Foster v. State , 264 Ga. 369 ( 1994 )

Hunt, Chief Justice.

Ticey Foster was convicted of the felony murder and voluntary manslaughter of Tiffany Harderson and for the possession of a firearm during the commission of a crime. The trial court merged the voluntary manslaughter conviction and sentenced Foster to life in prison for felony murder and to a term of years for the possession of a firearm during the commission of a crime.¹ We affirm.

1. On appeal, Foster’s sole contention is that the trial court should have sentenced him for voluntary manslaughter instead of felony murder. We disagree. Foster and Anthony Perry were engaged in a shoot-out at a local carwash when Foster, firing at Perry, accidentally struck and killed the victim, an innocent third party. The trial court charged the jury on voluntary manslaughter, transferred intent and felony murder. Assuming that a charge on voluntary manslaughter was authorized,² the trial court properly merged the conviction for voluntary manslaughter into the felony murder conviction. Contrary to Foster’s argument, our holding in Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992) does not apply here. In Edge we dealt with the problem when evidence is presented that would support both a voluntary manslaughter and felony murder conviction based on an aggravated assault against the homicide victim. Where there is evidence that an aggravated assault against a homicide victim was provoked by the victim, and felony murder is charged with the underlying felony being aggravated assault, our holding in Edge requires that the trial court instruct the jury so as to ensure adequate consideration of charges for both voluntary manslaughter and felony murder. Id. at 867. In Edge, we applied a modified “merger doctrine” to the foregoing limited circumstances, because to do otherwise would eliminate voluntary manslaughter as a separate form of homicide. Id. at 866. We chose a course between a strict construction of our felony murder statute, OCGA § 16-5-1 (c) (authorizing a felony murder conviction where a defendant, while in the commission of “a felony, causes the death of another”) and the full merger rule applied in most other states, which would preclude a felony murder conviction based on any aggravated assault by the defendant on the victim. That is, as we stated, our holding in Edge precludes a felony murder conviction only where it would “prevent an otherwise warranted verdict of voluntary manslaughter.” Id. at 867. Neither the modified merger rule which we adopted, nor the full merger rule adopted in other jurisdictions, concerns the situation here — accidental death of one resulting from the aggravated assault on another. The merger rule, and the limited merger rule adopted by us in Edge apply only where the aggravated assault is perpetrated against the homicide victim and is an integral part of the killing and when the evidence authorizes a voluntary manslaughter charge. “[T]his problem does not exist if the underlying felony is independent of the killing itself ... or even an assault that is directed against someone other than the homicide victim. . . .” (Emphasis supplied.) Id. at 867, n. 3.

Our felony murder statute is very broad, authorizing a conviction where a defendant causes the death of another while in the commission of any felony. In Edge, we limited the full scope of felonies that may be used to support a felony murder conviction to exclude the use of aggravated assault against the homicide victim only where the defendant’s intent in assaulting the victim is mitigated so that the homicide would constitute voluntary manslaughter. We decline to extend Edge to the circumstance here.

Nor is there a problem of inconsistent verdicts in this case. In Edge, we considered the possibility of inconsistent felony murder and voluntary manslaughter verdicts only where the underlying assault for felony murder was provoked by the homicide victim. Where the aggravated assault is not so provoked, and, assuming a voluntary manslaughter verdict is authorized, the voluntary manslaughter verdict and felony murder verdict are not inconsistent, see Woods v. State, 240 Ga. 265, 269 (1) (b) (239 SE2d 786) (1977), and the voluntary manslaughter verdict would, properly, be merged as it was in this case.³

2. Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of felony murder and possession of a firearm during the commission of a crime, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

All the Justices concur, except Sears-Collins, J., who dissents.

1 The crimes occurred on March 29, 1993. Foster was indicted on April 29, 1993. A jury found Foster guilty on August 31, 1993. The trial court sentenced Foster on September 8, 1993. Foster filed his notice of appeal on October 8, 1993. The court reporter certified the transcript on November 3, 1993. The appeal was docketed in this court on November 29, 1993, and orally argued on February 15, 1994.

2 We seriously question whether a charge on voluntary manslaughter is even authorized under the circumstances presented here. Traditionally, the provocation which would authorize such a charge must arise from some action of the deceased, or at least that the defendant reasonably so believed. Model Penal Code & Commentary, § 210.3, p. 57 (1980). Our voluntary manslaughter statute, OCGA § 16-5-2 (a), does not specifically so require, although the modern criminal codes of some states do. See generally LaFave & Scott, Substantive Criminal Law, Vol. 2, pp. 268, 269, n. 103, § 7.10 (g) (1986). We recognize there is authority which would allow a voluntary manslaughter charge for the homicide of an unintended victim, based on the concept of a “transferred [mitigated] intent” from the intended victim to an innocent third party. Id. at p. 269, n. 101. We also recognize that this Court and the Court of Appeals have allowed such a transfer of a mitigated intent from the intended victim to an innocent third party. See, e.g., McLendon v. State, 172 Ga. 267 (4) (157 SE 475) (1931); Hart v. State, 135 Ga. 356, 357 (69 SE 530) (1910); Coker v. State, 209 Ga. App. 142, 143 (433 SE2d 637) (1993). However, the cases from this court generally were issued prior to our current felony murder statute. The current statute, OCGA § 16-5-1 (c), makes a homicide in the commission of any felony, including an aggravated assault, felony murder. In light of our current felony murder statute, and our limited holding in Edge, and to comport with the general scheme of our homicide statutes, it appears that the voluntary manslaughter statute, OCGA § 16-5-2 (a) should be construed so as to authorize a conviction for that form of homicide only where the defendant can show provocation by the homicide victim.

3 While the verdicts are not inconsistent, merger is required to avoid double jeopardy. OCGA § 16-1-7 (a).