Lead Opinion
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.
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,
2. Relying on Ford v. State,
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).
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,
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,
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;
“ ‘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,
6. We have carefully reviewed Chapman’s remaining enumerations of error and find them to be without merit.
Judgment affirmed.
Notes
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.
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*358 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 «mother person, the person engaging in such conduct shall be guilty of a felony ....
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.
Dissenting Opinion
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 16-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 $5,000 and/or imprisonment for one to ten years.
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. State.
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.”
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*361 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.
This only stands to reason, because if Georgia’s lawmakers 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.
It is patently obvious that death falls within the scope of “serious bodily harm,” as that term is used in § 16-11-108.
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”
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 § 16-11-108, and that the felony cannot 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.
OCGA § 16-11-108 (a).
Lewis v. State,
Id.; see Baker v. State,
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.
State v. Foster,
Foster,
OCGA § 16-11-108 (a).
Id.
Id. See majority opinion at n. 2.
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.
The offenses cited by the majority in Division 4 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. State,