Chapman v. State

467 S.E.2d 497, 266 Ga. 356

• Court: Supreme Court of Georgia
• Decided: March 11, 1996
• Docket: S95A1710
• Status: Published

Opinions

Hunstein, Justice.

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. ¹

1. The evidence established that Chapman and his 16-year-old employee, Jason Webb, went hunting for deer with firearms although Chapman knew it was archery season for deer. Chapman was armed with a 12 gauge shotgun loaded with double aught buckshot. Neither Chapman nor Webb was wearing safety clothing. Chapman parked his truck on a public road on which were located many residences and near woods frequented by children and pets. Chapman separated from Webb with the understanding that they would meet back at the truck. Chapman testified that as he neared his truck at twilight, he heard movement in the undergrowth and saw an object he believed to be a deer. Chapman fired his shotgun across the road and hit Webb, who was killed almost instantly. Chapman hid the body then drove to the victim’s house, claiming the victim had failed to return to the rendezvous spot. After a six-hour search by family and law enforcement officers, Chapman “found” the body. Chapman gave three statements to the authorities, initially denying he shot Webb but later admitting he fired the shot that killed the victim.

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, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Relying on Ford v. State, 262 Ga. 602 (423 SE2d 255) (1992), Chapman contends that OCGA § 16-11-108 cannot serve as the predicate felony to a felony murder conviction. In Ford, the defendant was unloading a firearm when it fired and the shot went through the floor and killed a person in the apartment below. We reversed the felony murder conviction where the underlying felony was a “status offense” (such as possession of a firearm by a convicted felon) not inherently dangerous because, under the special circumstances of that case, the possession of the firearm could not reasonably have been seen as creating a “foreseeable risk of death.” Id. at 603. See also Brand v. Szabo, 263 Ga. 119 (2) (428 SE2d 325) (1993). The court recognized that circumstances may exist under which a status offense felony may be considered dangerous. Id. See also Roller v. State, 265 Ga. 213 (2) (453 SE2d 740) (1995).

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).² Recognizing a felony violation of OCGA § 16-11-108 as a predicate to felony murder is consistent with the purpose of the felony murder rule, namely, “ ‘to furnish an added deterrent to the perpetration of felonies which, by their nature or by the attendant circumstances, create a foreseeable risk of death.’ ” Ford, supra at 603. We find no merit to Chapman’s argument. See Mainor v. State, 259 Ga. 803, 806 (387 SE2d 882) (1990) (Benham, Justice, dissenting) (noting that under factually similar circumstances, “an indictment for felony murder with a violation of § 16-11-108 as the underlying felony would clearly lie, and a conviction would be authorized”).

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, 207 Ga. App. 477, 478 (428 SE2d 357) (1993).

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, 263 Ga. 518 (436 SE2d 216) (1993) (felony murder predicated on aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2)); Sumrall v. State, 264 Ga. 148 (2) (442 SE2d 246) (1994) (felony murder predicated on burglary, OCGA § 16-7-1 (a)); Waugh v. State, 263 Ga. 692 (437 SE2d 297) (1993) (felony murder predicated on criminal damage to property, OCGA § 16-7-22 (a) (1)).

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; Daniels v. State, 264 Ga. 460 (2) (b) (448 SE2d 185) (1994). Chapman confuses negligence with the criminal negligence that is the basis of OCGA § 16-11-108.

“ ‘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, 216 Ga. App. 748 (455 SE2d 848) (1995).

6. We have carefully reviewed Chapman’s remaining enumerations of error and find them to be without merit.³

Judgment affirmed.

All the Justices concur, except Fletcher, P. J., and Sears, J., who dissent.

1 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.

2 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 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 ....

3 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.