*1 329) County, 2. In Cannon v. Coweta (1990), restricting placement this Court held that ordinance of police power protect prop- homes mobile exceeds it is enacted to erty Cannon, values. Unlike the ordinance in the ordinance in this Thus, case was enacted for reasons. this case does not issue, a Cannon and I see no need to debate its merits at this time. joins I am authorized to state that Justice Benham in this dis- sent. 10, Decided March April 11, 2003.
Reconsideration denied appellant. Murrah, J. Gilbert for appellee. Kendrick, Kirbo,
Kirbo & Bruce W. for S02A1699. HINES v. THE STATE. Chief Justice. Fletcher,
While Robert Lee Hines mistook his friend Steven turkey Wood for a and shot him A dead. convicted Hines of fel- ony underlying possession murder based on the crime of of a firearm by acquitted felon, a convicted but him of murder based on the underlying felony hunting. appeal, of misuse of a firearm while On jury’s Hines contends that the verdict is invalid because the can- acquit killing by misusing yet him of the victim firearm, convict killing by possession him of the victim firearm, the same without having findings. made inconsistent factual Because does not recognize an inconsistent verdict rule and Hines’s other enumera- merit, tions are without we affirm.1 light guilty,
Taken in the most favorable to the verdict of April August 7, 2001, grand jury The crime was committed on 2001. On indicted murder, possession felon, Hines for two counts of a firearm a convicted misuse of hunting, possession during felony, tamper a firearm while the commission of a evidence, ing with and four counts of false statement. The State withdrew three of the false 31, 2001, August jury acquitted statement counts. On Hines of one count of mur remaining merged possession der and convicted him of all counts. The trial court the felon in imprisonment conviction into the murder conviction and sentenced Hines to life years imprisonment followed five of a firearm while committing imposed conviction. The court also concurrent sentences on remain ing September convictions. Hines moved for a new trial on and amended his motion March The trial on 2002. court denied the motion for a new trial on March appeal April 2002. Hines filed his notice of on 2002. The case was docketed in this Court July 22, 2002, September on and submitted for decision on April 8, at trial late the afternoon
the evidence 2001, showed turkey hunt- his friends and relatives went Hines and some of Randy They groups, ing. split with Hines and his friend into two hunting together area, victim, and the the victim’s in one Stoker approximately area, in a different one- wife, and Hines’s son growing turkey away. sky dark, Hines heard fourth mile As *2 through heavy away. gobble, Hines’s went it fan out and shot.” shot “saw eighty foliage approximately feet Immedi- and hit the victim ately thereafter, screamed, “Youshot Wood.”Hines the victim’s wife help, help but the victim died before could and his son went for arrive. to convince his son and Stoker to take return, On his Hines tried shooting. They group, responsibility The entire both refused. they agreed say however, Hines removed his to that did not know who had shot Wood. camouflage clothing shotgun and hid his and hunting gear police the arrived. before days later,
Two Hines admitted he had shot Wood and showed shotgun. police the where he had hidden his Hines’s son showed the police hunting clothing gear, where he had hidden Hines’s which unopened open An included cans of beer. beer can and foam insula- wrap belonged tion fired the fatal shot. that to Hines were found near where Hines had
1. We conclude that the evidence at trial was sufficient for a rea- guilty beyond a sonable trier of fact to have found Hines doubt of the crimes for which he was convicted.2 reasonable jury acquitted felony murder Hines based on misuse of felony him a firearm while and convicted murder based on possession of a firearm a convicted felon. Hines contends that the jury verdict is void the made because inconsistent determinations by misusing firearm, that did he not cause Wood’sdeath a but did by possessing cause his death the same firearm.
Georgia recognize rule,3 does not an inconsistent verdict which permit challenge findings underly- would ing underlying a defendant to the factual guilty findings verdict on one count as inconsistent with the guilty
a verdict on a different count. A conviction on may acquittal one count and on another related count reflect a com- promise lenity by or the rather than inconsistent factual conclu- generally sions, and courts will not look behind acquit decision to convict on certain counts and on other counts.4 Therefore, Hines’s enumeration is without merit. Virginia, See Jackson v. SC U. S. 307 LE2d (2002); Lawrence see also Jackson v. Jackson, 3; n. Dumas v. possession felon’s
3. Hines contends that a convicted turkey hunting felo- cannot be one of the while nies felony required support murder. “The a conviction for underlying type serve as an fel- limitation on ony is that the must be inher- for a murder conviction “inherently ently dangerous dangerous” human life.”5A “ ” “ ‘by [s] ‘dangerous per create when it is se’ or its circumstances ”6Depending possession facts, of a foreseeable risk of death.’ inherently dangerous felony.7 firearm convicted felon can be an State,8 a convicted felon who was Ford v. defendant was accidentally through unloading handgun discharged, when it went occupant apartment floor, A and killed an below. con- possession victed Ford for on his felonious of a based finding reversed, no evidence firearm. This Court because apartment showed the defendant knew there was an below him or present, victim of a firearm could not support a conviction for murder.9 intentionally shotgun Ford,
In contrast fired his intending target. drinking he went to hit his He had been before drinking hunting, hunting. while and there was evidence that he had been He knew that other hunters were the area and was una- *3 people ware of their exact location. He also knew that other visited hunting. dusk, area in which he was He took an unsafe shot at the through heavy foliage, positively away target eighty at a feet that he had not turkey. circumstances, identified as a Under these we con- illegal possession of a firearm created a foresee- clude Hines’s prohibition Accordingly, able risk of death.10 against Hines’s violation of the inherently possessing support dan- felons firearms was an convicted gerous felony murder conviction. that could lay improperly that the trial allowed a wit-
4. Hines claims court expert opinion that went to the ultimate issue before ness to offer an the hunting. jury regarding whether Hines misused a firearm while Ranger Department trial, At the State offered of Natural Resources safety turkey hunting. Greg expert Hall as an on hunter recognize expert areas, in those but trial court refused to Hall as an Hulme v. 6 Id. 508) (1999) (felon See, e.g., in Metts v. loaded, gun inherently dangerous pointed window when firearm when defendant cocked at side). person standing he knew was on the other 9 Id. at 602-603. Metts, 482; Chapman See also 497) (1996) (misuse an that will of firearm while murder). support felony testify in
allowed him to safety that he would not teach students his hunter “permissible classes that Hines’s shot was or allowable.” Lay “may opinion only it witnesses state their when is based opinions upon observations,” and their are admissible their own convey “only necessary when it is in order for a witness to those same lay opinion jury.”11A observations to the witness not state his “clearly upon when the facts relied the witness can be described jury, jury rely upon and the can those same facts and reach its opinion.”12 by stating opinion jury “Otherwise, an reach own could lay jury’s itself, witness is deemed have invaded the exclu- province.”13 sive opinion safety
Hall’s that he would not teach hunter students lay “permissible proper that Hines’s shot was opinion or allowable” was not a necessary convey because it was not Hall’s observations. experience Rather, Hall drew a conclusion based on in his hunter safety regarding instruction a matter that was not within the ken of (i.e., average juror taught per- the missible shot that Hines’s shot would not be as classes). safety testimony Therefore, hunter Hall’s expert opinion. was admissible as an experience However, Hall’s and credentials were sufficient to qualify expert opinion regarding him to offer whether Hines’s shot permissible safety was under hunter standards. Hall awas certified employed by Department officer, law enforcement Natural Resources in the law enforcement section of its Wildlife years experience teaching Resources Division. He had five hunter Georgia’s courses, and his duties included enforcement of qualifications, laws. The heard these and Hines had an opportunity qualifications to cross-examine Hall testimony. Additionally, testimony well as the substance of his Hall’s probative of whether Hines misused his firearm while province but did not invade the exclusive to determine whether guilty Accordingly, Hines was of that crime. the trial court did not err allowing opinion.14 Hall to offer his 5. Hines asserts the evidence did not authorize the reject person “[a] § 16-3-5, his mistake of fact defense. Under OCGA guilty shall not be found of a crime if the act or omission to act consti- *4 tuting by misapprehension the crime which, was induced of fact 11 (485 451) (1997). Knebel, 853, Johnson v. 267 Ga. 855-856 SE2d 12Id. at 857. 13Id. 14 (462 737) (1995) 732, generally Henry State, (interpreter See v. 265 Ga. 736-737 SE2d expert opinion witness); State, 70, although expert offered not offered as Stewart v. 246 Ga. (268 906) (1980) (court implicitly recognized expert 75 SE2d witness’s status when it over objection obviously competent State, expert testimony); ruled witness’s Bacon v. 225 Ga. (483 894) (1997) (same). App. SE2d
495 justified Generally, true, “ignorance however, would have the act or omission.” fact constitutes a or mistake of defense to a criminal charge only superinduced negligence if it is not the fault or wrongful party doing Here, act.”15 Hines’s mistaken belief that turkey taking fault in Woodwas a was due to own unsafe shot target positively at a that he had not under unsafe conditions fied as identi- legal game. Accordingly, reject was authorized to Hines’s mistake of fact defense. remaining
6. Hines’s (a) enumerations are also without merit. permitting commit trial did not in court reversible error testify the medical examiner to that he had classified Wood’sdeath as a “homicide.”The medical examiner testified the classification had nothing to do with the defendant’s intent and meant that “but individual” the actions of another decedent would not be dead.16 (b) charge in Because the felon was an underlying felony counts, trial for one court correctly possession charge denied Hines’s motion to bifurcate the charges.17 from the trial of the other (c) leaving The trial court did not commit reversible error in in the indictment the references to Hines’s habitual violator status and driving prior conviction for "underthe influence. Hines withdrew the indictment, motion to redact his habitual violator status from the and the reference to the DUI conviction was harmless because Hines police, referred to his DUI conviction his statement to the which objection.18 was introduced into evidence without (d) admitting pho- The trial was within its court discretion tographs of the deceased.19
(e) Ranger testimony regarding safety Hall’s the hunter courses that he teaches did not elevate the standard under OCGA 16-11- (misuse hunting) person 108 of a firearm while from a reasonable person who has taken standard to reasonable hunter courses trial court’s to the standard. The instructions followed the statu- tory language, contrary,” “qualified clear evidence to the “absent jurors presumed under oath” are to follow the trial court’s instruc- tions.20 (f) any objection Hines waived to the trial court’s omission of the general charge request of the verdict because form he did not 15 (480 573) (1997) omitted). Crawford, State, (punctuation 267 Ga. 544 SE2d 16 (558 393) (2002). State, See Willis v. 274 Ga. 701 SE2d 17 (496 721) (1998). State, Haynes See 269 Ga. SE2d State, See Cox v. 274 Ga. See Jenkins v. (1996); See Smith v. Dennis v. 257,
496 charge, charges given, the and based on the that were its omission clearly was not harmful and erroneous as a matter of law.21 (g) The trial commit court did not reversible error when it attempted clarify jury’s continuing the confusion the repeatedly charging crime of misuse of a firearm while after jury correctly applicable § statute, on the OCGA 16-11-108.22 (h) recharging only The trial court did not err the when those were the on felony counts, murder/misuse of a firearm questions.23 counts on which the had Judgment except concur, Sears, J, All the Justices P. affirmed. who dissents. Presiding dissenting. Justice, Sears, surrounding I
Because conclude that circumstances Hines’s com- felony possessing mission of the status a firearm were not inher- ently dangerous meaning within the State,24 of our decision in Ford v. majority’s felony I dissent to the affirmance of Hines’s conviction of murder. Ford,
In
this Court held that for a
to serve as the basis for
inherently dangerous by
conviction,
murder
it had to be
its
very
creating
nature or had to be committed under circumstances
imputation
foreseeable risk of death.25We also held that the
of malice
justifies
dependent
“perpetra-
that
tor’s
murder rule is
life-threatening
accompanying [the]
state of mind
commission
[of
underlying felony].”26
specify
Ford,
however, we did not
how
particular felony,
to determine whether a
either
its nature or as it
committed,
was
was
to human life. Because of
punishments
accompany
the severe
a conviction of murder27and
illogical
impute
purposes
because it is
malice for
“ ‘
[foreseeably] dangerous
“from the intent to commit a
not
’”28
purposes
felony-murder
life,”
human
I conclude that for
of our
felony inherently dangerous per
doctrine, a
is
se or as
committed it
“ high probability’
[a human]
‘a
carries
death will result.”29This
21
(529
121) (2000).
Camphor
State,
See
v.
272 Ga.
SE2d
22
Willingham
See
v.
66
23
194) (2001)
(when
See
v.
jury requests
316
Duffie
recharge
particular part
case,
on
recharge
court in its discretion
them in full or
upon
point requested).
24
25
Id. at 603. Accord Hulme v.
678
26Ford,
lesser firearm such as hunting.36 while activity Hunting
One final note. time-honored recreational enjoyed by many encouraged the State of of our probably State’s citizens. No doubt a number of hunters have engaged negligent hunting practices similar to those in this case. Although practices, I I do not condone such careless neither can many agree subjecting possibility spending with so hunters to the they fastidiously prison proper pro- life in when do not follow accidentally cedures and shoot a fellow hunter. foregoing majority opinion. reasons,
For the I dissent to the Decided March April denied
Reconsideration Larry appellant. Hill, B. for Attorney, Franklin, Jr., Baker,
Herbert E. District Thurbert E. Attorney Attorney General, Zubler, General, Jill M. Assistant appellee.
S02G1063. ZWIREN et al. v. THOMPSON. *7 (578 SE2d Justice. Benham, September appellee Thompson Tracee underwent sur- gery performed appellant Jeffrey year Thomp- later, Dr. Zwiren. A malpractice complaint against son filed a medical Zwiren professional corporation resulted a trial at which the Thompson App. Zwiren, returned a defense verdict. In 493) (2002), Appeals the Court of reversed the court’s trial judgment determining after the trial court committed harmful error gave following charge: when it
In order for the Plaintiff to show medical cause and effect relationship, present expert Plaintiff must medical testi- mony showing] degree that[,] within a reasonable of medi- proven by preponderance certainty!,] cal dence of the evi- injury question proximately
[,] that the caused negligence Expert testimony of Defendant. speculation pos- issue of causation cannot be based on or § OCGA 16-5-3. OCGA 16-11-108. Hines was in fact convicted of this crime in the case.