney Charles Thornton argued at Turner's Columbus Recorder's Court hearing that the 28-year-old man acted in self-defense, the judge ordered the case bound over to Superior Court.

Professor Wilkins said he would expect the defense of habitation law to be argued by the defense in Turner's case, even though the two women were granted entry into the home by Turner's brother. They may have had permission to enter the main part of the house, but kicking in a locked door to gain entry to another occupant's bedroom constitutes burglary, he said.

"It sounds as though this kind of conduct is within the scope the Georgia Legislature intended to allow in terms of defense of habitation," Wilkins said. "There's no question that kicking open a door in the middle of the night -- the door of a bedroom in which someone is sleeping -- is against the law.

"I don't find it a reach to make the argument that the statute applies in this situation," he said. "There was an unfortunate result all the way around."

Under Georgia's old self-defense statute, it would have been a closer case, requiring Turner to show fear of assault or a felony being committed, he said.

If Turner is indicted, Wilkins said he also wouldn't be surprised to see his defense attorney file a motion asking a judge to quash the indictment, because Georgia's law grants immunity to a person who is acting in defense of his habitation.

"That means they can't even take you to trial," Wilkins said.

Defense attorney Frank Martin said he also would expect Turner's defense to argue that a locked bedroom door created a "privacy zone" within that residence, and breaking through that locked door would trigger the defense of habitation statute.

"It certainly should be raised, not only as a defense, but in mitigation to reduce the charge," he said.

The Turner case may not be unique, but "I've not seen one like it," Martin said.

The defense attorney and former prosecutor also said he would expect a motion to be made to apply the immunity clause in Turner's case.

It's a motion with which Martin should be familiar. On Friday, Martin filed a motion seeking to quash the murder indictment against Rufus L. Burks. The state law granting immunity from prosecution when a resident defends his habitation against an intruder is among the grounds cited by Martin in that motion.

Burks was at his 353 Liberty Ave. home during a Labor Day cookout when he shot Eddia Moss, 35, whom Martin contends was an intruder.

The state prosecutor has not responded to the motion to quash Burks' indictment and no date has been set for a hearing.

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LOAD-DATE: May 12, 2008