Baker v. State, 30834
| Decision Date | 20 April 1976 |
| Docket Number | No. 30834,30834 |
| Parties | Bobby BAKER v. The STATE. |
| Court | Georgia Supreme Court |
Hatcher & Cook, Donald E. Strickland, Albany, for appellant.
William S. Lee, Dist. Atty., Loring A. Gray, Jr., Asst. Dist. Atty., Albany, Arthur K. Bolton, Atty. Gen., James L. Mackay, Staff Asst. Atty. Gen., Atlanta, for appellee.
The main question raised by Baker in this appeal from his murder conviction is the scope of the word 'felony' in Georgia's felony murder statute. Code Ann. § 26-1101(b).
Baker was indicted in two counts, for malice murder and felony murder in the shooting death of Roger Clark. The State's trial evidence tended to show that Baker shot Clark through the heart a few moments after firing an earlier shot over the heads of Clark and another man. The State's evidence indicated that the shooting was entirely unprovoked, although Clark was severely intoxicated and had wakened Baker in Baker's bedroom before 5:30 a.m. to collect an alleged debt Baker owed him. The State introduced a statement by Baker which he later repudiated in his testimony. The statement acknowledged that he knew that the person in his room was Clark, and he shot to frighten him because he and Clark indulged in that sort of horseplay though a gun had never been involved before. The statement itself referred to and repudiated an earlier contradictory statement to police, in which Baker had said he shot when he was wakened by someone he thought was an unknown prowler. In Baker's trial testimony he returned to the prowler statement saying that he meant no harm to anyone but fired the shot to frighten away an unknown intruder who awakened him. Baker was convicted of felony murder, and sentenced to life imprisonment.
The reasoning underlying the felony-murder count was that the death was caused by Baker in the commission of an aggravated assault on Clark (Code Ann. § 26-1302), which is a felony. Baker argues that this charge relieved the State of the necessity for proving malice (the aggravated assault suffices in lieu of malice to produce a murder charge), and that felony murder should never be predicated upon an underlying felony which is itself a part of the homicide. These arguments were advanced below in a demurrer to the indictment, the overruling of which is claimed in Enumeration 1 of this appeal to have been error. This enumeration raises for discussion some real problems in the felony murder concept.
1. With respect to the operation of most state felony murder statutes, there are two acknowledged problems. We emphasize that both are policy problems: neither is of constitutional dimension. One is that absent some limitations on the felonies which can invoke the rule, even nondangerous felonies in the pursuit of which a defendant cannot reasonably be thought to have manifested a man-endangering state of mind, can turn an accidental death into felony murder. This we may call the non-dangerous felony problem. The second problem is that where the homicide grows out of an initial aggressive act which is itself a felony, the death becomes murder regardless of whether the aggressive act really was done with the intention to cause death or great bodily injury. For example, under Georgia law an assault with a deadly weapon is an aggravated assault which is a felony. Code Ann. § 26-1302. Therefore, if a defendant claims that he meant only to shoot over another's head to frighten him, (an aggravated assault) but accidentally hits and kills him, the underlying aggravated assault invokes the felony murder rule and the death is murder, even if the jury believes that there was no intent to kill nor even to injure. This hypothetical parallels the actual facts of Leutner v. State, 235 Ga. 77, 218 S.E.2d 820 (1975), in which this court affirmed a felony murder conviction. This is referred to by commentators as the merger problem-the underlying assault should properly be 'merged' into the homicide and the entire transaction analyzed for the presence or absence of malice, rather than allowing the state to bootstrap practically all killings with dangerous weapons into murder simply by showing that the assault out of which the death arose was a felony.
Actually, from a justice standpoint the merger problem is less acute than the non-dangerous felony problem, because in merger situations at least there is some initial reckless or assaultive act from which death flows, whereas in the latter problem the death could be a mere fluke which under the statute would become felony murder. For example, in Georgia we might 'convict a person of murder for a death occurring during the commission of a crime such as bribery, vandalism to a place of worship, possession of tools for the commission of a crime, forgery, or conversion of leased property worth over $100.00, all of which normally are nonviolent felonies.' Comment, Felony Murder in Georgia: A Lethal Anachronism? 9 Ga.St.B.J. 462, 480 (1973).
The following authorities analyze these and other problems in felony murder concepts, and offer some proposed statutes attempting to cure or alleviate certain difficulties. ALI, Model Penal Code, Art. 210 ; Perkins, Criminal Law, pp. 33-36 (1957); 1 Warren, Homicide § 74 (1938); Moreland, A Re-Examination of the Law of Homicide in 1971, 59 Ky.L.J. 788 (1971); Comment, Merger and the California Felony Murder Rule, 20 UCLA L.Rev. 250 (1972); Annot., Application of Felony-Murder Doctrine where the Felony Relied upon is an Includible Offense with the Homicide, 40 A.L.R.3d 1341 (1971).
The merger concept Baker argues has been summarized as follows:
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