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Final Copy 287 Ga. 688 S10A0365. WESTMORELAND v. THE STATE. S10A0367. WILLIAMS v. THE STATE.

THOMPSON, Justice. Amos Westmoreland and John Edgar Williams were jointly indicted, tried, and convicted of felony murder and various other crimes following a crime spree that resulted in the vehicular death of Barbara Turner Robins.1 In these consolidated cases, both defendants appeal from the denial of their respective

The crimes were committed on May 17, 2007. On November 30, 2007, both defendants were charged in a multi-count indictment. Trial commenced on October 20, 2008, and on October 23, 2008, both defendants were found guilty of burglary (two counts), attempting to elude a pursuing police officer (two counts), operating a vehicle without a secure load, felony murder predicated on burglary, felony murder predicated on attempting to elude, and obstruction of a police officer. In addition, Westmoreland was found guilty of reckless driving, homicide by motor vehicle, and serious injury by motor vehicle; and Williams was found guilty of an additional count of obstruction of a police officer. Both defendants were sentenced to life imprisonment for felony murder while in the commission of a burglary. In addition, Westmoreland received a consecutive 15-year term for serious injury by motor vehicle, plus concurrent 12-month terms for the misdemeanor counts; Williams received 12-month consecutive terms on the misdemeanor counts, to run together. The remaining counts were merged or vacated by operation of law. See Malcolm v. State, 263 Ga. 369 (5) (434 SE2d 479) (1993). Both defendants filed motions for new trial on November 11, 2008, which were subsequently amended. Both motions were denied on April 15, 2009; timely notices of appeal were filed. Both cases were docketed for the January 2010 term in this Court and submitted for decision on the briefs.
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motions for new trial. For the reasons that follow, we affirm. Viewed in a light most favorable to the verdict, the evidence shows that on the morning of May 17, 2007, homes belonging to Alison Murphy and Jeanne and George Wern were burglarized in Marietta, Georgia. Among the numerous items taken were jewelry and a large screen television set. That morning a neighbor driving in the vicinity of the Wern home observed two young males in a blue, older model station wagon, with a blue tarp tied to the roof, and no license plate displayed. The neighbor became suspicious and followed the car. She observed it minutes later parked in the Werns' driveway; the car doors were open and no occupants were visible inside. The police were notified and a marked patrol car arrived in the area as the blue station wagon was leaving the neighborhood. The officer activated his blue emergency lights and siren in an effort to stop the vehicle; however, the driver of the station wagon failed to accede to the officer's signals, and instead drove his vehicle onto Interstate 575 northbound. Additional patrol cars joined in pursuit. The driver of the station wagon continued his attempt to elude the police, and in the process, a large screen television taken from the Wern home dislodged from under a tarp on the roof and crashed onto the roadway. After the police attempted a box
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maneuver to stop the fleeing vehicle, the station wagon executed a U-turn in the median and drove into the southbound lanes of Interstate 575 where it collided with a Buick being driven by Robins and occupied by four passengers. The Buick rolled over twice and landed on its side, killing Robins and seriously injuring the front seat passenger.2 Both the driver and passenger in the station wagon fled on foot and were pursued by the police and soon apprehended. Georgia identification cards in the pockets of both suspects identified the driver as appellant Westmoreland and the passenger as appellant Williams. Items taken from the two burglarized homes were found in their possession as well as in the station wagon. Case No. S10A0365 1. Westmoreland submits that the evidence adduced at trial was

insufficient to prove felony murder because the death of the victim was not committed "in the commission" of the burglary, but after the burglary was completed and he was attempting to flee. "A homicide is within the res gestae of the underlying felony for the purpose of the felony-murder rule if it is committed while fleeing the
The State introduced into evidence four DVD recordings made from the dashboard cameras in the patrol cars involved in the pursuit.
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scene of the crime. [Cit.] The weight of authority holds that the underlying felony continues during the escape phase of the felony if there is continuous pursuit immediately organized, and the felony terminates at the point the perpetrator has arrived at a place of seeming security or when the perpetrator is no longer pursued by the authorities. [Cits.]" Collier v. State, 244 Ga. 553, 560 (3) (261 SE2d 364) (1979). Horton v. State, 249 Ga. 871, 878 (11) (295 SE2d 281) (1982). Here the perpetrators were observed in the area of the burglaries, their vehicle was parked at one of the burglarized homes shortly thereafter, and the police maintained continuous observation of the vehicle as it left the neighborhood and throughout the time that the occupants caused the death of the motorist and were subsequently apprehended. Thus, the homicide is within the res gestae of the underlying felony of burglary for the purpose of the felony-murder rule. Collier v. State, supra, overruled on other grounds in Thompson v. State, 263 Ga. 23 (2) (426 SE2d 895) (1993). See also Diamond v. State, 267 Ga. 249 (2) (477 SE2d 562) (1996) (where police chase began at the scene of the burglary and continued until defendant crashed her vehicle into another vehicle fatally injuring its three occupants, the burglary is ongoing for purposes of the felony murder rule; "[t]o adopt [the] argument that the burglary was complete when [defendant] left the dwelling house would eliminate burglary as an underlying felony except when
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the murder occurs in the building that the person enters without authority"). We further reject Westmoreland's assertion that the evidence was insufficient to support his convictions because the vehicle pursuit in this case violated Cobb County Police Department policy and was an intervening cause of the collision. See OCGA

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