"In determining whether a felony meets that definition, [a] court does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed." Mosley v. State, 272 Ga. 881, 883 (3) ( 536 SE2d 150) (2000). As in Metts, supra at 482, "[a]ppellant's possession of the firearm was dangerous and life-threatening, and had `an undeniable connection to the homicide.'"
OCGA § 16-5-1 (c).Mosley v. State, 272 Ga. 881, 883 ( 536 S.E.2d 150) (2000); Ford v. State, 262 Ga. 602, 603-604 ( 423 S.E.2d 255) (1992).Mosley, 272 Ga. at 883.
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.
However "[t]he 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." Mosley v. State, 272 Ga. 881, 884 (3) ( 536 SE2d 150) (2000). "In determining whether a felony meets [the Ford] 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."
Thus, the possession charge was sufficiently connected to the murder to serve as the underlying felony for a felony murder conviction.Metts v. State, 270 Ga. 481 (1) ( 511 SE2d 508) (1999). See also Mosley v. State, 272 Ga. 881 (3) ( 536 SE2d 150) (2000); Roller v. State, 265 Ga. 213 (2) ( 453 SE2d 740) (1995). Compare Ford v. State, 262 Ga. 602 ( 423 SE2d 255) (1992) (act of discharging pistol while trying to empty it was not inherently dangerous to human life).
2. Boyd concedes that sentencing him for felony murder with possession of a firearm by a convicted felon is consistent with this Court's holdings in Mosley v. State, 272 Ga. 881(3) ( 536 S.E.2d 150) (2000), that the felony underlying a charge of felony murder must be one "that is `dangerous per se' or by its circumstances creates a foreseeable risk of death." He contends nonetheless that the trial court erred in doing so. Citing Apprendi v. New Jersey, 530 U.S. 466 ( 120 S.Ct. 2348, 147 L.Ed.2d 435) (2000), Boyd argues that because the trial court did not submit to the jury as a specific question on the verdict form whether the status felony of possession of a firearm by a convicted felon, under the facts of this case, created a foreseeable risk of death, the sentence for felony murder cannot stand.