Garcia-Jarquin 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: 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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