Hines v. State
| Decision Date | 27 March 2003 |
| Docket Number | No. S02A1699.,S02A1699. |
| Citation | 276 Ga. 491,578 S.E.2d 868 |
| Parties | HINES v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Larry B. Hill, Lafayette, for appellant.
Herbert E. Franklin, Jr., Dist. Atty., Thurbert E. Baker, Atty. Gen., Jill M. Zubler, Asst. Atty. Gen., for appellee. FLETCHER, Chief Justice.
While hunting, Robert Lee Hines mistook his friend Steven Wood for a turkey and shot him dead. A jury convicted Hines of felony murder based on the underlying crime of possession of a firearm by a convicted felon, but acquitted him of felony murder based on the underlying felony of misuse of a firearm while hunting. On appeal, Hines contends that the jury's verdict is invalid because the jury cannot acquit him of killing the victim by misusing a firearm, yet convict him of killing the victim by possession of the same firearm, without having made inconsistent factual findings. Because Georgia does not recognize an inconsistent verdict rule and Hines's other enumerations are without merit, we affirm.1
Taken in the light most favorable to the jury's verdict of guilty, the evidence at trial showed that, late in the afternoon of April 8, 2001, Hines and some of his friends and relatives went turkey hunting. They split into two groups, with Hines and his friend Randy Stoker hunting together in one area, and the victim, the victim's wife, and Hines's son hunting in a different area, approximately one-fourth mile away. As the sky was growing dark, Hines heard a turkey gobble, "saw it fan out and shot." Hines's shot went through heavy foliage and hit the victim approximately eighty feet away. Immediately thereafter, the victim's wife screamed, "You shot Wood." Hines and his son went for help, but the victim died before help could arrive.
On his return, Hines tried to convince his son and Stoker to take responsibility for the shooting. They both refused. The entire group, however, agreed to say that they did not know who had shot Wood. Hines removed his camouflage clothing and hid his shotgun and hunting gear before the police arrived.
Two days later, Hines admitted he had shot Wood and showed the police where he had hidden his shotgun. Hines's son showed the police where he had hidden Hines's hunting clothing and gear, which included unopened cans of beer. An open beer can and foam insulation wrap that belonged to Hines were found near where Hines had fired the fatal shot.
1. We conclude that the evidence at trial was sufficient for a reasonable trier of fact to have found Hines guilty beyond a reasonable doubt of the crimes for which he was convicted.2
2. The jury acquitted Hines of felony murder based on misuse of a firearm while hunting and convicted him of felony murder based on possession of a firearm by a convicted felon. Hines contends that the verdict is void because the jury made inconsistent determinations that he did not cause Wood's death by misusing a firearm, but did cause his death by possessing the same firearm.
Georgia does not recognize an inconsistent verdict rule,3 which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count. A conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions, and Georgia courts generally will not look behind the jury's decision to convict on certain counts and acquit on other counts.4 Therefore, Hines's enumeration is without merit.
3. Hines contends that a convicted felon's possession of a firearm while turkey hunting cannot be one of the inherently dangerous felonies required to support a conviction for felony murder. "The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life."5 A felony is "inherently dangerous" when it is "`dangerous per se'" or "`by its circumstances create[s] a foreseeable risk of death.'"6 Depending on the facts, possession of a firearm by a convicted felon can be an inherently dangerous felony.7
In Ford v. State,8 the defendant was a convicted felon who was unloading a handgun when it accidentally discharged, went through the floor, and killed an occupant of the apartment below. A jury convicted Ford for felony murder based on his felonious possession of a firearm. This Court reversed, finding that, because no evidence showed the defendant knew there was an apartment below him or that the victim was present, his possession of a firearm could not support a conviction for felony murder.9
In contrast to Ford, Hines intentionally fired his shotgun intending to hit his target. He had been drinking before he went hunting, and there was evidence that he had been drinking while hunting. He knew that other hunters were in the area and was unaware of their exact location. He also knew that other people visited the area in which he was hunting. He took an unsafe shot at dusk, through heavy foliage, at a target eighty feet away that he had not positively identified as a turkey. Under these circumstances, we conclude that Hines's illegal possession of a firearm created a foreseeable risk of death.10 Accordingly, Hines's violation of the prohibition against convicted felons possessing firearms was an inherently dangerous felony that could support a felony murder conviction.
4. Hines claims that the trial court improperly allowed a lay witness to offer an expert opinion that went to the ultimate issue before the jury regarding whether Hines misused a firearm while hunting. At trial, the State offered Department of Natural Resources Ranger Greg Hall as an expert on hunter safety and turkey hunting. The trial court refused to recognize Hall as an expert in those areas, but allowed him to testify that he would not teach students in his hunter safety classes that Hines's shot was "permissible or allowable."
Lay witnesses "may state their opinion only when it is based upon their own observations," and their opinions are admissible "only when it is necessary in order for a witness to convey those same observations to the jury."11 A lay witness may not state his opinion when the facts relied upon by the witness can be "clearly described for the jury, and the jury can rely upon those same facts and reach its own opinion."12 "Otherwise, by stating an opinion the jury could reach for itself, the lay witness is deemed to have invaded the jury's exclusive province."13
Hall's opinion that he would not teach hunter safety students that Hines's shot was "permissible or allowable" was not a proper lay opinion because it was not necessary to convey Hall's observations. Rather, Hall drew a conclusion based on his experience in hunter safety instruction regarding a matter that was not within the ken of the average juror (i.e., that Hines's shot would not be taught as a permissible shot in hunter safety classes). Therefore, Hall's testimony was admissible only as an expert opinion.
However, Hall's experience and credentials were sufficient to qualify him to offer an expert opinion regarding whether Hines's shot was permissible under hunter safety standards. Hall was a certified Georgia law enforcement officer, employed by the Department of Natural Resources in the law enforcement section of its Wildlife Resources Division. He had five years of experience teaching hunter safety courses, and his duties included enforcement of Georgia's hunting laws. The jury heard these qualifications, and Hines had an opportunity to cross-examine Hall regarding his qualifications as well as the substance of his testimony. Additionally, Hall's testimony was probative of whether Hines misused his firearm while hunting, but did not invade the jury's exclusive province to determine whether Hines was guilty of that crime. Accordingly, the trial court did not err in allowing Hall to offer his opinion.14
5. Hines asserts that the evidence did not authorize the jury to reject his mistake of fact defense. Under OCGA § 16-3-5, "[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission." Generally, however, "ignorance or mistake of fact constitutes a defense to a criminal charge only if it is not superinduced by the fault or negligence of the party doing the wrongful act."15 Here, Hines's mistaken belief that Wood was a turkey was due to his own fault in taking an unsafe shot under unsafe conditions at a target that he had not positively identified as legal game. Accordingly, the jury was authorized to reject Hines's mistake of fact defense.
6. Hines's remaining enumerations are also without merit.
(a). The trial court did not commit reversible error in permitting the medical examiner to testify that he had classified Wood's death as a "homicide." The medical examiner testified the classification had nothing to do with the defendant's intent and meant only that "but for the actions of another individual" the decedent would not be dead.16
(b). Because the felon in possession of a firearm charge was an underlying felony for one of the felony murder counts, the trial court correctly denied Hines's motion to bifurcate the possession charge from the trial of the other charges.17
(c). The trial court did not commit reversible error in leaving in the indictment the references to Hines's habitual violator status and prior conviction for driving under the influence. Hines withdrew the motion to redact his habitual violator status from the indictment, and the reference to the DUI conviction was harmless because Hines referred to his DUI conviction in his statement to the police, which was introduced into evidence without objection.18
(d). The trial court was within...
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