O.C.G.A. § 16-5-80 (2019)

Annotations

Editor’s notes. - Ga. L. 2006, p. 643, § 5/SB 77, not codified by the General Assembly, provides that the amendment by that Act shall apply to all offenses committed on or after July 1, 2006. Law reviews. - For survey article on

criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 37 (2006). For note, ‘‘Incubating for the State: The Precarious Autonomy of Persistently Vegetative and Brain-Dead Pregnant Women,’’ see 22 Ga. L. Rev. 1103 (1988).

JUDICIAL DECISIONS Constitutionality. - O.C.G.A. § 16-5-80 informs all of what actions the state prohibits with sufficient definiteness that ordinary people can understand and thus is not unconstitutionally vague. Brinkley v. State, 253 Ga. 541, 322 S.E.2d 49 (1984). O.C.G.A. § 16-5-80 is not unconstitutionally vague, since the case law of Georgia has long adopted the common-law understanding of ‘‘quick’’: when the fetus is so far developed as to be capable of movement within the mother’s womb. Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987). O.C.G.A. § 16-5-80 is not unconstitutional either because there is no unlawful taking of a human life or because an unborn child is not a ‘‘person’’ within the meaning of the Fourteenth Amendment, a proposition that is simply immaterial in the present context to whether a state can prohibit the destruction of a fetus. Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987). O.C.G.A. § 16-5-80 does not violate equal protection by creating two classifications that are arbitrary and capricious; although O.C.G.A. § 16-12-140 punishes the offense of criminal abortion with imprisonment for not less than one year nor more than 10 years, while O.C.G.A. § 16-5-80 requires a life sentence, the distinction between the sentences required O.C.G.A. § 16-5-80 section and the abortion statute, O.C.G.A. § 16-12-140, is rationally related to legitimate governmental purposes. Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987). Government not required to develop exculpatory evidence for defense. - In a case in which defendant was convicted of murdering defendant’s girlfriend and an unborn child in violation

of 18 U.S.C. § 1111, O.C.G.A. § 16-5-80, incorporated by 18 U.S.C. § 13, and 18 U.S.C. § 924(c)(1) and (j), defendant’s argument that the defendant’s due process rights were violated because the case investigators intentionally and calculatingly refused to develop information which might implicate other suspects was without merit. The government was not required to develop exculpatory evidence for the defense. United States v. Natson, No. 07-11433, 2008 U.S. App. LEXIS 11228 (11th Cir. May 6, 2008) (Unpublished). Merger with aggravated assault. - Defendant’s convictions for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) and feticide in violation of O.C.G.A. § 16-5-80(a) did not merge for sentencing purposes because the victim of the aggravated assault was the defendant’s girlfriend, while the victim of the feticide was the girlfriend’s unborn child; the merger doctrine does not apply if each of the charged crimes was committed against a different victim. Carmichael v. State, 305 Ga. App. 651, 700 S.E.2d 650 (2010). Evidence sufficient for conviction. - Evidence that the defendant, who threatened to kill the victim in the past, took the victim to a retention pond, shot the victim, wrapped the body with a large boulder, placed the victim in a retention pond, and, for days, misled the victim’s mother and authorities about the victim’s whereabouts was sufficient to support convictions for malice murder, felony murder, feticide, aggravated assault, and possession of a firearm. Platt v. State, 291 Ga. 631, 732 S.E.2d 75 (2012). Fleeing and alluding police as basis for feticide charge. - Evidence was

sufficient to support a finding that the appellant was a party to the act of fleeing and attempting to allude a police officer; consequently, since the evidence was sufficient for the jury to find the appellant guilty of the underlying felony on which the two felony murder counts were based, the element of fleeing and attempting to

allude a police officer as charged in the feticide count was also established. McNeely v. State, 296 Ga. 422, 768 S.E.2d 751 (2015). Cited in Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451 (1987); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008).

ARTICLE 7 STALKING Law reviews. - For review of 1998 legislation relating to crimes and offenses, see 15 Ga. St. U. L. Rev. 62 (1998). For note, ‘‘Stalking the Stalker: Developing New Laws to Thwart Those Who Terrorize Others,’’ see 27 Ga. L. Rev. 285

(1992). For note on 1993 enactment of this article, see 10 Ga. St. U. L. Rev. 95 (1993). For comment, ‘‘Is Georgia’s Stalking Law Unconstitutionally Vague?,’’ see 45 Mercer L. Rev. 853 (1994).