Garcia-Jarquin v. State ( 2022 )

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: September 7, 2022
S22A0727. GARCIA-JARQUIN v. THE STATE.
COLVIN, Justice.
Following a jury trial, Appellant Ylarrio Garcia-Jarquin was
convicted of malice murder, aggravated assault, and possession of a
firearm during the commission of a felony in connection with the
shooting death of Edel Mendoza and the aggravated assault of
Miguel Canil. 1 Appellant claims that the evidence presented at trial
On October 10, 2016, a Cherokee County grand jury indicted Appellant
1
on charges of malice murder (Count 1), felony murder predicated on
aggravated assault (Count 2), aggravated assault of Mendoza (Count 3),
aggravated assault of Canil (Count 4), and possession of a firearm during the
commission of a felony (Count 5). At a jury trial held from August 28 to
September 1, 2017, the jury found Appellant guilty of all charges. The trial
court sentenced Appellant to life in prison for malice murder, twenty years
consecutive for the aggravated assault of Canil, and five years for the weapon
charge to run consecutive to the aggravated assault. The remaining counts
were either vacated by operation of law or merged for sentencing purposes.
Appellant filed a motion for new trial through new counsel on December
4, 2017, and amended the motion on October 19, 2020. After conducting a
hearing, the trial court denied the motion as amended on January 26, 2022.
Appellant timely filed a notice of appeal. The appeal was docketed to the April
was insufficient to support his conviction for the aggravated assault
of Canil. 2 For the reasons that follow, we affirm.
When evaluating the sufficiency of evidence as a matter of
constitutional due process, we must determine whether, viewing the
evidence in the light most favorable to the verdict, “any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)
(99 SCt 2781, 61 LE2d 560) (1979) (emphasis omitted). “This Court
2022 term of this Court and submitted for a decision on the briefs.
After the appeal was docketed, the State, “out of an abundance of
caution,” filed a motion to transfer the case to the Court of Appeals because
Appellant only challenged his conviction for the aggravated assault of Canil.
However, because Appellant’s conviction for aggravated assault arises out of
his murder case, was brought under the same indictment as his murder charge,
and was obtained in the same trial as his murder conviction, this Court retains
jurisdiction. See, e.g., Neal v. State, 290 Ga. 563, 567 (722 SE2d 765) (2012)
(Hunstein, C.J., concurring, opinion joined by all Justices, reiterating that this
Court’s constitutional jurisdiction extends to all direct appeals in murder
cases). Therefore, we deny the State’s motion to transfer.
2 Appellant does not challenge the sufficiency of the evidence concerning
his convictions for malice murder and possession of a firearm, and this Court
no longer routinely reviews the sufficiency of the evidence sua sponte in non-
death penalty cases. See Davenport v. State, 309 Ga. 385, 391-392 (4) (846
SE2d 83) (2020).
2
does not reweigh evidence or resolve conflicts in testimony; instead,
evidence is reviewed in a light most favorable to the verdict, with
deference to the jury’s assessment of the weight and credibility of
the evidence.” Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313)
(2013) (punctuation omitted).
Viewing the evidence in this light, the record shows that, on
July 18, 2016, Appellant drank beer at the Taqueria Oaxequana for
approximately six hours. Surveillance recordings showed that
Appellant left the restaurant around 6:30 p.m., and returned
approximately 20 minutes later carrying a firearm. Upon his
return, Appellant continued to drink.
Mendoza arrived at the restaurant with two men, one of whom
was Canil. Soon thereafter, Appellant began taunting Mendoza by
pointing his finger like a gun and patting his right hip where his gun
was concealed. The men exchanged some words but did not
approach one another. Mendoza turned to talk to Canil and eat his
3
food; meanwhile, Appellant approached the cash register and told
the waitress that “[Mendoza] thinks he’s all that.” Appellant walked
toward Mendoza’s table with his hand resting on his right hip and
made more threatening gestures. Appellant lifted his shirt, showing
off his gun, and told the men that he “[was] not afraid.” Canil
testified at trial that this scared him because he thought Appellant
could “shoot [his entire group],” so he “just wanted to get out of
there.”
Appellant walked to the jukebox and played two songs: one
describing the violent nature of cartel leader El-Chapo and one
about a pistol duel. Appellant passed Mendoza’s table one more
time, once again using his hands to mimic shooting a gun. When
Mendoza stood, Appellant pulled a gun and pointed it at his chest.
Mendoza grabbed a chair and ran away carrying it as a shield, but
Appellant continued tracking him with the gun and pulled the slide
back. Other patrons, including Canil, took cover. Appellant shot
4
Mendoza three times; Mendoza fell to the ground and eventually
died of his wounds. Canil testified that, though Appellant never
pointed the gun at him, he was scared that he “might [also] get shot”
and that the incident left him “traumatized.”
Appellant fled the restaurant and was later found in a nearby
field with a gun in his possession. Ballistics analysis of the shell
casings and bullets recovered from the crime scene showed that the
gun found on Appellant was the gun used in the shooting. Appellant
spoke with police and admitted shooting Mendoza, but he claimed
he did so out of self-defense.
Appellant claims that the evidence was legally insufficient to
support his conviction for the aggravated assault of Canil because
the State failed to establish that Appellant pointed a weapon at
Canil. We disagree. Aggravated assault occurs when a person
“assaults . . . [w]ith a deadly weapon or with any object, device, or
instrument which, when used offensively against a person, is likely
5
to or actually does result in serious bodily injury.” OCGA § 16-5-21
(a) (2). A person commits an assault when he “[c]ommits an act
which places another in reasonable apprehension of immediately
receiving a violent injury.” OCGA § 16-5-20 (a) (2). Contrary to
Appellant’s assertion, “OCGA § 16-5-21 (a) (2)[] does not require the
deadly weapon to have been pointed directly at each victim, but
merely that the defendant use the deadly weapon in such manner
as to place another in reasonable apprehension of immediately
receiving a violent injury.” Green v. State, 304 Ga. 385, 388 (1) (a)
(818 SE2d 535) (2018) (citation and punctuation omitted).
Here, the evidence presented at trial showed that Appellant
harassed and taunted Mendoza throughout the night, that
Appellant showed Mendoza and Canil a gun and said “he was not
afraid,” that Canil was scared by Appellant’s threats, and that Canil
ran for cover as soon as Appellant fired his weapon. This evidence
was sufficient to establish that Canil was placed in reasonable
6
apprehension of immediately receiving a violent injury. See Howard
v. State, 288 Ga. 741, 742 (1) (707 SE2d 80) (2011) (“Testimony that
the victims ran from the gunfire is sufficient evidence that
Appellants placed them in reasonable apprehension of immediately
receiving a violent injury.”); Roberts v. State, 267 Ga. 669 (1) (482
SE2d 245) (1997) (sufficient evidence to support aggravated assault
conviction where victim testified that he ran when he saw two men
start shooting and other people being shot). Accordingly, the jury
was authorized to find Appellant guilty beyond a reasonable doubt
of the aggravated assault of Canil. See Jackson, 443 U.S. at 319.
Judgment affirmed. All the Justices concur, except Pinson, J.,
not participating.
7
BETHEL, Justice, concurring.
I concur fully in the judgment reached in this case and the
reasoning we have applied in rejecting the appellant’s claim of error.
However, I write separately to question the nature of this Court’s
jurisdiction and to invite a careful consideration of that question.
This Court has long exercised jurisdiction over all cases in
which the appellant has been found guilty of murder. From 1945
until 1983, that jurisdiction was based on the provision of the
Georgia Constitutions of 1945 and 1976, respectively, which gave
this Court jurisdiction over “all cases of conviction of a capital
felony.” See Georgia Constitution of 1945, Art. VI, Sec. II, Par. IV
(providing that the jurisdiction of the Supreme Court includes “all
cases of conviction of a capital felony”); Georgia Constitution of 1976,
Art. VI, Sec. II, Par. IV (same). See also Collins v. State, 239 Ga. 400,
402 (2) (236 SE2d 759) (1977) (determining that “capital felony”
means “felonies to which the death penalty is affixed as a
8
punishment under given circumstances,” as opposed to felonies “in
which under no circumstances would death ever be inflicted as a
penalty” (citation and emphasis omitted)). Our current Constitution
changed that provision to confer upon this Court jurisdiction over
“[a]ll cases in which a sentence of death was imposed or could be
imposed.” Georgia Const. of 1983, Art. VI, Sec. VI, Para. III (8).
Because, at all relevant times, murder has been a capital felony
in Georgia, it is clear to me that under the 1945 and 1976 Georgia
Constitutions, this Court had jurisdiction over all appeals in murder
cases, even those in which the death penalty was not sought or
imposed. But despite this Court’s longstanding practice, I interpret
the plain language of the 1983 Constitution to have limited our
jurisdiction over appeals in murder cases to only those cases in
which, at the time of the appeal, a sentence of death has been
imposed, cases where the State is actively seeking the death penalty,
and cases where a possibility remains that the State could seek the
9
death penalty. By changing the jurisdictional definition from the
crime (capital felonies) to the punishment (cases in which a sentence
of death was or could be imposed), the new constitutional language
eliminated a large category of cases from this Court’s jurisdiction:
direct appeals following a conviction in cases in which a sentence of
death was not imposed. And this change also impacted a smaller
category of cases subject to this Court’s jurisdiction: interlocutory
appeals where the procedural posture of the case definitively
excludes the possibility that the death penalty will be imposed.
Further, subsequent developments in the United States Supreme
Court’s jurisprudence regarding the imposition of the death penalty
have likewise limited the scope of cases in which a sentence of death
could be imposed.3
3 Since the adoption of the 1983 Constitution, the United States Supreme
Court has determined that a number of procedural requirements, such as the
giving of pre-trial notice, apply when the State seeks to impose the death
penalty. See, e.g., Lankford v. Idaho, 500 U. S. 110, 121-122 (111 SCt 1723,
10
Like so many appeals in murder cases that this Court has ruled
upon since the 1983 Constitution came into effect, at no point in this
case did the district attorney seek the death penalty much less file
a notice that the State intended to seek the death penalty against
the appellant, see Unified Appeal Procedure, Rule II (C) (1)
(requiring the State to provide pre-trial written notice to seek the
death penalty); Wagner v. State, 282 Ga. 149, 152-153 (646 SE2d
149) (2007) (addressing written notices to seek the death penalty
with respect to the Unified Appeal Procedure and the requirements
115 LE2d 173) (1991) (holding that adequate notice to seek death penalty is
required under Due Process Clause for the State to seek a death sentence). In
addition, the Supreme Court’s rulings have steadily limited the availability of
the death penalty based on the type of crime committed, the age and mental
capacity of the defendant, and other factors. See, e.g., Hall v. Florida, 572 U.
S. 701, 704 (I), 134 S.Ct. 1986, 188 LE2d 1007 (2014) (“[T]he Eighth and
Fourteenth Amendments to the [United States] Constitution forbid the
execution of persons with intellectual disability.”); Kennedy v. Louisiana, 554
U. S. 407 (128 SCt 2641, 171 LE2d 525) (2008) (holding that the Eighth
Amendment prohibits the death penalty for rape where the crime did not result
in the victim’s death); Roper v. Simmons, 543 U. S. 551 (125 SCt 1183, 161
LE2d 1) (2005) (holding that the death penalty cannot be imposed against
juvenile offenders). These decisions have necessarily narrowed the range of
cases in which the death penalty in Georgia “could be imposed.”
11
of due process); OCGA § 17-10-36 (a) (requiring the promulgation of
the Unified Appeal Procedure), nor did the jury impose a sentence
of death.4 And, although a sentence of death can be available for one
who is found guilty of murder, the appellant was sentenced to a term
of life imprisonment, not the death penalty, and the State has not
challenged that sentence on appeal. Thus, under our State’s laws
and the significant body of law that has developed in recent decades
regarding the imposition of a death sentence in the United States, I
feel compelled to conclude this appeal is not among the “cases in
which a sentence of death was imposed or could be imposed.” Ga.
Const. of 1983, Art. VI, Sec. 6, Para. III (8) (emphasis supplied).
Because no other provision of the Georgia Constitution or any
statute appears to give this Court exclusive jurisdiction over this
case and numerous others like it in the years since the above-cited
4 It is also worth noting that at no point has the State suggested or
argued that any of the aggravating factors required to pursue the death
penalty are present in this case. See OCGA § 17-10-30 (b).
12
provision of the Georgia Constitution of 1983 took effect, I write
separately to renew the dialogue among this Court’s members (and
perhaps beyond) regarding our jurisdiction over every direct appeal
arising from a case in which a defendant has been convicted of
murder, regardless of whether a death sentence was imposed or ever
sought in the first place.5
My reading of Georgia Constitution of 1983, Art. VI, Sec. VI,
Par. III (8) seems to be in accord with this Court’s initial
interpretation of this constitutional provision. In State v. Thornton,
253 Ga. 524, 524 (1) (322 SE2d 711) (1984), this Court determined
that it lacked jurisdiction over the appeal and that it had been
properly filed in the Court of Appeals. However, citing no
constitutional or statutory authority, the Court announced that “as
5 The procedural posture of this case only further points to the need to
revisit this question. Here, the appellant has not raised an enumeration of
error related to his murder conviction. See Maj. Op. at 2 n.2. It appears that
this fact prompted the State to file a motion to transfer this appeal to the Court
of Appeals. See Maj. Op. at 2 n.1.
13
a matter of policy,” it deemed it appropriate that this Court review
murder cases. Id. It then ordered the Court of Appeals to transfer to
this Court
all cases in which either a sentence of death or of life
imprisonment has been imposed upon conviction of
murder, and all pre-conviction appeals in murder cases,
whether or not timely notice was given by the district
attorney as required by [the Unified Appeal Procedure].
Id.This Court and the Court of Appeals appear to have operated
under the “policy statement” expressed in Thornton without much
further consideration until 1999. That year, then-Chief Justice
Benham wrote a special concurrence in Weatherbed v. State, 271 Ga.
736, 739 (524 SE2d 334) (1999), in which he called on the Court to
“comply with the change in its appellate jurisdiction in non-capital
14
murder cases brought about by the passage of the 1983 Georgia
Constitution,” as recognized in Thornton. The former Chief Justice
noted that Thornton had properly interpreted the change to the
Court’s jurisdiction brought on by the 1983 Constitution but
lamented that, “[f]or policy reasons not identified” in Thornton, the
Court had continued to exercise jurisdiction over all appeals in
murder cases. Id. at 740 (Benham, C.J., concurring specially). Chief
Justice Benham then suggested that the 1983 Constitution had
limited the Court’s jurisdiction to “cases in which a defendant has
been sentenced to death,” cases “in which the possibility of the
imposition of the death penalty still exists,” death penalty cases at
the interim review phase, and “interlocutory appeals arising in cases
where the defendant has been charged with a crime punishable by
death” if the death penalty could still be pursued by the State at the
time of the appeal. Id.
Then-Chief Justice Benham’s calls for reform went unheeded,
15
and issues regarding the scope of the Court’s jurisdiction over
murder cases appear to have avoided the Court’s published
consideration until 2009. That year, in a 4-3 decision in State v.
Murray, 286 Ga. 258, 259 (1) (687 SE2d 790) (2009), the Court
determined that its jurisdiction over appeals in murder cases
extended to appeals from contempt orders issued against a
prosecutor in an underlying murder prosecution. The Court
determined that the jurisdictional issue focused “on the nature of
the underlying action,” rather than the relief sought on appeal,
noting that “if the underlying action is a murder case, this Court has
jurisdiction of the appeal, regardless of whether the order being
appealed is based on facts having some bearing on the underlying
criminal trial.” Id. Then-Presiding Justice Carley authored a
concurrence joined by then-Justice Hines, noting that Thornton had,
as a matter of policy, established a bright-line rule that had “serve[d]
both Georgia appellate courts well.” Id. at 259-260 (Carley, P.J.,
16
concurring).
Then-Justice Melton, in dissent, reasoned that the majority in
Murray had “judicially [rewritten] our constitutionally-mandated
jurisdiction” to include cases involving contempt of court, which it
had previously held was not within its appellate jurisdiction. Id. at
260-261 (Melton, J., dissenting) (citing Nowlin v. Davis, 278 Ga. 240,
n.1 (599 SE2d 128) (2004)). Then-Justice Nahmias also dissented,
reasoning that the appeal in Murray was moot. Id. at 264 (1)
(Nahmias, J., dissenting). He also agreed with Justice Melton that
the appeal from the contempt order was “too collateral to the murder
case in which it happened to arise for our jurisdiction to rest upon
Thornton” and that the Court had no other reason for taking
jurisdiction. Id.Then-Justice Nahmias elaborated that, although Thornton
cited no authority and provided little reason for its holding requiring
the Court of Appeals to transfer murder appeals to the Supreme
17
Court, Thornton’s holding could be followed because of the Court’s
“almost-unlimited certiorari jurisdiction,” Id. at 266 (2) (b)
(Nahmias, J., dissenting) (noting this Court’s holding in Daniels v.
State, 248 Ga. 591, 591 n.1 (285 SE2d 516) (1981), that the Supreme
Court has the constitutional authority to require, by certiorari or
otherwise, any case to be certified from the Court of Appeals, even
before it is decided by that Court). The Nahmias dissent then noted
that the Georgia Constitution gives the Court discretion to take
cases from the Court of Appeals, the exercise of which may be guided
by policy considerations. Id.The Court returned to this issue again in Neal v. State, 290 Ga.
563 (722 SE2d 765) (2012), in a concurrence authored by then-Chief
Justice Hunstein and joined by all other members of the Court. The
concurrence determined that the Court had jurisdiction in all
murder cases under Art. VI, Sec. VI, Par. III (8) of the 1983
Constitution because “murder cases are a class of cases in which a
18
sentence of death could be imposed.” Neal, 290 Ga. at 567 (Hunstein,
C.J., concurring). The concurrence noted that the Georgia Supreme
Court has always had appellate jurisdiction over all murder cases
and that the 1983 Constitution had not disturbed that arrangement.
It rested this determination both on the fact that murder remains
the only offense for which a sentence of death can be imposed
constitutionally and that our murder statute provides for death as a
possible punishment. 6 Moreover, the concurrence examined both the
6 This conclusion that the death penalty can only be imposed in murder
cases is also dubious. Prior to Neal, this Court recognized that the death
penalty could be imposed for the offense of kidnapping with bodily injury under
OCGA § 16-5-40 (b) where the bodily injury was the victim’s death and the
defendant was not convicted of murder. See Sears v. State, 270 Ga. 834, 841-
842 (4) (514 SE2d 426) (1999); OCGA § 16-5-40 (d) (4) (providing for a sentence
of “[l]ife imprisonment or death if the person kidnapped received bodily
injury”). And although the Supreme Court’s decision in Kennedy sharply
limited the range of offenses for which the death penalty is available, the
Court’s dicta in that case at least left open the possibility that the offenses of
aircraft hijacking (OCGA § 16-5-44 (c)) and treason (OCGA § 16-11-1 (b)) also
remain death-eligible in Georgia. See 554 U. S. at 437 (IV) (A) (“Our concern
here is limited to crimes against individual persons. We do not address, for
example, crimes defining and punishing treason, espionage, terrorism, and
drug kingpin activity, which are offenses against the State. As it relates to
crimes against individuals, though, the death penalty should not be expanded
19
drafting history of the 1977 convention that drafted the proposed
1983 Constitution and the transcripts of committee meetings in
which these provisions were discussed. The Court gleaned from
those materials that, despite wording changes to the provisions
governing the Court’s jurisdiction, “the language . . . was intended
to maintain the existing jurisdiction of the appellate courts,” thus
moving away from the Court’s statements in Thornton to the
contrary. Id. at 571 (Hunstein, C.J., concurring).
I am unmoved by the analysis of the committee deliberations
in the Neal concurrence. See id. The well-documented reasons to
to instances where the victim’s life was not taken.”). With that statement by
the Supreme Court in mind, I also take issue with a statement in our Court’s
decision in Bradshaw v. State, 284 Ga. 675, 681 (3) (671 SE2d 485) (2008).
There, we stated, rather curiously, that “[l]ife imprisonment is the only
punishment available for the [crime] of hijacking an aircraft” even though
OCGA § 16-5-44 (c) clearly provides for a sentence of death for that offense. It
appears to me, however, that this statement may have been made in the
context of discussing the minimum sentence available for the offense of aircraft
hijacking, as that was the context in which the available sentences for aircraft
hijacking and a number of other Georgia offenses were being discussed in
Bradshaw. See id. at 680-681 (3).
20
distrust legislative history apply, perhaps with even greater force,
to the adoption of constitutional language by the people. 7 Only the
language adopted is a reliable indicator of the intention of those who
7 As we noted in Olevik v. State,
Our objective focus is even more important when we
interpret the Constitution. Unlike ordinary legislation, the people
— not merely elected legislators — are the “makers” of the Georgia
Constitution. See Ga. Const. of 1983, Art. X, Sec. I, Par. II
(proposals to amend or replace constitution require a vote of the
people); see also Wheeler v. Bd. of Trustees of Fargo Consolidated
School Dist., 200 Ga. 323, 333 (3) (37 SE2d 322) (1946) (“The fiat
of the people, and only the fiat of the people, can breathe life into
a constitution.”). If the subjective intent of one legislator out of 236
casts little light on the meaning of ordinary legislation, such
subjective views can hardly carry more weight for a Constitution
that had hundreds of thousands of citizens who voted on its
ratification. See Ga. L. 1983, p. 2070 (1983 Constitution ratified
with 567,663 yes votes and 211,342 no votes). That said,
considering what the framers of our Constitution understood the
words they selected to mean can be a useful data point in
determining what the words meant to the public at large. See
Gwinnett County School Dist. v. Cox, 289 Ga. 265, 307-308 (710
SE2d 773) (2011) (Nahmias, J., dissenting) (“In construing our
Constitution, we . . . sometimes look to the understanding
expressed by people directly involved in drafting the document. . .
. The best evidence [of their intent], of course, is not what various
framers said to each other at various points during the process, but
what they ultimately drafted together — the actual Constitution
that the citizens of Georgia then ratified.”).
302 Ga. 228, 237-239 (806 SE2d 505) (2017).
21
adopted it. See, e.g., Olevik v. State, 302 Ga. 228, 235 (2) (c) (806
SE2d 505) (2017) (“[T]he text is always our starting point for
determining original public meaning [of a constitutional provision]
(and often our ending point, as well)[.]”); Lathrop v. Deal, 301 Ga.
408, 429 (III) (B) (801 SE2d 867) (2017) (reasoning that the plain
and natural meaning governs because “[c]onstitutions are the result
of popular will”).
Without regard to what the committee members might have
thought or believed about the language they included for the
consideration of the people of Georgia, the people themselves elected
to be governed by the actual language in the 1983 Constitution.
Moreover, were we to employ ordinary canons of construction to the
interpretation of the language of the 1983 Constitution, we would be
wise to start first with a consideration of a change from preexisting
language before endeavoring to divine intent from committee
proceedings. See Jones v. Peach Trader Inc., 302 Ga. 504, 514 (III)
22
(807 SE2d 840) (2017) (“[C]hanges in statutory language generally
indicate an intent to change the meaning of the statute.” (citation
and punctuation omitted)); Bishop v. State, 341 Ga. App. 590, 593
(802 SE2d 39) (2017) (Bethel, J., concurring) (“Any attempt to
discern legislative intent beyond the express language passed by a
legislative body is as practical and productive as attempting to nail
Jell-O to the wall.”). See also Elliott v. State, 305 Ga. 179, 208-209
(824 SE2d 265) (2019) (referencing a meeting of Subcommittee on
Rights of Persons wherein Justice Bowles noted in reference to
constitutional drafting that “change should be made where change
is necessary but” courts view a change in words as “an intention on
the part of the framers to give it a different meaning from the
meaning that theretofore existed”). And here, as mentioned above,
the change in language carries clear meaning that is readily
distinguishable from the language employed in the prior
constitutions. See Weatherbed, 271 Ga. at 739 (Benham, C.J.,
23
concurring specially) (noting that “[f]rom the addition of new
language [to the 1983 Constitution regarding this Court’s
jurisdiction], we presume some change in the existing law was
intended”).
Moreover, the Neal concurrence ignores the fact that the
language of the 1983 Constitution draws a distinction between two
classes of cases over which this Court has jurisdiction: cases in
which the death penalty was imposed or could be imposed. Neal
clearly determined that the “could be imposed” language was
sufficient to give this Court jurisdiction over essentially every
appeal arising from a case that includes a murder charge. But in
doing so, its interpretation renders the words “was imposed” (and
the distinction between the two types of cases) meaningless and
completely superfluous. That reading of the 1983 Constitution thus
runs afoul of this Court’s routine admonition that “courts generally
should avoid a construction that makes some language mere
24
surplusage.” Middleton v. State, 309 Ga. 337, 342 (3) (846 SE2d 73)
(2020) (cleaned up). That canon of statutory construction applies
with at least equal force in the constitutional context. And reading
words into or out of the Constitution is a power reserved exclusively
to the people through the amendment process.
Although I see significant problems with the rationale relied
upon in the Neal concurrence, I am persuaded by then-Justice
Nahmias’s suggestion in his dissent in Murray that this Court is
empowered to assert discretionary jurisdiction over murder (and
any other) cases based on our expansive power of certiorari. See
Murray, 286 Ga. at 266-272 (2) (b) (Nahmias, J., dissenting). Thus,
I am not compelled to dissent in this case based on a belief that we
have considered this case or thousands of other murder cases since
1983 without legal authority or that the State’s motion to transfer
this case to the Court of Appeals must be granted. Rather, I am
convinced we exercise jurisdiction in these cases solely as a
25
discretionary matter. But I am not entirely certain we should.
The Court of Appeals, which ordinarily sits in three-judge
panels, considers scores of felony convictions and life sentences
annually. Further, it has a history of producing non-precedential
opinions. In short, the Court of Appeals is a proven, efficient,
responsible intermediate appellate court with exceptionally broad
jurisdiction. Deciding non-capital direct appeals arising from
murder convictions is clearly within the capacity of the members of
that court. And certiorari review by this Court would remain
available for any murder case presenting an issue of “great concern,
gravity, or importance to the public.” Supreme Court Rule 40.
This Court, by contrast, always sits as a whole court and does
not issue non-precedential opinions. Thus, under the current state
of affairs, the amount of state appellate judicial resources dedicated
in a direct appeal of a murder conviction where the sentence of life
in prison with a possibility of parole was imposed is likely greater
26
than those dedicated to a serial sex offender sentenced to multiple
life sentences without the possibility of parole.8 Even with the
admittedly tragic reality involving the loss of human life, I am not
certain that all the legal issues raised in murder cases we hear
constitute matters of “great concern, gravity, or importance to the
public” of the sort that warrants a fast-track to this Court. All
manner of human depravity, personal and family loss and tragedy,
and cases that capture public attention fail to qualify when a
petition for a writ of certiorari is considered by this Court. I believe
the same to be true of most non-capital murder cases and see no
8 To partially understand the significance of the impact of sitting in
divisions versus sitting exclusively as a whole court, consider a hypothetical
term in which 45 murder appeals reach the appellate docket. Under this
Court’s structure and practice and assuming a normal, balanced distribution,
each Justice would be tasked with authoring five such opinions while
participating and voting on the remaining 40 cases. By contrast, assuming a
normal distribution of those same 45 cases across five three-judge panels of the
Court of Appeals, each panel would receive nine such cases. Thus, excluding
any allowance for the typically small number of cases that move to
consideration by the whole court, each judge would author three opinions and
participate and vote in only six more.
27
logical reason to maintain a built-in bypass for these cases. Thus, to
the extent our discretionary authority is being used to exercise
jurisdiction in non-capital murder cases, I think the time has come
to reconsider.
In doing so, I am mindful that following the clear language of
the 1983 Constitution with respect to direct appeals would have a
significant practical impact on the operations of this Court and the
Court of Appeals. Responsible resource stewardship would almost
certainly require an analysis of the impact on the Court of Appeals.
That question and whether any net taxpayer savings could be
realized should be a matter of discussion with the Court of Appeals
and the General Assembly. This is a discussion that may take time.
But, that is no reason not to have it.
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