Davis v. State , 287 Ga. 173 ( 2010 )

NAHMIAS, Justice,

concurring.

This Court has long held, I believe dubiously, that to establish the crime of felony murder in Georgia, the underlying felony must be “dangerous or life-threatening.” Ford v. State, 262 Ga. 602, 603 (423 SE2d 255) (1992). See Shivers v. State, 286 Ga. 422, 425-427 (688 SE2d 622) (2010) (Nahmias, J., concurring specially) (questioning this holding). Thus, if the felony at issue is not deemed dangerous per se (that is, in every case), the question is not “ ‘the elements of the felony in the abstract, but instead . . . the circumstances under which the felony was committed.’ ” Shivers, 286 Ga. at 424 (quoting Mosley v. State, 272 Ga. 881, 883 (536 SE2d 150) (2000)). In other words, when the underlying felony is not dangerous per se, whether the defendant is guilty of felony murder “ ‘[d]epend[s] on the facts’ ” of the particular case. Id. (quoting Hines v. State, 276 Ga. 491, 493 (578 SE2d 868) (2003)). The Court recently held in Shivers that this case-specific factual question may be decided by the trial court rather than submitted to the jury. See id. at 423-425. The Court today reiterates that a jury instruction on this issue is not “legally accurate.” Majority Op. at 175.

Decided May 17, 2010. Sheuli C. Wang, James C. Bonner, Jr., for appellant. Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Bettieanne C. Hart, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Amy H. Morelli, Assistant Attorney General, for appellee.

I have explained why I believe the combined holdings of Ford and Shivers, which create a factual element of the felony murder offense and then allow that element to be determined by the trial judge on the facts of a specific case, violate the Sixth Amendment, which “ ‘gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.’ ” Shivers, 286 Ga. at 429 (Nahmias, J., concurring specially) (quoting United States v. Gaudin, 515 U. S. 506, 511 (115 SC 2310, 132 LE2d 444) (1995)). However, because I currently stand alone in this view, I will follow Ford and Shivers as stare decisis in this case and future cases. If my concerns are well-founded, they will need to be addressed to the General Assembly or to the Supreme Court of the United States. With this explanation, I join the majority opinion in full.