Neal v. State

NAHMIAS, Justice,

concurring.

Two years ago, I noted that this Court had never explained the constitutional basis of the order announced in Division 2 of State v. Thornton, 253 Ga. 524, 524 (322 SE2d 711) (1984), which directed, “[a]s a matter of policy” and without citation of any constitutional *573authority, that appeals of all murder cases, and not only those involving the death penalty, must come to this Court rather than going first to the Court of Appeals. See State v. Murray, 286 Ga. 258, 264 (687 SE2d 790) (2009) (Nahmias, J., dissenting). The silence was remarkable, because Thornton had led our Court over the ensuing 25 years to decide literally thousands of non-death penalty murder appeals, which indeed are the single largest category of our published decisions.

In examining Thornton, I expressed doubt about the correctness of its holding in Division 1, which summarily concluded that only murder cases in which the District Attorney has actually sought the death penalty fall within this Court’s jurisdiction over “cases in which a sentence of death was imposed or could be imposed,” Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (8). See Murray, 286 Ga. at 265, n. 9 (Nahmias, J., dissenting) (noting that the “language used in the 1983 Constitution may also be read to include all murder cases, and indeed the records of the Select Committee on Constitutional Revision, which drafted that language, provide considerable support for the view that it was intended to continue our direct appeal jurisdiction over murder cases”) (emphasis omitted). However, perceiving no interest by the Court in reconsidering that holding, I looked for a constitutional basis to justify the order in Division 2 and concluded that it is “defensible” as a “categorical exercise of our longstanding and almost-unlimited certiorari jurisdiction.” Id. at 266, 270. Notably, no Justice joined my opinion or identified any other constitutional authority by which this Court can decide all murder cases; we simply continued to do so.

The Court’s silence finally has ended with Chief Justice Hun-stein’s concurring opinion in this case — the first opinion on this important jurisdictional issue to have the support of a majority of the Court’s members. Chief Justice Hunstein explains why Division 1 of Thornton was decided incorrectly and should be overruled, along with the only case in which we have directly applied that holding, Rhyne v. State, 264 Ga. 176 (442 SE2d 742) (1994). I note that upon careful consideration, stare decisis does not weigh against this conclusion. See State v. Jackson, 287 Ga. 646, 657 (697 SE2d 757) (2010) (discussing factors to consider in determining whether to reexamine a prior erroneous ruling). The terse analysis in Thornton was unsound; the holding, while now 27 years old, has been applied to only one other case; and, importantly, any reliance interests that have developed around Thornton’s conclusion that this Court will decide all murder appeals are not affected by our ruling today, which has the same result — although now a result that rests on solid constitutional ground rather than unexplained “policy.” For these reasons, I join Chief Justice Hunstein’s concurring opinion in full.

*574Decided February 27, 2012. Roger C. Wilson, for appellant. Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Paige Reese Whitaker, Sheila E. Gallow, Assistant District Attorneys, Samuel S. Olens, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.