Owens v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.
In the Supreme Court of Georgia
Decided: August 21, 2023
S23A0607. OWENS v. THE STATE.
WARREN, Justice.
In October 2015, Norris Owens was convicted of felony murder
based on possession of a firearm by a first-offender probationer and
other crimes in connection with the shooting death of Randolph
Williamson. On appeal, Owens argues that the trial court erred by
not merging the count for felony murder based on unlawful
possession of a firearm by a first-offender probationer into the
voluntary manslaughter verdict. Seeing no error, we affirm. 1
1 Williamson was killed on October 18, 2015. On March 16, 2016, a
Fulton County grand jury indicted Owens on six counts: malice murder; felony
murder based on aggravated assault; felony murder based on possession of a
firearm by a first-offender probationer; aggravated assault with a deadly
weapon; possession of a firearm during the commission of a felony; and
possession of a firearm by a first-offender probationer. At a trial in October
2017, the jury found Owens guilty of the lesser offense of voluntary
manslaughter on the malice murder count and guilty on all other counts. At
sentencing, the felony murder verdict based on aggravated assault was vacated
1. As relevant to Owens’s enumeration on appeal, the evidence
presented at trial showed the following. On October 18, 2015,
Owens, a first-offender probationer, was socializing with friends in
the parking lot of an apartment complex. Tucked into Owens’s
waistband was a loaded 9mm handgun he had acquired two weeks
earlier. Williamson drove into the parking lot and got out of the car
in front of Owens with his hands in his pants. In front of several
onlookers, Williamson challenged Owens to a fistfight and pulled his
hand out of his pants. Owens pulled out his gun and shot
Williamson twice, once in the head and once in the chest, killing him.
2. As noted in footnote 1 above, Owens was found guilty of
by operation of law, and although the trial court purported to merge the
voluntary manslaughter verdict into the remaining felony murder conviction,
the voluntary manslaughter count was actually vacated by operation of law.
See Crayton v. State, 298 Ga. 792, 800-801 (784 SE2d 343) (2016). The trial
court merged the count for possession of a firearm by a first-offender
probationer into the related count of felony murder and sentenced Owens to
serve life in prison for felony murder based on possession of a firearm, 20 years
to run concurrently for aggravated assault, and 5 years to run consecutively
for possession of a firearm during a felony. With new counsel, Owens timely
moved for a new trial, which he later amended. In April 2021, after an
evidentiary hearing, the trial court denied Owens’s motion for new trial as
amended. Owens filed a timely notice of appeal. The case was docketed to the
April 2023 term of this Court and submitted for a decision on the briefs.
2
voluntary manslaughter as a lesser offense of malice murder, but
that verdict was vacated by operation of law because the trial court
sentenced Owens for felony murder based on possession of a firearm
by a first-offender probationer. Owens contends that this was error,
and that the trial court should have instead merged the felony
murder verdict into the voluntary manslaughter verdict and
sentenced him for voluntary manslaughter. Owens’s contention
fails.
In Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992), this Court
adopted a “modified” merger rule that “precludes a felony murder
conviction only where it would prevent an otherwise warranted
verdict of voluntary manslaughter.” Id. at 867. We explained:
[I]f there is but one assault and that assault could form
the basis of either felony murder or voluntary
manslaughter, a verdict of felony murder may not be
returned if the jury finds that the assault is mitigated by
provocation and passion. To hold otherwise would
eliminate voluntary manslaughter as a separate form of
homicide since, in that event, every voluntary
manslaughter would also be a felony murder.
Id. at 866.
3
We have extended the modified merger rule to situations in
which “the felony murder is premised on another underlying felony
that is equally integral to the homicide and susceptible of mitigation
by the sort of provocation and passion that voluntary manslaughter
involves.” See Griggs v. State, 304 Ga. 806, 808 (822 SE2d 246)
(2018) (noting that this Court has extended the modified merger rule
in past cases, but declining to extend Edge in that case) (citation and
punctuation omitted). See also, e.g., Sanders v. State, 281 Ga. 36(2006) (extending Edge to aggravated battery and arson). But we
have explained that the modified merger rule does not apply “‘if the
underlying felony is independent of the killing itself.’” Griggs, 304
Ga. at 808 (citing Edge, 261 Ga. at 867 n.3). Thus, this Court
“repeatedly has declined to extend the modified merger rule of Edge
to felony murder predicated on possession of a firearm by a convicted
felon.” Id. See also Sims v. State, 265 Ga. 35, 36 (453 SE2d 33)
(1995) (first deciding this question). 2
2 Owens makes no argument that we should treat possession of a firearm
by a first-offender probationer differently than possession of a firearm by a
4
Owens acknowledges this precedent, but argues that we should
nevertheless extend Edge to apply here, citing Ford v. State, 262 Ga.
602 (423 SE2d 255) (1992). But that would require us to overrule
almost three decades of consistent precedent, and Owens does not
offer a stare decisis argument that persuades us to do so. See
Crayton v. State, 298 Ga. 792, 800-801 (784 SE2d 343) (2016)
(declining to overrule this Court’s holdings “for the past two decades
that the modified merger rule announced in Edge is inapplicable to
felony murder predicated on possession of a firearm by a convicted
felon”). We thus affirm Owens’s conviction for felony murder
predicated on possession of a firearm by a first-offender probationer.
Judgement affirmed. All the Justices concur.
convicted felon, and we see no reason to do so here. He also does not argue that
he
came into the unlawful possession of a firearm only “as the result
of a sudden, violent, and irresistible passion resulting from serious
provocation sufficient to excite such passion in a reasonable
person,” OCGA § 16-5-2 (a), such that his possession could be said
to be mitigat[ed] by the sort of provocation and passion that
voluntary manslaughter involves.
Griggs, 304 Ga. at 808-809 (citation and punctuation omitted). Indeed, the
evidence shows that Owens acquired the gun that he brought to the parking
lot and used in the shooting two weeks before his altercation with Williamson.
5