State v. Jackson and the Explosion of Liability for Felony Murder - Brian E. Brupbacher
| Publication year | 2011 |
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State v. Jackson and the Explosion of Liability for Felony Murder
I. Introduction
In The Discourses,1 Niccolo Machiavelli wrote, "The dangers involved in conspiracies[] . . . are considerable, and go on all the time, for in a conspiracy dangers crop up alike in forming the plot, in carrying it out, and as a result of its having been carried out."2 Although by its context this remark refers to conspiracies to commit regicide and the problems these conspiracies pose to the conspirators,3 this remark well describes practical and legal problems that can result from conspiracies to commit felonies. In Georgia this is particularly true following the June 28, 2010 ruling in State v. Jackson.4 Jackson involved a conspiracy, the failure of which caused one conspirator's death and exposed his fellow conspirators to liability for a crime greater than the conspiracy's intended aim.5 In what could lead to an explosion of criminal liability, the Georgia
1. Niccolo Machiavelli, The Discourses (Bernard Cricked ed., Leslie J. Walker trans., Penguin Books 1970).
2. Id. at 401.
3. See id.
4. 287 Ga. 646, 697 S.E.2d 757 (2010).
5. See id. at 646-47, 697 S.E.2d at 757-58.
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Supreme Court held that whenever one felon dies as a proximate result of the felony, the co-felons are liable for felony murder.6 Abolishing the decades-old rule from State v. Crane,7 the court extended defendants' felony-murder liability to killings committed by their prospective victims.8
II. Factual Background
The chain of events giving rise to State v. Jackson9 started when Jerold Daniels and the two co-defendants, Carlester Jackson and Warren Smith, planned the armed robbery10 of a supposed drug dealer named Arthur Hogan.11 At the time of the incident, Smith and Jackson waited in the vicinity;12 Smith stayed in an SUV, ready to fulfill his job as the getaway driver, while Jackson stood by as Daniels's lookout.13 As Daniels, armed with a handgun, moved in to carry out the robbery, Hogan realized what was going on, and a gunfight ensued. At least one bullet from Hogan's gun hit Daniels, killing him. Smith and Hogan left immediately after the shooting, but Jackson was arrested at the site by an off-duty police officer. Smith returned briefly to the scene but drove away when he encountered the police. He escaped briefly to Rhode Island before he was caught and extradited back to Georgia.14
The prosecution obtained indictments against Jackson and Smith for the felony murder of Daniels. Both Smith and Jackson were accused of aggravated assault as an underlying felony to felony murder.15 Smith faced an additional felony murder charge based on "possession of a firearm by a convicted felon."16 The trial judge dismissed the felony murder charges because the causal link between the defendants' actions and the victim's death was indirect.17 The State petitioned the supreme court, which granted certiorari.18
6. Id. at 653, 660, 697 S.E.2d at 762, 767.
7. 247 Ga. 779, 279 S.E.2d 695 (1981).
8. See Jackson, 287 Ga. at 647, 652, 660, 697 S.E.2d at 758, 762, 767.
9. 287 Ga. 646, 697 S.E.2d 757 (2010).
10. Id. at 646, 697 S.E.2d at 757-58.
11. Brief of Appellant at 3-4, State v. Jackson, 287 Ga. 646, 697 S.E.2d 757 (2010) (No. S10A0070), 2009 WL 5244085 at *5.
12. Jackson, 287 Ga. at 648, 697 S.E.2d at 758.
13. Brief of Appellant, supra note 11, at 4.
14. Id. at 4-5.
15. Jackson, 287 Ga. at 648, 697 S.E.2d. at 758.
16. Id.
17. Id.
18. Id. at 648, 697 S.E.2d at 758-59.
2011] STATE V. JACKSON 1337
III. Legal Background
An understanding of aiding and abetting, conspiracy, and felony murder in Georgia is necessary to appreciate the impact ofthe holding in State v. Jackson19 and its legal implications.
A. Aiding and Abetting and Conspiracy
Section 16-2-20 of the Official Code of Georgia Annotated (O.C.G.A.)20 reads as follows:
(a) Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.
(b) A person is concerned in the commission of a crime only if he:
(1) Directly commits the crime;
(2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity;
(3) Intentionally aids or abets in the commission of the crime or
(4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.21
under subsection (b)(3) an aider or abettor who is not "personally involved in" a crime is still vicariously liable for the crime.22 In Carter v. State,23 the Georgia Court of Appeals articulated this rule.24 The defendants, Carter and Waters, were charged with aggravated sodomy. Carter coerced the victim into engaging in sodomy with Waters by beating the victim.25 The court held that Carter aided and abetted the sodomy.26
The judiciary in Georgia has also determined that O.C.G.A. § 16-2-20 creates vicarious liability for conspirators.27 As announced in Bruce v. State,28 participants in a conspiracy are vicariously liable for "inciden-
19. 287 Ga. 646, 697 S.E.2d 757 (2010).
20. O.C.G.A. § 16-2-20 (2007).
21. Id. (emphasis added).
22. Carter v. State, 168 Ga. App. 177, 177, 308 S.E.2d 438, 439-40 (1983); see also O.C.G.A. § 16-2-20(b)(3).
23. 168 Ga. App. 177, 308 S.E.2d 438 (1983).
24. Id. at 177, 308 S.E.2d at 439-40.
25. Id. at 177, 308 S.E.2d at 439.
26. Id. at 177, 308 S.E.2d at 439-40.
27. See, e.g., Grant v. State, 198 Ga. App. 357, 358, 401 S.E.2d 761, 762-63 (1991)
(quoting Scott v. State, 229 Ga. 541, 544, 192 S.E.2d 367, 370 (1972)).
28. 263 Ga. 273, 430 S.E.2d 745 (1993).
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tal and probable" measures taken by another participant to facilitate a conspiratorial objective, whether or not such measures were agreed
upon.29
In Bruce the Georgia Supreme Court applied this rule to a conspiracy to commit burglary.30 Johnny Bruce, the defendant, made plans with Jack Adams and Randall Pettyjohn to burglarize Donald Ivey's house. In preparation, Bruce dropped off Adams and Pettyjohn close to Ivey's house, equipping them with a gun and binoculars as well as pantyhose to conceal their faces. The purpose was to reconnoiter before committing the burglary. According to the plan, Adams and Pettyjohn were supposed to call Bruce from a convenience store to pick them up following their reconnoiter. Instead, Adams and Pettyjohn chose to break in alone. upon doing so, they were surprised by the presence of Ivey's girlfriend. While the burglars were still there, Ivey came back home. Receiving no reply after calling to his girlfriend, he walked into the living room where the burglars were restraining his girlfriend at knifepoint, and he exchanged gunfire with Adams. Adams was hit first by two bullets; however, before dying Adams fatally wounded Ivey.31
Bruce was found guilty of Ivey's murder. On appeal to the supreme court, Bruce argued that the conspiracy he formed with Adams and Pettyjohn was only to reconnoiter and was distinct from the conspiracy Adams and Pettyjohn formed to carry out the burglary.32 The court rejected that argument, holding that knowledge of when a crime would be attempted is unnecessary for a conspirator's vicarious liability.33 The court reasoned that Bruce had a "common design" with Adams and Pettyjohn-to perpetrate a burglary-and the measures Adams and Pettyjohn took "were expedient to the accomplishment of the common
design."34 35
The supreme court decision in Crosby v. State35 outlines the temporal extent of conspirator liability.36 The court addressed conspirator liability for the theft of an automobile.37 The court stated that conspirator liability extends to "such matters as concealing the crime or suppressing evidence."38 The court held that the duration of a
29. Id. at 274-75, 430 S.E.2d at 747.
30. Id. at 275, 430 S.E.2d at 747-48.
31. Id. at 273, 430 S.E.2d at 746.
32. Id. at 273-74, 430 S.E.2d at 746-47.
33. Id. at 275, 430 S.E.2d at 747-48.
34. Id.
35. 232 Ga. 599, 207 S.E.2d 515 (1974).
36. Id. at 601, 207 S.E.2d at 518.
37. Id. at 600, 207 S.E.2d at 517.
38. Id. at 601, 207 S.E.2d at 518.
2011] STATE V. JACKSON 1339
conspirator's liability spans the time from the conspiracy's inception-even if predating the conspirator's entry-to its termination.39 The court reasoned that because "[t]he crimes were so interrelated"-because they involved the same stolen automobile-they were all part ofthe same conspiracy.40
B. Felony Murder Liability
According to the supreme court in Ford v. State,41 O.C.G.A. § 16-5-1(c)42 simply reiterates the common law felony murder rule.43 The O.C.G.A. states, "A person also commits the offense of murder when, in the commission ofa felony, he causes the death ofanother human being irrespective of malice."44 As stated in Ford, a felony serving as a predicate for felony murder must "create a foreseeable risk of death."45 This, the court said, is because the felony murder rule is aimed solely at deterring dangerous felonies.46
using this line of reasoning in Ford, the court declined to uphold a felony murder conviction based on possession of a firearm by a convicted felon.47 In Ford the defendant accidentally shot someone to death while trying to unload his semiautomatic pistol in a house that, unbeknownst to him, stood above an apartment. The gun went off, causing a bullet to drill through the floor and hit the victim below.48 The court observed that in a different situation the same felony might have met the requisite dangerousness to support felony murder.49
Such was the situation in Hines v. State,50 in which the defendant-felon killed the victim in a hunting accident.51 The court distinguished Ford, explaining that the defendant in Hines was aware that there were people in the vicinity, had consumed alcohol prior to the incident, had deliberately aimed and fired, and "took an unsafe shot at dusk, through
39. Id.
40. Id. at 600-01, 207 S.E.2d at 517-18.
41. 262...
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