NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: January 28, 2025
S24A1005. CHAMBERS v. THE STATE.
BOGGS, Chief Justice.
Appellant Jerry Chambers was convicted of three counts of
felony murder, predicated on fleeing or attempting to elude a police
officer, following a high-speed chase and crash in downtown
Savannah that resulted in the deaths of pedestrian Scott Waldrup
and Appellant’s passengers, Spencer Stuckey and Gabriel
Magulias. 1 Appellant was also convicted of reckless driving.
1 The crimes occurred on July 5, 2017. On August 16, 2017, a Chatham
County grand jury indicted Appellant for three counts each of felony murder, fleeing or attempting to elude a police officer, and homicide by vehicle in the first degree based on reckless driving; two counts of aggravated assault; and reckless driving. On September 19, 2018, Appellant was reindicted with the same twelve counts and two additional counts of violating the Georgia Street Gang Terrorism and Prevention Act; the original indictment was nolle prossed. The reindictment added charges against other defendants, but Appellant’s charges were severed for trial. The charges against the other defendants were related to the shooting that occurred on July 5 and to crimes committed in September 2017; the record on appeal does not reflect the disposition of those Appellant challenges only the felony murder convictions predicated
on fleeing or attempting to elude, see OCGA § 40-6-395 (a), arguing
that the evidence was constitutionally insufficient to establish an
essential element of fleeing or attempting to elude — that the
officer who gave the signal to stop was “in uniform prominently
displaying his or her badge of office,” id. As explained below, we
conclude that an essential element of the offense of fleeing or
attempting to elude is that the officer giving the signal to stop was
“in uniform prominently displaying his or her badge of office.” Id.
We also conclude that the State failed to meet its burden of
establishing that essential element beyond a reasonable doubt.
Because the State failed to present sufficient evidence of an
charges. At a trial from March 9 to 12, 2020, the jury found Appellant guilty of all counts, except for the aggravated assault and street gang counts. On August 25, 2020, the trial court entered the final disposition, sentencing Appellant to serve three concurrent life sentences in prison with the possibility of parole for the felony murder convictions and a concurrent term of 12 months in prison for reckless driving. The other counts merged or were vacated by operation of law. On August 27, 2020, Appellant filed a motion for new trial, which he amended with new counsel on January 17, 2024. After a hearing on February 20, 2024, the trial court entered an order denying the motion on February 26, 2024. Appellant filed a timely notice of appeal, and the case was docketed in this Court to the August 2024 term and orally argued on September 17, 2024. 2 essential element of the crime of fleeing or attempting to elude, the
guilty verdicts on those counts cannot stand, and thus we must
reverse the felony murder convictions that were predicated on the
underlying felonies of fleeing or attempting to elude. However,
because we are reversing the felony murder convictions, the
vehicular homicide counts, which were predicated on reckless
driving, no longer merge. Therefore, we also remand for sentencing
on the three counts of homicide by vehicle in the first degree.2
The evidence presented at trial showed that in the early
morning hours of July 5, 2017, Appellant was driving a white SUV
in the City of Savannah’s City Market area, which was crowded
with people celebrating the July 4 holiday. Passengers in
Appellant’s SUV exchanged gun fire with people on the street, and
Appellant drove away. Appellant’s SUV was spotted by Officers
Dennis Sylvester and Amanda Brooner of the Savannah Police
Department, who had finished working a “special detail,” but were
2 The maximum sentence that may be imposed on each conviction for
homicide by vehicle is 15 years. OCGA § 40-6-393 (a). 3 driving in the area in response to a “BOLO” call for the white SUV
that had been involved in the City Market shooting. The officers
turned on their emergency lights and siren and observed
Appellant’s SUV, which had its headlights and taillights turned off,
turn into an apartment complex. The officers followed Appellant’s
SUV, and tried to conduct a traffic stop, but Appellant did not stop.
Instead, with Officers Sylvester and Brooner in pursuit, Appellant
drove through the apartment complex, returned to the roadway,
and drove at speeds between 80 and 90 mph, which was more than
20 mph in excess of the posted speed limit. At times, Appellant
swerved into oncoming traffic, drove on a sidewalk, and ran a red
light. After driving in this manner for a few minutes, and without
ever turning on his lights, Appellant drove through a red light at
an intersection where pedestrians were crossing the road.
Appellant’s SUV struck and killed pedestrian Waldrup, before
spinning and crashing into a light pole on the sidewalk. Two officers
who had been on foot patrol and observed the crash, Detective
Brittany Harrell and Officer Lucas Hinds, saw Appellant in the
4 driver’s seat with his hands “at the steering wheel.” Officer Hinds
pulled Appellant from the driver’s seat of the SUV, although
Appellant told the officers that he had been a passenger.
Appellant’s front seat passenger, Stuckey, and the rear seat
passenger, Magulias, were both killed in the crash. Portions of
video footage from body cameras worn by Officers Sylvester and
Brooner and Detective Harrell, and from City-maintained
surveillance cameras located in downtown Savannah, were
admitted into evidence at trial and played for the jury. Additional
facts relevant to the question of whether Officers Sylvester and
Brooner were in uniform with a badge of office prominently
displayed are set forth in Division 2.
1. Appellant was indicted for three counts of felony murder
predicated on three counts of felony fleeing or attempting to elude
“Officer Dennis Sylvester, an officer who at the time of giving such
signal was in a uniform prominently displaying the officer’s badge
of office and the officer’s vehicle was appropriately marked showing
it to be an official police vehicle.” Appellant’s sole argument on
5 appeal is that the evidence was insufficient to support his
convictions for felony murder predicated on the underlying felonies
of fleeing or attempting to elude because there was no evidence that
Officer Sylvester was “in uniform prominently displaying his or her
badge of office.” OCGA § 40-6-395 (a) provides:
It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.3
In construing OCGA § 40-6-395 (a), we apply the rules of
statutory construction, which require that we
“give the text its plain and ordinary meaning, view it in the context
in which it appears, and read it in its most natural and reasonable
3 OCGA § 40-6-395 (c), (1) and (2) provide that a person who violates
subsection (a) while fleeing or attempting to elude and operates his vehicle in excess of 20 miles an hour above the posted speed limit or strikes a pedestrian is guilty of a felony.
6 way.” State v. Cook, 317 Ga. 659, 660 (893 SE2d 670) (2023) (cleaned
up). “If the statutory text is clear and unambiguous, we attribute to
the statute its plain meaning . . . .” Major v. State, 301 Ga. 147, 150
(800 SE2d 348) (2017) (cleaned up).
The State argues that the requirements that an officer be in
uniform and that the police vehicle be appropriately marked as an
official police vehicle are to be read in the disjunctive such that either
the officer must be in uniform or the police vehicle must be marked
as an official police vehicle. However, the State’s reading is contrary
to the plain language of the statute, which is written in the
conjunctive: “The officer giving such signal shall be in uniform
prominently displaying his or her badge of office, and his or her
vehicle shall be appropriately marked showing it to be an official
police vehicle.” OCGA § 40-6-395 (a) (emphasis supplied). The
statute thus clearly requires that the officer giving the signal to stop
“shall be in uniform” and displaying a badge. Additionally, by the
use of the conjunction “and,” the legislature specified that the crime
of fleeing and attempting to elude is committed when the officer
7 who is in a police car gives a driver a signal to stop is both in uniform
with the badge prominently displayed and the officer’s vehicle is
appropriately marked as an official police vehicle. See North
American Senior Benefits, LLC v. Wimmer, 319 Ga. 641, 645 (906
SE2d 373) (2024) (holding that use of conjunctive “and” in statute
setting forth three requirements for validity of restrictive covenant
makes clear that all three requirements must be met); Harrison v.
Wiginton, 269 Ga. 388, 390 (497 SE2d 568) (1998) (construing “and”
in statute setting forth qualifications for a bondsperson according to
its “normal conjunctive meaning”). See also American Heritage
Dictionary of the English Language (1973) (defining “and” as
“Together with or along with; also; in addition; as well as”). 4 The
dissent argues that the statute should be read in the disjunctive.
However, the statute uses “and” rather than “or,” and we must give
effect to the statute as written. See Major, 301 Ga. at 150. The
4 The fleeing and attempting to elude statute was first enacted in 1974,
see Ga. Laws 1974, p. 633, 674, and remains substantially the same as originally enacted. Therefore, in interpreting the text of the statute, we look to dictionaries that were in use around the time the statute was enacted. See State v. SASS Group, LLC, 315 Ga. 893, 898-899 (885 SE2d 761) (2023). 8 dissent also questions the need for the uniform requirement.
However, the requirement that the State prove that an officer was
in uniform with a badge prominently displayed may well reflect the
legislature’s policy decision to define fleeing or eluding such that
there is no violation when a person pulls over in response to the
flashing lights and siren of a police car but then drives away when
the driver of the supposed police car walks up to her car but is not
in a uniform with a badge prominently displayed.
Thus, reading OCGA § 40-6-395 (a) according to its plain
meaning, as we must, we conclude that one of the essential elements
of the offense of fleeing or attempting to elude is that the police
officer who gave the signal to the defendant driver to stop must have
been in uniform with his badge of office prominently displayed.
The State and the dissent, however, resist this straightforward
reading of the plain language of OCGA § 40-6-395 (a) by relying on
Maxwell v. State, in which we affirmed a conviction for felony fleeing
or attempting to elude where the defendant driver fled after
receiving a signal to stop from an officer on foot. 282 Ga. 22, 23-24
9 (644 SE2d 822) (2007), disapproved in part on other grounds, Willis
v. State, 304 Ga. 686, 706 n.3 (820 SE2d 640) (2018). In Maxwell, we
rejected the argument that fleeing and attempting to elude can be
committed only when a driver flees from an officer who is in an
appropriately marked police vehicle, and not when a driver flees
from an officer who is on foot. Because Maxwell involved an officer
who was on foot, its holding is limited to that factual scenario. See
Schoicket v. State, 312 Ga. 825, 832 (865 SE2d 170) (2021) (“It is, of
course, axiomatic that a decision’s holding is limited to the factual
context of the case being decided and the issues that context
necessarily raises. Language that sounds like a holding — but
actually exceeds the scope of the case’s factual context — is not a
holding no matter how much it sounds like one.”).
In Maxwell, we did say that OCGA § 40-6-395 (a) could be
construed “to mean that, when a police officer who is not in a vehicle
gives a signal to stop, he or she must be ‘in uniform prominently
displaying his or her badge of office,’ and to mean that, when an
officer who is in a police vehicle gives a signal to stop, the police
10 vehicle must be appropriately marked.” Maxwell, 282 Ga. at 24.
However, as we have noted, Maxwell did not involve a defendant
fleeing from an officer in a marked police vehicle. Thus, contrary to
the dissent’s assertion, Maxwell cannot be read to hold that the
“and” in OCGA § 40-6-395 (a) is to be read disjunctively such that
when a driver flees from an officer who is in a car, the State need
only prove that the officer was in a marked police vehicle. Nor can
Maxwell be read to establish a “framework” for reading OCGA § 40-
6-395 (a) in a manner contrary to the statute’s plain language, as
suggested by the dissent. At most, Maxwell holds that the statute’s
requirement that the police vehicle must be appropriately marked
applies only in circumstances in which a ‘pursuing police vehicle’ is
actually involved. Maxwell did not hold that the statute’s
requirement that the officer be in uniform with a badge permanently
displayed does not apply when a pursuing police vehicle is involved
— nor could it, because that case involved a defendant fleeing from
an officer who was not in a marked vehicle, unlike the officers here
who were in a marked police vehicle. See Schoicket, 312 Ga. at 832.
11 Accordingly, we conclude that in order for the State to establish
a violation of OCGA § 40-6-395 (a) when a driver flees or attempts
to elude an officer who is in a police vehicle, the State must prove
that the officer was “in uniform prominently displaying his or her
badge of office” and that his or her vehicle was “appropriately
marked showing it to be an official police vehicle.”5
2. We now turn to the sole issue raised on appeal — whether
5 The Court of Appeals previously reached this same conclusion. See, e.g.,
Phillips v. State, 162 Ga. App. 471, 472 (291 SE2d 776) (1982) (reversing conviction for fleeing or eluding for insufficient evidence and stating that “[s]ince no violation of [the predecessor to OCGA § 40-6-395 (a)] is shown unless the evidence demonstrates that the officer allegedly eluded was in the required uniform and that his vehicle was appropriately marked, the state’s contention that any evidentiary deficiency in this regard is harmless is meritless.”). See also Stephens v. State, 278 Ga. App. 694, 696 (629 SE2d 565) (2006) (quoting Phillips regarding essential elements of the crime of fleeing and eluding); Nevertheless, in Ray v. State, the Court of Appeals affirmed a conviction for fleeing or attempting to elude an officer in a police vehicle despite the absence of evidence as to the officer’s uniform, holding that the lack of evidence of the officer’s attire “was harmless.” 233 Ga. App. 162, 165 (503 SE2d 391) (1998) Ray is contrary to the binding precedent set forth in Phillips, 162 Ga. App. at 472. See White v. State, 305 Ga. 111, 121 (823 SE2d 794) (2019) (Court of Appeals is bound by older precedent from that court “until reversed or overruled by the Supreme Court or overruled by the Court of Appeals.” (cleaned up)). To the extent Ray and other Court of Appeals cases are inconsistent with the interpretation of OCGA § 40-6-395 set forth today, they are overruled. See generally Howard v. State, 319 Ga. 114, 119 (902 SE2d 551) (2024) (stare decisis does not apply to the review of precedent from the Court of Appeals).
12 the evidence was sufficient to show beyond a reasonable doubt that
either Officer Sylvester or Officer Brooner was in uniform
prominently displaying the badge of office. 6 We evaluate a challenge
to the constitutional sufficiency of the evidence in the light most
favorable to the verdicts, asking whether the evidence presented at
trial was sufficient to authorize a rational jury to find Appellant
guilty beyond a reasonable doubt of each essential element of the
crimes for which he was convicted. See Jackson v. Virginia, 443 U.S.
307, 319 (99 SCt 2781, 61 LE2d 560) (1979). Our review of the
sufficiency of the evidence “leaves to the jury the resolution of
conflicts in the evidence, the weight of the evidence, the credibility
of witnesses, and reasonable inferences to be made from basic facts
to ultimate facts.” Wilkerson v. State, 317 Ga. 242, 245 (892 SE2d
6 Appellant does not challenge the sufficiency of the evidence with regard
to whether Officers Sylvester and Brooner were in an appropriately marked police vehicle. And because we no longer automatically review sua sponte the sufficiency of the evidence, except that of murder convictions resulting in the death penalty, see Davenport v. State, 309 Ga. 385, 398-399 (846 SE2d 83) (2020), we limit our consideration to the one argument that Appellant makes in challenging the sufficiency of the evidence. See Scoggins v. State, 317 Ga. 832, 837 n.6 (896 SE2d 476) (2023).
13 737) (2023) (cleaned up). We also recognize that jurors are “normally
entitled to make reasonable inferences from circumstantial
evidence,” Worthen v. State, 304 Ga. 862, 867 (823 SE2d 291) (2019),
and, in doing so, may rely “on their own common-sense
understanding of the world,” Fitts v. State, 312 Ga. 134, 142 (859
SE2d 79) (2021). However, reasonable inferences must be based
upon evidence and not mere speculation. See Melancon v. State, 319
Ga. 741, 754 (906 SE2d 725) (2024) (explaining that, for purposes of
determining the constitutional sufficiency of evidence to support a
conviction, “inferences require some basis in evidence” and that
evidence amounting to “speculation, not inference,” is insufficient to
support a conviction); McKie v. State, 306 Ga. 111, 115 (829 SE2d
376) (2019) (holding that jurors are “entitled to draw reasonable
inferences from the evidence based on their own common-sense
understanding of the world” (cleaned up) (emphasis supplied)). See
also United States v. Klopf, 423 F3d 1228, 1236 (11th Cir. 2005)
(“Where the government relies on circumstantial evidence,
reasonable inferences and not mere speculation, must support the
14 jury’s verdict.” (cleaned up)). Thus, jurors are not authorized to draw
an inference about the existence of an essential element of a crime
based on mere speculation.
Here, there was no direct evidence that either Officer Sylvester
or Officer Brooner was in uniform with the badge of office
prominently displayed. Officer Sylvester did not testify, and
although Officer Brooner testified, she was not asked by the State
whether she was in uniform with her badge prominently displayed
at the time Appellant was given the signal to stop. Nor did the State
ask any of the other nine Savannah police officers who testified
whether Officer Sylvester or Brooner were in uniform with a badge
prominently displayed. Additionally, although the video footage that
was played at trial showed several police officers at the scene of the
crash who were in uniform with badges prominently displayed, the
State did not ask its witnesses whether any of the officers who
appeared in uniform with badges displayed in the video footage were
15 Officer Brooner or Officer Sylvester.7
The circumstantial evidence that was presented at trial
relevant to this issue, viewed in the light most favorable to the
verdicts, is as follows. From the testimony of Officer Brooner and
Detective Harrell and the videos from Officer Sylvester’s and
Detective Harrell’s body cameras, a reasonable inference can be
made that Officer Brooner and Officer Sylvester appear in video
footage played at trial. However, neither video shows the clothing
that Officers Sylvester and Brooner were wearing, much less any
badge of office that they may have been wearing. The approximately
two-minute video from Officer Sylvester’s body camera, which shows
the beginning of the pursuit, shows him seated in the patrol car
wearing long pants. The video does not show the clothing worn by
Officer Brooner, who was in the passenger seat next to him. Officer
7 It is difficult to understand why a prosecutor would fail to ask the
simple questions required to elicit direct testimony that would establish the essential elements that the officer who gave the signal to stop was in a uniform with badge prominently displayed and, if in a police car, that the car was appropriately marked as an official police vehicle.
16 Sylvester’s video also shows him and Brooner approaching the
driver’s side of Appellant’s SUV after the crash, and Officer
Sylvester attempting to open the driver’s side door. The video does
not show the clothing worn by Officers Sylvester and Brooner; it
shows only the officers’ outstretched bare arms holding handguns.
The approximately six-and-a-half minute video from Detective
Harrell’s body camera shows her approaching Appellant’s SUV from
the passenger side and captures Officer Sylvester approaching
Appellant’s SUV from the driver’s side and attempting to open the
driver’s door. However, the pants and shirt that Officer Sylvester is
wearing is obscured by Appellant’s car such that it is not possible to
see whether or not he was wearing a uniform or had a badge
prominently displayed.
Video from Officer Harrell’s body camera showed many officers
at the scene of the crash. And during closing arguments, the State
played a portion of the video from Officer Harrell’s body camera and
argued to the jury that the “officers on the other side of the car” were
wearing “some shirts labeled ‘Police’.” However, counsel for the
17 State conceded at oral argument that he could not point to any
portion of the video footage played at trial that showed Officer
Brooner or any testimony identifying Officer Sylvester or Brooner in
the video footage, and he was unable to identify any portion of the
video footage that showed either Officer Brooner or Sylvester in a
uniform with a badge prominently displayed. he other evidence
presented at trial relevant to the question of the officers’ clothing
consisted of Officer Brooner’s testimony that her duties as an officer
were to “go out on basic patrol, enforce laws, respond to calls, try to
help prevent crime, that sort of stuff.” However, on July 4, she and
Officer Sylvester were working a “special detail” on Hutchinson
Island that was scheduled to end around 10:00 p.m. After finishing
their duties on Hutchinson Island, they received instructions to go
to City Market because of the large crowd there. They went to City
Market and left around midnight and returned to the precinct to end
their shift. At the precinct, they moved their patrol bags from the
“pool car” to their personal vehicles, were “taking off [their] cameras,
putting the keys up, [and] getting ready to go home.” During this
18 time, a “BOLO” call went out about the shooting in City Market; the
call described the suspect’s vehicle and indicated that the vehicle
was headed in their direction. The officers returned to “[their] patrol
car,” with Officer Sylvester driving and Officer Brooner in the
passenger seat. After the crash, Officer Sylvester exited the car, and
Officer Brooner, whose body camera was not on at time, was by his
side “at the beginning.” After Appellant was removed from the SUV,
Officer Brooner went to check on other pedestrians who had been
injured.
The evidence set forth above — that Officers Sylvester and
Brooner were on duty on “special detail,” without any evidence
elucidating what “special detail” entailed; that other officers who
responded to the scene of the crash were in uniform with a badge
prominently displayed; and that Officers Sylvester and Brooner
were wearing cameras and carried handguns — is insufficient
circumstantial evidence to permit the jury to infer beyond a
reasonable doubt that Officers Sylvester and Brooner were in
19 uniform with their badges prominently displayed.8
These circumstances are different from those in Lester v. State,
253 Ga. 235, 239 (320 SE2d 142) (1984), in which we affirmed a
conviction for fleeing or attempting to elude where we noted that the
officer did not explicitly testify that he wore a badge, but the
“uncontradicted evidence produced at trial indicated that [the
officer] was in uniform” in close temporal proximity to the arrest at
issue. Specifically, in Lester, the officer who gave the signal to stop
also testified that he had been involved in a traffic stop of another
vehicle when he observed the defendant speeding; that he began to
pursue the defendant; that he turned on his siren and blue lights;
and that his police car was appropriately marked. Id. at 235, 239.
Thus, in Lester, there was direct evidence that the officer was
wearing a uniform and was conducting a traffic stop, which is a
8 At oral argument, counsel for the State asserted that the fact that none
of the police officer witnesses testified that any officer was in plain clothes was a circumstance that allowed the jury to determine that Officer Brooner was in uniform with her badge prominently displayed. But a jury cannot make a reasonable inference as to the existence of an essential element of a crime from the absence of evidence as to the existence of that element. See Melancon 319 Ga. at 754; McKie, 306 Ga. at 115. 20 policing activity that would be within a juror’s common-sense
understanding. Thus, the direct evidence in Lester allowed the jury
to make the permissible inference that the officer was wearing a
badge. But the record here does not contain such evidence, so Lester
does not control this case. 9
In contrast, the evidence here is markedly different than the
evidence before the jury in Lester. As discussed above, there was no
testimony that Officers Brooner and Sylvester were wearing
uniforms or displaying badges. Nor was there testimony to explain
the duties required of officers on a “special detail.” And the video
evidence does not show either officer to be in a uniform or wearing a
badge. Although the dissent speculates about the identity of one
officer in Officer Harrell’s body camera video, that video shows many
officers present in the aftermath of the crash, and there is neither
testimony nor any reasoned basis for inferring that the officer
standing in front of the car and next to Officer Harrell at one point
9 Some of us doubt whether Lester was correctly decided, but because it
does not control the issue presented in this case, we need not address its continued validity at this time. 21 is Officer Sylvester.10
Moreover, the fact that both Officer Sylvester and Brooner
were wearing body cameras and carried handguns is not enough by
itself to support, beyond a reasonable doubt, the inference that the
officers were in uniform with their badges prominently displayed,
given that a reasonable juror would also be aware that officers who
are “undercover” or in “plain clothes” may nonetheless wear hidden
video recording devices and carry weapons. As prior cases have
indicated, carrying a gun or wearing a video camera does not
necessarily mean that an officer is both in uniform and has a badge
prominently displayed. See, e.g., Solano-Rodriguez v. State, 295 Ga.
App. 896, 897 (673 SE2d 351) (2009) (describing police officer who
conducted search as wearing “plain clothes,” with a badge on his
10 As noted above, in closing arguments, the prosecutor who tried the
case pointed the jury to Officer Harrell’s video and argued that it showed officers “on the other side of the car,” not directly in front of the SUV, wearing shirts that said “Police.” Apparently, the prosecutor who tried this case did not see what the dissent infers from the video evidence. And at oral argument, State’s counsel could not identify any portion of the video footage that showed Officer Sylvester or Brooner in uniform with a badge, and Officer Sylvester did not testify so the jury could not infer that he was one of the officers seen in video footage in a uniform and badge. 22 waist, and carrying a concealed gun); Casey v. State, 295 Ga. App.
868, 868 (673 SE2d 327) (2009) (describing officer who assisted in
undercover drug buys as being “wired for sound and video”).
Having carefully reviewed the evidence presented at trial, we
conclude that the evidence was insufficient to show beyond a
reasonable doubt one essential element of the offense of fleeing or
attempting to elude: that the officer who gave the signal to stop was
in uniform with his or her badge of office prominently displayed.11
Accordingly, because the three counts of fleeing or attempting to
elude were the only predicate felonies underlying the three counts
of felony murder, the guilty verdicts on the fleeing and attempting
to elude counts cannot stand, and we must reverse the felony murder
counts predicated on those verdicts. See OCGA § 16-5-1 (c) (defining
11 As discussed above, there was no evidence from which a reasonable
juror could conclude beyond a reasonable doubt that either Officer Sylvester or Officer Brooner was in uniform with a badge prominently displayed. Thus, we need not address whether a driver commits the offense of fleeing or attempting to elude if an officer who was a passenger in the police car when the signal to stop was given was in uniform with his or her badge prominently displayed, but the officer driving the vehicle was not in uniform with his or her badge prominently displayed.
23 felony murder); Johnson v. State, 269 Ga. 840, 842 (506 SE2d 374)
(1998) (reversing felony murder conviction predicated on cruelty to
children where there was insufficient evidence to show essential
elements of cruelty to children). However, as noted above in footnote
1, the trial court merged Appellant’s convictions for vehicular
homicide based on reckless driving into the felony murder counts
and imposed a sentence on the reckless driving conviction. Because
we are reversing the felony murder convictions, the counts for
vehicular homicide no longer merge. See Calloway v. State, 303 Ga.
48, 49 (810 SE2d 105) (2018). Accordingly, we reverse Appellant’s
convictions for felony murder and remand to the trial court to impose
sentences on the guilty verdicts on the three counts of vehicular
homicide. Id.
Judgment reversed in part and remanded with direction. All the Justices concur, except Peterson, P. J., who concurs in judgment only in Division 2, and Ellington and LaGrua, JJ., dissenting.
24 LAGRUA, Justice, dissenting.
Because I believe the majority misconstrues OCGA § 40-6-395
(a) and our holding in Maxwell v. State, supra, I dissent.
The majority decides today that for the State to establish a
violation of OCGA § 40-6-395 (a) for fleeing or attempting to elude,
the State must prove both that the pursuing officer was “in uniform
displaying his or her badge of office,” and that the pursuing vehicle
was “appropriately marked” as an “official police vehicle.” The
majority contends that this is the only way to give proper effect to
the statutory conjunctive “and.” See OCGA § 40-6-395 (a) (providing
that the officer giving an appropriate signal to stop “shall be in
uniform prominently displaying his or her badge of office, and his or
her vehicle shall be appropriately marked showing it to be an official
police vehicle”) (emphasis supplied).
If OCGA § 40-6-395 (a) solely applied to situations where the
pursuing officer was in a vehicle, I would find it easier to agree with
the majority’s conclusion. The problem I see, however, is that the
25 statute does not apply solely to a situation where the officer is
pursuing in a vehicle. As we explained in Maxwell, OCGA § 40-6-
395 (a) on its face contemplates two different situations, because the
statute’s first sentence explicitly applies to a “pursuing police
vehicle or police officer[.]” Maxwell, 282 Ga. at 24 (emphasis
supplied). This means that the statute contemplates an officer
pursuing on foot as well as in a vehicle. Id.
But today’s decision is in immediate tension with application
of the statute to an officer who is pursuing on foot, because requiring
an officer to be in uniform “and” in an appropriately marked police
vehicle automatically excludes application of the statute to a
situation where an officer pursues on foot. Thus, we fail to give
meaningful effect to the whole statute, which clearly contemplates
pursuit on foot. The majority resolves this tension by determining
that, pursuant to Maxwell and today’s holding, the statutory
requirement of a properly marked patrol vehicle only applies where
police pursue in a vehicle. But I see nothing in Maxwell, OCGA § 40-
6-395 (a), or the majority’s opinion that supports such a reading:
26 that the conjunctive “and” plainly governs when pursuit is by vehicle
but governs not at all when pursuit is by foot.
I contend that we should follow the statutory construction we
established in Maxwell. In that case, given OCGA § 40-6-395 (a)’s
explicit application to two different situations, we parsed the statute
into two prongs – one applying to pursuit on foot, the other applying
to pursuit by police vehicle – explaining that
the last sentence of subsection (a) is easily harmonized with the first and second sentences by construing it to mean that, when a police officer who is not in a vehicle gives a signal to stop, he or she must be “in uniform prominently displaying his or her badge of office,” and to mean that, when an officer who is in a police vehicle gives a signal to stop, the police vehicle must be appropriately marked.
Maxwell, 282 Ga. at 24 (quotes in original).
Moreover, as we explained in Maxwell, “the purpose of the last
sentence of subsection (a) is to [e]nsure that drivers of vehicles will
have notice that they are being signaled to stop by the police[.]” Id.
A properly marked police vehicle, especially with the statutorily-
required emergency light and/or siren activated, surely satisfies this
27 purpose. In contrast, one is hard pressed to imagine why an
individual who, for example, is driving in front of a pursuing officer
in a properly marked vehicle with lights and/or siren activated,
would need further notice that police are pursuing said person. Nor
is it easy to imagine how that individual would benefit from such
further notice, since the individual would be unlikely to see that the
officer in pursuit was wearing a uniform with a prominently
displayed badge.
The instant matter is a case in point. As the majority notes,
when Officers Sylvester and Brooner began pursuit, they activated
emergency lights and siren and tried to conduct a traffic stop. But
Chambers eluded at speeds of up to 80 or 90 mph, swerving into
traffic, driving onto a sidewalk, and running a red light. Pursuit
ended when Chambers crashed, killing three people and injuring
others. As far as I can tell from the video admitted at trial, Officers
Sylvester and Brooner never got close enough for Chambers to see
their clothing, nor is there any evidence suggesting that Chambers
would have behaved any differently had he seen the officers’ attire,
28 rendering the question of Officer Sylvester and Brooner’s clothing
irrelevant.12
12 As the majority notes, the Court of Appeals held similarly in Ray v.
State, 233 Ga. App. 162, 165 (1) (503 SE2d 391) (1998) (concluding that direct evidence of a marked car, police uniform, and badge was not necessary where there was “no suggestion at all that the officer was not in uniform in an appropriately marked car, and the evidence reasonably indicates he was.” Moreover, any error was harmless because the pursuing officer’s clothing and badge were “[c]learly . . . irrelevant” when pursuing an individual who was “driving 131 mph in the dark, early morning hours . . . particularly when the patrol car’s lights and siren are activated”) (citations omitted). Other opinions from the Court of Appeals reach the same or similar results, or are in accord. See, e.g., English v. State, 261 Ga. App. 157, 158 (1) (582 SE2d 136) (2003) (same, citing Ray, 233 Ga. App. at 164 (1)); Cook v. State, 180 Ga. App. 877, 878-879 (1) (350 SE2d 847) (1986) (holding that a jury could “rationally conclude” that all the elements of OCGA § 40-6-395 (a) were met “[w]hen the evidence shows that the officer was on patrol and in his patrol car and had his blue light flashing and siren sounding.” Any failure to prove all the elements of the statute was “harmless as a matter of fact” where the appellant claimed not to have seen the pursing vehicle at all.); Mooney v. State, 221 Ga. App. 420, 423 (1) (471 SE2d 904) (1996) (concluding that though the deputy pursuing in a marked patrol car with emergency lights and sirens activated was wearing blue jeans, evidence that the deputy “displayed a variety of objective indicia of his lawful authority was sufficient to authorize the jury’s determination that [the appellant] was unlawfully attempting to elude”) (physical precedent); Thelusma v. State, 356 Ga. App. 495, 496-497 (1) (a) (847 SE2d 852) (2020) (holding that notwithstanding the appellant’s argument that the State failed to prove that the pursing officer “prominently displayed his badge of office and that his vehicle was appropriately marked as an official police vehicle,” evidence that the pursuing officer was on duty and responding in a patrol car with activated emergency lights and siren, joined by other patrol cars with activated emergency lights and sirens, was sufficient to find that the appellant “was aware he was fleeing from police and was therefore guilty of fleeing and attempting to elude”). Accord Finlon v. State, 228 Ga. App. 213, 213-214 (2) (491 SE2d 458) (1997) (holding that the evidence was sufficient to convict of fleeing and attempting to elude when an officer in a marked patrol car followed
29 Thus, Maxwell considers “the entire scheme of the statute,”
gives “sensible and intelligent effect to all of its provisions,” refrains
from “construing the statute in a way that renders any part of it
meaningless,” and fully effectuates OCGA § 40-6-395 (a)’s purpose
of “[e]nsur[ing] that drivers of vehicles will have notice that they are
being signaled to stop by the police.” Maxwell, 282 Ga. at 23-24
(citations and quotations omitted). We should follow Maxwell’s
framework here. The evidence admitted at trial establishes that
Officers Sylvester and Brooner pursued Chambers in a marked
patrol car with emergency lights and siren activated, which
Chambers generally concedes in his reply brief, 13 but Chambers
failed to stop, leading to a high-speed pursuit with disastrous
consequences. That is sufficient to satisfy OCGA § 40-6-395 (a) and
the appellant for over three miles with siren and emergency lights flashing); Tauch v. State, 305 Ga. App. 643, 646 (2) (700 SE2d 645) (2010) (concluding that the evidence was sufficient to convict of fleeing and attempting to elude where officers engaged in a “high-speed chase” in “clearly marked” patrol vehicles “with their emergency lights and sirens activated”). 13 “Chambers acknowledges that State’s Exhibit 5 shows [Chambers’s
vehicle] followed by a police car with lights engaged and markings on the side and that State’s Exhibit 6 depicts the pursuing vehicle with appropriate markings.” Chambers’s reply brief, p. 1. 30 uphold Chambers’s convictions for fleeing and attempting to elude.
Finally, assuming for the sake of argument that the State must
prove that Officers Sylvester and Brooner were in uniform with
respective badges properly displayed, I believe that the evidence
admitted at trial was more than sufficient for the jury to so find, as
the trial court held when it denied Chambers’s respective motions
for directed verdict and for new trial.
As the majority notes, Officers Sylvester and Brooner
responded to a BOLO in a “patrol car” which the evidence
establishes, and Chambers concedes, was a properly marked police
vehicle with emergency lights and sirens activated. They engaged in
a high-speed chase in tandem with other law enforcement. Both
officers carried guns, and Officer Sylvester drew his. Both officers
were wearing body cameras.
In addition to these facts, I maintain that the jury, considering
Officer Sylvester’s body camera footage with Detective Harrell’s,
could reasonably determine that Officer Sylvester was wearing a
dark-colored shirt, consistent with the dark-colored shirt many
31 uniformed officers were wearing that night, which was briefly visible
when he tried to open Chambers’s driver-side door. Unable to open
the door, the jury could reasonably determine that Officer Sylvester
circled around the front of Chambers’s vehicle to stand directly next
to Detective Harrell, where Officer Sylvester stayed for the rest of
the applicable recordings. The jury could reasonably infer that
Detective Harrell’s video shows Officer Sylvester standing directly
in front of Chambers’s vehicle wearing a dark shirt with “POLICE”
on the back, light-colored pants consistent with what other officers
were wearing, and a gun belt with several items of what appear to
be tactical gear. And the jury could conclude that Officer Sylvester
was wearing a badge on his chest, because Detective Harrell’s video
records a uniformed officer standing in the same spot where
Sylvester’s body camera footage indicates he was standing, wearing
a badge, sometimes inferable from the gleam on his chest but
directly visible in a few frames.
Taken together, this evidence was sufficient to support the
inference that Officers Sylvester and Brooner were wearing
32 uniforms with badges properly affixed, preserving Chambers’s
convictions for fleeing and attempting to elude.
Finally, the majority contends that evidence that Officers
Sylvester and Brooner were on duty on a “special detail”; that the
many other officers responding to the scene of the crash were in full
uniform; and that Officers Sylvester and Brooner were wearing body
cameras and carrying handguns would not, by itself, allow the jury
to infer that the officers were uniformed and badged. But there is
more evidence than that, as set out above, which is sufficient to
sustain Chambers’s convictions for fleeing and attempting to
elude. 14 See Rich v. State, 307 Ga. 757, 759 (1) (a) (838 SE2d 255)
(2020) (holding that our “limited review” of the sufficiency of the
evidence “leaves to the jury the resolution of conflicts in the
14 The majority argues at one point that evidence that Officers Sylvester
and Brooner were wearing body cameras and handguns is not by itself sufficient to support the inference that Officers Sylvester and Brooner were in uniform and wearing badges, because officers in plainclothes may also wear body cameras and carry guns. Perhaps. But the fact that plainclothes officers also wear cameras and carry guns does not preclude the jury from determining that Officers Sylvester and Brooner were in uniform at the time in question. Rather, that fact is simply something that the jury could weigh and consider in determining whether Officers Sylvester and Brooner were in appropriate attire as they pursued Chambers. 33 evidence, the weight of the evidence, the credibility of witnesses, and
reasonable inferences to be made from basic facts to ultimate facts”)
(citation and quotes omitted); McKie v. State, 306 Ga. 111, 115 (829
SE2d 376) (2019) (holding that “jurors are entitled to draw
reasonable inferences from the evidence based on their own
common-sense understanding of the world”) (citation omitted).
Thus, viewed in the light most favorable to the verdict, and
deferring to the jury’s assessment of the weight and credibility of the
evidence, the evidence admitted at trial was sufficient for the jury to
conclude that Officers Sylvester and Brooner were both in uniform
with their respective badges appropriately displayed, preserving
Chambers’s convictions for fleeing and attempting to elude. See
Lester v. State, 253 Ga. 235, 239 (5) (320 SE2d 142) (1984) (holding
that although the pursuing officer did not “testify explicitly that his
badge was prominently displayed,” uncontradicted evidence that the
officer “was in uniform, that his siren and blue lights worked, and
that his car carried the identification marks of the Clarke County
Police Department,” was “sufficient” to support the charge of fleeing
34 and eluding).
Therefore, I respectfully dissent.
I am authorized to state that Justice Ellington joins this
dissent.