Funderburk v. State

• Citation: 276 Ga. 554,580 S.E.2d 234
• Decision Date: 05 May 2003
• Docket Number: No. S03A0218.,S03A0218.
• Parties: FUNDERBURK v. The STATE.
• Court: Supreme Court of Georgia

580 S.E.2d 234

276 Ga. 554

FUNDERBURK v. The STATE.

No. S03A0218.

Supreme Court of Georgia.

May 5, 2003.

Cynthia W. Harrison, Stone Mountain, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Peggy A. Katz, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Ruth M. Pawlak, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

This appeal is from Rickey Eugene Funderburk's conviction for the murder of Bonnie Hawkins.¹ Evidence adduced at trial showed the following. Funderburk worked as night manager of a video store and lived in an apartment above the store. The manager of the store awakened Funderburk on January 21, 2000, after discovering the store in disarray and some cash collected during the previous night missing. Funderburk, who had been drinking with Hawkins the night before, became upset and started drinking again. Called by the store manager, a police officer questioned Funderburk, who attempted to implicate Hawkins as the person who had stolen the money. As the questioning continued, Funderburk became confrontational, telling the officer he would take care of the problem with Bonnie Hawkins himself if the officer did not. The video store manager testified he heard Funderburk say in the parking lot he was going to burn a building down. Another witness testified he heard Funderburk say that same morning he planned to burn someone, and a third witness testified Funderburk said later that morning he was going to burn somebody up. A friend who helped Funderburk clean up the store recounted Funderburk poured charcoal lighter fluid into a plastic bottle and walked out while saying he was going to burn someone up. Subsequently, the building where Bonnie Hawkins lived burned and she was found dead of smoke inhalation. Later that day, Funderburk approached witnesses who had observed the fire spreading and said he had burned someone and would do it again. A fire department witness testified the cause of the fire was arson and the fire was started in two distinct places in the house.

1. Though largely circumstantial, the evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find Funderburk guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Lowe v. State, 267 Ga. 180(1), 476 S.E.2d 583 (1996). Since the trial court entered a judgment of conviction and sentence only on the verdict finding Funderburk guilty of malice murder, any issues concerning the arson and felony murder counts of the indictment are moot and will not be considered. Pickren v. State, 272 Ga. 421(1), 530 S.E.2d 464 (2000).

2. Funderburk's sentence for murder was life imprisonment without possibility of parole, imposed pursuant to a recidivist statute, OCGA § 17-10-7(c),² which provides as follows:

Except as otherwise provided in subsection (b) of this Code section, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

As may be seen from the language of the statute, it does not apply to capital felonies. "In general parlance, malice murder is a capital felony. [Cit.]" Weatherbed v. State, 271 Ga. 736, 738, 524 S.E.2d 452 (1999). Since murder is a capital felony and OCGA § 17-10-7(c) expressly excepts from its purview...