Dunn v. State

• Decision Date: 13 September 1993
• Docket Number: No. S93A0881,S93A0881
• Citation: Dunn v. State, 263 Ga. 343, 434 S.E.2d 60 (Ga. 1993)
• Parties: DUNN v. The STATE.
• Court: Georgia Supreme Court

Page 60

434 S.E.2d 60

263 Ga. 343

DUNN v.The STATE.

No. S93A0881.

Supreme Court of Georgia.

Sept. 13, 1993.

O. Dale Jenkins, Darien, for Dunn.

Dupont K. Cheney, Dist. Atty., J. Thomas Durden, Asst. Dist. Atty., Atlantic Judicial Circuit, Hinesville, Michael J. Bowers, Atty. Gen., Matthew P. Stone, Staff Atty., Dept. of Law, Atlanta, for State.

FLETCHER, Justice.

David Larry Dunn appeals from his conviction of the felony murder of Joseph Paul Phillips with aggravated assault and theft by taking being the underlying felonies.¹We affirm.

1.Dunn contends that the evidence was not sufficient to support the verdict.The facts when viewed in the light most favorable to the prosecution are sufficient to prove that sometime between June 30, 1989, and July 4, 1989, Dunn pulled the trigger of a .22 caliber rifle during an altercation with Phillips causing the rifle to discharge and resulting in Phillips' death.Dunn then threw the rifle and Phillips' body over the Champney River bridge.Dunn and co-defendantEarl S. Locke fled the scene in Phillips' truck.Having thoroughly reviewed the record, we conclude that a rational trier of fact could have found Dunn guilty of the crimes charged beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Dunn's first and fourth enumerations of error concern the trial court's allowing the jury to consider two versions of felony murder when the indictment charged only malice murder.This court on numerous occasions has held that a defendant may be convicted of felony murder under an indictment for malice murder where the underlying felony used to support the felony murder conviction is set forth in a separate count in the indictment or where the defendant is put on notice of the felony by the facts alleged in the indictment to show how the murder was committed.McCrary v. State, 252 Ga. 521, 314 S.E.2d 662(1984);Iona v. State, 260 Ga. 83, 389 S.E.2d 754(1990);Jolly v. State, 260 Ga. 258, 392 S.E.2d 527(1990).Due process is satisfied where the indictment puts the defendant on notice of the crimes with which he is charged and against which he must defend.McCrary, 252 Ga. at 524, 314 S.E.2d 662.Count 1 of the indictment for malice murder alleged that Dunn caused Phillips' death "by shooting the said Joseph Paul Phillips with a certain .22 caliber rifle."Count 1 included facts sufficient to put Dunn on notice that he was being charged with the felony of aggravated assault and that the aggravated assault could be the underlying felony for a felony murder conviction.

Although, as this court has previously stated, it would be a better practice for an indictment to contain a separate count for felony murder, Iona, 260 Ga. at 85, 389 S.E.2d 754, the indictment here was sufficient to place Dunn on notice that he may be convicted of felony murder.

Additionally, Count 2 of the indictment charged Dunn with the felony of theft by taking, alleging that Dunn did "unlawfully take a 1973 Ford Pickup Truck ... the property of said Joseph Paul Phillips, with the intention of depriving [Phillips] of said property."Under these particular facts, it is a much closer question whether the indictment put Dunn on notice that the state would contend at trial that he killed Phillips during the commission of the theft by taking.Notice is especially critical where, as here, Dunn could have presented at least some evidence at trial that he did not form the intent to take Phillips' truck until after Phillips was murdered.It is unnecessary, however, for the court to reach the issue of the notice provided in Count 2.

Dunn was found guilty of felony murder with both aggravated assault and theft by taking being underlying felonies.Only one felony is required to trigger the felony murder provision of O.C.G.A. § 16-5-1(c).Where a jury specifies two or more felonies as underlying the murder conviction, the...