Brundage v. State

FINAL COPY

               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 ten 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 ten 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
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.
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

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.

                                  2
     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

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

                                 3
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

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


      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
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.

     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-in-

                                 5
possession, 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

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

                                  6
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 self-

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
                                  7
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
     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,

                                   8
     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 [OCGA §] 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 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


                                  9
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, 

 (

, 80 LE2d

674) (1984). “If [a defendant] fails to establish one of these two

prongs, we need not examine the other.” Payne v. State, 

 (3) (

) (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

light of prevailing professional norms.” 

 (3). “To

establish prejudice, [a defendant] must show that there is a

reasonable probability that, but for counsel’s unprofessional error,

                                   10
the result of the proceeding would have been different.” 

(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.” 

 (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, 

 (3) (

) (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 . . .

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

                                   11
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 self-

defense 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

Chapter 3 of this title, shall be an absolute defense to any violation

under this part.”); Floyd v. State, 

 (2) (

) (2024) (“[U]nder [OCGA § 16-11-138], if the jury believed that

                                 12
Appellant was acting in self-defense when he shot [the deceased],

the jury was required to acquit him of felony murder based on felon-

in-possession.”) (citing State v. Remy, 

 (3) (b) (

) (2020); Johnson v. State, 

 (

)

(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 “[y]ou 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.

     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.

                                  13
See Debelbot v. State, 

 (

) (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

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

                                  14
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-in-

possession 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

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

                                  15
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

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.

                                  16
     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

Brundage was justified in shooting Matthews such that Brundage

should be acquitted of felony murder premised on felon-in-



                                 17
possession.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

corrected by the court’s charge explaining that a felon may claim

self-defense for felony murder predicated on felon-in-possession. We




      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
disagree. The prosecutor explained Georgia self-defense law using a

hypothetical that suggested a convicted felon may not claim self-

defense for felony murder at all if he possessed a gun outside of the

window of necessity, completing its hypothetical by stating: “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.” 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]

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

                                  19
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,

 (2) n.4 (

) (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

assault” — a charge to which the defendant was raising justification

as a defense — could have been misleading, and urging trial courts

                                  20
“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.

Compare Crayton v. State, 

 (3) (a) (

)

(2016) (no prejudice from any deficient performance in defense

                                  21
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 self-

defense 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, 

 (2) (

)

(2024) (citing McElrath v. State, 

 (2) (a) (

) (2020)). But inconsistent verdicts, as well as jury questions, still

may be used to gauge juror confusion in considering the prejudicial

                                   22
effect of an instructional failure. See Floyd, 

 (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-in-

possession). 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-in-

possession. 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-in-

possession and thus erroneously concluded that it should return a

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

                                  23
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, 

(3) (

) (2024) (citing Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979)). Brundage admittedly shot

Matthews, “issues of witness credibility and the existence of

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


     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.
                                     

, 159 (1) (

) (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

Brundage does not presently stand convicted of that offense. See

Garrett v. State, 

 (2) (

) (1993). And if




     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, 

(

) (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, 

, 539-
541 (1) (

) (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
we had upheld Brundage’s felony murder conviction, any arguments

as to the felon-in-possession count would be moot. See Scoggins v.

State, 

 (1) n.3 (

) (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, 

 (2) (a) (iii) (

) (2018).

We remand for the trial court to enter a sentence on the felon-in-

possession 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, 

 (1) n.2

(

) (2018) (“[A] criminal defendant in a second, post-

remand appeal may raise issues relating to a new trial court order

on remand, or may raise issues — such as the ineffective assistance

claim in this case — that were raised but not decided in the first

appeal.”).

     Finally, because Brundage has not challenged on appeal his

                                 26
conviction and sentence for concealing the death of another, we

affirm the judgment as to that conviction.

    Judgment affirmed in part and reversed in part, and case
remanded. All the Justices concur.



     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 v. State, 

 (

) (2020); Remy v. State, 

 (3) (b) (

) (2020). 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.


                                 27
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.




                    Decided January 28, 2025.

     Murder. DeKalb Superior Court. Before Judge Barrie.

     Dillon McConnell, for appellant.

     Sherry Boston, District Attorney, Jason M. Rea, Deborah D.

Wellborn, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Meghan

H. Hill, Clint C. Malcolm, Senior Assistant Attorneys General, M.

Catherine Norman, Assistant Attorney General, for appellee.




                                28