*1 clearly The the that the erroneous standard of review.6 habeas court found sequential gave
court at trial that we Martin’s Edge, preserved appellate disapproved in issue for review Martin by reserving right object jury charge appeal, to the and appeal direct we Martin’s was final when issued our Edge. findings, Based on these the habeas court concluded that the original charge prevented jury considering from defense Martin’s guilty voluntary manslaughter recharge was that he and the charge. Edge original Applying correct did not this defect retroactively pipeline rule was in when because Martin’s case Edge granted corpus decided, was the court the writ of habeas and vacated Martin’s habeas conviction. Because the findings clearly correctly ap- court’s factual were not and erroneous it Edge plied Taylor, our decisions in Court affirm. should joins I am authorized to state that Sears Justice this dissent. 12, 1996 February Decided 11, 1996. Reconsideration denied March Attorney Peggy General, Bowers, J. Katz, Michael R. Assistant Attorney Rhyne, appel- General, Womack, & Womack Ronald R. for lant. Phillips, appellee. Worth,
D. Garner Michael M. S95A1710. THE CHAPMAN v. STATE. 497) Justice. Hunstein, Wayne Chapman Jimmy guilty Slater was found of the fel a/k/a ony underlying murder of Jason Webb with OCGA 16-11-108as the (OCGA felony; 16-11-108); hunting misuse of a firearm while hunt ing upon (OCGA discharging weapon public or across a road 27-3- 10); involuntary manslaughter; two counts with deer (OCGA 27-3-15). Chapman
firearm out of season was sentenced to imprisonment appeals life on the murder conviction. He from the denial of his motion a new trial. Zant, 316, (1993), denied,_U. cert. S. Jefferson _(114 1577, SC 128 LE2d September 21, Chapman 21, homicide occurred on 1992. was on June indicted 13, County. 1993 in Haralson He found was on October 1993 and was sentenced on 19,1993. trial, 5, 31, May October His motion for new filed on November 1993 and amended May 23, 1995, appeal July 7, 1994 and was denied on June A notice of 1995. was filed appeal July 26, arguments 1995. The was docketed on 1995. Oral were heard on October 16-year-old Chapman
1. The evidence established although firearms Webb, hunting for deer with employee, went Jason armed archery season deer. Chapman knew was aught Neither buckshot. gauge shotgun a 12 loaded with double with parked his safety clothing. Chapman wearing Chapman nor Webb was many residences public on a road on which were located truck *2 Chapman separated frequented by pets. children and near woods the they would meet back at understanding the that from Webb with twilight, at he he his truck Chapman testified that as neared truck. to an he believed undergrowth object and saw heard movement the Webb, the road and hit Chapman shotgun deer. fired across be a instantly. body the then drove to Chapman hid who was killed almost house, ren- failed return to the claiming the the victim had to victim’s by family spot. After and law enforcement dezvous a six-hour search officers, gave three Chapman body. Chapman statements “found” authorities, admitting initially he but later denying to the shot Webb fired killed the victim. he the shot that at to enable a rational evidence adduced trial was sufficient Chapman was beyond
trier of
to find
a reasonable doubt
that
fact
charged
forth in Jackson
crimes under the standard set
560) (1979).
(99
Virginia,
LE2d
v.
4. Chapman
OCGA
contends
16-11-108 cannot serve as the
predicate
offense for
applies only
because
statute
*3
bodily
where
is
injury
injury
specifi-
there
serious
or no
and does not
cally provide for a
prohibited
violation where death results
from
reason,
Chapman
conduct. We see no
and
authority,
cites no
to dis-
tinguish
statutes,
OCGA
from
similarly
16-11-108
all the other
lack-
§
ing
“death,”
any reference to
which
Court
recognized
this
has
as serv-
ing
predicate
See,
as
e.g.,
State,
felonies for
Crane v.
(436
216) (1993)
263 Ga.
(felony
SE2d
predicated
on ag-
gravated
deadly
(a)
assault
weapon,
(2));
with a
OCGA 16-5-21
§
State,
(2) (442
246) (1994)
Sumrall v.
cruel punishment and unusual prose- because allows the State to cute someone negligence. murder as result of mere For a viola- tion of a statute constitute a in Georgia, crime either in- criminal tention or criminal negligence present. 16-2-1; must be OCGA § endanger safety person disregard gross of another and the constitutes a devia- person
tion from the standard of
care which reasonable
would
exercise
the situ-
misdemeanor;
however,
guilty
provided,
ation
if such
results in
conduct
seri-
bodily
person,
person engaging
ous
harm to «mother
in such conduct shall be
guilty
....
185) (1994).
Chapman
(2) (b)
“ of this State the statutes negligence ‘Criminal as used might as be the founda- merely negligence such means suit, negligence but reckless and wanton damage tion of a disregard utter of such a character as to show an in- reasonably expected to be safety might of others who jured thereby.’ [Cit.]” [Cit.] App.
Helton v. Chapman’s remaining enumera carefully 6. We have reviewed merit.3 tions of error and find them to be without Fletcher, concur, except Judgment All the Justices affirmed. J., Sears, J., who P. dissent. dissenting. Justice Sears, appeal that while respectfully I facts show dissent. The undergrowth, forest which hunting, Chapman heard movement Chapman fired his rifle presence of a deer. he believed indicated the out, had not been the noise. As it turned the noise the direction of deer, hunting companion, a 16- by by Chapman’s made but rather Sadly, youth was year-old Chapman’s teenage daughter. friend of accidental dispute killing was shot and killed. There is no Nonetheless, because and inadvertent. (a), the
misuse of a firearm while reasons ex- murder. For the majority affirms his conviction below, I in error. plained ruling believe this to be (a), designated the By legislature 16-11-108 enacting OCGA § risk, disregard of a substantial using offense of a firearm conscious death, harm, as the thereby bodily which includes causing serious pun made that crime felony misusing hunting, a firearm while $5,000 years. to ten imprisonment for one ishable a fine of and/or Code, expressly Thus, part Georgia’s Criminal mis that are caused provided disposition of homicides Therefore, with earlier hunting. consistent use of a firearm while *4 rule, felony I do not be opinions murder regarding of this Court (a) be used 16-11-108 lieve that the intended that OCGA § support charge felony to 3 firearm; charge regarding the misuse asserts error the trial court’s charge warden; give, unrequested, testimony by game on mis the failure admission object fact; to the admission due to the failure to
take of and ineffective assistance of counsel testimony. game of the warden’s 4 (a).
360 purpose felony
1. is the State of The of the murder rule to relieve proving premeditation the burden of and malice when the defendant felony the death of another other than committing causes while murder.5 The rationale behind the murder rule is that the de purpose malignant proof underlying fendant’s is established of the felony. In Georgia, generally predicated upon murder can be a fel ony integral part reasoning that itself was an of the homicide. The Baker, case of Baker v. State.7 explained in the this was seminal appellant claimed that he intended to shoot over the victim’s accidentally in jest, head but instead shot and killed the victim. The appellant argued upon aggravated that because his assault the victim homicide, integral part sup was an it should not be allowed to port Rather, charge. appellant argued murder that be — underlying aggravated integral cause the assault was an homicide, part of the it “merged” charge, should be into the murder presence and the entire offense should then be examined for the required otherwise, the malice a murder conviction. To do appellant, argued jury would force the to convict on mur der, though even appel believed that there was no malice on the part lant’s shooting and that was accidental.8 The Baker court rejected argument, rejected and also whole- adoption “merger However, sale reasoning doctrine.” be- The Baker court ruling highly hind that is appeal. instructive (as Georgia’s statutory noted that under isted), homicide scheme it then ex- murder, an unlawful homicide had to be either or malice voluntary involuntary or or manslaughter, go unpunished.”9 “or else The Baker explained: court problem voluntary we encounter is that both and invol-
untary manslaughter
very narrowly
are
by Georgia
defined
statutes;
specifically, voluntary manslaughter
encompasses
killings
“sudden, violent,
those
done in
and irresistible
passion.” .
Involuntary
. .
manslaughter covers deaths in the
commission of
a lawful act
an
. . .
unlawful manner
212) (1990).
Lewis v.
404, 405,
260 Ga.
2n.
6 Id.;
Baker
(1976).
see
361 other of an unlawful act deaths caused the commission by felony felony. Therefore, than a . . . no death caused possibly involuntary manslaughter, [be] [be] and it can can passion. voluntary manslaughter only [Thus, if . . . done growing Georgia t]he ... a death situation under law is that aggravated out is either malice murder or fel- of an assault ony punishable murder, This or else it is not as a homicide. that . . . the situation leads to the inevitable conclusion encompass Georgia legislature felony all intended murder to “felony” just [the Code], and not felonies as is defined dangerous or forcible felonies.10 may passage,
As made clear the State base a mur- charge upon felony, der gral one is an inte- the commission of a even that
part of the homicide itself and evidences no malice on the of- part, provided legislature fender’s for when the has not otherwise punishment killing criminal when a results from the commission of underlying felony. altogether However, an occurs in situations where different result legislature provided disposition has of one who the criminal part part committing causes a gia’s statutory pressly provided of Geor death as of that is not example, legislature murder scheme. For has ex homicide, of vehicular which is de killing driving fined, alia, manner, inter in a reckless another while 11 police fleeing stimulants, under the influence of or while officer. Notably, underlying felony charge this Court has affirmed an charge murder, vehicular cannot because the homicide legislature ing killing has decreed that the offense of someone while driv pro homicide,
a vehicle
a reckless manner is vehicular
and has
disposition
vided for the criminal
of individuals convicted of that fel
ony
operation
Moreover,
offense.12
a homicide caused
the reckless
prosecuted
of a
statute,
laughter.13
must
homicide
vehicle
under the
vehicular
may
involuntary
prosecuted
mans
not be
as murder or
10
years,
adopted
(emphasis
original).
has
Accordingly, cases, ap- homicide vehicular handling Court’s and this disposition provided for criminal legislature parent that when the is not the commission of resulting from for homicides scheme, for that statutory it does not intend Georgia’s part of Rather, the basis for a felony to serve as from the commission of that result intends that homicides only under the express statutory provi- prosecuted such felonies be made for those homicides. sions *6 reason, Georgia’s if lawmakers did because
This stands to felony not of a resulting homicide from the commission intend that a scheme, legisla- for which the statutory in Georgia’s included charge of provision, support could special ture has made necessary murder, found it to des- legislature the would not have then Rather, legislature the would punishment for that homicide. ignate dispensed under the mur- punishment to be simply allow such However, spoken punish- the legislature the has der statute. when homicides, greater punish- of to allow a prescribed ment for this class nothing circumventing the deliberate ment to be inflicted is short legislature. of the choice principles in light is examined When OCGA 16-11-108 § above, support it becomes clear that it cannot
discussed
opinion,
legislature
explained
majority
As
in the
the
(1)
hunting so as to
endan
has defined the misuse of a firearm while
disregard of a substantial
risk that
ger others due to the conscious
(2)
others,
grossly deviate from
such misuse could cause harm to
person
the
of care that a reasonable
would exercise
standard
circumstances,
by
ma
similar
to
a misdemeanor.14 Also noted
the
be
if
that
the misuse of a firearm
jority,
legislature
the
also has stated
another,
the
hunting
bodily
while
results in “serious
harm” to
then
However,
felony.15
majority opinion
what the
guilty
offender is
of a
that
legislature
fails even to mention is that
the
has decreed
by imprisonment
for one to
punishable
misuse of a firearm shall be
$5,000.16
years
up
ten
a fine of
to
and/or
scope
“serious
patently
It is
obvious that death falls within the
Thus,
harm,”
in
is ines-
bodily
as that
term is used
16-11-108.17
capable
legislature
provided
has
the Criminal Code for the
that the
(a).
15Id.
opinion
majority
n. 2.
Id. See
at
17 Indeed,
underlying felony
in this
order for
to have been convicted
Otherwise,
case,
bodily
death must be classified as “serious
harm.”
his conviction
any ambiguity
hunting
misuse of a firearm while
this,
cannot stand. To the extent that there is
statutes,
subject
one
con
it is fundamental that criminal
when
to more than
reasonable
struction,
strictly
against
are
construed
the State and
favor of an accused.
who,
misuse of a
negligent
reckless or
disposition
due to their
of those
has
legislature
kill
The
hunting, shoot and
someone.
firearm while
felony,
prescribed
has
of a
those individuals to be
deemed
imprisonment
for such felons to be
appropriate punishment
$5,000.
years
up
a fine of
to
up to ten
and/or
case,
unlike the
place
took
Accordingly,
killing
that
if
Baker,
unpunished
not
go
occurred
will
killing that
killing
pun-
will be
contrary,
murder rule is not invoked. To
in OCGA 16-11-108
exactly
prescribed
legislature
as
ishable
(a). Therefore,
pro-
upon in Baker to
reasoning
relied
simply
felonies”18
'is
position
“felony
[encompasses]
all
Rather,
particular
this case is controlled
applicable
to this
case.
legislature has
reasoning
the Foster
because the
killing
provided
disposition
for the criminal
of those convicted
16-11-108,
be
must
the result of a
violation
therefore, and the
prosecuted
legislature’s express provision
under the
apply.19
simply
murder rule
does not
pre-
The
to mention that
majority’s failure
felony misuse of a firearm
appropriate punishment
scribed the
I
it seri-
problematic,
say
while
the least.
believe
free to
ously
validity
holding. This Court is not
discredits the
of its
adhere to them.
disregard legislative pronouncements,
and must
punish-
spoken clearly on what it intended
legislature has
felony misuse of a firearm.
resulting
ment for a homicide
from the
believe,
that it is free to
astray,
by misperception
led
I
This Court is
*7
By
by
legislature.
uphold
punishment greater than that decreed
case,
in
misapplication
felony murder rule
this
of the
affirming
I
exactly
doing,
in
In so
believe that
majority
this case has done
that.
by
legislature,
deliberately
made
the court has undone
choice
(a).
essentially
nullified OCGA 16-11-108
and
above,
is clear
principles
discussed
accordance with the
hunting,
in
of a firearm while
providing
for the
misuse
of that fel-
resulting
which includes homicides
from the commission
felony,
ony,
appropriate punishment
for that
prescribing
prosecuted
intended that
16-11-108,
for
felony cannot serve as a basis
and that
Therefore,
remand this
I
the trial court and
would reverse
respectfully
I
dissent.
proceedings,
matter
for further
18
I authorized to am this dissent. February 5,
Decided 11, 1996. March dismissed Reconsideration appellant. Wright Gammon, Jr., Anderson, & W. Gammon Jeffrey Attorney, Ballew, L. Assis- Osborne, District James R. Attorney Attorney, General, Bowers, Susan J. tant District Michael Homey, Attorney Wesley Boleyn, General, S. Senior Assistant V. Attorney appellee. General, for Assistant & BANK al. v. FIRST STATE S95A1713.WETHERBEE et et al. TRUST COMPANY (466 SE2d Justice. Carley, appellee case, & Trust First State Bank In this will construction (Bank) testamentary Company of Francis of the trust is a co-trustee ex-daughters-in- appellants P. law are Mr. Wetherbee’s Wetherbee grandchildren. The case arises from the follow- and several of his ing survived died 1977 and was relevant facts: Mr. Wetherbee daughter, wife, terms of Mr. married sons. Under the his and two placed portions will, into marital his were to be Wetherbee’s estate Upon residuary death, for life. his wife’s and specified percentage trusts for his wife placed residuary in trust trust was to be living and maintenance for each of his then sons for their predeceased mother, If his interest shall vest life. either son “then surviving surviving in his then de- his then unmarried wife and Upon son, trust created for each scendants.” the termination of the apart property any income “shall be set the trust undistributed surviving use of his wife and descendants.” and benefit death, sons re- After both of Mr. Wetherbee’s Mr. Wetherbee’s property di- in the trust and each thereafter nounced their interests sought died the Bank vorced. When Mr. Wetherbee’s widow provisions of the will’s the trial court’s direction regarding disposition the construction particular, property. In of the trust direction sought had son’s renunciation of his interest as to whether each vesting surviving interests “in his then unmar- accelerated the *8 surviving On cross-motions ried wife and for his then descendants.” summary judgment, court held that there was no acceler- the trial paid have been to each son ation and that the income that would upon and, death, distributed to his then surviv- be accumulated appeal ing from this order that this wife and descendants. It is