Chapman v. State

¶1dissenting.

¶2I 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.

¶3By 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. 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.

¶4*3601. 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

¶5In 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.7In 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

¶6The 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 *361deaths 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

¶7As 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.

¶8However, 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

¶9*362Accordingly, 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.

¶10This 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.

¶112. 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 $5,000.16

¶12It is patently obvious that death falls within the scope of “serious bodily harm,” as that term is used in § 16-11-108.17 Thus, it is inescapable that the legislature has provided in the Criminal Code for the *363disposition 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 $5,000.

¶13Accordingly, 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 § 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

¶14The 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).

¶153. 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.

¶16I am authorized to state that Presiding Justice Fletcher joins in this dissent.