MURDER CHARGES IN GEORGIA

Murder charges in Georgia result when the state alleges that someone caused the death of another human being either intentionally with a malicious state of mind (known as malice murder) or during the commission of a felony crime (known as felony murder) or if death results from the commission of second degree cruelty to children (known as second degree murder).

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There are several different “types” of murder charges in the State of Georgia. Each requires different elements of proof. If convicted, all types except for second degree murder carry the same punishment.

Malice murder charges in Georgia involve allegations that a person planned to intentionally kill another human being with a malicious state of mind. The length of time required to show premeditation or a plan to kill can be extremely short, including seconds before the killing occurs. Malice is an unlawful, deliberate intention to kill another person without excuse, justification, or mitigation. Malice may either be express or implied.

Express malice is a specific intent to kill, meaning that was the person’s end goal. An example of express malice would be if a man knocked on his neighbor’s door who he had never met and as soon as the neighbor opened the door, the man shot the neighbor in the chest. Clearly, the person went to the neighbor’s house with the intent to kill. Implied malice can be shown by extremely negligent conduct to such a degree that a reasonable person would know the conduct not only creates an unjustifiable but also very high risk of death or serious bodily injury that may lead to the death of another person. An example of implied malice would be driving 70 miles per hour through a small-town festival where the road was closed to cars and people were walking in the streets. Although the driver may not have had the specific intent to kill someone with his car, his behavior was so reckless that any reasonable person would know it was highly likely to result in death or serious injury to others.

A person may be charged with felony murder in Georgia if, while committing another felony crime, he or she causes the death of another person. There does not have to be an intent to kill or malice. The killing may even be an accident, but if the person had the intent to commit the underlying felony and caused a death while committing that crime, he or she can be charged with felony murder. Generally, the underlying felony is one that is “inherently dangerous” such as aggravated assault, armed robbery, burglary, kidnapping, arson, and sexual assault, to name a few.

The state must also prove that the accused’s actions were the actual and proximate cause of the victim’s death. What this means is that the felony either directly subsequently caused the victim’s death or the victim’s injury substantially accelerated their death. It’s important to note that the death does not have to happen immediately. For example, a man walks into a bank with a gun and demands money from a bank employee. When the bank employee refuses, the man hits her over the head hard with his gun, causing the employee to immediately lose consciousness and begin to bleed. When police arrived later, the employee was conscious and transported to the hospital. She died a few days later due to bleeding in her brain caused by being hit over the head. The man can be charged with felony murder, even if he did not mean to kill her.

It’s important to note, however, that the victim’s death cannot be only tangentially related to the underlying crime. In the above example, assume another bank employee witnessed the robbery but was not physically injured. He begins walking home from work after police leave. While walking, he is so distraught thinking about what happened that he is not paying attention to his surroundings or where he is walking. He accidentally walks into oncoming traffic, is hit and killed. The robber likely couldn’t be charged with felony murder for this man’s death because he did not actually cause it, the car that struck the man did.

There is one exception to the direct causation rule, and that is if you are an accomplice or party to the crime that caused another’s death. Assume that in the above example, you and the robber go into the bank and demand money. You are unarmed but demanding money from a different bank employee when you see the robber strike the female bank employee over the head with his gun and watch her pass out. When she later dies, you can also be charged with felony murder even though it was not you that actually hit her and caused her death. That is because you intended to rob the bank and participated in the armed robbery (a felony), and during the commission of the armed robbery, another person died.

If convicted, the punishment for malice murder and felony murder is either the death penalty, imprisonment for life without parole, or imprisonment for life.

Second degree murder charges may be brought when a child’s death is caused by the commission of cruelty to children in the second degree. Cruelty to children in the second degree (O.C.G.A. § 16-5-70(c)) occurs where a person’s criminally negligent actions cause a child under 18 cruel or excessive physical or mental pain. Criminal negligence essentially means recklessness and a conscious disregard of a substantial and unjustifiable risk that a person’s actions (or failure to act) will cause the harm at issue. For example, a mother had to drive 10 miles across town to pick up one of her children. She had been lightly drinking and had her small 4-year-old with her. The 4-year-old’s car seat was broken but she was in a hurry so she placed the child in the front seat and buckled the seatbelt behind his head. While driving on the interstate, another car cut her off, she swerved to avoid hitting the car and ended up crashing into the center concrete barrier. Her 5-year-old was thrown from the front seat, hit the windshield with his head, and died on impact. The mother could possibly be charged with second degree murder because a reasonable adult would not have driven on the interstate with such a young child in the front seat who was not in a car seat or even in the backseat. The mother acted recklessly by doing so, and her child died as a result.

If convicted of second degree murder, the accused will face 10 to 30 years imprisonment.

There are several potential defenses to murder charges. Some are a complete defense, meaning if the evidence supports the defense, the state may decide not to bring charges at all or a jury may acquit the defendant of murder charges. On the other hand, some are partial defenses, meaning the evidence may not support all the elements required to be proved for a murder conviction, but there is enough evidence to show an unlawful killing. In that situation, the state may bring or the jury may convict of lesser charges such as voluntary or involuntary manslaughter. A few of the most common defenses are:

• The killing was an accident. If the defendant can establish that the death of another was a true accident, he has a complete affirmative defense to a murder charge and cannot be found guilty. To do this, he must prove he acted without evil or criminal intent, he was not engaged in criminal activity, and his actions do not show he was acting recklessly in disregard to the possibility of someone being injured.
• The killing was done out of self-defense or defense of others. Under C.G.A. § 16-3-21, a person is justified in using force that is intended or likely to cause death or serious bodily harm if the person reasonably thinks the amount of force used is necessary to prevent death or serious bodily injury to oneself, another person, or to prevent a forcible felony. This defense cannot be used if:
  • the defendant was the one who initially provoked the use of force against himself for the purpose of inflicting harm on the other person;
  • the defendant was attempting to commit, committing, or fleeing after committing a felony;
  • the defendant was the initial aggressor; or
  • the defendant was in mutual combat by agreement with another person. However, if he withdraws from the fight, makes his intent to withdraw clear to the other person, and the other person continues or threatens to continue the fight, the defendant may be entitled to still use self-defense as a justification.
• The killing was necessary to protect and defend habitation. The use of lethal force to protect one’s home or living space against an intruder can only be justified in 3 circumstances (C.G.A. § 16-3-23):
  • The intruder enters or attempts to enter in a violent way, the homeowner reasonably believes the entry is to inflict violence on any person in the home, and lethal force is necessary to prevent the assault or violent acts;
  • Force is used against a person who is not a family member and who has unlawfully and violently entered the residence and the owner had reason to believe that forcible entry had occurred; or
  • The person using force reasonably believes that entry into the home is made or attempted for the purpose of committing a felony and the force used is necessary to prevent the commission of the felony.
• The accused was insane or suffering from delusional compulsion. The insanity defense is available under very limited circumstances. For this defense to excuse murder, there must be evidence that the accused was delusional at the time the offense was committing, the act itself was connected to the delusion, and the delusion, if true, would justify the act of killing. What this practically means is that one of the above justifications must be able to apply had the delusion been a true event.

The information provided above is a very general summary of Georgia murder charges and related laws at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a Georgia criminal defense lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all state and federal courts in Georgia.