Chambers v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: January 28, 2025

S24A1005. CHAMBERS v. THE STATE.

BOGGS, Chief Justice.

Appellant Jerry Chambers was convicted of three counts of

felony murder, predicated on fleeing or attempting to elude a police

officer, following a high-speed chase and crash in downtown

Savannah that resulted in the deaths of pedestrian Scott Waldrup

and Appellant’s passengers, Spencer Stuckey and Gabriel

Magulias. 1 Appellant was also convicted of reckless driving.

1 The crimes occurred on July 5, 2017. On August 16, 2017, a Chatham

County grand jury indicted Appellant for three counts each of felony murder,
fleeing or attempting to elude a police officer, and homicide by vehicle in the
first degree based on reckless driving; two counts of aggravated assault; and
reckless driving. On September 19, 2018, Appellant was reindicted with the
same twelve counts and two additional counts of violating the Georgia Street
Gang Terrorism and Prevention Act; the original indictment was nolle prossed.
The reindictment added charges against other defendants, but Appellant’s
charges were severed for trial. The charges against the other defendants were
related to the shooting that occurred on July 5 and to crimes committed in
September 2017; the record on appeal does not reflect the disposition of those
Appellant challenges only the felony murder convictions predicated

on fleeing or attempting to elude, see OCGA § 40-6-395 (a), arguing

that the evidence was constitutionally insufficient to establish an

essential element of fleeing or attempting to elude — that the

officer who gave the signal to stop was “in uniform prominently

displaying his or her badge of office,” id. As explained below, we

conclude that an essential element of the offense of fleeing or

attempting to elude is that the officer giving the signal to stop was

“in uniform prominently displaying his or her badge of office.” Id.

We also conclude that the State failed to meet its burden of

establishing that essential element beyond a reasonable doubt.

Because the State failed to present sufficient evidence of an

charges. At a trial from March 9 to 12, 2020, the jury found Appellant guilty of
all counts, except for the aggravated assault and street gang counts. On August
25, 2020, the trial court entered the final disposition, sentencing Appellant to
serve three concurrent life sentences in prison with the possibility of parole for
the felony murder convictions and a concurrent term of 12 months in prison for
reckless driving. The other counts merged or were vacated by operation of law.
On August 27, 2020, Appellant filed a motion for new trial, which he amended
with new counsel on January 17, 2024. After a hearing on February 20, 2024,
the trial court entered an order denying the motion on February 26, 2024.
Appellant filed a timely notice of appeal, and the case was docketed in this
Court to the August 2024 term and orally argued on September 17, 2024.
2
essential element of the crime of fleeing or attempting to elude, the

guilty verdicts on those counts cannot stand, and thus we must

reverse the felony murder convictions that were predicated on the

underlying felonies of fleeing or attempting to elude. However,

because we are reversing the felony murder convictions, the

vehicular homicide counts, which were predicated on reckless

driving, no longer merge. Therefore, we also remand for sentencing

on the three counts of homicide by vehicle in the first degree.2

The evidence presented at trial showed that in the early

morning hours of July 5, 2017, Appellant was driving a white SUV

in the City of Savannah’s City Market area, which was crowded

with people celebrating the July 4 holiday. Passengers in

Appellant’s SUV exchanged gun fire with people on the street, and

Appellant drove away. Appellant’s SUV was spotted by Officers

Dennis Sylvester and Amanda Brooner of the Savannah Police

Department, who had finished working a “special detail,” but were

2 The maximum sentence that may be imposed on each conviction for

homicide by vehicle is 15 years. OCGA § 40-6-393 (a).
3
driving in the area in response to a “BOLO” call for the white SUV

that had been involved in the City Market shooting. The officers

turned on their emergency lights and siren and observed

Appellant’s SUV, which had its headlights and taillights turned off,

turn into an apartment complex. The officers followed Appellant’s

SUV, and tried to conduct a traffic stop, but Appellant did not stop.

Instead, with Officers Sylvester and Brooner in pursuit, Appellant

drove through the apartment complex, returned to the roadway,

and drove at speeds between 80 and 90 mph, which was more than

20 mph in excess of the posted speed limit. At times, Appellant

swerved into oncoming traffic, drove on a sidewalk, and ran a red

light. After driving in this manner for a few minutes, and without

ever turning on his lights, Appellant drove through a red light at

an intersection where pedestrians were crossing the road.

Appellant’s SUV struck and killed pedestrian Waldrup, before

spinning and crashing into a light pole on the sidewalk. Two officers

who had been on foot patrol and observed the crash, Detective

Brittany Harrell and Officer Lucas Hinds, saw Appellant in the

4
driver’s seat with his hands “at the steering wheel.” Officer Hinds

pulled Appellant from the driver’s seat of the SUV, although

Appellant told the officers that he had been a passenger.

Appellant’s front seat passenger, Stuckey, and the rear seat

passenger, Magulias, were both killed in the crash. Portions of

video footage from body cameras worn by Officers Sylvester and

Brooner and Detective Harrell, and from City-maintained

surveillance cameras located in downtown Savannah, were

admitted into evidence at trial and played for the jury. Additional

facts relevant to the question of whether Officers Sylvester and

Brooner were in uniform with a badge of office prominently

displayed are set forth in Division 2.

1. Appellant was indicted for three counts of felony murder

predicated on three counts of felony fleeing or attempting to elude

“Officer Dennis Sylvester, an officer who at the time of giving such

signal was in a uniform prominently displaying the officer’s badge

of office and the officer’s vehicle was appropriately marked showing

it to be an official police vehicle.” Appellant’s sole argument on

5
appeal is that the evidence was insufficient to support his

convictions for felony murder predicated on the underlying felonies

of fleeing or attempting to elude because there was no evidence that

Officer Sylvester was “in uniform prominently displaying his or her

badge of office.” OCGA § 40-6-395 (a) provides:

It shall be unlawful for any driver of a vehicle willfully to
fail or refuse to bring his or her vehicle to a stop or
otherwise to flee or attempt to elude a pursuing police
vehicle or police officer when given a visual or an audible
signal to bring the vehicle to a stop. The signal given by
the police officer may be by hand, voice, emergency light,
or siren. The officer giving such signal shall be in uniform
prominently displaying his or her badge of office, and his
or her vehicle shall be appropriately marked showing it to
be an official police vehicle.3

In construing OCGA § 40-6-395 (a), we apply the rules of

statutory construction, which require that we

“give the text its plain and ordinary meaning, view it in the context

in which it appears, and read it in its most natural and reasonable

3 OCGA § 40-6-395 (c), (1) and (2) provide that a person who violates

subsection (a) while fleeing or attempting to elude and operates his vehicle in
excess of 20 miles an hour above the posted speed limit or strikes a pedestrian
is guilty of a felony.

6
way.” State v. Cook, 317 Ga. 659, 660 (893 SE2d 670) (2023) (cleaned

up). “If the statutory text is clear and unambiguous, we attribute to

the statute its plain meaning . . . .” Major v. State, 301 Ga. 147, 150

(800 SE2d 348) (2017) (cleaned up).

The State argues that the requirements that an officer be in

uniform and that the police vehicle be appropriately marked as an

official police vehicle are to be read in the disjunctive such that either

the officer must be in uniform or the police vehicle must be marked

as an official police vehicle. However, the State’s reading is contrary

to the plain language of the statute, which is written in the

conjunctive: “The officer giving such signal shall be in uniform

prominently displaying his or her badge of office, and his or her

vehicle shall be appropriately marked showing it to be an official

police vehicle.” OCGA § 40-6-395 (a) (emphasis supplied). The

statute thus clearly requires that the officer giving the signal to stop

“shall be in uniform” and displaying a badge. Additionally, by the

use of the conjunction “and,” the legislature specified that the crime

of fleeing and attempting to elude is committed when the officer

7
who is in a police car gives a driver a signal to stop is both in uniform

with the badge prominently displayed and the officer’s vehicle is

appropriately marked as an official police vehicle. See North

American Senior Benefits, LLC v. Wimmer, 319 Ga. 641, 645 (906

SE2d 373) (2024) (holding that use of conjunctive “and” in statute

setting forth three requirements for validity of restrictive covenant

makes clear that all three requirements must be met); Harrison v.

Wiginton, 269 Ga. 388, 390 (497 SE2d 568) (1998) (construing “and”

in statute setting forth qualifications for a bondsperson according to

its “normal conjunctive meaning”). See also American Heritage

Dictionary of the English Language (1973) (defining “and” as

“Together with or along with; also; in addition; as well as”). 4 The

dissent argues that the statute should be read in the disjunctive.

However, the statute uses “and” rather than “or,” and we must give

effect to the statute as written. See Major, 301 Ga. at 150. The

4 The fleeing and attempting to elude statute was first enacted in 1974,

see Ga. Laws 1974, p. 633, 674, and remains substantially the same as
originally enacted. Therefore, in interpreting the text of the statute, we look to
dictionaries that were in use around the time the statute was enacted. See
State v. SASS Group, LLC, 315 Ga. 893, 898-899 (885 SE2d 761) (2023).
8
dissent also questions the need for the uniform requirement.

However, the requirement that the State prove that an officer was

in uniform with a badge prominently displayed may well reflect the

legislature’s policy decision to define fleeing or eluding such that

there is no violation when a person pulls over in response to the

flashing lights and siren of a police car but then drives away when

the driver of the supposed police car walks up to her car but is not

in a uniform with a badge prominently displayed.

Thus, reading OCGA § 40-6-395 (a) according to its plain

meaning, as we must, we conclude that one of the essential elements

of the offense of fleeing or attempting to elude is that the police

officer who gave the signal to the defendant driver to stop must have

been in uniform with his badge of office prominently displayed.

The State and the dissent, however, resist this straightforward

reading of the plain language of OCGA § 40-6-395 (a) by relying on

Maxwell v. State, in which we affirmed a conviction for felony fleeing

or attempting to elude where the defendant driver fled after

receiving a signal to stop from an officer on foot. 282 Ga. 22, 23-24

9
(644 SE2d 822) (2007), disapproved in part on other grounds, Willis

v. State, 304 Ga. 686, 706 n.3 (820 SE2d 640) (2018). In Maxwell, we

rejected the argument that fleeing and attempting to elude can be

committed only when a driver flees from an officer who is in an

appropriately marked police vehicle, and not when a driver flees

from an officer who is on foot. Because Maxwell involved an officer

who was on foot, its holding is limited to that factual scenario. See

Schoicket v. State, 312 Ga. 825, 832 (865 SE2d 170) (2021) (“It is, of

course, axiomatic that a decision’s holding is limited to the factual

context of the case being decided and the issues that context

necessarily raises. Language that sounds like a holding — but

actually exceeds the scope of the case’s factual context — is not a

holding no matter how much it sounds like one.”).

In Maxwell, we did say that OCGA § 40-6-395 (a) could be

construed “to mean that, when a police officer who is not in a vehicle

gives a signal to stop, he or she must be ‘in uniform prominently

displaying his or her badge of office,’ and to mean that, when an

officer who is in a police vehicle gives a signal to stop, the police

10
vehicle must be appropriately marked.” Maxwell, 282 Ga. at 24.

However, as we have noted, Maxwell did not involve a defendant

fleeing from an officer in a marked police vehicle. Thus, contrary to

the dissent’s assertion, Maxwell cannot be read to hold that the

“and” in OCGA § 40-6-395 (a) is to be read disjunctively such that

when a driver flees from an officer who is in a car, the State need

only prove that the officer was in a marked police vehicle. Nor can

Maxwell be read to establish a “framework” for reading OCGA § 40-

6-395 (a) in a manner contrary to the statute’s plain language, as

suggested by the dissent. At most, Maxwell holds that the statute’s

requirement that the police vehicle must be appropriately marked

applies only in circumstances in which a ‘pursuing police vehicle’ is

actually involved. Maxwell did not hold that the statute’s

requirement that the officer be in uniform with a badge permanently

displayed does not apply when a pursuing police vehicle is involved

— nor could it, because that case involved a defendant fleeing from

an officer who was not in a marked vehicle, unlike the officers here

who were in a marked police vehicle. See Schoicket, 312 Ga. at 832.

11
Accordingly, we conclude that in order for the State to establish

a violation of OCGA § 40-6-395 (a) when a driver flees or attempts

to elude an officer who is in a police vehicle, the State must prove

that the officer was “in uniform prominently displaying his or her

badge of office” and that his or her vehicle was “appropriately

marked showing it to be an official police vehicle.”5

2. We now turn to the sole issue raised on appeal — whether

5 The Court of Appeals previously reached this same conclusion. See, e.g.,

Phillips v. State, 162 Ga. App. 471, 472 (291 SE2d 776) (1982) (reversing
conviction for fleeing or eluding for insufficient evidence and stating that
“[s]ince no violation of [the predecessor to OCGA § 40-6-395 (a)] is shown unless
the evidence demonstrates that the officer allegedly eluded was in the required
uniform and that his vehicle was appropriately marked, the state’s contention
that any evidentiary deficiency in this regard is harmless is meritless.”). See
also Stephens v. State, 278 Ga. App. 694, 696 (629 SE2d 565) (2006) (quoting
Phillips regarding essential elements of the crime of fleeing and eluding);
Nevertheless, in Ray v. State, the Court of Appeals affirmed a conviction for
fleeing or attempting to elude an officer in a police vehicle despite the absence
of evidence as to the officer’s uniform, holding that the lack of evidence of the
officer’s attire “was harmless.” 233 Ga. App. 162, 165 (503 SE2d 391) (1998)
Ray is contrary to the binding precedent set forth in Phillips, 162 Ga. App. at
472. See White v. State, 305 Ga. 111, 121 (823 SE2d 794) (2019) (Court of
Appeals is bound by older precedent from that court “until reversed or
overruled by the Supreme Court or overruled by the Court of Appeals.” (cleaned
up)). To the extent Ray and other Court of Appeals cases are inconsistent with
the interpretation of OCGA § 40-6-395 set forth today, they are overruled. See
generally Howard v. State, 319 Ga. 114, 119 (902 SE2d 551) (2024) (stare
decisis does not apply to the review of precedent from the Court of Appeals).

12
the evidence was sufficient to show beyond a reasonable doubt that

either Officer Sylvester or Officer Brooner was in uniform

prominently displaying the badge of office. 6 We evaluate a challenge

to the constitutional sufficiency of the evidence in the light most

favorable to the verdicts, asking whether the evidence presented at

trial was sufficient to authorize a rational jury to find Appellant

guilty beyond a reasonable doubt of each essential element of the

crimes for which he was convicted. See Jackson v. Virginia, 443 U.S.

307, 319 (99 SCt 2781, 61 LE2d 560) (1979). Our review of the

sufficiency of the evidence “leaves to the jury the resolution of

conflicts in the evidence, the weight of the evidence, the credibility

of witnesses, and reasonable inferences to be made from basic facts

to ultimate facts.” Wilkerson v. State, 317 Ga. 242, 245 (892 SE2d

6 Appellant does not challenge the sufficiency of the evidence with regard

to whether Officers Sylvester and Brooner were in an appropriately marked
police vehicle. And because we no longer automatically review sua sponte the
sufficiency of the evidence, except that of murder convictions resulting in the
death penalty, see Davenport v. State, 309 Ga. 385, 398-399 (846 SE2d 83)
(2020), we limit our consideration to the one argument that Appellant makes
in challenging the sufficiency of the evidence. See Scoggins v. State, 317 Ga.
832, 837 n.6 (896 SE2d 476) (2023).

13
737) (2023) (cleaned up). We also recognize that jurors are “normally

entitled to make reasonable inferences from circumstantial

evidence,” Worthen v. State, 304 Ga. 862, 867 (823 SE2d 291) (2019),

and, in doing so, may rely “on their own common-sense

understanding of the world,” Fitts v. State, 312 Ga. 134, 142 (859

SE2d 79) (2021). However, reasonable inferences must be based

upon evidence and not mere speculation. See Melancon v. State, 319

Ga. 741, 754 (906 SE2d 725) (2024) (explaining that, for purposes of

determining the constitutional sufficiency of evidence to support a

conviction, “inferences require some basis in evidence” and that

evidence amounting to “speculation, not inference,” is insufficient to

support a conviction); McKie v. State, 306 Ga. 111, 115 (829 SE2d

376) (2019) (holding that jurors are “entitled to draw reasonable

inferences from the evidence based on their own common-sense

understanding of the world” (cleaned up) (emphasis supplied)). See

also United States v. Klopf, 423 F3d 1228, 1236 (11th Cir. 2005)

(“Where the government relies on circumstantial evidence,

reasonable inferences and not mere speculation, must support the

14
jury’s verdict.” (cleaned up)). Thus, jurors are not authorized to draw

an inference about the existence of an essential element of a crime

based on mere speculation.

Here, there was no direct evidence that either Officer Sylvester

or Officer Brooner was in uniform with the badge of office

prominently displayed. Officer Sylvester did not testify, and

although Officer Brooner testified, she was not asked by the State

whether she was in uniform with her badge prominently displayed

at the time Appellant was given the signal to stop. Nor did the State

ask any of the other nine Savannah police officers who testified

whether Officer Sylvester or Brooner were in uniform with a badge

prominently displayed. Additionally, although the video footage that

was played at trial showed several police officers at the scene of the

crash who were in uniform with badges prominently displayed, the

State did not ask its witnesses whether any of the officers who

appeared in uniform with badges displayed in the video footage were

15
Officer Brooner or Officer Sylvester.7

The circumstantial evidence that was presented at trial

relevant to this issue, viewed in the light most favorable to the

verdicts, is as follows. From the testimony of Officer Brooner and

Detective Harrell and the videos from Officer Sylvester’s and

Detective Harrell’s body cameras, a reasonable inference can be

made that Officer Brooner and Officer Sylvester appear in video

footage played at trial. However, neither video shows the clothing

that Officers Sylvester and Brooner were wearing, much less any

badge of office that they may have been wearing. The approximately

two-minute video from Officer Sylvester’s body camera, which shows

the beginning of the pursuit, shows him seated in the patrol car

wearing long pants. The video does not show the clothing worn by

Officer Brooner, who was in the passenger seat next to him. Officer

7 It is difficult to understand why a prosecutor would fail to ask the

simple questions required to elicit direct testimony that would establish the
essential elements that the officer who gave the signal to stop was in a uniform
with badge prominently displayed and, if in a police car, that the car was
appropriately marked as an official police vehicle.

16
Sylvester’s video also shows him and Brooner approaching the

driver’s side of Appellant’s SUV after the crash, and Officer

Sylvester attempting to open the driver’s side door. The video does

not show the clothing worn by Officers Sylvester and Brooner; it

shows only the officers’ outstretched bare arms holding handguns.

The approximately six-and-a-half minute video from Detective

Harrell’s body camera shows her approaching Appellant’s SUV from

the passenger side and captures Officer Sylvester approaching

Appellant’s SUV from the driver’s side and attempting to open the

driver’s door. However, the pants and shirt that Officer Sylvester is

wearing is obscured by Appellant’s car such that it is not possible to

see whether or not he was wearing a uniform or had a badge

prominently displayed.

Video from Officer Harrell’s body camera showed many officers

at the scene of the crash. And during closing arguments, the State

played a portion of the video from Officer Harrell’s body camera and

argued to the jury that the “officers on the other side of the car” were

wearing “some shirts labeled ‘Police’.” However, counsel for the

17
State conceded at oral argument that he could not point to any

portion of the video footage played at trial that showed Officer

Brooner or any testimony identifying Officer Sylvester or Brooner in

the video footage, and he was unable to identify any portion of the

video footage that showed either Officer Brooner or Sylvester in a

uniform with a badge prominently displayed. he other evidence

presented at trial relevant to the question of the officers’ clothing

consisted of Officer Brooner’s testimony that her duties as an officer

were to “go out on basic patrol, enforce laws, respond to calls, try to

help prevent crime, that sort of stuff.” However, on July 4, she and

Officer Sylvester were working a “special detail” on Hutchinson

Island that was scheduled to end around 10:00 p.m. After finishing

their duties on Hutchinson Island, they received instructions to go

to City Market because of the large crowd there. They went to City

Market and left around midnight and returned to the precinct to end

their shift. At the precinct, they moved their patrol bags from the

“pool car” to their personal vehicles, were “taking off [their] cameras,

putting the keys up, [and] getting ready to go home.” During this

18
time, a “BOLO” call went out about the shooting in City Market; the

call described the suspect’s vehicle and indicated that the vehicle

was headed in their direction. The officers returned to “[their] patrol

car,” with Officer Sylvester driving and Officer Brooner in the

passenger seat. After the crash, Officer Sylvester exited the car, and

Officer Brooner, whose body camera was not on at time, was by his

side “at the beginning.” After Appellant was removed from the SUV,

Officer Brooner went to check on other pedestrians who had been

injured.

The evidence set forth above — that Officers Sylvester and

Brooner were on duty on “special detail,” without any evidence

elucidating what “special detail” entailed; that other officers who

responded to the scene of the crash were in uniform with a badge

prominently displayed; and that Officers Sylvester and Brooner

were wearing cameras and carried handguns — is insufficient

circumstantial evidence to permit the jury to infer beyond a

reasonable doubt that Officers Sylvester and Brooner were in

19
uniform with their badges prominently displayed.8

These circumstances are different from those in Lester v. State,

253 Ga. 235, 239 (320 SE2d 142) (1984), in which we affirmed a

conviction for fleeing or attempting to elude where we noted that the

officer did not explicitly testify that he wore a badge, but the

“uncontradicted evidence produced at trial indicated that [the

officer] was in uniform” in close temporal proximity to the arrest at

issue. Specifically, in Lester, the officer who gave the signal to stop

also testified that he had been involved in a traffic stop of another

vehicle when he observed the defendant speeding; that he began to

pursue the defendant; that he turned on his siren and blue lights;

and that his police car was appropriately marked. Id. at 235, 239.

Thus, in Lester, there was direct evidence that the officer was

wearing a uniform and was conducting a traffic stop, which is a

8 At oral argument, counsel for the State asserted that the fact that none

of the police officer witnesses testified that any officer was in plain clothes was
a circumstance that allowed the jury to determine that Officer Brooner was in
uniform with her badge prominently displayed. But a jury cannot make a
reasonable inference as to the existence of an essential element of a crime from
the absence of evidence as to the existence of that element. See Melancon 319
Ga. at 754; McKie, 306 Ga. at 115.
20
policing activity that would be within a juror’s common-sense

understanding. Thus, the direct evidence in Lester allowed the jury

to make the permissible inference that the officer was wearing a

badge. But the record here does not contain such evidence, so Lester

does not control this case. 9

In contrast, the evidence here is markedly different than the

evidence before the jury in Lester. As discussed above, there was no

testimony that Officers Brooner and Sylvester were wearing

uniforms or displaying badges. Nor was there testimony to explain

the duties required of officers on a “special detail.” And the video

evidence does not show either officer to be in a uniform or wearing a

badge. Although the dissent speculates about the identity of one

officer in Officer Harrell’s body camera video, that video shows many

officers present in the aftermath of the crash, and there is neither

testimony nor any reasoned basis for inferring that the officer

standing in front of the car and next to Officer Harrell at one point

9 Some of us doubt whether Lester was correctly decided, but because it

does not control the issue presented in this case, we need not address its
continued validity at this time.
21
is Officer Sylvester.10

Moreover, the fact that both Officer Sylvester and Brooner

were wearing body cameras and carried handguns is not enough by

itself to support, beyond a reasonable doubt, the inference that the

officers were in uniform with their badges prominently displayed,

given that a reasonable juror would also be aware that officers who

are “undercover” or in “plain clothes” may nonetheless wear hidden

video recording devices and carry weapons. As prior cases have

indicated, carrying a gun or wearing a video camera does not

necessarily mean that an officer is both in uniform and has a badge

prominently displayed. See, e.g., Solano-Rodriguez v. State, 295 Ga.

App. 896, 897 (673 SE2d 351) (2009) (describing police officer who

conducted search as wearing “plain clothes,” with a badge on his

10 As noted above, in closing arguments, the prosecutor who tried the

case pointed the jury to Officer Harrell’s video and argued that it showed
officers “on the other side of the car,” not directly in front of the SUV, wearing
shirts that said “Police.” Apparently, the prosecutor who tried this case did not
see what the dissent infers from the video evidence. And at oral argument,
State’s counsel could not identify any portion of the video footage that showed
Officer Sylvester or Brooner in uniform with a badge, and Officer Sylvester did
not testify so the jury could not infer that he was one of the officers seen in
video footage in a uniform and badge.
22
waist, and carrying a concealed gun); Casey v. State, 295 Ga. App.

868, 868 (673 SE2d 327) (2009) (describing officer who assisted in

undercover drug buys as being “wired for sound and video”).

Having carefully reviewed the evidence presented at trial, we

conclude that the evidence was insufficient to show beyond a

reasonable doubt one essential element of the offense of fleeing or

attempting to elude: that the officer who gave the signal to stop was

in uniform with his or her badge of office prominently displayed.11

Accordingly, because the three counts of fleeing or attempting to

elude were the only predicate felonies underlying the three counts

of felony murder, the guilty verdicts on the fleeing and attempting

to elude counts cannot stand, and we must reverse the felony murder

counts predicated on those verdicts. See OCGA § 16-5-1 (c) (defining

11 As discussed above, there was no evidence from which a reasonable

juror could conclude beyond a reasonable doubt that either Officer Sylvester or
Officer Brooner was in uniform with a badge prominently displayed. Thus, we
need not address whether a driver commits the offense of fleeing or attempting
to elude if an officer who was a passenger in the police car when the signal to
stop was given was in uniform with his or her badge prominently displayed,
but the officer driving the vehicle was not in uniform with his or her badge
prominently displayed.

23
felony murder); Johnson v. State, 269 Ga. 840, 842 (506 SE2d 374)

(1998) (reversing felony murder conviction predicated on cruelty to

children where there was insufficient evidence to show essential

elements of cruelty to children). However, as noted above in footnote

1, the trial court merged Appellant’s convictions for vehicular

homicide based on reckless driving into the felony murder counts

and imposed a sentence on the reckless driving conviction. Because

we are reversing the felony murder convictions, the counts for

vehicular homicide no longer merge. See Calloway v. State, 303 Ga.

48, 49 (810 SE2d 105) (2018). Accordingly, we reverse Appellant’s

convictions for felony murder and remand to the trial court to impose

sentences on the guilty verdicts on the three counts of vehicular

homicide. Id.

Judgment reversed in part and remanded with direction. All
the Justices concur, except Peterson, P. J., who concurs in judgment
only in Division 2, and Ellington and LaGrua, JJ., dissenting.

24
LAGRUA, Justice, dissenting.

Because I believe the majority misconstrues OCGA § 40-6-395

(a) and our holding in Maxwell v. State, supra, I dissent.

The majority decides today that for the State to establish a

violation of OCGA § 40-6-395 (a) for fleeing or attempting to elude,

the State must prove both that the pursuing officer was “in uniform

displaying his or her badge of office,” and that the pursuing vehicle

was “appropriately marked” as an “official police vehicle.” The

majority contends that this is the only way to give proper effect to

the statutory conjunctive “and.” See OCGA § 40-6-395 (a) (providing

that the officer giving an appropriate signal to stop “shall be in

uniform prominently displaying his or her badge of office, and his or

her vehicle shall be appropriately marked showing it to be an official

police vehicle”) (emphasis supplied).

If OCGA § 40-6-395 (a) solely applied to situations where the

pursuing officer was in a vehicle, I would find it easier to agree with

the majority’s conclusion. The problem I see, however, is that the

25
statute does not apply solely to a situation where the officer is

pursuing in a vehicle. As we explained in Maxwell, OCGA § 40-6-

395 (a) on its face contemplates two different situations, because the

statute’s first sentence explicitly applies to a “pursuing police

vehicle or police officer[.]” Maxwell, 282 Ga. at 24 (emphasis

supplied). This means that the statute contemplates an officer

pursuing on foot as well as in a vehicle. Id.

But today’s decision is in immediate tension with application

of the statute to an officer who is pursuing on foot, because requiring

an officer to be in uniform “and” in an appropriately marked police

vehicle automatically excludes application of the statute to a

situation where an officer pursues on foot. Thus, we fail to give

meaningful effect to the whole statute, which clearly contemplates

pursuit on foot. The majority resolves this tension by determining

that, pursuant to Maxwell and today’s holding, the statutory

requirement of a properly marked patrol vehicle only applies where

police pursue in a vehicle. But I see nothing in Maxwell, OCGA § 40-

6-395 (a), or the majority’s opinion that supports such a reading:

26
that the conjunctive “and” plainly governs when pursuit is by vehicle

but governs not at all when pursuit is by foot.

I contend that we should follow the statutory construction we

established in Maxwell. In that case, given OCGA § 40-6-395 (a)’s

explicit application to two different situations, we parsed the statute

into two prongs – one applying to pursuit on foot, the other applying

to pursuit by police vehicle – explaining that

the last sentence of subsection (a) is easily harmonized
with the first and second sentences by construing it to
mean that, when a police officer who is not in a vehicle
gives a signal to stop, he or she must be “in uniform
prominently displaying his or her badge of office,” and to
mean that, when an officer who is in a police vehicle gives
a signal to stop, the police vehicle must be appropriately
marked.

Maxwell, 282 Ga. at 24 (quotes in original).

Moreover, as we explained in Maxwell, “the purpose of the last

sentence of subsection (a) is to [e]nsure that drivers of vehicles will

have notice that they are being signaled to stop by the police[.]” Id.

A properly marked police vehicle, especially with the statutorily-

required emergency light and/or siren activated, surely satisfies this

27
purpose. In contrast, one is hard pressed to imagine why an

individual who, for example, is driving in front of a pursuing officer

in a properly marked vehicle with lights and/or siren activated,

would need further notice that police are pursuing said person. Nor

is it easy to imagine how that individual would benefit from such

further notice, since the individual would be unlikely to see that the

officer in pursuit was wearing a uniform with a prominently

displayed badge.

The instant matter is a case in point. As the majority notes,

when Officers Sylvester and Brooner began pursuit, they activated

emergency lights and siren and tried to conduct a traffic stop. But

Chambers eluded at speeds of up to 80 or 90 mph, swerving into

traffic, driving onto a sidewalk, and running a red light. Pursuit

ended when Chambers crashed, killing three people and injuring

others. As far as I can tell from the video admitted at trial, Officers

Sylvester and Brooner never got close enough for Chambers to see

their clothing, nor is there any evidence suggesting that Chambers

would have behaved any differently had he seen the officers’ attire,

28
rendering the question of Officer Sylvester and Brooner’s clothing

irrelevant.12

12 As the majority notes, the Court of Appeals held similarly in Ray v.

State, 233 Ga. App. 162, 165 (1) (503 SE2d 391) (1998) (concluding that direct
evidence of a marked car, police uniform, and badge was not necessary where
there was “no suggestion at all that the officer was not in uniform in an
appropriately marked car, and the evidence reasonably indicates he was.”
Moreover, any error was harmless because the pursuing officer’s clothing and
badge were “[c]learly . . . irrelevant” when pursuing an individual who was
“driving 131 mph in the dark, early morning hours . . . particularly when the
patrol car’s lights and siren are activated”) (citations omitted). Other opinions
from the Court of Appeals reach the same or similar results, or are in accord.
See, e.g., English v. State, 261 Ga. App. 157, 158 (1) (582 SE2d 136) (2003)
(same, citing Ray, 233 Ga. App. at 164 (1)); Cook v. State, 180 Ga. App. 877,
878-879 (1) (350 SE2d 847) (1986) (holding that a jury could “rationally
conclude” that all the elements of OCGA § 40-6-395 (a) were met “[w]hen the
evidence shows that the officer was on patrol and in his patrol car and had his
blue light flashing and siren sounding.” Any failure to prove all the elements
of the statute was “harmless as a matter of fact” where the appellant claimed
not to have seen the pursing vehicle at all.); Mooney v. State, 221 Ga. App. 420,
423 (1) (471 SE2d 904) (1996) (concluding that though the deputy pursuing in
a marked patrol car with emergency lights and sirens activated was wearing
blue jeans, evidence that the deputy “displayed a variety of objective indicia of
his lawful authority was sufficient to authorize the jury’s determination that
[the appellant] was unlawfully attempting to elude”) (physical precedent);
Thelusma v. State, 356 Ga. App. 495, 496-497 (1) (a) (847 SE2d 852) (2020)
(holding that notwithstanding the appellant’s argument that the State failed
to prove that the pursing officer “prominently displayed his badge of office and
that his vehicle was appropriately marked as an official police vehicle,”
evidence that the pursuing officer was on duty and responding in a patrol car
with activated emergency lights and siren, joined by other patrol cars with
activated emergency lights and sirens, was sufficient to find that the appellant
“was aware he was fleeing from police and was therefore guilty of fleeing and
attempting to elude”). Accord Finlon v. State, 228 Ga. App. 213, 213-214 (2)
(491 SE2d 458) (1997) (holding that the evidence was sufficient to convict of
fleeing and attempting to elude when an officer in a marked patrol car followed

29
Thus, Maxwell considers “the entire scheme of the statute,”

gives “sensible and intelligent effect to all of its provisions,” refrains

from “construing the statute in a way that renders any part of it

meaningless,” and fully effectuates OCGA § 40-6-395 (a)’s purpose

of “[e]nsur[ing] that drivers of vehicles will have notice that they are

being signaled to stop by the police.” Maxwell, 282 Ga. at 23-24

(citations and quotations omitted). We should follow Maxwell’s

framework here. The evidence admitted at trial establishes that

Officers Sylvester and Brooner pursued Chambers in a marked

patrol car with emergency lights and siren activated, which

Chambers generally concedes in his reply brief, 13 but Chambers

failed to stop, leading to a high-speed pursuit with disastrous

consequences. That is sufficient to satisfy OCGA § 40-6-395 (a) and

the appellant for over three miles with siren and emergency lights flashing);
Tauch v. State, 305 Ga. App. 643, 646 (2) (700 SE2d 645) (2010) (concluding
that the evidence was sufficient to convict of fleeing and attempting to elude
where officers engaged in a “high-speed chase” in “clearly marked” patrol
vehicles “with their emergency lights and sirens activated”).
13 “Chambers acknowledges that State’s Exhibit 5 shows [Chambers’s

vehicle] followed by a police car with lights engaged and markings on the side
and that State’s Exhibit 6 depicts the pursuing vehicle with appropriate
markings.” Chambers’s reply brief, p. 1.
30
uphold Chambers’s convictions for fleeing and attempting to elude.

Finally, assuming for the sake of argument that the State must

prove that Officers Sylvester and Brooner were in uniform with

respective badges properly displayed, I believe that the evidence

admitted at trial was more than sufficient for the jury to so find, as

the trial court held when it denied Chambers’s respective motions

for directed verdict and for new trial.

As the majority notes, Officers Sylvester and Brooner

responded to a BOLO in a “patrol car” which the evidence

establishes, and Chambers concedes, was a properly marked police

vehicle with emergency lights and sirens activated. They engaged in

a high-speed chase in tandem with other law enforcement. Both

officers carried guns, and Officer Sylvester drew his. Both officers

were wearing body cameras.

In addition to these facts, I maintain that the jury, considering

Officer Sylvester’s body camera footage with Detective Harrell’s,

could reasonably determine that Officer Sylvester was wearing a

dark-colored shirt, consistent with the dark-colored shirt many

31
uniformed officers were wearing that night, which was briefly visible

when he tried to open Chambers’s driver-side door. Unable to open

the door, the jury could reasonably determine that Officer Sylvester

circled around the front of Chambers’s vehicle to stand directly next

to Detective Harrell, where Officer Sylvester stayed for the rest of

the applicable recordings. The jury could reasonably infer that

Detective Harrell’s video shows Officer Sylvester standing directly

in front of Chambers’s vehicle wearing a dark shirt with “POLICE”

on the back, light-colored pants consistent with what other officers

were wearing, and a gun belt with several items of what appear to

be tactical gear. And the jury could conclude that Officer Sylvester

was wearing a badge on his chest, because Detective Harrell’s video

records a uniformed officer standing in the same spot where

Sylvester’s body camera footage indicates he was standing, wearing

a badge, sometimes inferable from the gleam on his chest but

directly visible in a few frames.

Taken together, this evidence was sufficient to support the

inference that Officers Sylvester and Brooner were wearing

32
uniforms with badges properly affixed, preserving Chambers’s

convictions for fleeing and attempting to elude.

Finally, the majority contends that evidence that Officers

Sylvester and Brooner were on duty on a “special detail”; that the

many other officers responding to the scene of the crash were in full

uniform; and that Officers Sylvester and Brooner were wearing body

cameras and carrying handguns would not, by itself, allow the jury

to infer that the officers were uniformed and badged. But there is

more evidence than that, as set out above, which is sufficient to

sustain Chambers’s convictions for fleeing and attempting to

elude. 14 See Rich v. State, 307 Ga. 757, 759 (1) (a) (838 SE2d 255)

(2020) (holding that our “limited review” of the sufficiency of the

evidence “leaves to the jury the resolution of conflicts in the

14 The majority argues at one point that evidence that Officers Sylvester

and Brooner were wearing body cameras and handguns is not by itself
sufficient to support the inference that Officers Sylvester and Brooner were in
uniform and wearing badges, because officers in plainclothes may also wear
body cameras and carry guns. Perhaps. But the fact that plainclothes officers
also wear cameras and carry guns does not preclude the jury from determining
that Officers Sylvester and Brooner were in uniform at the time in question.
Rather, that fact is simply something that the jury could weigh and consider
in determining whether Officers Sylvester and Brooner were in appropriate
attire as they pursued Chambers.
33
evidence, the weight of the evidence, the credibility of witnesses, and

reasonable inferences to be made from basic facts to ultimate facts”)

(citation and quotes omitted); McKie v. State, 306 Ga. 111, 115 (829

SE2d 376) (2019) (holding that “jurors are entitled to draw

reasonable inferences from the evidence based on their own

common-sense understanding of the world”) (citation omitted).

Thus, viewed in the light most favorable to the verdict, and

deferring to the jury’s assessment of the weight and credibility of the

evidence, the evidence admitted at trial was sufficient for the jury to

conclude that Officers Sylvester and Brooner were both in uniform

with their respective badges appropriately displayed, preserving

Chambers’s convictions for fleeing and attempting to elude. See

Lester v. State, 253 Ga. 235, 239 (5) (320 SE2d 142) (1984) (holding

that although the pursuing officer did not “testify explicitly that his

badge was prominently displayed,” uncontradicted evidence that the

officer “was in uniform, that his siren and blue lights worked, and

that his car carried the identification marks of the Clarke County

Police Department,” was “sufficient” to support the charge of fleeing

34
and eluding).

Therefore, I respectfully dissent.

I am authorized to state that Justice Ellington joins this

dissent.

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