Georgia Supreme Court Opinion 2-5-96
CHAPMAN
vs.
THE STATE.
No. S95A1710
SUPREME COURT OF GEORGIA
467 S.E.2d 497, 266 Ga. 356, 1996 Ga. LEXIS 53
February 5, 1996, Decided
JUDGES
HUNSTEIN, Justice. All the Justices concur, except Fletcher, P.J.,
and Sears, J., who dissent.
AUTHOR: HUNSTEIN
OPINION:
HUNSTEIN, Justice.
Wayne Chapman a/k/a Jimmy Slater was found guilty of the felony
murder of Jason Webb with OCGA � 16-11-108 as the underlying felony;
misuse of a firearm while hunting (OCGA � 16-11-108); hunting upon or
discharging a weapon across a public road (OCGA � 27-3-10); two
counts of involuntary manslaughter; and hunting deer with a firearm
out of season (OCGA � 27-3-15). Chapman was sentenced to life
imprisonment on the felony murder conviction. He appeals from the
denial of his motion for a new trial.1
1. The evidence established that Chapman and his 16-year-old
employee, Jason Webb, went hunting for deer with firearms although
Chapman knew it was archery season for deer. Chapman was armed with a
12 gauge shotgun loaded with double aught buckshot. Neither Chapman
nor Webb was wearing safety clothing. Chapman parked his truck on a
public road on which were located many residences and near woods
frequented by children and pets. Chapman separated from Webb with the
understanding that they would meet back at the truck. Chapman
testified that as he neared his truck at twilight, he heard movement
in the undergrowth and saw an object he believed to be a deer.
Chapman fired his shotgun across the road and hit Webb, who was
killed almost instantly. Chapman hid the body then drove to the
victim's house, claiming the victim had failed to return to the
rendezvous spot. After a six hour search by family and law
enforcement officers, Chapman "found" the body. Chapman gave three
statements to the authorities, initially denying he shot Webb but
later admitting he fired the shot that killed the victim. The
evidence adduced at trial was sufficient to enable a rational trier
of fact to find beyond a reasonable doubt that Chapman was guilty of
the charged crimes under the standard set forth in Jackson v.
Virginia, 443 U.S.307 (99 S. Ct. 2781, 61 L. Ed. 2d 560) (1979).
2. Relying on Ford v. State, 262 Ga. 602 (423 S.E.2d 255)
(1992), Chapman contends that OCGA � 16-11-108 cannot serve as the
predicate felony to a felony murder conviction. In Ford, the
defendant was unloading a firearm when it fired and the shot went
through the floor and killed a person in the apartment below. We
reversed the felony murder conviction where the underlying felony was
a "status offense" (such as possession of a firearm by a convicted
felon) not inherently dangerous because, under the special
circumstances of that case, the possession of the firearm could not
reasonably have been seen as creating a "foreseeable risk of death."
Id. at 603. See also Brand v. Szabo, 263 Ga. 119 (2) (428 S.E.2d
325) (1993). The Court recognized that circumstances may exist
under which a status offense felony may be considered dangerous. Id.
See also Roller v. State, 265 Ga. 213 (2) (453 S.E.2d 740)
(1995). Unlike the status offenses contemplated in Ford, supra, the
offense of misuse of a firearm while hunting requires a conscious
disregard of a substantial and unjustifiable risk that an act or
omission "will cause harm to or endanger" the bodily safety of
another person. OCGA � 16-11-108 (a).2
Recognizing a felony violation of OCGA � 16-11-108 as a predicate to
felony murder is consistent with the purpose of the felony murder
rule, namely, "'to furnish an added deterrent to the perpetration of
felonies, which, by their nature or by the attendant circumstances,
create a foreseeable risk of death.'" Ford, supra at 603. We find no
merit to Chapman's argument. See Mainor v. State, 259 Ga. 803, 806
(387 S.E.2d 882) (1990) (Benham, Justice, dissenting) (noting that
under factually similar circumstances, "an indictment for felony
murder with a violation of � 16-11-108 as the underlying felony would
clearly lie, and a conviction would be authorized.")
3. There was no fatal defect in Counts One and Two of the indictment
requiring reversal. Count One charged Chapman with a misdemeanor
violation of OCGA � 16-11-108. Chapman's conviction on that count was
merged with the felony murder conviction and he was not sentenced on
Count One. Count Two (felony murder) charged Chapman with causing the
death of Webb while in the commission of a felony, expressly
specifying OCGA � 16-11-108. The indictment sufficiently alerted
Chapman that a felony violation of OCGA � 16-11-108 was the predicate
felony for the felony murder charge. See generally Brooks v. State,
207 Ga. App. 477, 478 (428 S.E.2d 357) (1993).
4. Chapman contends OCGA � 16-11-108 cannot serve as the predicate
offense for felony murder because the statute applies only where
there is serious bodily injury or no injury and does not specifically
provide for a violation where death results from the prohibited
conduct. We see no reason, and Chapman cites no authority, to
distinguish OCGA � 16-11-108 from all the other statutes, similarly
lacking any reference to "death," which this Court has recognized as
serving as predicate felonies for felony murder. See, e.g., Crane v.
State, 263 Ga. 518 (436 S.E.2d 216) (1993) (felony murder
predicated on aggravated assault with a deadly weapon, OCGA � 16-5-21
(a) (2)); Sumrall v. State, 264 Ga. 148 (2) (442 S.E.2d 246)
(1994) (felony murder predicated on burglary, OCGA � 16-7-1 (a));
Waugh v. State, 263 Ga. 692 (437 S.E.2d 297) (1993) (felony murder
predicated on criminal damage to property, OCGA � 16-7-22 (a) (1)).
5. We find no merit in Chapman's contention that using OCGA �
16-11-108 as a predicate felony to support felony murder constitutes
cruel and unusual punishment because it allows the State to prosecute
someone for murder as a result of mere negligence. For a violation of
a statute to constitute a crime in Georgia, either criminal intention
or criminal negligence must be present. OCGA � 16-2-1; Daniels v.
State, 264 Ga. 460 (2) (b) (448 S.E.2d 185) (1994). Chapman
confuses negligence with the criminal negligence that is the basis of
OCGA � 16-11-108.
"'Criminal negligence as used in the statutes of this State means
not merely such negligence as might be the foundation of a damage
suit, but reckless and wanton negligence and of such a character
as to show an utter disregard for the safety of others who might
reasonably be expected to be injured thereby.' (Cit.)" [Cit.]
Helton v. State, 216 Ga. App. 748 (455 S.E.2d 848) (1995).
6. We have carefully reviewed Chapman's remaining enumerations of
error and find them to be without merit.3
Judgment affirmed. All the Justices concur, except Fletcher, P.J.,
and Sears, J., who dissent.
DISPOSITION
Judgment affirmed.
DISSENT
SEARS, J., dissenting.
I respectfully dissent. The facts in this appeal show that while
hunting,
Chapman heard movement in the forest undergrowth, which he believed
indicated the presence of a deer. Chapman fired his rifle in the
direction
of the noise. As it turned out, the noise had not been made by a
deer, but
rather by Chapman's hunting companion, a sixteen year old friend of
Chapman's teenage daughter. Sadly, the youth was shot and killed.
There is no dispute that the killing was accidental and inadvertent.
Nonetheless, because Chapman was guilty of felony misuse of a firearm
while hunting under OCGA � 16-11-108 (a), the majority affirms his
conviction for felony murder.
For the reasons explained below, I believe this ruling to be in
error. By enacting OCGA � 16-11-108 (a), the legislature designated
the offense of using a firearm in conscious disregard of a
substantial risk, and thereby causing serious bodily harm, which
includes death, as the felony of 'misusing a firearm while hunting,'
and made that crime punishable by a fine of $ 5000.00 and / or
imprisonment for one to ten years.4 Thus, as part of Georgia's
Criminal Code, the legislature has expressly provided for the
disposition of homicides that are caused by the misuse of a firearm
while hunting. Therefore, consistent with earlier opinions of this
Court regarding the felony murder rule, I do not believe that the
legislature intended that OCGA � 16-11-108 (a) be used to support a
charge of felony murder.
1. The purpose of the felony murder rule is to relieve the State of
the burden of proving premeditation and malice when the defendant
causes the death of another while committing a felony other than
murder.5 The rationale behind the felony murder rule is that the
defendant's malignant purpose is established by proof of the
underlying felony.6 In Georgia, felony murder generally can be
predicated upon a felony that itself was an integral part of the
homicide. The reasoning for this was explained in the seminal case of
Baker v. The State.7 In Baker, the appellant claimed that he intended
to shoot over the victim's head in jest, but instead accidentally
shot and killed the victim. The appellant argued that because his
aggravated assault upon the victim was an integral part of the
homicide, it should not be allowed to support a felony murder charge.
Rather, the appellant argued that because the underlying felony --
aggravated assault -- was an integral part of the homicide, it should
be "merged" into the murder charge, and the entire offense should
then be examined for the presence of the malice required to support a
murder conviction. To do otherwise, argued the appellant, would force
the jury to convict on felony murder, even though it believed that
there was no malice on the appellant's part and that the shooting was
accidental.8 The Baker court rejected that argument, and also
rejected wholesale adoption of the "merger doctrine." However, the
reasoning behind that ruling is highly instructive in this appeal.
The Baker court noted that under Georgia's statutory homicide scheme
(as it then existed), an unlawful homicide had to be either felony or
malice murder, or voluntary or involuntary manslaughter, "or else go
unpunished."9 The Baker court explained:
The problem we encounter is that both voluntary and involuntary
manslaughter are very narrowly defined by Georgia statutes;
specifically, voluntary manslaughter encompasses only those
killings done in "sudden violent and irresistible passion". . . .
Involuntary manslaughter covers deaths in the commission of a
lawful act in an unlawful manner . . . and deaths caused in the
commission of an unlawful act other than a felony. . .
Therefore, no death caused by a felony can possibly [be]
involuntary manslaughter, and it can [be] voluntary manslaughter
only if done in passion. . . . [Thus, t]he situation under Georgia
law . . . is that a death growing out of an aggravated assault is
either malice murder or felony murder, or else it is not
punishable as a homicide. This situation leads to the inevitable
conclusion that . . . the Georgia legislature intended felony
murder to encompass all felonies, as "felony" is defined in [the
Code], and not just dangerous or forcible felonies.10
As made clear in this passage, the State may base a felony murder
charge upon the commission of a felony, even one that is an integral
part of the homicide itself and evidences no malice on the offender's
part, when the legislature has not otherwise provided for criminal
punishment when a killing results from the commission of the
underlying felony. However, an altogether different result occurs in
situations where the legislature has provided for the criminal
disposition of one who causes a death as part of committing a felony
that is not part of Georgia's statutory murder scheme. For example,
the legislature has expressly provided for the felony of vehicular
homicide, which is defined, inter alia, as killing another while
driving in a reckless manner, under the influence of stimulants, or
while fleeing a police officer.11 Notably, this Court has affirmed
that an underlying felony charge of vehicular homicide cannot
support a charge of murder, because the legislature has decreed that
the offense of killing someone while driving a vehicle in a reckless
manner is vehicular homicide, and has provided for the criminal
disposition of individuals convicted of that felony offense.12
Moreover, a homicide caused by the reckless operation of a vehicle
must be prosecuted under the felony vehicular homicide statute, and
may not be prosecuted as murder or involuntary manslaughter.13
Accordingly, consistent with the reasoning enunciated in Baker and
this Court's handling of felony vehicular homicide cases, it is
apparent that when the legislature has provided for criminal
disposition for homicides resulting from the commission of a felony
that is not part of Georgia's statutory murder scheme, it does not
intend for that felony to serve as the basis for a charge of felony
murder. Rather, the legislature intends that homicides that result
from the commission of such felonies be prosecuted only under the
express statutory provisions made for those homicides.
This only stands to reason, because if Georgia's law makers did
intend that a homicide resulting from the commission of a felony not
included in Georgia's statutory murder scheme, for which the
legislature has made special provision, could support a charge of
felony murder, then the legislature would not have found it necessary
to designate a punishment for that homicide. Rather, the legislature
would simply allow such punishment to be dispensed under the felony
murder statute. However, when the legislature has spoken on the
punishment prescribed for this class of homicides, to allow a greater
punishment to be inflicted is nothing short of circumventing the
deliberate choice of the legislature.
2. When OCGA � 16-11-108 is examined in light of the principles
discussed above, it becomes clear that it cannot support a charge of
felony murder. As explained in the majority opinion, the legislature
has defined the misuse of a firearm while hunting so as to (1)
endanger others due to the conscious disregard of a substantial risk
that such misuse could cause harm to others, and (2) grossly deviate
from the standard of care that a reasonable person would exercise
under similar circumstances, to be a misdemeanor.14 Also noted by the
majority, the legislature also has stated that if the misuse of a
firearm while hunting results in "serious bodily harm" to another,
then the offender is guilty of a felony.15 However, what the majority
opinion fails even to mention is that the legislature has decreed
that felony misuse of a firearm shall be punishable by imprisonment
for one to ten years and/or a fine of up to $ 5000.16 It is patently
obvious that death falls within the scope of "serious bodily harm,"
as that term is used in section 16-11-108.17 Bankston v. The State,
258 Ga. 188 (367 S.E.2d 36) (1988); Crane v. The State, 247 Ga.
779 (279 S.E.2d 695) (1981).1a Thus, it is inescapable that the
legislature has provided in the Criminal Code for the disposition of
those who, due to their reckless or negligent misuse of a firearm
while hunting, shoot and kill someone. The legislature has deemed
those individuals to be guilty of a felony, and has prescribed the
appropriate punishment for such felons to be imprisonment for up to
ten years and/or a fine of up to $ 5000.
Accordingly, the killing that took place in this case, unlike the
killing that occurred in Baker, will not go unpunished if the felony
murder rule is not invoked. To the contrary, the killing will be
punishable exactly as prescribed by the legislature in OCGA �
16-11-108 (a). Therefore, the reasoning relied upon in Baker to
support the proposition that "felony murder encompasses all
felonies"18 simply is not applicable to this particular case. Rather,
this case is controlled by the reasoning of the Foster opinion --
because the legislature has provided for the criminal disposition of
those convicted of a killing as the result of a felony violation of
section 16-11-108, the felony must be prosecuted under the
legislature's express provision therefore, and the felony murder rule
simply does not apply.19
The majority's failure to mention that the legislature has prescribed
the appropriate punishment for felony misuse of a firearm while
hunting is problematic, to say the least. I believe that it seriously
discredits the validity of its holding. This Court is not free to
disregard legislative pronouncements, and must adhere to them. The
legislature has spoken clearly on what it intended to be the
punishment for a homicide resulting from the felony misuse of a
firearm. This Court is led astray, I believe, by a misperception that
it is free to uphold a punishment greater than that decreed by the
legislature. By affirming a misapplication of the felony murder rule
in this case, the majority in this case has done exactly that. In so
doing, I believe that the Court has undone a choice deliberately made
by the legislature, and has essentially nullified OCGA � 16-11-108
(a).
3. In accordance with the principles discussed above, it is clear
that in providing for the felony misuse of a firearm while hunting,
which includes homicides resulting from the commission of that
felony, and in prescribing the appropriate punishment for that
felony, the legislature intended that the felony be prosecuted only
under section 16-11-108, and that the felony can not serve as a basis
for felony murder. Therefore, I would reverse the trial court and
remand this matter for further proceedings, and I respectfully
dissent. I am authorized to state that Presiding Justice Fletcher
joins in this dissent.
OPINION FOOTNOTES
1. The homicide occurred on September 21, 1992. Chapman was indicted
on June 21, 1993 in Haralson County. He was found guilty on October
13, 1993 and was sentenced on October 19, 1993. His motion for new
trial, filed on November 5, 1993 and amended May 31, 1994 and May 23,
1995, was denied on June 29, 1995. A notice of appeal was filed July
7, 1995. The appeal was docketed on July 26, 1995. Oral arguments
were heard on October 17, 1995.
2. OCGA � 16-11-108 (a) provides: Any person who while hunting
wildlife uses a firearm or archery tackle in a manner to endanger the
bodily safety of another person by consciously disregarding a
substantial and unjustifiable risk that his act or omission will
cause harm to or endanger the safety of another person and the
disregard constitutes a gross deviation from the standard of care
which a reasonable person would exercise in the situation is guilty
of a misdemeanor; provided, however, if such conduct results in
serious bodily harm to another person, the person engaging in such
conduct shall be guilty of a felony ....
3. Chapman asserts error in the trial court's charge regarding the
misuse of a firearm; the admission of testimony by a game warden; the
failure to give, unrequested, a charge on mistake of fact; and
ineffective assistance of counsel due to the failure to object to the
admission of the game warden's testimony.
DISSENT FOOTNOTES
4 OCGA � 16-11-108 (a).
5 Lewis v. State, 260 Ga. 404, 405 n.2 (396 S.E.2d 212) (1990).
6 Id.; see Baker v. The State, 236 Ga. 754, 755 (225 S.E.2d
269) (1976).
7 236 Ga. 754 (225 S.E.2d 269) (1976).
8 236 Ga. at 755-56. The appellant in Baker was arguing for the
adoption of what is commonly called the "merger doctrine," which
disallows a felony murder instruction when the underlying felony is
an integral part of the homicide. Under the merger doctrine, the
felony supporting a felony murder charge must have been committed
with a "collateral purpose." Otherwise, the underlying felony is
merged into the murder charge. Baker, 236 Ga. at 757.
9 236 Ga. at 757. OCGA � 16-11-108 has been enacted since the Baker
opinion was issued.
10 236 Ga. at 758 (emphasis in original). In recent years, this Court
has adopted a slightly modified version of the strict felony murder
rule enunciated in Baker. See Edge v. The State, 261 Ga. 865 (414
S.E.2d 463) (1992); Ford v. The State, 262 Ga. 602 (423 S.E.2d
255)(1992). The impact of this slightly modified version, however,
has no bearing on this case.
11 See OCGA � 40-6-393. The punishment prescribed for vehicular
homicide is two to fifteen years, id., which is similar to that
prescribed for felony misuse of a firearm.
12 Foster v. The State, 141 Ga. App. 258, 259 (233 S.E.2d 215),
aff'd, 239 Ga. 302, 302-03 (236 S.E.2d 644) (1977); see Wallace
v. Kemp, 581 F. Supp. 1471, 1479, n.6 (MD Ga. 1984) (In Georgia,
"'recklessness' in reckless driving cannot constitute malice for
malice murder purposes, because another statute has expressly
provided for homicides caused by [the] reckless operation of a
vehicle.") (emphasis added).
13 Foster, 239 Ga. at 302; Foster, 141 Ga. App. at 259.
14 OCGA � 16-11-108 (a).
15 Id.
16 Id. See maj. op. at n.2.
17 Indeed, in order for Chapman to have been convicted of the
underlying felony in this case, death must be classified as "serious
bodily harm." Otherwise, his conviction for felony misuse of a
firearm while hunting cannot stand. To the extent that there is any
ambiguity in this, it is fundamental that criminal statutes, when
subject to more than one reasonable construction, are strictly
construed against the State and in favor of an accused.
1a Bankston v. The State, 258 Ga. 188 (367 S.E.2d 36) (1988);
Crane v. The State, 247 Ga. 779 (279 S.E.2d 695) (1981).
18 236 Ga. at 758.
19 The offenses cited by the majority in division four of its opinion
as examples of felonies that we have allowed to serve as a basis for
felony murder also are distinguishable on this ground, as none of the
offenses cited provide for the disposition of one who kills while
committing the felony. Nor is a contrary result required by the
dissenting opinion in Mainor v. The State, 259 Ga. 803, 806 (387
S.E.2d 882) (1990), cited by the majority at p. 3, as that
statement carries no precedential value, and is merely dicta.
