In a case that illustrated the escalation of teen violence in high schools, Lyndon Mosley, 15, faced murder charges for the stabbing death of 16-year-old Ronald Gaines.

The two teenagers, who both attended Southwest Dekalb High School in Georgia, reportedly did not know each other before their argument in September 1997. But this did not prevent them from getting into a heated argument that culminated when they began fist-fighting, and Mosley stabbed Gaines in the chest.

Mosley claimed that the stabbing was accidental and occurred in self-defense. Because of the crime, he was charged as an adult and faced life in prison with the possibility of parole after 14 years if convicted. In addition to murder, Mosley was charged with carrying a weapon on school property.

The Senseless Confrontation

The incident between Gaines and Mosley on Sept. 18, 1997 began on the steps leading to the football field at Southwest Dekalb High School. Both the prosecution and the defense agree that Gaines started the argument with Mosley when he noticed Mosley and his friend, Jay Cannon, running past them. Gaines allegedly shouted at them, "Look at them p___y-ass n_ggers running like bitches!"

In response, Mosley said either, "F____ you!" or "Who you calling a bitch?" The exchange between Mosley and Gaines became more heated and the two progressed towards the football field.

They were joined by a group of student onlookers who may have been urging them to fight. Mosley's friend, Randy Parks, tried to intervene and break up the confrontation between Gaines and Mosley, but he retreated when he was accidentally cut on the hand by a knife Mosley was holding. Noticing Mosley's knife, Gaines allegedly considered picking up a large rock and using it as a weapon against Mosley. But then he reconsidered and began to walk away from Mosley. But Mosley apparently began to taunt Gaines, and Gaines returned to the scene.

That decision proved fatal for Gaines. According to the prosecution, Gaines and Mosley began shoving each other. Gaines allegedly swung at Mosley, who simultaneously stabbed him once in the chest.

Unaware that an artery had been punctured and that he was mortally wounded, Gaines, perhaps in an attempt to show machismo, lifted his shirt and showed the student onlookers his wound.

Mosley, meanwhile, left the scene with Cannon and went to a neighbor's yard to wash off the knife with a garden hose. Gaines attempted to leave the scene but collapsed and died after walking about 30 yards away from the football field. Two hours after the stabbing, Mosley turned himself in to police. The knife that killed Gaines was never recovered.

Prosecutors believed that at the time of the altercation, Mosley was trouble-making time bomb ready to explode.

The day before the stabbing, Mosley was placed on in-school suspension for skipping classes.

On the day of the incident, the assistant principal and school detective caught Mosley wandering the school hallways and skipping his classes again. According to them, he was belligerent and uncooperative when he was escorted to the principal's office. Mosley even left the building before the principal (who was busy handling another student matter at that time) could confront him about his latest actions. An already annoyed Mosley encountered Gaines on the field steps almost immediately after he had left the principal's office.

Self-Defense?

But, the defense claimed, Mosley stabbed Gaines out of self-defense.

According to the defense, Mosley produced the knife only when he saw several of the victim's friends in the crowd of onlookers take off their shirts as if to join the fight. Because he feared being mauled by Gaines' friends, Mosley felt he needed a weapon to defend himself.

In addition, another defense argument was that the actual stabbing was a reflex action by Mosley: when Gaines swung at him, Mosley, who was holding the knife, was only reacting to Gaines' attempted punch. Mosley's defense also believed that the victim never really attempted to walk away from the confrontation.

During the incident, when Gaines turned away from Mosley and appeared to be walking away, he was really asking the crowd if anyone had a knife he could use.

Mosley's attorneys argued that Gaines, who was heavier and taller than Mosley, was the aggressor in this fight, not Mosley. Gaines was the real "ticking time bomb." He instigated the altercation and was frustrated with a meeting he had had earlier that day concerning his own suspension.

A few days before the fatal incident, Gaines was given an "off-campus" suspension for skipping classes. On the day of the altercation, Gaines and his mother attended a meeting with school officials regarding his suspension, and it was decided he would return to class the next day.

After the meeting Gaines and his mother went home, but he would eventually return to school to socialize with friends. At the time of his fight with Mosley, Gaines was technically still suspended and not allowed on the school campus.

Officially, Mosley was charged with one count of malice murder, two counts of felony murder (which include carrying a weapon on school property and aggravated assault), and one count of carrying a weapon on school property.

The Verdict

After two hours and forty minutes of deliberations, Mosley was convicted of voluntary manslaughter, two counts of felony murder, and carrying a weapon on school property.

He was not sentenced after the verdict because defense lawyer Bruce Harvey requested a pre-sentencing investigation and was granted one by the judge. In his argument, Harvey maintain that the verdict was inconsistent and it was clear the jury was unclear about how the jury form worked.

272 Ga. 881

MOSLEY v. THE STATE

536 S.E.2.d 150 (2000)

Supreme Court of Georgia

October 10, 2000

Docket number: S00A1201

A jury found Lyndon Dechard Mosley guilty of voluntary manslaughter and felony murder in connection with the stabbing death of Ronald Gaines at Southwest DeKalb High School. [1] Mosley contends that the offense of possession of a weapon on school property under OCGA 16-11-127.1 is not inherently dangerous and therefore should not serve as the basis for his conviction and sentence for felony murder. Because we conclude that Mosley's possession of a weapon on school property was dangerous under the circumstances in this case, we affirm.

1. The evidence presented at trial shows that Mosley, then a 14-year-old student, and 16-year-old Gaines, a junior, exchanged words and then argued for several minutes next to the athletic field behind the school during the last period of school. As the confrontation continued in front of a crowd of students, Mosley pulled a knife from his pants pocket and Gaines picked up a rock. Gaines threw the rock down and started to walk away, but someone challenged him to stay and fight. Gaines then turned around and went towards Mosley, swinging at him. Mosley stabbed Gaines once in the chest; he exchanged high fives with a friend before running from the scene. Saying he had been stabbed, Gaines was helped up a flight of steps before he collapsed next to a school building. The pathologist testified that the knife had penetrated Gaines' heart and lungs and he bled to death within minutes of the stabbing. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Mosley guilty of the crimes charged. [2]

2. The jury convicted Mosley of voluntary manslaughter on the malice murder charge in count one, felony murder with the underlying felony of aggravated assault in count two, felony murder with the underlying felony of possession of a weapon on school property in count three, and possession of a weapon on school property in count four. The trial court entered a judgment of conviction only on count three, and the verdicts on counts one, two, and four were vacated by operation of law. [3] Therefore, the trial court did not sentence Mosley for voluntary manslaughter and felony murder based on the same aggravated assault and there is no sentence to vacate on count two. [4]

3. Mosley seeks to vacate the felony murder conviction for which he was sentenced based on our decision in Ford v. State. [5] In Ford, this denied on February 14, 2000. Mosley filed a notice of appeal on February 15, 2000. The case was docketed on April 5, 2000, and submitted for decision without oral arguments on May 29, 2000.

Court reversed a felony murder conviction because the underlying felony, which was the status offense of possession of a firearm by a convicted felon, was not inherently dangerous under the circumstances. In that case, Ford was unloading a semi-automatic pistol when it fired, sending a bullet through the floor and into a downstairs apartment where it killed a tenant. We held that the possession of the firearm alone, without an assault or other criminal conduct, was not a felony that could support a felony murder conviction. [6]

In Ford, we defined "a felony" under the felony murder statute as meaning any felony that is "dangerous per se" or by its circumstances creates a foreseeable risk of death. [7] In determining whether a felony meets that definition, this Court does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed. [8] Since our decision in Ford, we have refused to apply the non-dangerous felony rule to other cases involving possession of a firearm by a convicted felon [9] or misuse of a firearm while hunting. [10]

Similarly, we conclude that the possession of the weapon on school property under the circumstances in this case was dangerous and created a foreseeable risk of death. Mosley told a friend before the initial confrontation that he had his knife at school that day; the possession of the knife may have influenced his decision to confront the taller and heavier Gaines. During the verbal sparring and physical pushing between the two students, Gaines wanted Mosley to put down the knife so he could "fight fair" and picked up the rock in response to seeing the weapon. When a student intervened and tried to break up the fight, he grabbed Mosley's hand and the knife cut him. The crowd cited the presence of the knife as both a reason that Gaines should walk away from the fight or, alternatively, stay and fight. This evidence shows that Mosley's possession of the knife played a critical role in escalating a typical schoolyard fight into a homicide.

In addition, the purpose of the felony-murder statute and OCGA 16-11-127.1 supports our conclusion that the underlying possession offense is sufficient to support Mosley's conviction for felony murder. The function of the felony murder rule is to furnish an added deterrent to the perpetration of felonies that create a foreseeable risk of death by their nature or circumstances. [11] The General Assembly enacted OCGA 16-11-127.1 as part of the School Safety and Juvenile Justice Report Act to reduce school violence and enhance school safety by banning weapons at school functions or on school property. [12] Given the grisly incidents of violence at schools across the country during the past three years, [13] this Court does not want to undercut the deterrent effect of the felony murder rule or downplay the danger associated with the possession of weapons on school property.

4. Regarding the disputed evidentiary issue, the trial court did not abuse its discretion in admitting evidence of a confrontation that Mosley had with school authorities immediately preceding his fight with Gaines.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.

*****

Notes:

1. The stabbing occurred on September 18, 1997. Mosley was indicted on October 16, 1997. A jury found him guilty on April 17, 1998, and the trial court sentenced him on December 4, 1998. Mosley filed a motion for a new trial on December 29, 1998, which was

2. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. See OCGA 16-1-7; Goforth v. State, 271 Ga. 700 (523 SE2d 868) (1999); Malcolm v. State, 263 Ga. 369, 373 (434 SE2d 479) (1993).

4. See Darden v. State, 271 Ga. 449 (519 SE2d 927) (1999) (defendant cannot be sentenced for felony murder and voluntary manslaughter based on the same underlying aggravated assault); Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992) (adopting a modified merger rule).

5. 262 Ga. 602 (423 SE2d 255) (1992).

6. Id. at 603-604. See generally Baker v. State, 236 Ga. 754, 755-758 (225 SE2d 269) (1976) (discussing both the non-dangerous felony problem and the merger problem of the felony murder rule); Johnson v. State, 258 Ga. 856, 859-860 (376 SE2d 356) (1989) (Hunt, J., concurring specially) (contending that legislature intended to include only felonies that are inherently dangerous or bear a causal relation to the death as the underlying felony in a felony murder conviction).

7. 262 Ga. at 603; see OCGA 16-5-1 (c) ("A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.").

8. See, e.g., Roller v. State, 265 Ga. 213 (453 SE2d 740) (1995). See generally State v. Stewart, 663 A2d 912 (R.I. 1995) (discussing adoption of approach used in majority of states that considers the facts and circumstances of the particular case in determining if the felony was inherently dangerous in the manner and circumstances in which it was committed).

9. See, e.g., Metts v. State, 270 Ga. 481 (511 SE2d 508) (1999) (possession of firearm was dangerous and life-threatening when defendant pointed a loaded, cocked gun at human being outside window); see also Sims v. State, 265 Ga. 35, 36 n. 2 (453 SE2d 33) (1995) (defendant created foreseeable risk of death by searching for victim while armed with an automatic pistol).

10. Chapman v. State, 266 Ga. 356, 357-358 (467 SE2d 497) (1996).

11. See Ford, 262 Ga. at 603.

12. 1994 Ga. Laws 1013, 1015-1016.

13. See Armstrong Williams, Do Feel-Safe Laws Make Us Any Safer?, Wash. Times, Nov. 13, 1999, at A10 (citing schoolyard murders in Kentucky, Arkansas, Oregon, Mississippi, and Colorado).