In Benham v. State, 277 Ga. 516, 591 S.E.2d 824 (Ga. 2004), the Georgia Supreme Court held that trial counsel provided ineffective assistance of counsel when she failed to request a jury instruction on the use of force in defense of habitation. 591 S.E.2d at 825. According to the evidence, the defendant was in her car when she slashed the victim, an attacker, with a box cutter. Id. at 825‑26. Defense counsel requested a self‑defense instruction, but did not request an instruction on defense of habitation which includes motor vehicles. Id. at 826. The Georgia Supreme Court held that counsel was ineffective under Strickland for not requesting the habitation instruction because that defense allowed the use of deadly force even if such force "was not necessarily required" to repel the attack. Id. at 826‑27.
For subscription based briefing and sample instructions on this and related issues see:
Forecite NationalÔ
295.3.2 - Ineffective Assistance Of Counsel At Trial
295.3.2.4 - Failure Of Trial Counsel To Make Instructional Request As Ineffective Assistance Of Counsel
295.3.2.5 - Duty Of Trial Counsel To Request Specific Instructions On The Defense Theory
295.3.2.6 - Failure To Research And Present Nonpattern Jury Instruction As Ineffective Assistance Of Trial Counsel (IAC)
295.3.2.7 - Examples Of Cases Finding Prejudicial/Reversible Error Based On Counsel's Failure To Request Jury Instructions
Forecite CaliforniaÔ
PG VI(C) - Duty To Request Instructions
