1. Wiseman v. State, 249 Ga. 559 (1982)

The Court quoted Wiseman for the principle:

“[W]hen the prevention of a forcible felony is charged as justification and the defendant requests a charge on the specific forcible felony of which there is evidence, it is error to fail to charge the elements of such a felony as it relates to justification.”

Wiseman thus stands for two core rules:

• Where justification by prevention of a forcible felony is put before the jury, the jury must be meaningfully informed of the nature of the alleged forcible felony.
• If there is evidence of a particular forcible felony and the defense specifically requests that felony be charged, the trial court must define it so the jury can rationally apply the justification statute.

In Westbrook, this authority supports the argument that, if there was evidentiary support for fear of aggravated assault with intent to rape or aggravated battery, the trial court should have defined those offenses for the justification analysis. The Court strategically avoids deciding whether such support was present, leaving Wiseman intact but not expanded.

2. Fripp v. State, 322 Ga. 269 (2025)

Although decided earlier in 2025, Fripp plays a central methodological role. The Court cites it for two key propositions regarding review of instructional error:

1. Harmless-error standard:

   “Even when we find error in a jury charge, we will not reverse when the error is harmless, that is, when it is highly probable that the instruction did not contribute to the verdict.”

2. Standard of appellate review:

   “To figure out whether an instructional error was harmless, we assess it in the context of the instructions as a whole. And as with other trial errors, in assessing harm we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so.”

Fripp thus instructs the Court not to:

• Automatically reverse for any instructional deviation from ideal practice, nor
• View the evidence in the light most favorable to the verdict (as in sufficiency review).

Instead, the Court must:

• Consider all the instructions together,
• Evaluate the full record de novo, and
• Ask whether, as rational jurors, they would likely have reached the same result even with the proper instruction.

In Westbrook, this framework allows the Court to focus on:

• The substantive weakness of the justification evidence, and
• The fact that the jury already rejected a closely related, stronger justification instruction (prevention of rape and death/serious injury).

3. Gray v. State, 319 Ga. 72 (2024)

Gray is cited as a closely analogous application of harmless-error review:

“See Gray v. State, 319 Ga. 72, 76-78 (2024) (any error in failure to give any charge on self-defense to prevent a forcible felony as requested was harmless given the strength of the evidence of guilt and weak evidence of justification).”

In Gray, the Court allowed a conviction to stand despite a potential instructional error on self-defense/forcible-felony prevention, because:

• The evidence of guilt was strong, and
• The justification evidence was weak.

Gray therefore provides a direct precedent for concluding that some failures to charge on forcible-felony justification can constitute harmless error where the justification theory is factually insubstantial.

In Westbrook, the Court follows the same pattern:

• Defense justification evidence is labeled “not strong.”
• It is largely self-serving, internally inconsistent, and contradicted by earlier statements.
• The jury’s rejection of the justification theory, even with a rape-based instruction, supports a finding that additional, more attenuated theories would not have altered the outcome.

D. The Court’s Legal Reasoning in Westbrook

1. Assuming Error, Focusing on Harmlessness

A notable feature of the opinion is its deliberate choice to “assume without deciding” that the trial court erred in refusing the requested instructions, then resolving the appeal solely on harmless-error grounds. This approach:

• Leaves open, for a future case, the question of how far Wiseman extends in requiring multiple specific forcible-felony instructions.
• Avoids ruling on whether the evidence truly supported fear of aggravated assault with intent to rape or aggravated battery in a manner distinct from the fear of rape already charged.
• Signals that, even under a defendant-favorable assumption of error, reversal will not follow when the record shows the jury would almost certainly have convicted anyway.

2. Weakness of the Justification Evidence

The Court’s harmlessness finding turns heavily on its assessment of the evidence supporting justification:

• It emphasizes that Westbrook’s justification claim was supported only by:
  • Her own “self-serving” testimony and prior statement, and
  • The expert’s testimony, which was itself based on what Westbrook reported.
• It highlights discrepancies between:
  • Her initial recorded statement to the investigator (no mention of sexual abuse or impending rape; motive framed as anger and being “fed up”), and
  • Her later trial testimony (detailed accounts of repeated rapes and fear of imminent sexual assault).

In other words, the Court infers that reasonable jurors could have viewed the justification narrative as a late-emerging, trial-oriented elaboration or recharacterization, rather than a consistent, reliably corroborated account.

3. Overlap Between Charged and Omitted Justification Theories

Central to the harmless-error analysis is the Court’s conclusion that:

• The omitted justification theories (aggravated assault with intent to rape and aggravated battery) were:
  • “Related to, and based on the same evidence as” the theories on which the jury was actually instructed (prevention of rape, death, or serious bodily injury), and
  • “Even weaker” than the already-present rape-based justification theory.

The opinion reasons essentially as follows:

A jury that rejected justification despite being told that Westbrook could lawfully use deadly force if she reasonably believed it necessary to prevent rape or serious bodily harm is highly unlikely to have acquitted if additionally told she could defend against:

• Aggravated battery premised on painful intercourse, or
• Aggravated assault with intent to rape premised on speculative future attempts she might thwart.

Thus, the omission of these narrower, more attenuated theories could not realistically have altered the jury’s view. The jury had the broadest, most compelling version of Westbrook’s justification theory (fear of rape and death) and still convicted.

4. De Novo Review and the “Highly Probable” Standard

Applying Fripp, the Court:

• Reviewed the record de novo,
• Weighed the evidence as reasonable jurors would, and
• Viewed the charge as a whole rather than in isolation.

Under this lens, it concluded that it was “highly probable” the absence of additional forcible-felony definitions “did not contribute to the verdict.” That phrase—“highly probable”—is crucial; it demands a firm, though not absolute, level of confidence that the outcome would have been the same even with the correct instructions.

The Court’s reasoning emphasizes:

• The strength of the State’s case on guilt (confession, physical evidence, financial exploitation, post-crime conduct), and
• The comparative frailty of Westbrook’s justification narrative.

E. Treatment of Battered Person Syndrome and Trauma Evidence

The opinion takes a relatively restrained approach to the battered person syndrome and PTSD evidence. It does not:

• Question the admissibility of such expert testimony, or
• Alter Georgia’s basic treatment of battered person syndrome as relevant to the defendant’s perception of threat and reasonableness.

Instead, the Court effectively acknowledges the expert testimony but treats it as reinforcing—rather than independently corroborating—Westbrook’s own account:

• The expert’s conclusions depend heavily on Westbrook’s narrative of repeated abuse and sexual assault.
• Because the Court finds Westbrook’s narrative internally inconsistent and at odds with her initial statement, it correspondingly discounts the persuasive force of the expert’s conclusions for the justification analysis.

This is a subtle yet important signal: in battered-person cases, trauma experts will be most impactful when their opinions are grounded in collateral evidence (medical records, third-party witnesses, prior complaints, etc.), not solely in the defendant’s retrospective self-report.

V. Complex Concepts Simplified

1. Malice Murder vs. Felony Murder

• Malice murder (in Georgia) is an intentional killing with “malice aforethought”—either express (an intent to kill) or implied (an abandoned and malignant heart).
• Felony murder is a killing (even unintentional) that occurs during the commission of a felony (here, armed robbery).
• The jury acquitted Westbrook of felony murder but convicted her of malice murder—meaning it found that she intentionally killed Eloi with malice, not just as a byproduct of the armed robbery.

2. Armed Robbery and Merger

• Armed robbery involves taking property from another, by use of an offensive weapon, with intent to commit theft.
• Merger in criminal law means that one conviction (e.g., aggravated assault) is absorbed into another (e.g., malice murder) when they are based on the same conduct, so no separate sentence is imposed for the merged offense.

3. Justification and Forcible Felonies

• Justification is a complete defense to criminal liability. If the defendant’s use of force was justified, she is not guilty of a crime.
• Forcible felonies are serious felonies involving the use or threat of physical force—rape, aggravated assault, aggravated battery, etc.
• A defendant is justified in using deadly force if she reasonably believes it is necessary to prevent a forcible felony against herself (e.g., rape).

4. Aggravated Assault with Intent to Rape

This is an assault—a threat or attempt to injure someone—with the additional intent to commit rape. Even if rape has not yet occurred, an attack coupled with the intent to rape can be a separate felony. Under OCGA § 16-3-21(a), deadly force can be used to prevent that felony if the defendant reasonably believes it is necessary.

5. Aggravated Battery

Aggravated battery typically involves:

• Maliciously causing bodily harm by depriving someone of a body part, or
• Rendering a member of the body useless, or
• Seriously disfiguring them.

The defense here floated the theory that forced, painful intercourse might cause such serious harm to Westbrook’s sexual organs as to constitute aggravated battery, thus supporting a justification theory based on preventing that harm.

6. Harmless Error

Not every legal mistake at trial requires reversal. Under the harmless error doctrine:

• An error is harmless if it is “highly probable” that it did not affect the verdict.
• The appellate court looks at the entire record and asks whether, realistically, the jury would likely have reached the same conclusion even without the error.

In Westbrook, the Court concluded that the jury would very likely have convicted even with the additional justification instructions requested, given the overall strength of the State’s case and the limited, inconsistent justification evidence.

7. Battered Person Syndrome and PTSD

• Battered person syndrome (often discussed as battered woman syndrome) refers to the psychological effects of long-term abuse, which can shape how a person perceives danger and responds to threats.
• PTSD involves intrusive memories, hypervigilance, dissociation, and other symptoms following traumatic events.
• In self-defense cases, this evidence is used to explain why a defendant might perceive an acute threat even in the absence of immediate overt violence, and why they might respond in seemingly disproportionate ways.

VI. Impact and Future Implications

A. For Trial Courts: Structuring Justification Instructions

Westbrook sends a dual message to trial judges:

1. Risk of Error: When a justification defense based on preventing a forcible felony is in play, and there is some evidence supporting specific forcible felonies, courts should:
   • Identify those felonies explicitly, and
   • Define their elements, if the defense requests such a charge.
2. Scope of Harmlessness: However, failure to do so will not automatically require reversal. Where:
   • The jury already receives a robust justification instruction covering the central theory (e.g., prevention of rape), and
   • The omitted theories are weaker variants based on the same evidence,
   an appellate court may deem the omission harmless.

As a best practice, trial courts should err on the side of granting well-founded requests for specific forcible-felony definitions to avoid needless appellate litigation, especially in close cases where justification evidence is more substantial.

B. For Defense Counsel: Framing and Preserving Justification Theories

For defense practitioners, Westbrook underscores several strategic points:

• Consistency matters. Discrepancies between initial statements and trial testimony about abuse and fear of imminent harm will weaken justification in the eyes of both juries and appellate courts.
• Corroboration is critical. Expert testimony that simply repeats the defendant’s narrative is less persuasive than expert opinion corroborated by medical records, prior reports, or third-party observations.
• Instructional requests should be tightly tied to evidence. When requesting charges on additional forcible felonies, counsel should:
  • Point to specific testimony or physical evidence supporting each felony, and
  • Explain how each theory differs in a meaningful way from the already-charged justification (e.g., rape prevention), such that it might realistically alter the jury’s deliberations.
• Anticipate harmless-error arguments. Defense counsel should build a record not only that a charge was requested and refused, but also that the omitted theory was central—not peripheral—to the self-defense claim.

C. For Prosecutors: Using Westbrook to Defend Convictions

Prosecutors will likely rely on Westbrook (and Gray) to argue:

• Even if a trial court errs by not including every requested forcible-felony instruction, such error is often harmless where:
  • The jury has already rejected a stronger justification theory based on the same evidence, and
  • The omitted theory is a narrower or more speculative variant.
• Appellate courts should focus on the real-world dynamics of the trial and the strength of the State’s case, not on hyper-technical deviations in the language of the charge.

D. For Domestic Violence and Sex-Work Contexts

Substantively, Westbrook illustrates the difficulty defendants in exploitative or abusive relationships face when raising preemptive, trauma-based self-defense claims:

• Where the killing occurs in a lull (e.g., while the abuser is “dozing off”) and not during an active attack, juries—and courts—may be skeptical that deadly force was necessary to prevent imminent harm.
• Delayed or inconsistent disclosure of sexual violence can significantly undermine the credibility of abuse narratives, even where trauma science recognizes such inconsistencies as common.

While the opinion does not diminish the theoretical availability of justification for battered persons, it practically emphasizes that the defense will succeed only where:

• The evidence of past abuse is strong and corroborated, and
• The connection between that abuse and a reasonable belief in imminent serious harm at the time of the killing is clearly established.

E. Doctrinal Positioning: What Westbrook Does and Does Not Decide

Doctrinally, Westbrook:

• Confirms the continued force of:
  • Wiseman’s rule requiring charges on specific forcible felonies supported by evidence and requested by the defense.
  • Fripp’s harmless-error framework and de novo evidence review in instructional-error cases.
  • Gray’s approach to harmlessness where justification evidence is weak.
• Clarifies that:
  • Even when a defendant arguably satisfies Wiseman, relief may be denied if the error is harmless under Fripp and Gray.
  • Harmlessness can be grounded in the fact that the jury was already instructed on a broader or stronger version of the same justification theory and rejected it.
• Does not decide:
  • Whether it is always error to omit instructions on aggravated assault with intent to rape or aggravated battery when evidence of such offenses exists in a sexual-violence justification case.
  • How far courts must go in parsing and defining multiple overlapping forcible felonies on nuanced evidentiary records.

VII. Conclusion

Westbrook v. State is best understood as an application and refinement—not a fundamental reworking—of Georgia’s law on justification instructions and harmless error. The Supreme Court of Georgia:

• Accepted, for purposes of analysis, the Wiseman-based argument that the trial court should have charged aggravated assault with intent to rape and aggravated battery as potential forcible felonies within the justification framework.
• Nevertheless affirmed the conviction because:
  • The jury was already instructed that Westbrook would be justified if she reasonably believed she needed to use deadly force to prevent rape, death, or serious bodily injury.
  • The additional requested theories were weaker and derivative of the same evidence.
  • The justification evidence itself was thin, inconsistent, and largely self-serving.
  • It was “highly probable” that the omitted instructions did not contribute to the verdict.

The decision signals that in Georgia homicide cases, especially those involving claims of battered-person or trauma-based self-defense, the appellate courts will scrutinize not only whether instructions ideally matched every conceivable theory, but also whether any omission plausibly affected the jury’s decision. Where the core justification theory has been given and rejected, and the evidentiary support is weak, courts will be reluctant to overturn convictions based on finer-grained disputes over additional, overlapping forcible-felony instructions.

At the same time, Westbrook leaves open fertile ground for future litigation on the precise contours of a trial court’s duty to define multiple forcible felonies in complex abuse and sexual-violence contexts. Defense counsel, trial judges, and prosecutors alike must now navigate a landscape where error in justification instructions is recognized, but its consequences are carefully limited by a robust harmless-error doctrine grounded in realistic assessments of the trial record.