A man charged in the felony murder of an infant is appealing a Bulloch County judge’s refusal to dismiss the charge, and the case will be heard Tuesday in the Georgia Supreme Court.

Allen Ray Williams has not yet been to trial, but he protests being charged with felony murder, according to summary from Jane Hansen, public information officer with the Georgia Supreme Court.

Williams was indicted for the death of Collen Durden, an infant boy who died in 2013 while in Williams’ care. In a five-count indictment, Williams is charged with felony murder, “predicated” – or based on – the crime of contributing to the deprivation of a minor; contributing to the deprivation of a minor; felony murder, based on cruelty to a child; second degree cruelty to children; and making a false statement, Hansen said.

Williams’ attorney filed a “general demurrer” to the felony murder charge in Oct. 2014, asking the court to throw it out, she said. Williams filed objections to his other charges, but the appeal Tuesday only applies to that charge.

The summary states in September 2013, Williams “did commit the offense of murder when (he) caused the death of Collen Durden, a human being, irrespective of malice while in the commission of a felony, contributing to the deprivation of a minor, by willfully failing to care for said child so that said child died from asphyxiation…”

According to (Georgia Code § 16-5-1), felony murder is defined as “when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.”  The felony that results in the charge of felony murder is contributing to the deprivation of a minor “in that accused did fail to properly supervise said child, said failure to act resulted in the death of said child….” according to the summary.

Felony murder “is punishable under the law by death, imprisonment for life without parole, or imprisonment for life with the possibility of parole,” Hansen said.  “It is punishable by one to 10 years in prison for the first offense and three to a maximum of 20 years in prison for a subsequent offense.”

Williams objected to the felony murder charge because the punishment for contributing to deprivation of a minor (one to 10 years in prison) is significantly lower than the punishment for felony murder (at least life in prison), she said.

However, in 2015, the judge denied Williams’ objection to this charge, as well as the others.  Williams’ attorneys are now appealing to the state Supreme Court, which has agreed to review the issue prior to trial to determine whether the trial court erred in denying his demurer, the summary read.

A demurer objection does not dispute the truth of the allegation, but claims it is not sufficient grounds to justify legal action.

Williams’ attorneys claim deprivation of a minor is not basis for felony murder but the state says the trial court was correct in refusing Williams’ protest, claiming the “issue of what punishment applies should Williams be convicted of both felony murder and deprivation is not yet ‘ripe’ for this Court’s consideration because Williams has not yet been convicted,” according to the summary.

Hansen’s summary also states “In 1996, the Georgia legislature added a felony sentencing provision … for (the charge of) causing serious injury or death. In 2010, the legislature increased the maximum penalty from five to 10 years imprisonment.”

This means if a person’s conduct results in the commission of more than one crime, he can be prosecuted for each crime, she said. The felony murder statute “provides that a person commits the offense of felony murder when, in the commission of a felony, he or she causes the death of another human being,” the State’s attorneys argue, according to the summary.

As the case has yet to go to trial, details of the case were not included in the summary.

Herald reporter Holli Deal Saxon may be reached at (912) 489-9414.