CopyCited 43 times | Published | Supreme Court of Georgia | Jul 12, 2010 | 287 Ga. 534, 2010 Fulton County D. Rep. 2319
...essential element of the offense of misuse of a firearm while hunting, namely, that Hames "consciously disregard[ed] a substantial and unjustifiable risk that his act or omission [would] cause harm to or endanger the safety of another person," OCGA §
16-11-108(a); (2) the State failed to prove the mens rea necessary for conviction; and (3) Hames received ineffective assistance of trial counsel....
...failing to raise at trial and on direct appeal, fall into this category if his legal argument is correct. The legal *802 issue at the heart of Hames's habeas petition rests on the identification of the essential elements of the crime created by OCGA §
16-11-108....
...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.... OCGA §
16-11-108(a)....
...The indictment against Hames did not charge that he "consciously disregard[ed] a substantial and unjustifiable risk that his act or omission w[ould] cause harm to or endanger the safety of another person." Hames contends that this language identifies the mens rea necessary to commit the crime created by §
16-11-108 and that its omission rendered void his indictment on that charge and the related felony murder charge....
...648, 653,
520 S.E.2d 205 (1999); Bacon v. State,
209 Ga. 261, 263,
71 S.E.2d 615 (1952). Thus, the commission of a crime requires "a joint operation of an act or omission to act [or actus reus] and intention or criminal negligence [or mens rea]." OCGA §
16-2-1(a). OCGA §
16-11-108(a) spells out the two components of the mens rea necessary to violate the statute....
...on from the standard of care which a reasonable person would exercise in the situation, to wit: aim and shoot without clearly identifying his target, and did thereby cause serious bodily harm to Samuel Hames by shooting Samuel Hames, in violation of O.C.G.A. §
16-11-108....
...As a result, the prosecution was able to argue in closing that recklessness or even negligence would suffice for a conviction as long as the conduct constituted a gross deviation from the standard of care. The jury instructions charged the elements of OCGA §
16-11-108 twice, the first time based on the language of the indictment omitting the conscious disregard of a substantial risk componentand the second time using the statutory language....
...prosecution argument was improper, and the jury instructions were insufficient. The decision not to raise the issue was not a reasonable tactic or trial strategy by Hames's counsel. The uncharged component of the mens rea for a conviction under OCGA §
16-11-108 was not difficult to discern or the product of esoteric or unpredictable judicial decisions....
CopyCited 18 times | Published | Supreme Court of Georgia | Mar 11, 1996 | 266 Ga. 356
...Horney, Asst. Atty. Gen., Atlanta, for the State. Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, Attorney Register. 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)....
...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,
423 S.E.2d 255. We find no merit to Chapman's argument. See Mainor v. State,
259 Ga. 803, 806,
387 S.E.2d 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 S.E.2d 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....
...148(2),
442 S.E.2d 246 (1994) (felony murder predicated on burglary, OCGA §
16-7-1(a)); Waugh v. State,
263 Ga. 692,
437 S.E.2d 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 *500 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 S.E.2d 185 (1994). Chapman confuses negligence with the criminal negligence that is the basis of OCGA §
16-11-108....
...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 $5000.00 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....
...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....
...lature 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 $5000. [16] It is patently obvious that death falls within the scope of "serious bodily harm," as that term is used in section
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)....
...applicable to this particular case. Rather, this case is controlled by the reasoning of the Foster opinionbecause the legislature has provided for the criminal disposition of those convicted of a killing as the *503 result of a felony violation of section
16-11-108, the felony must be prosecuted under the legislature's express provision therefore, and the felony murder rule simply does not apply....
...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)....
...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 section
16-11-108, and that the felony cannot serve as a basis for felony murder....
...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 wil...
...[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. [4] OCGA §
16-11-108(a)....
...Under the merger doctrine, the felony supporting a felony murder charge must have been committed with a "collateral purpose." Otherwise, the underlying felony is merged into the murder charge. Baker,
236 Ga. at 757,
225 S.E.2d 269. [9]
236 Ga. at 757,
225 S.E.2d 269. OCGA §
16-11-108 has been enacted since the Baker opinion was issued....
CopyCited 13 times | Published | Supreme Court of Georgia | Jun 7, 2004 | 278 Ga. 182, 2004 Fulton County D. Rep. 1905
...Over his *461 objection, evidence of this writing was admitted as relevant to the existence of a motive to kill his brother. The admission of this evidence is enumerated as error, but the jury acquitted Hames of an intentional homicide. The handwriting obviously does not relate to whether he violated OCGA §
16-11-108(a) when he aimed and fired his gun....
...Thus, the determinative factor did not prove to be the credibility of his claim that he thought he was firing at an animal, but whether his admitted act of aiming and shooting without further investigation as to the nature of the intended target was a violation of OCGA §
16-11-108(a)....
...Accordingly, the State did not make a substantive challenge to Hames' credibility. Compare Edwards v. Simpson,
123 Ga.App. 44, 46(1),
179 S.E.2d 266 (1970). Therefore, evidence of his reputation for veracity never became admissible. Duncan v. State, supra. 9. Hames urges that a violation of OCGA §
16-11-108(a) cannot constitutionally *463 constitute the predicate offense for a felony murder conviction....
...Hames filed a motion for new trial on February 19, 2003, which the trial court denied on August 11, 2003. Hames filed a notice of appeal on September 10, 2003, and the case was docketed in this Court on November 21, 2003. The appeal was submitted for decision on January 12, 2004. [1] Arguments regarding whether OCGA §
16-11-108 should be used to support a conviction for felony murder are foreclosed by this Court's opinion in Chapman v....
