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: January 28, 2025
S24A1369. BRUNDAGE v. THE STATE.
PETERSON, Presiding Justice.
Rondriques Brundage appeals his convictions for felony
murder and possession of a firearm during the commission of a
felony for the shooting death of Rodrell Matthews.1 He raises four
1 Matthews was killed on the night of July 10, 2018. On April 19, 2022,
a DeKalb County grand jury returned an indictment charging Brundage with
malice murder (Count 1), felony murder predicated on aggravated assault
(Count 2), felony murder predicated on possession of a firearm by a convicted
felon (Count 3), aggravated assault (Count 4), possession of a firearm by a
convicted felon (Count 5), possession of a firearm during the commission of a
felony (Count 6), and concealing the death of another (Count 7). At a May 2022
trial, a jury found Brundage not guilty of Counts 1, 2, and 4, but guilty of
Counts 3, 5, 6, and 7. The trial court sentenced Brundage to life without the
possibility of parole on felony murder predicated on possession of a firearm by
a convicted felon (Count 3), plus consecutive prison terms of 10 years for
possession of a firearm by a convicted felon (Count 5), five years for possession
of a firearm during the commission of a felony (Count 6), and 10 years for
concealing the death of another (Count 7). On June 2, 2022, Brundage filed a
motion for new trial, which was amended on November 15, 2023, and January
12, 2024. On April 29, 2024, following a hearing, the trial court denied the
motion for new trial, except that it agreed with Brundage that Count 5
(possession of a firearm by a convicted felon) should merge into Count 3 (felony
enumerations of error, including that trial counsel was ineffective
for failing to object to the State’s explanation of self-defense as
applied to felony murder predicated on felon-in-possession.
Brundage’s defense focused entirely on self-defense, and the State’s
explanation of how self-defense law applied to this case was
profoundly wrong. Counsel’s failure to object was objectively
unreasonable, and it is reasonably probable that an objection would
have led to a different outcome as to the charges of felony murder
predicated on possession of a firearm by a convicted felon and
possession of a firearm during the commission of a felony.
Accordingly, we reverse the convictions entered on those counts,
although the State may retry Brundage on those counts. The count
of possession of a firearm by a convicted felon unmerges with
reversal of the conviction on the felony murder count, and we leave
it for the trial court to consider in the first instance on remand any
murder predicated thereon) and amended the sentence to that effect (without
entering a new final disposition form into the record). Brundage filed a timely
notice of appeal, and the case was docketed to this Court’s August 2024 term
and submitted for a decision on the briefs.
2
challenges to a conviction entered on that count. We affirm
Brundage’s conviction for concealing the death of another, which he
does not challenge on appeal.
1. Background
The undisputed trial evidence shows that Brundage shot
Matthews on the night of July 10, 2018, at a DeKalb County duplex
house where Elwood Dugue lived. Police found Matthews’s body in
a river several days later, with cinderblocks tied to his waist and
feet. Brundage was later arrested in Florida. Brundage, a convicted
felon, was charged with malice murder (Count 1), felony murder
predicated on aggravated assault (Count 2), felony murder
predicated on possession of a firearm by a convicted felon (Count 3),
aggravated assault (Count 4), possession of a firearm by a convicted
felon (Count 5), possession of a firearm during the commission of a
felony (Count 6), and concealing the death of another (Count 7).
At trial, the State’s primary eyewitness to the shooting was
Brundage’s cousin, Antavis Ivey, who testified that he did not know
who shot Matthews. Ivey testified that Matthews stormed into the
3
duplex with a gun in his hand on the night of the shooting, upset
about something involving a prostitute, and was “making a lot of
commotion.” Ivey testified that Matthews cocked the gun and moved
it around “like a person talking with their hands.” He also testified
that Brundage carried his gun as regularly as he carries a cell
phone. After Ivey testified, the State admitted and played for the
jury Ivey’s prior statement to police, in which Ivey had stated that
although Matthews was “heated” and came into the house with a
gun that he cocked, Ivey did not see Matthews point the gun before
Brundage shot Matthews from behind. Ivey told the police that
Brundage kept “the gun” as the two discussed what to do with
Matthews’s body.2
The jury also heard additional evidence — in the form of Ivey’s
prior statement to police, trial testimony both from him and from
Brundage’s girlfriend, and a 911 call from an acquaintance of
Brundage — that Brundage was involved in moving and disposing
2 Ivey stated in his pretrial interview that Brundage still had “the gun”
in his hand at that point. Later in that interview, he stated that Brundage took
Matthews’s gun.
4
of Matthews’s body, before fleeing to Florida with his girlfriend. All
the while, Ivey said, Brundage possessed a firearm.
Brundage raised a justification defense at trial. Dugue, a
resident of the duplex where Matthews was shot, testified for the
defense that, on the night Matthews was shot, Matthews entered
Dugue’s home angry and intoxicated, carrying an automatic pistol
with a long clip attached to it. Dugue testified that Brundage shot
Matthews after Matthews cocked the pistol while facing Dugue and
Brundage, such that Dugue feared for his life.
Brundage testified in his own defense, saying that he picked
up a gun from the ground and shot Matthews because he was
convinced Matthews would shoot him or others. Brundage testified
that, although he drove Matthews’s body away from the scene of the
shooting at the insistence of Ivey and another man, the others
carried the body into some bushes while he waited in the vehicle,
and he was not involved in putting the body into the river. Brundage
testified that he did not own a firearm and that Ivey was lying about
Brundage carrying a gun as regularly as a cell phone.
5
The jury found Brundage not guilty of malice murder,
aggravated assault, and felony murder predicated on aggravated
assault, but guilty of felony murder predicated on felon-inpossession, concealing the death of another, possession of a firearm
by a convicted felon, and possession of a firearm during the
commission of a felony. The trial court sentenced Brundage to life in
prison without the possibility of parole for felony murder, ten years
consecutive for possession of a firearm by a convicted felon, five
years consecutive for possession of a firearm during the commission
of a felony, and ten years consecutive for concealing the death of
another. The sentence was later reduced on Brundage’s motion for
new trial, with the trial court agreeing with the defense that the
felon-in-possession count merged with the felony murder count on
which Brundage was convicted.
This appeal followed, with Brundage challenging his
convictions for felony murder and possession of a firearm during the
commission of a felony. Brundage argues that his trial counsel was
ineffective for (1) failing to object to the State’s misleading
6
explanation of self-defense as applied to felony murder predicated
on possession of a firearm by a convicted felon; and (2) failing to
request a jury charge on the defense of habitation. He also argues
that the trial court committed plain error (1) when it did not charge
the jury that justification was an “absolute defense” to felony
murder predicated on felon-in-possession and (2) when it did not
reference the defense of others in its charge on the application of a
justification defense to the felon-in-possession charge.
2. Trial counsel was ineffective for failing to object to the
State’s incorrect explanation of self-defense.
We agree with Brundage that his trial counsel was deficient for
failing to object to the State’s incorrect explanation of self-defense
as applied to felony murder predicated on possession of a firearm by
a convicted felon. Because counsel’s deficiency prejudiced Brundage,
we reverse the affected convictions.
During closing argument, the State acknowledged that there
are “limited circumstances” when a convicted felon “can” “have a
weapon.” The State generally previewed the trial court’s
instructions on that point by telling the jury that “Georgia self7
defense law affords a justification defense for otherwise unlawful
possession or carrying of a firearm when and to the extent that the
accused reasonably believes that such possession is necessary to
defend himself[,]” adding that “when applied to the possession of a
firearm by a convicted felon, it would justify possession only for the
duration of the necessity.” It is the prosecutor’s subsequent attempt
to illustrate this limitation that is the basis for Brundage’s
ineffective assistance claim:
So let me explain it like this. Say you’re in a house. You
got a dad. You got a son. Let’s say son is a convicted felon,
cannot possess weapons. Dad can. Dad has a gun in his
bedroom away from his son. Middle of the night, 4:00
a.m., folks come barging in with weapons. Son wakes up.
Son runs to Dad’s room, gets the guns, shoots, drops the
weapon. That very small window, good, self-defense; but
if you have that gun before or if you have it after, you are
not justified. And what do we know? [Ivey] said he carries
his gun like a cell phone. We all have our cell phone on us
all the time; and that’s what his friend said, he carries his
gun like a cell phone. So what can we infer? When he went
over to Chupp Road, he had that gun on him. This story
that there just happened to be a revolver laying on the
floor; the stars have just aligned; and, oh, my gosh, there’s
a gun; let me pick it up; let me shoot. No. Remember
credibility and the improbability of the story, that’s one of
those situations; and we know that then he took
[Matthews]’s gun. So remember that small window, there
8
has to be a necessity. So even after he shoots [Matthews],
he still has his gun, because [Ivey] says it. He still has his
gun, and he has [Matthews]’s gun. So he is not justified.
Self-defense does not apply if you are outside that very,
very brief window before or after. You are a convicted
felon, and it is unlawful for you to possess that firearm,
so you do not get self-defense. You don’t get that benefit
when you come in a residence with a gun. You shouldn’t
have had it anyway.
Defense counsel did not object to these statements. After closing
arguments, the trial court instructed the jury as follows on the
relationship between justification and possession of a firearm by a
convicted felon:
A defendant is not justified in threatening or using force
if he is attempting to commit a felony of aggravated
assault or possession of firearm by a convicted felon.
However, members of the jury, under Georgia self-defense
laws under O.C.G.A. section 16-11-138, affords the
justification defense for the otherwise unlawful
possession or carrying of a firearm only and when to the
extent the accused reasonably believes that such
possession or carrying is necessary to defend himself. As
such, when applied to the possession of a firearm by a
convicted felon, it would justify the possession only for the
duration of the necessity. If a felon came into possession
of a firearm prior to any necessity arising and/or
continued to have possession after any necessity has
dissipated, his possession both before and after the time
of necessity would be unlawful; and his possession of a
firearm before and after the necessity would be felonious.
However, possession during the time of necessity would
9
not be felonious should you find self-defense.
During deliberations, the jury requested a re-charge on the
“definition of self-defense and malice murder[.]”The court responded
by reiterating various parts of its prior charge to the jury, including
the language excerpted above, but did not offer any additional
explanation as to the interplay between justification and felony
murder predicated on the possession of a firearm by a convicted
felon.
To prove a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was deficient and
that counsel’s deficient performance prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
674) (1984). “If [a defendant] fails to establish one of these two
prongs, we need not examine the other.” Payne v. State, 314 Ga. 322,
328 (3) (877 SE2d 202) (2022) (citation and punctuation omitted).
“To show deficient performance, the defendant must demonstrate
that counsel performed counsel’s duties in an objectively
unreasonable way, considering all of the circumstances and in the
10
light of prevailing professional norms.” Id. at 328-329 (3). “To
establish prejudice, [a defendant] must show that there is a
reasonable probability that, but for counsel’s unprofessional error,
the result of the proceeding would have been different.” Id. at 329
(3) (citation and punctuation omitted). “In reviewing a ruling on a
claim of ineffective assistance of counsel, we defer to the trial court’s
findings of fact unless they are clearly erroneous, but we apply the
law to the facts de novo.” Id. at 329 (3) (citation and punctuation
omitted). In particular, when evaluating whether an appellant has
established prejudice, we “weigh the evidence as we would expect
reasonable jurors to have done rather than in the light most
favorable to the verdict.” Harmon v. State, 319 Ga. 259, 265 (3) (903
SE2d 28) (2024) (citations and punctuation omitted).
On appeal, Brundage argues that the prosecutor’s illustration
and accompanying explanation misstated the law by suggesting to
the jury that if Brundage “possessed a gun before or after the
window of necessity, he could not claim that a shooting occurring
during the window was justified[,]” allowing the jury “to find . . .
11
Brundage guilty of felony murder predicated on being a felon in
possession of a firearm — even if it found that he shot the victim in
self-defense or in defense of others.” By not objecting, Brundage
argues, his counsel performed deficiently by failing to ensure that
the jury understood that it could both find Brundage guilty of
possession of a firearm by a convicted felon for possessing a firearm
outside of any time period it was legally justified, and find him not
guilty of felony murder predicated on possession of a firearm by a
convicted felon, on the basis that the possession was justified at the
moment of the shooting even if he also possessed the firearm at other
times. We agree.
The State’s closing argument materially misstated the
applicable legal standard. At the time of the shooting and also at the
time of trial, if the jury concluded that Brundage was acting in selfdefense when he shot Matthews, the jury was required to acquit him
of felony murder, whether predicated on aggravated assault or on
felon-in-possession. See OCGA § 16-11-138 (“Defense of self or
others, as contemplated by and provided for under Article 2 of
12
Chapter 3 of this title, shall be an absolute defense to any violation
under this part.”); Floyd v. State, 318 Ga. 312, 318 (2) (898 SE2d
431) (2024) (“[U]nder [OCGA § 16-11-138], if the jury believed that
Appellant was acting in self-defense when he shot [the deceased],
the jury was required to acquit him of felony murder based on felonin-possession.”) (citing State v. Remy, 308 Ga. 296, 300 (3) (b) (840
SE2d 385) (2020); Johnson v. State, 308 Ga. 141, 145 (839 SE2d 521)
(2020)). Whether Brundage illegally possessed a firearm before or
after the shooting is simply not relevant to his claim of self-defense
as to the murder and felony murder charges against him. But in its
closing argument, the State suggested the opposite to the jury, by
saying generally that “[s]elf-defense does not apply if you are outside
that very, very brief window,” and that in that scenario where a
convicted felon possesses a firearm outside of the “window” of
necessity, “you do not get self-defense” because “you shouldn’t have
had [a gun] anyway.” No part of this argument indicated that it was
limited to the felon-in-possession count, and did not extend to the
felony murder count predicated on felon-in-possession.
13
The trial court in rejecting this ineffective assistance claim did
not cite any objectively reasonable strategy counsel might have for
failing to object to the prosecutor’s incorrect explanation of the law.
See Debelbot v. State, 308 Ga. 165, 167 (839 SE2d 513) (2020)
(concluding “there is no good reason that any reasonably competent
lawyer would fail to object” to prosecutor’s egregious misstatement
of the law as to reasonable doubt). Rather, the trial court concluded
that the prosecutor’s explanation was correct, because it referred to
the charge of possession of a firearm by a convicted felon, not the
felony murder charge, and only “a juror who wasn’t paying close
attention could misinterpret the prosecutor’s closing” to refer to the
applicability of self-defense to the felony murder charge. We
disagree; there is at least a reasonable probability that even an
attentive juror would understand the explanation as applying to the
felony murder charge, because the felony murder charge was
predicated on possession by a convicted felon. Both in her
hypothetical and in her discussion of this case in the passage at issue
here, the prosecutor referred not only to the possession of a firearm
14
but to a shooting. And despite this, instead of concluding by telling
the jury that a felon who possesses a firearm outside of the window
of necessity may still successfully claim self-defense for charges
clearly premised on the shooting itself (i.e., malice murder, felony
murder, aggravated assault, and possession of a firearm during the
commission of one of those crimes) but not the charge of possession
of a firearm by a convicted felon, the prosecutor concluded with the
blanket statement that a defendant in that situation does “not get
self-defense,” period.
The prosecutor’s statement was correct as to the felon-inpossession count to the extent it was premised on possession outside
of the moment of the shooting, but was incorrect as to the felony
murder count predicated on felon-in-possession. Defense counsel
already had concluded his closing argument — without including
any detailed explanation of how self-defense would apply to felony
murder predicated on possession of a firearm by a convicted felon —
and so at the time that he failed to object, he knew that he would
not have a later opportunity to correct the prosecutor’s
15
misstatement. And, based on the charge conference, counsel could
have anticipated that the trial court would give an instruction that,
although technically correct as a general matter, would not have
cleared up juror confusion caused by the prosecutor’s statement. In
particular, the trial court told counsel that he planned to instruct
the jury that “[a] defendant is not justified in threatening or using
force if he is attempting to commit the felony of aggravated assault
or possession of a firearm by a convicted felon,” before going on to
explain how a convicted felon could successfully claim justification
for his use of a firearm, without explaining in detail how the
justification defense might apply to a charge of felony murder
predicated on possession of a firearm by a convicted felon — a point
the trial court acknowledged to the lawyers was “going to get
confusing” to the jury.
The State’s argument to the contrary on appeal is simply the
same argument that the trial court accepted in denying the motion
for new trial: that viewed in context, the prosecutor’s statement did
not apply to felony murder. But nothing in the statement or the
16
broader context in which it appears would have told the jury that it
was so limited. We conclude that Brundage has shown counsel
performed deficiently for failing to object.
And Brundage also has shown that he was prejudiced by this
deficient performance. There is no dispute that Brundage shot
Matthews, and the evidence that Brundage possessed a gun after
the time of necessity is uncontradicted by any other evidence. Ivey
testified that Brundage carried his gun regularly, like a cell phone,
and the jury heard testimony and statements from Ivey to the effect
that Brundage retained a gun — either Matthews’s gun or the gun
Brundage used to shoot Matthews — for some time after the
shooting. Although Brundage testified that he did not own a firearm
and that Ivey was lying about Brundage carrying a gun like a phone,
he did not testify specifically that he did not continue to possess a
gun after the shooting. Given the undisputed testimony by Ivey that
Brundage possessed a gun outside the time of necessity, this
evidence was reasonably probable to lead a jury that misunderstood
the legal standard to arrive at an incorrect conclusion as to whether
17
Brundage was justified in shooting Matthews such that Brundage
should be acquitted of felony murder premised on felon-inpossession.3 The key question for us, then, is whether Brundage has
shown that it was reasonably probable that the jury was so confused
on the legal standard for self-defense for felony murder predicated
on felon-in-possession that it affected the verdicts.
The State argues that even if the State’s statement of the law
could reasonably be understood as an incorrect explanation for when
a felon may claim self-defense for felony murder, such that failure
to object was deficient performance, any prejudice would have been
3 Although Georgia law would preclude a claim of self-defense if
Brundage shot Matthews while Brundage was committing or attempting to
commit a felony that was not itself justified, see OCGA § 16-3-21 (b) (2), there
is no reason to conclude that the jury may have found Brundage guilty of felony
murder based on evidence that he was engaging in a felony other than the
shooting itself and accompanying firearm possession. There was evidence
admitted at trial that people frequently used illegal drugs in the house where
the shooting occurred and that a prostitute was in Matthews’s truck when he
arrived. But the State has disclaimed — at the motion-for-new-trial hearing
and in the District Attorney’s brief to this Court — any argument that
Brundage was committing a felony at the time of the shooting other than the
shooting itself and the possession of a firearm. And the trial court in
instructing the jury that a defendant is not justified in threatening or using
force if he is attempting to commit a felony mentioned only aggravated assault
and possession of a firearm by a convicted felon.
18
corrected by the court’s charge explaining that a felon may claim
self-defense for felony murder predicated on felon-in-possession. We
disagree. The prosecutor explained Georgia self-defense law using a
hypothetical that suggested a convicted felon may not claim selfdefense for felony murder at all if he possessed a gun outside of the
window of necessity, completing its hypothetical by stating: “Selfdefense does not apply if you are outside that very, very brief window
before or after. You are a convicted felon, and it is unlawful for you
to possess that firearm, so you do not get self-defense.” In other
words, the State’s explanation could easily have been understood by
the jury to mean that a defendant cannot claim self-defense at all if
he possessed a firearm outside the window of necessity. That was an
inaccurate statement of the law. And the trial court’s instructions to
the jury did not obviously correct that inaccurate statement. The
trial court told the jury that “[a] defendant is not justified in
threatening or using force if he is attempting to commit a felony of .
. . possession of a firearm by a convicted felon[,]” and that “[Georgia
law] would justify the possession [of a firearm by a convicted felon]
19
only for the duration of the necessity.” The court thus told the jury
that a defendant would be justified in possessing a firearm “only for
the duration of the necessity,” just as the State did. That was not
wrong as far as the charge of possessing a firearm. But crucially, the
trial court did not make clear that the defendant could still claim
self-defense for the felony murder charge even if he illegally
possessed a firearm outside the window of necessity — that he could
be guilty of possessing a firearm but not guilty of felony murder due
to self-defense. In short, the trial court’s instructions, put together,
reasonably could have been understood to reinforce, rather than
correct, the State’s incorrect explanation of self-defense. And that is
particularly so given the trial court’s instruction that a defendant is
not justified in using force if he was attempting to commit the felony
of possession of a firearm by a convicted felon. See Taylor v. State,
316 Ga. 17, 21 (2) n.4 (885 SE2d 787) (2023) (noting that instructing
the jury that a person is not justified in using force if that person is
attempting to commit or is committing a felony, then noting that “in
this case, the arguable felony has been alleged to be aggravated
20
assault” — a charge to which the defendant was raising justification
as a defense — could have been misleading, and urging trial courts
“to take care to avoid structuring instructions in a way that could
suggest that committing the felony for which a defendant claims
justification could disqualify him from claiming justification for that
very felony”). It is reasonable to expect that the jury understood the
court’s instruction through the lens of the State’s statements,
inviting jurors to rely on them. See Debelbot, 308 Ga. at 169-170
(“And although the trial court gave an instruction on reasonable
doubt that would be sufficient in most cases to adequately advise the
jury of the burden of proof, the charge did not cure the State’s
obviously wrong argument here, and to the contrary, may well have
been understood by the jury as reinforcing it.” (citations and
punctuation omitted)). Moreover, defense counsel’s own closing
argument, which was given before the State’s, did not address the
applicability of a justification defense to a charge of felony murder
based on felon-in-possession in any substantive way, so it did not
work to alleviate any confusion created by the State’s argument.
21
Compare Crayton v. State, 298 Ga. 792, 796 (3) (a) (784 SE2d 343)
(2016) (no prejudice from any deficient performance in defense
counsel’s failure to object to comment in prosecutor’s opening
statement, where defense counsel responded to that comment in his
own opening and trial court correctly charged the jury on the
applicable law).
The fact that the jury requested the trial court to define selfdefense again suggests that the jury was in fact confused by the
definition. And the court’s answer did nothing to alleviate any
confusion, as it was simply a reiteration of what the State and the
trial court previously said. Moreover, the inconsistent verdicts for
felony murder predicated on aggravated assault and felony murder
predicated on felon-in-possession also suggest that the jury was
confused. We have abolished the rule that inconsistent verdicts —
where a jury in a criminal case renders seemingly incompatible
verdicts of guilty on one charge and not guilty on another — require
reversal. See Feder v. State, 319 Ga. 66, 68-69 (2) (901 SE2d 561)
(2024) (citing McElrath v. State, 308 Ga. 104, 108 (2) (a) (839 SE2d
22
573) (2020)). But inconsistent verdicts, as well as jury questions, still
may be used to gauge juror confusion in considering the prejudicial
effect of an instructional failure. See Floyd, 318 Ga. at 323-324 (2)
(b) (considering jury’s note and acquittal of the defendant on other
offenses for which self-defense was asserted –– malice murder,
felony murder based on aggravated assault, and aggravated assault
— in determining that the defendant was prejudiced by counsel’s
deficient performance in his handling of matters related to the
applicability of self-defense to felony murder predicated on felon-inpossession). And there is no principled way to reconcile the jury’s
verdicts of not guilty as to felony murder predicated on aggravated
assault but guilty as to felony murder predicated on felon-inpossession. There is at least a reasonable probability that the jury
concluded that Brundage was justified in shooting Matthews (and
thus was not guilty of aggravated assault and felony murder
predicated thereon) but was confused as to the applicability of a
justification defense to felony murder predicated on felon-inpossession and thus erroneously concluded that it should return a
23
guilty verdict as to that offense despite the jury’s finding that he had
acted in self-defense. For these reasons, Brundage has shown that
counsel performed deficiently by failing to object to the State’s
argument and that there is a reasonable probability that, but for
this failure, the jury would have found him not guilty of felony
murder predicated on possession of a firearm by a convicted felon or
possession of a firearm during the commission of a felony. 4
We therefore reverse Brundage’s convictions for felony murder
predicated on possession of a firearm by a convicted felon, as well as
possession of a firearm during the commission of a felony. But
because the evidence was sufficient as a matter of constitutional due
process to support a conviction on those counts, the State may retry
him on those counts if it wishes. See Allen v. State, 319 Ga. 415, 435
(3) (902 SE2d 615) (2024) (citing Jackson v. Virginia, 443 U.S. 307,
319 (99 SCt 2781, 61 LE2d 560) (1979)). Brundage admittedly shot
Matthews, “issues of witness credibility and the existence of
4 As indicted, the charge of possession of a firearm during the commission
of a felony was predicated on felony murder or one of two crimes of which
Brundage was acquitted, malice murder and aggravated assault.
24
justification are for the jury to determine, and it is free to reject a
defendant’s claim that he acted in self-defense.” Ivey v. State, 305
Ga. 156, 159 (1) (824 SE2d 242) (2019) (citation and punctuation
omitted).5
3. We leave any challenges to any conviction that may be
entered on the felon-in-possession count for another day.
Thus, as to Brundage’s convictions for felony murder and
possession of a firearm during the commission of a felony, we need
not consider Brundage’s other enumerations of error. Brundage also
argues that this Court should reverse his “conviction” on Count 5 for
possession of a firearm by a convicted felon. But the trial court
merged the possession of a firearm by a convicted felon count, so
5 This is particularly true here given the conflict between Brundage’s
testimony that he does not own a gun and grabbed a gun off the ground before
shooting Matthews and Ivey’s testimony that Brundage regularly carries a
gun, as well as evidence that Brundage went to great lengths to hide
Matthews’s body before leaving the state. See Mims v. State, 310 Ga. 853, 855
(854 SE2d 742) (2021) (“[T]he defendant’s testimony, in which he claimed he
was justified or provoked into acting, may itself be considered substantive
evidence of guilt when disbelieved by the jury, as long as some corroborative
evidence exists for the charged offense.”); Martin v. State, 306 Ga. 538, 539-541 (1) (832 SE2d 402) (2019) (defendant’s extreme measures to destroy and
conceal evidence of the shooting and to evade the police, which included
disposing of victim’s body in river, undermined his claim of self-defense).
25
Brundage does not presently stand convicted of that offense. See
Garrett v. State, 263 Ga. 131, 132 (2) (429 SE2d 515) (1993). And if
we had upheld Brundage’s felony murder conviction, any arguments
as to the felon-in-possession count would be moot. See Scoggins v.
State, 317 Ga. 832, 833 (1) n.3 (896 SE2d 476) (2023). By reversing
the felony murder conviction in which the felon-in-possession count
merged, that predicate felony count no longer stands merged. See
Calloway v. State, 303 Ga. 48, 56 (2) (a) (iii) (810 SE2d 105) (2018).
We remand for the trial court to enter a sentence on the felon-inpossession count, as necessary depending on the disposition of the
felony murder count predicated on felon-in-possession on any
retrial. And we leave any challenges to any conviction entered on
the felon-in-possession count for any future motion for new trial or
appeal, as necessary. See Welbon v. State, 304 Ga. 729, 730 (1) n.2
(822 SE2d 277) (2018) (“[A] criminal defendant in a second, postremand appeal may raise issues relating to a new trial court order
on remand, or may raise issues — such as ineffective assistance in
this case — that were raised but not decided in the first appeal.”).
26
Finally, because Brundage has not challenged on appeal his
conviction and sentence for concealing the death of another, we
affirm the judgment as to that conviction.
Judgment affirmed in part, reversed in part, and case
remanded. All the Justices concur.
27
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, Brundage indeed had
an absolute defense to felony murder predicated on possession of a
firearm by a convicted felon if the jury believed that the shooting
was in self-defense. See Johnson, 308 Ga. at 145; Remy, 308 Ga. at
300. I write separately because, once again, while 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.
I reiterate that, if that was not the General Assembly’s 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.
28