Shivers v. State

• Decision Date: 01 February 2010
• Docket Number: No. S09A1713.,S09A1713.
• Citation: 688 S.E.2d 622,286 Ga. 422
• Parties: SHIVERS v. The STATE.
• Court: Georgia Supreme Court

688 S.E.2d 622

286 Ga. 422

SHIVERS v. The STATE.

No. S09A1713.

Supreme Court of Georgia.

February 1, 2010.

Phyllis Williams, Decatur, Jimmonique Rodgers, Atlanta, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney, Thurbert E. Baker, Attorney General, Benjamin Pierman, Assistant Attorney General, for appellee.

THOMPSON, Justice.

Tony Shivers was found guilty by a jury of felony murder and other offenses in connection with the shooting death of Allen Kilgore.¹ Shivers appeals from the denial of his motion for new trial, claiming that the jury instruction was defective in two respects. Finding no error, we affirm.

Viewed in a light most favorable to the verdict, the evidence established that Shivers and several others had congregated at the victim's home to drink alcoholic beverages² and watch football. Shivers and the victim began arguing in the presence of several witnesses. Shivers left the house exclaiming to onlookers that he would kill the victim. About an hour later, several witnesses observed him return to the house, armed with a shotgun. Shivers, a previously convicted felon, entered the house and fired the weapon, killing the victim with a single gunshot to the chest in the presence of the victim's mother and brother. He then fled from the scene in a car.

At trial Shivers claimed that he acted in self-defense. He testified that after he argued with the victim, he walked out of the house and remained on the premises for about an hour; he reentered the house to purchase alcohol when he encountered the victim pointing a shotgun at him; Shivers then produced a shotgun which he had concealed during the evening under his clothing, shot the victim, and fled from the scene.

1. The evidence was sufficient for a rational trier of fact to reject Shivers' justification theory and to find him guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Lewis v. State, 283 Ga. 191(1), 657 S.E.2d 854 (2008).

2. Shivers asserts that the trial court erred in failing to specifically charge the jury that self-defense may be a defense to the crime of possession of a firearm by a convicted felon.

In reviewing a challenge to the trial court's jury instruction, we view the charge as a whole to determine whether the jury was fully and fairly instructed on the law of the case. See Spearman v. State, 267 Ga. 600(5), 481 S.E.2d 814 (1997). Here, the court gave an instruction on use of force in self-defense verbatim from the Suggested Pattern Jury Instructions, fully explaining the affirmative defense of justification and the burden on the State to disprove it beyond a reasonable doubt. There is no requirement that the court instruct the law of self-defense separately as to each of the various crimes alleged in the indictment. See generally Holmes v. State, 273 Ga. 644(3), 543 S.E.2d 688 (2001). We conclude that the charge, when taken as a whole, adequately and fairly conveyed the correct legal principles concerning self-defense. See Davenport v. State, 283 Ga. 171(3), 656 S.E.2d 844 (2008).

3. Shivers also claims that the trial court erred in refusing to give his requested jury charge drawn from Ford v. State, 262 Ga. 602, 603(1), 423 S.E.2d 255 (1992), specifically that "[a] status felony, including the possession of a firearm by a previously convicted felon, is not inherently dangerous." Ford, a convicted felon, accidentally discharged a firearm while attempting to unload it, unintentionally sending a bullet through the floor striking and killing a person in the apartment below. Ford was convicted in part of felony murder predicated on possession of a firearm by a convicted felon. On appeal, he argued that the evidence of the firearm possession was insufficient to support a felony murder conviction because he did not possess the weapon in a manner that was inherently dangerous or life threatening. The Court agreed, noting that the purpose of the felony murder statute is to "deter the commission of a dangerous or life-threatening felony" and the status offense in that case occurred under circumstances in which no assault or criminal conduct took place. Id. at 603, 423 S.E.2d 255. The Court also acknowledged that "circumstances may well exist under which such a felony may be considered dangerous." Id.

Unlike Ford, Shivers intentionally aimed and shot a loaded weapon at the victim (actually using a chair to position it) in a manner that was inherently dangerous. "A felony is inherently dangerous when it is dangerous per se or by its circumstances creates a foreseeable risk of death. [Cit.] Depending on the facts, possession of a firearm by a convicted felon can be an inherently dangerous felony." (Punctuation omitted.) Hines v. State, 276 Ga. 491, 493(3), 578 S.E.2d 868 (2003). See also Sapp v. State, 284 Ga. 754, 670 S.E.2d 67 (2008); Metts v. State, 270 Ga. 481(1), 511 S.E.2d 508 (1999) (status offense of being a convicted felon in possession of a firearm supports a felony murder conviction where defendant pointed a loaded, cocked gun at a window knowing there was a person on the other side). "In determining whether a felony meets that definition, [a c]ourt does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed." Mosley v. State, 272 Ga. 881, 883(3), 536 S.E.2d 150 (2000). As in Metts, supra at 482, 511 S.E.2d 508, "[a]ppellant's possession of the firearm was dangerous and life-threatening, and had `an undeniable connection to the homicide.'"

"Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law." Davis v. State, 269 Ga. 276, 279(3), 496 S.E.2d 699 (1998). It is not error for the trial court to refuse to give a requested charge that, "`is not legally accurate and adjusted to the evidence.'" Lewis v. State, 269 Ga.App. 94, 96(2), 603 S.E.2d 492 (2004). Shivers admitted that he deliberately used the weapon to shoot the victim, but claimed that he did so in self-defense. Thus, his use of the weapon under the circumstances "create[d] a foreseeable risk of death." (Punctuation omitted.) Ford, supra at 603, 423 S.E.2d 255. The only question was whether his conduct was justified because he was acting in self-defense. In contrast to Ford, supra at 603, 423 S.E.2d 255, the evidence did not support a finding that the status felony occurred under circumstances in which "no assault or any other criminal conduct" took place. It follows that the requested charge was properly denied.

Judgment affirmed.

All the Justices concur, except NAHMIAS, J., who concurs specially as to Division 3.

NAHMIAS, Justice, concurring specially.

I join Divisions 1 and 2 of the Court's opinion, but I concur only in the result as to Division 3. Bad facts, as they say, make bad law. But assuming we are to live with such law, we must apply it properly. I do not believe the majority opinion does so in Division 3.

1. In Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992), this Court decided that "dangerousness is a prerequisite to the inclusion of a felony as an underlying felony under the felony murder statute of this state." Id. at 602, 423 S.E.2d 255. That statute, OCGA § 16-5-1, does not by its terms limit the type of felony that may qualify as a predicate for felony murder, instead stating simply, "[a] person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice." (Emphasis supplied.) The Court recognized that the felony murder statute "does not specify which felonies may predicate a felony murder conviction." 262 Ga. at 603, 423 S.E.2d 255. Nevertheless, the Court stated, "the statute is no more than a codification of the felony murder doctrine under the common law." Id. Noting that Georgia first enacted a felony murder statute in 1811, the Court concluded that the statute's "purpose is the same: to deter the commission of a dangerous or life-threatening felony." Id. at 603 & n. 2, 423 S.E.2d 255.

It is questionable whether there was a common-law felony murder doctrine in 1811. See Guyora Binder, The Origins of American Felony Murder Rules, 57 Stan. L.Rev. 59, 63 (arguing that "Americans did not receive any felony murder rules from England, for the simple reason that there was no common law felony murder rule at the time of the American Revolution"). Moreover, the development of Georgia's felony murder statute does not appear to support the Ford Court's assertion.³

The Ford Court cited no case pre-dating the enactment of Georgia's statute, nor any Georgia case law at all, in support of its dubious reading of the unrestricted statutory language. To be sure, modern courts, like the one Ford cites in support of its conclusion, have held that it is "only rational" to limit the felony murder rule to a "felony that is dangerous per se, or `which by the attendant circumstances, create[s] a foreseeable risk of death.'" Id. at 603, 423 S.E.2d 255 (quoting Kansas v. Goodseal, 220 Kan. 487, 553 P.2d 279, 285 (1976), overruled by Kansas v. Underwood, 228 Kan. 294, 615 P.2d 153, 163 (1980)). I question whether a court's view of what types of felonies are most rationally deterred can limit the broad language the General Assembly enacted. Nevertheless, this holding of Ford is not outlandish, has some historical support, accords with the majority view nationally in recent years, and has not caused the General Assembly to revise this often-used criminal statute in the intervening 18 years, so I will follow it as stare decisis. See generally Montejo v. Louisiana, ___ U.S. ___, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009).

2. The Ford Court's application of that general holding to the specific felony at issue in that case — possession of a firearm by a previously convicted felon — is more dubious. The...