Hart 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: June 24, 2025

S25A0136. HART v. THE STATE.

MCMILLIAN, Justice.

Danielle Hart appeals her malice murder conviction for the

beating death of her four-year-old daughter, Jamila Hart. 1 As an

initial matter, the State, through the Office of the Attorney General,

1 Jamila died on August 24, 2014. In September 2016, a Clayton County

grand jury indicted Hart for malice murder (Count 1), five counts of felony
murder (Counts 2, 4, 6, 8, and 10), two counts of cruelty to children in the first
degree (Counts 3 and 5), aggravated assault (Count 7), aggravated battery
(Count 9), false imprisonment (Count 11), tampering with evidence (Count 12),
cruelty to children in the third degree (Counts 13-14), and aggravated sexual
battery (Count 15). Following a jury trial held from January 23 to 26, 2017,
Hart was found guilty of all counts except for tampering with evidence (Count
12) and aggravated sexual battery (Count 15). On February 20, 2017, the trial
court sentenced Hart to serve life in prison without the possibility of parole for
malice murder (Count 1) and 12 months for each count of cruelty to children in
the third degree (Counts 13-14), with each sentence to run consecutive to Count
1; Counts 2-11 were either vacated by operation of law or merged for sentencing
purposes. Hart timely filed a motion for new trial, which was amended through
new counsel on March 9, 2020, April 26, 2022, and February 1, 2023. Following
a hearing in June 2023, the trial court denied the motion for new trial, as
amended, on April 11, 2024. Hart timely appealed, her case was docketed to
the term of this Court beginning in December 2024, and the case was orally
argued on January 14, 2025.
questions whether this Court should continue exercising direct

appellate jurisdiction over murder cases where the death penalty

has not been sought and requests that we transfer the case to the

Court of Appeals. We deny the State’s request to transfer this case

for the reasons set out below.

Turning to the merits, Hart argues that (1) the evidence was

insufficient to support her conviction as a matter of federal due

process; (2) her trial counsel rendered constitutionally ineffective

assistance by not impeaching two witnesses and by not introducing

two video recordings into evidence; (3) the trial court erred in failing

to instruct the jury on confession corroboration; (4) the State failed

to correct testimony it knew to be false; and (5) the cumulative harm

from these errors requires a new trial. Because we conclude that the

evidence was sufficient to sustain her convictions, that trial counsel

did not render constitutionally ineffective assistance, that the trial

court did not commit plain error in failing to instruct on confession

corroboration, and that Hart’s remaining enumerations of error are

without merit, we affirm.

2
The evidence presented at trial showed that Jamila lived with

Hart, Jamila’s two younger sisters, and Hart’s girlfriend, Shardea

Glover in the River Ridge Apartments in Clayton County. Around

1:30 p.m. on August 24, 2014, William and Tori Johnson, who lived

in the apartment complex across the hall from Hart and Glover,

heard banging on their front door. When they opened the door,

Glover was screaming, “[M]y child’s not breathing, my child’s not

breathing.” They followed Glover into her apartment and found

Jamila “laid out on the bed” in the back bedroom. Glover pulled

down Jamila’s pants and said, “You don’t understand, I spanked her,

I spanked her, you don’t understand. . . . I lost control.” The

Johnsons determined that Jamila was not breathing and began

performing CPR until EMS arrived. Jamila was then immediately

transported to a nearby hospital but did not survive her injuries.

Tori testified that Jamila’s body was cold when she and her

husband found her in the bedroom and that there was vomit in

Jamila’s mouth and on the bedspread where she was lying. Jamila

also had “a big knot on her forehead” and “whelps on her backside”

3
that were “open and bleeding.” Hart was in the bedroom, “whooping

and hollering, making a whole lot of noise, [saying] my baby, my

baby.” But Tori noticed that “[t]here were no tears.” Tori heard

Glover say, “We’re going to jail, we’re going to jail.” Tori also testified

that she had witnessed Hart discipline Jamila several times by

forcing her to stand still with her arms out or to stand on one leg for

up to 20 minutes at a time. Hart had told Tori that she had to be

“strict” with Jamila because Jamila was “stubborn.”

AyAsia Cherry, who was a nursing student at the time, also

lived nearby and assisted with performing CPR on Jamila.

According to Cherry, Hart told her that Jamila “had choked.”

However, as Cherry was performing CPR on Jamila, additional

vomit was forced into Jamila’s mouth, and Cherry noticed that the

vomit was cold, which she would not have expected if Jamila had

just recently choked. After Glover pulled Jamila’s pants down,

Cherry saw “blood marks on [Jamila’s] legs.” Cherry did not see Hart

crying at any point, and when she saw Hart later that afternoon,

Hart was “sitting in the breeze way[,] . . . drinking a cup of beer and

4
smoking a cigarette” and “did not look upset at all.”

Freddie Johnson, another neighbor, testified that he brought

his daughter to Hart’s apartment earlier that day so that Hart could

braid his daughter’s hair. About 20 minutes later, Hart brought his

daughter back and said she could not finish her hair because her

own daughter was sick. Freddie testified that when he had seen

Jamila in the past, she had “acted scared” and “didn’t seem happy

at all.”

Dr. Richard Sobel, an emergency room physician, testified that

Jamila had already died by the time she presented to the hospital

and that “she had been dead for some time,” as evidenced by the

complete lack of cardiac or brain activity. Dr. Sobel then explained

the extent of Jamila’s injuries, including swelling and bruising on

her forehead from an apparent blunt-force injury, bruising and

swelling of her left eye, and a large black and blue mark on her

abdomen that he opined was “not fresh” and was consistent with

blunt-force trauma. Jamila’s arms had linear abrasions that were

commonly seen with a “fingernail type” injury inflicted from being

5
held, and her entire buttocks area was “massively swollen” with a

breakdown of tissue and leakage of fluid. Her legs were “riddled with

bruising” and “swollen to the point where tissue fluid is almost just

bursting out of the swollen leg.” Based on his examination, it was

difficult “to find parts that [were] probably not bruised.” He opined

that the injuries would have been “grossly painful” and that Jamila

“was tortured.”

Dr. Sobel explained that Jamila’s injuries had likely been

maturing or evolving for hours before she arrived at the emergency

room. As she succumbed to her injuries, someone present would

have seen Jamila experience anxiety, sweating, pale skin, rapid

breathing, and then eventually a cessation of breathing, a process

that would “take quite some time.” In his opinion, because the

“dependent area,” particularly her buttocks, was so swollen, it was

likely that Jamila was on her back for a while, helpless, as the

swelling continued until she died an “excruciating death.”

Dr. Lora Darrisaw, the medical examiner who performed the

autopsy on Jamila, identified 20 injuries on Jamila’s head and neck,

6
including a fractured clavicle, 20 injuries on her torso, 21 injuries to

her arms, and 23 injuries to her legs. Dr. Darrisaw opined that the

majority of the injuries were consistent with blunt-force trauma.

Some of the injuries, including the fractured clavicle and curved

linear abrasions, were consistent with Jamila having been

restrained by her arms. Dr. Darrisaw concluded that the internal

bleeding was so extensive that it caused a disruption of the normal

function of Jamila’s heart and brain and ultimately caused Jamila’s

death; she did not identify any other natural disease process that

would have contributed to Jamila’s death.

The State also presented the testimony of Carie Daughtry.

Daughtry testified that she and Hart frequently talked while they

were in jail together in the fall of 2014. One day Hart told Daughtry

that her daughters, Jamila and Janet had been arguing and that

Glover had offered to punish Jamila for lying about the argument.

Hart told Glover to give Jamila “[f]our licks” and then “four minutes

in the corner.” While Hart went outside to smoke, Jamila went with

Glover. When Hart came back inside, she found Glover and Jamila

7
in the bathroom before Glover took Jamila to the bedroom.

At that point, Hart held Jamila’s arms over her head while

Jamila was bent over the bed so that Jamila could not move, and

Glover repeatedly beat Jamila with a piece of wood. Daughtry

stepped down from the stand to demonstrate to the jury what Hart

had described. Hart told Daughtry that Jamila was crying and

yelling while she was hit, but that Hart never asked Glover to stop

even though Glover “lost it.” Hart did not let go of Jamila until

Jamila stopped yelling and crying. Glover continued to hit Jamila

with the wooden board until “[t]he board broke.”

Afterwards, Hart put Jamila on the bed and rubbed ointment

on her back, but Jamila remained passed out. Hart left Jamila there

and then started doing her neighbor’s hair. When Hart returned to

the bedroom to see if Jamila would eat some soup she had made,

Glover was in there and told her that Jamila was not breathing.

Before calling 911, Hart and Glover took the broken board outside

to the trash.

Hart called Glover to testify in her defense at trial. Glover

8
admitted that she was serving a life sentence in Pulaski State Prison

after pleading guilty to Jamila’s murder. However, Glover testified

that she only gave one spanking to Jamila that day and that she was

“in distress, in shock at the time” and did not recall telling officers

that she spanked Jamila three times over an hour and a half.

1. We begin by addressing the State’s request, through the

Office of the Attorney General, that this Court reconsider its

jurisdiction over murder cases in which the death penalty was not

sought. Specifically, the State argues that this case should be

transferred to the Court of Appeals because the Georgia

Constitution limits this Court’s direct appellate jurisdiction to

murder cases in which the death sentence has been imposed or could

be imposed, see Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (8)

(“Paragraph III (8)”),2 and for policy reasons, this Court should not

exercise its certiorari jurisdiction to take these cases on direct

2 This provision reads, in relevant part, “[u]nless otherwise provided by

law, the Supreme Court shall have appellate jurisdiction of . . . [a]ll cases in
which a sentence of death was imposed or could be imposed.” Ga. Const. of
1983, Art. VI, Sec. VI, Par. III (8).
9
appeal.

Turning to the legal and historical context of Paragraph III (8),

which we have previously interpreted and need not construe anew,

this Court has long exercised jurisdiction over all cases in which the

appellant has been found guilty of murder. Before 1983, the Georgia

Constitution gave us jurisdiction over “all cases of conviction of a

capital felony.” Ga. Const. of 1976, Art. VI, Sec. II, Par. IV; Ga.

Const. of 1945, Art. VI, Sec. II, Par. IV. In other words, our appellate

jurisdiction turned on the statutory penalties for the crime of

conviction, not anything specific about the particular case. 3

But the 1983 Constitution removed the reference to “capital

felony” and replaced it with “cases in which a sentence of death was

imposed or could be imposed.” Ga. Const. of 1983, Art. VI, Sec. VI,

Par. III (8). The next year, we had the opportunity to determine

3 This Court construed the term “capital felony” as describing the class

of “‘felonies to which the death penalty is affixed as a punishment under given
circumstances’” as opposed to felonies “‘in which under no circumstances would
death ever be inflicted as a penalty.’” Collins v. State, 239 Ga. 400, 402 (2) (236
SE2d 759) (1977) (quoting Caesar v. State, 127 Ga. 710, 712 (1) (57 SE 66)
(1906)).
10
whether this Court had direct appellate jurisdiction over an appeal

of a murder case in which the death penalty was not sought. See

State v. Thornton, 253 Ga. 524, 524 (1) (322 SE2d 711) (1984). There,

we noted that the 1983 Constitution’s change in text meant that we

no longer had jurisdiction over non-death-penalty murder cases

because the “district attorney did not give timely notice to the

defense that the state intended to seek the death penalty.” Id.

However, we decided “[a]s a matter of policy” that this Court would

nevertheless continue to exercise its jurisdiction to review “all

murder cases.” Id. Accordingly, we ordered the Court of Appeals to

transfer to us all such appeals docketed after December 1, 1984,

thereby maintaining the pre-1983 status quo.4 See id.

Ten years later, this Court had another opportunity to

4 The transfer order read:

The Court of Appeals is directed to transfer to the Supreme 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 Unified Appeal §
II. A. 1., 246 Ga. at A–7. This order shall be effective as to cases
docketed in the Court of Appeals after December 1, 1984.
Thornton, 253 Ga. at 524 (1).
11
determine whether the Court of Appeals or this Court has direct

appellate jurisdiction over non-death-penalty murder cases under

Paragraph III (8). Despite the Thornton transfer order, in Rhyne v.

State, 264 Ga. 176 (442 SE2d 742) (1994), the Court of Appeals

retained and decided an appeal from a non-capital murder where

the jury had been unable to reach a verdict and a mistrial was

declared. This Court concluded that although the Court of Appeals

should have transferred the case under Thornton, the court “did not

lack jurisdiction to consider the merits of appellant’s former appeal”

because the case was not one “in which a sentence of death was

imposed or could be imposed.” Id. at 177 (punctuation omitted; citing

Paragraph III (8)).

Over the years, our jurisdiction over non-death-penalty murder

cases pursuant to Thornton and its order to transfer all murder

appeals “as a matter of policy” has been questioned. In Weatherbed

v. State, 271 Ga. 736, 739 (524 SE2d 452) (1999) (Benham, CJ,

concurring specially), Chief Justice Benham called on the Court to

“comply with the change in its appellate jurisdiction in non-capital

12
murder cases brought about by passage of the 1983 Georgia

Constitution,” as recognized in Thornton, and to have all future

murder appeals decided by the Court of Appeals in the first instance.

He argued 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. at 740.

Despite Chief Justice Benham’s concerns, we did not review

our jurisdiction under Thornton again for a decade. In 2009, we

concluded that this Court has direct appellate jurisdiction over an

appeal from a contempt order issued against an assistant district

attorney in a murder prosecution because, pursuant to Thornton’s

transfer order, “the proper focus is on the nature of the underlying

action. If the underlying action is a murder case, this Court has

13
jurisdiction of the appeal, regardless of whether the order being

appealed is based on facts having some bearing on the underlying

criminal trial.” State v. Murray, 286 Ga. 258, 258-59 (1) (687 SE2d

790) (2009) (cleaned up). Justice Nahmias dissented, seeking to offer

a better explanation than “as a matter of policy” for our order that

the Court of Appeals must transfer all murder appeals to this Court.

He suggested that the Court’s “almost-unlimited certiorari

jurisdiction” authorized us to take murder cases from the Court of

Appeals. Id. at 266 (2) (b) (emphasis in original).

Yet, just a few years later, the members of the Court seemed to

reject Thornton. In 2012, all of the Justices joined a concurring

opinion authored by Chief Justice Hunstein stating for the first time

that the 1983 change in constitutional text made no difference in

meaning, and so our post-1983 jurisdiction remained the same as it

was under the previous constitutional language. See Neal v. State,

290 Ga. 563, 567-72 (722 SE2d 765) (2012) (Hunstein, CJ,

concurring) (“the Neal concurring opinion”). The Court reasoned

that “the constitutional history of the 1983 Constitution makes clear

14
that the framers intended for the division of jurisdiction between the

two appellate courts to remain unchanged.” Id. at 570 (citing various

transcripts from 1977-1981 committee meetings related to Article

VI). 5 Chief Justice Hunstein explained that “this Court should

interpret our State Constitution as giving us jurisdiction over life-

imprisonment murder convictions, thus making unnecessary the

transfer order adopted in Thornton.” Id. at 572. And she concluded

that “[f]or these reasons, [she] would overrule Thornton and Rhyne

to the extent they hold that the 1983 Constitution gives the Court of

Appeals jurisdiction over direct appeals in life-imprisonment

murder convictions.” Id. (emphasis supplied). Despite the concurring

opinion’s statement of future intention, however, the concurring

5 The Neal concurring opinion’s reliance on these committee
deliberations was misplaced, given the well-documented reasons to distrust
legislative history in the adoption of constitutional language by the people:
Unlike ordinary legislation, the people — not merely elected
legislators — are the “makers” of the Georgia 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.
Olevik v. State, 302 Ga. 228, 237-38 (2) (c) (i) (806 SE2d 505) (2017).
15
opinion did not purport to overrule Thornton and Rhyne;6 Neal’s

main opinion did not address this Court’s jurisdiction; and no other

case has since overruled Thornton and Rhyne. Thus, even though all

Justices then sitting on the Court joined in the Neal concurring

opinion, which said that the concurring Justices “would overrule”

Thornton and Rhyne, they did not actually overrule either decision,

and both decisions remain binding precedent.

In more recent years, Justice Bethel authored a concurring

opinion that again questioned the nature of this Court’s jurisdiction

over murder cases. See Garcia-Jarquin v. State, 314 Ga. 555, 557-

65 (878 SE2d 200) (2022) (Bethel, J, concurring). Echoing Chief

Justice Benham’s special concurring opinion in Weatherbed, Justice

Bethel wrote that the plain language of the 1983 Constitution

6 We question whether a concurring opinion, denominated as such, is

binding precedent, even if a majority of Justices join it, since a concurring
opinion is defined as fully supporting the judgment of the main opinion. See
Supreme Court Rule 58 (“When a Justice concurs, he or she agrees with the
opinion . . . and the judgment rendered by it.”); former Supreme Court Rule 58
(“When a Justice concurs, he or she agrees with the opinion and judgment of .
. . the opinion.”). However, we need not decide this issue because the Neal
concurring opinion stated only a future intention to overrule Thornton and
Rhyne.
16
“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 death penalty.” Id. at 558. Justice Bethel also noted that he

was persuaded by Justice Nahmias’s suggestion in his dissenting

opinion in Murray – “that this Court is empowered to assert

discretionary jurisdiction over murder (and any other) cases based

on our expansive power of certiorari” – and set out reasons for why

this Court ought not exercise its jurisdiction over non-death-penalty

murder cases, including the capacity of the Court of Appeals to

efficiently handle these cases. Id. at 564-65.

Against this backdrop, we remain convinced that Thornton

correctly concluded that the change of text in the 1983 Constitution

meant that this Court no longer had jurisdiction over non-death-

penalty murder cases and that the Neal concurring opinion’s

conclusion to the contrary is insupportable. Chief Justice Benham’s

concurring opinion in Weatherbed provided the textual analysis

17
supporting Thornton’s conclusion. See Weatherbed, 271 Ga. at 740-

41 (Benham, CJ, concurring). The Neal concurring opinion, on the

other hand, failed to properly engage with the text or apply long-

standing canons of construction. See Middleton v. State, 309 Ga.

337, 345 (3) (846 SE2d 73) (2020) (It is “a core principle of statutory

interpretation that changes in statutory language generally indicate

an intent to change the meaning of the statute.”); Barrow v.

Raffensperger, 308 Ga. 660, 672 (3) (c) (842 SE2d 884) (2020) (“When

constitutional language is substantively changed, we must give that

change effect.”); Olevik v. State, 302 Ga. 228, 236 (2) (c) (i) (2017) (in

interpreting a constitutional provision, “the text is always our

starting point . . . (and often our ending point, as well),” with “the

broader context in which that text was enacted” also serving as a

“critical consideration”). In particular, although the 1983

Constitution provides that this Court has general appellate

jurisdiction in “classes of cases”7 in which a sentence of death “was

7 The special concurring opinion places more analytical weight on
Paragraph III’s “classes of cases” language than it can support. That language

18
imposed or could be imposed,” the Neal concurring opinion

concluded that this Court has jurisdiction of cases in every murder

case, whether or not a sentence of death was ever sought or imposed.

This interpretation renders the “was imposed” language complete

surplusage because the Neal concurring opinion’s construction of

“could be imposed” itself would cover every murder case.8 Thus, we

does not indicate that we should not look to the specific facts and posture of a
case to determine whether it is in one of the relevant classes; indeed, that is
what we have done for decades for other itemized classes. See, e.g., Williford
v. Brown, 299 Ga. 15, 16 (2) (785 SE2d 864) (2016) (whether an action was an
equity case under this Court’s previous jurisdiction depended on the issue
raised by the parties on appeal; “[c]ases in which the grant or denial of
[equitable relief] was merely ancillary to underlying issues of law, or would
have been a matter of routine once the underlying issues of law were resolved,
are not equity cases”) (cleaned up); Arrington v. Reynolds, 274 Ga. 114, 114
(549 SE2d 401) (2001) (case did not fall within Court’s previous title to land
jurisdiction because “plaintiffs do not dispute defendant’s record ownership of
the property—they simply seek to set aside the deed based on improper notice
of the foreclosure proceedings”); In re Estate of Lott, 251 Ga. 461, 461 (306 SE2d
920) (1983) (“We hold that the language ‘all cases involving wills’ [in the 1983
Constitution] means those cases in which the will’s validity or meaning is in
question.”). And the special concurring opinion’s reliance on Ferguson v.
Composite State Bd. of Med. Examiners, 275 Ga. 255 (564 SE2d 715) (2002), is
misplaced. In that case, this Court addressed whether the direct appellate
procedures of OCGA § 5-6-34 or the discretionary application procedures of
OCGA § 5-6-35 controlled in the context of a trial court issuing a mandamus
concerning a subject matter that was covered under the discretionary appeal
statute. See id. at 256-57 (1). That analysis is simply not germane to the
question of the scope of our appellate jurisdiction under Paragraph III (8).
8 In the same way, the construction offered in the special concurring

opinion renders the “was imposed” language surplusage. Even more critically,

19
conclude that Thornton correctly held that a murder case in which

the district attorney has not given timely notice to the defense that

the State intends to seek the death penalty is not a case “in which a

sentence of death was imposed or could be imposed.” 9 See Paragraph

although the special concurring opinion acknowledges that the 1983
Constitution’s language shifts the focus away from the crime and to the actual
or potential punishment, it asserts that the new language essentially focuses
on the same thing – “the nature of the underlying offense and its associated
punishments.” Spec. Conc. Op. at 12-13.
9 In a handful of our cases decided after Neal, we indicated that we had

jurisdiction over a case and cited the Neal concurring opinion in support. As
we have just explained, however, that concurring opinion did not overrule
Thornton or hold that our jurisdiction in the set of murder cases in which a
death sentence actually could no longer be imposed was in fact derived from
Paragraph III (8). We need not overrule those decisions on that point because
they were correct that we had jurisdiction over those cases under Thornton’s
policy. But to the extent that the language of those decisions suggests that our
jurisdiction over those cases came from Paragraph III (8) instead, that
language is disapproved. See, e.g., Garcia-Jarquin v. State, 314 Ga. 555, 555
n.1 (878 SE2d 200) (2022) (explaining that we denied the State’s motion to
transfer the case to the Court of Appeals because the aggravated assault
charge “was brought under the same indictment as the murder charge, and
was obtained in the same trial as the murder conviction”); Brock v. Hardman,
303 Ga. 729, 729 (814 SE2d 736) (2018) (“We conclude that this appeal arises
from an extraordinary remedies case ‘concerning proceedings in which a
sentence of death was imposed or could be imposed,’ and thus we have
jurisdiction under OCGA § 15-3-3.1 (a) (4).”); Henderson v. State, 303 Ga. 241,
244 (1) (811 SE2d 388) (2018) (concluding that we had subject matter
jurisdiction over the appeal of a denial of a post-conviction motion requesting
disclosure of grand jury testimony in a murder case “because the appeal arises
from a case ‘in which a sentence of death was imposed or could be imposed’
under Ga. Const. Art. VI, Sec. VI, Par. III (8)”); WXIA-TV v. State, 303 Ga. 428,
432 (1) n.5 (811 SE2d 378) (2018) (concluding that we had subject matter

20
III (8).

In requesting that we transfer this case to the Court of

Appeals, the State, through the Office of the Attorney General,

raises various policy reasons that counsel against the continued

exercise of this Court’s certiorari jurisdiction over all non-death-

penalty murder appeals in the first instance. We acknowledge that

non-death-penalty murder appeals make up a large percentage of

this Court’s caseload and that the Court of Appeals is well suited to

handle such cases, especially given the Court of Appeals’s increased

size and scope since the time of the Thornton transfer order. We also

acknowledge that, were we to retreat from the ruling this Court

announced in Thornton, certiorari review by this Court would

remain available for murder cases in the same way that it is

available for other cases. See S. Ct. R. 40; Ga. Const. of 1983, Art.

VI, Sec. VI, Par. V. And we are mindful that, if we were to take that

jurisdiction over an appeal from a collateral order in a murder case that
restrained participants in the case from making extrajudicial, public
statements).

21
step, we would have increased capacity to focus on legal questions

with a broader application instead of many of the fact-bound issues

that we currently consider.

However, notwithstanding the merits of the policy

considerations advanced by the State, other competing policy

considerations are at issue as well. Stakeholders in Georgia have for

decades relied on the current state of affairs. For example, both

staffing decisions and numerous procedures of the Court of Appeals

and Supreme Court are based on this Court’s exclusive review of

non-death-penalty murder appeals – such that it would be difficult

to retreat from the Thornton transfer order without proper planning

and coordination. See Garcia-Jarquin, 314 Ga. at 565 (Bethel, J,

concurring) (recognizing the “significant practical impact on the

operations of this Court and the Court of Appeals” if non-death-

penalty murder cases were appealed to the Court of Appeals in the

first instance). Accordingly, we decline to retreat from Thornton’s

transfer order at this time, which is best understood as reflecting a

decision to retain jurisdiction over this and other non-death-penalty

22
murder appeals pursuant to our certiorari jurisdiction. See Murray,

286 Ga. at 266 (2) (b) (Nahmias, J, dissenting) (explaining that “we

may properly take all murder appeals as a categorical exercise of our

longstanding and almost-unlimited certiorari jurisdiction”

(emphasis in original)).

2. Turning to the merits of this appeal, Hart first asserts that

the State failed to adduce sufficient evidence that she had either

express or implied malice to sustain her conviction for malice

murder as a matter of constitutional due process and under state

statutory law. Specifically, she argues that the State failed to

present evidence from which the jury could have inferred malice and

that the only evidence she intentionally participated as a party to

the crime came from Daughtry’s testimony, which Hart contends

was not corroborated in violation of OCGA § 24-8-823 (“All

admissions shall be scanned with care, and confessions of guilt shall

be received with great caution. A confession alone, uncorroborated

by any other evidence, shall not justify a conviction.”).

When assessing the sufficiency of the evidence as a matter of

23
constitutional due process, we view the evidence in the light most

favorable to the verdict and consider whether any rational trier of

fact could have found the defendant guilty beyond a reasonable

doubt of the crime for which she was convicted. See Jackson v.

Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)

(1979). In doing so, “we put aside any questions about conflicting

evidence, the credibility of witnesses, or the weight of the evidence,

leaving the resolution of such things to the discretion of the jury.”

Blocker v. State, 316 Ga. 568, 574 (2) (889 SE2d 824) (2023)

(citations and punctuation omitted).

So viewed, we conclude that the evidence was sufficient to

support Hart’s conviction for malice murder as a party to the crime.

See OCGA § 16-2-20 (a person may be convicted as a party to the

crime if she “[i]ntentionally aids or abets in the commission of the

crime” or “[i]ntentionally advises, encourages, hires, counsels, or

procures another to commit the crime”). In addition to Hart’s

incriminating statements to Daughtry, the testimony from multiple

witnesses showed that Hart was present in the apartment while her

24
daughter was brutally beaten over a significant period of time and

eventually died from her injuries, that Hart gave an inconsistent

statement to one neighbor about Jamila being “sick,” that Hart lied

about Jamila “choking,” and that Hart failed to seek aid for Jamila’s

injuries. See Walker v. State, 308 Ga. 33, 35-36 (1) (838 SE2d 792)

(2020) (evidence sufficient to sustain conviction for malice murder

where child sustained numerous injuries in days leading up to her

death while living with defendant, the injuries were not consistent

with defendant’s explanations, and defendant made an

incriminating statement); Debelbot v. State, 305 Ga. 534, 538 (1)

(826 SE2d 129) (2019) (although evidence was circumstantial as to

which parent committed the crimes, it was legally sufficient to

support both the mother and father’s convictions for the malice

murder of their infant as a party to the crimes).

To the extent Hart argues lack of sufficiency as a matter of

Georgia statutory law for failure to corroborate her confession to

Daughtry under OCGA § 24-8-823, this argument fails. We are

skeptical that Hart’s statements to Daughtry constituted a

25
confession rather than admissions, but even assuming that they are,

her statements were corroborated by other evidence, including

testimony from multiple witnesses that Hart was present in the

apartment when Jamila was found dead, that Jamila’s injuries were

severe and inflicted over a period of time that Hart was present in

the apartment, and Hart’s false explanation at the scene that Jamila

had choked. See Baker v. State, 319 Ga. 456, 460-61 (1) (902 SE2d

645) (2024) (appellant’s alleged confession was sufficiently

corroborated by evidence, including circumstances under which the

victims were discovered and evidence of appellant’s consciousness of

guilt); Hooper v. State, 313 Ga. 451, 455-56 (1) (870 SE2d 391) (2022)

(“[N]o specific manner of corroboration of the confession is required,

and corroboration in any particular is sufficient.” (citation and

punctation omitted)); McMullen v. State, 300 Ga. 173, 174 (1) (794

SE2d 118) (2016) (“An admission differs from a confession in that a

confession acknowledges all of the essential elements of the crime.”

(citation and punctuation omitted)).

3. Hart also raises several claims of ineffective assistance of

26
counsel. To succeed on these claims, Hart must prove both that her

counsel’s performance was deficient and that the deficient

performance prejudiced her. See Strickland v. Washington, 466 U.S.

668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To show deficient

performance, Hart must demonstrate that her counsel performed “in

an objectively unreasonable way, considering all of the

circumstances and in the light of prevailing professional norms.”

Troutman v. State, 320 Ga. 489, 494 (3) (910 SE2d 173) (2024)

(citation and punctuation omitted). As to the prejudice prong, Hart

“must show that there is a reasonable probability that, but for

counsel’s unprofessional error, the result of the proceeding would

have been different.” Id. (citation and punctuation omitted). “This

burden, though not impossible to carry, is a heavy one.” Hayes v.

State, 320 Ga. 505, 514 (3) (910 SE2d 198) (2024) (citation and

punctuation omitted). If a defendant fails to establish either one of

these two prongs, we need not examine the other. See Summerville

v. State, 320 Ga. 60, 61 (2) (907 SE2d 604) (2024).

(a) Hart first asserts that trial counsel performed deficiently

27
when she failed to impeach Glover’s testimony that Glover only

spanked Jamila one time and “never admitted to the crime of

murder.” Hart argues that trial counsel should have impeached this

testimony with Glover’s final disposition following her plea

agreement and certain of Glover’s pretrial statements to detectives,

including that she could not say how many times she had spanked

Jamila, but each time was ten to fifteen seconds; that after the first

“butt-whooping” Glover’s hands were so swollen that she switched

to a paddle; that her goal was to hit Jamila four to five times per

spanking; and that Jamila fell and bumped her head during the

second beating. Hart also argues that trial counsel should have

impeached Glover’s testimony with a separate recorded statement,

in which Glover told Hart, “This is me. Everything. This is me. I did

it. . . . I took your daughter’s life. . . . I killed a kid. . . . I know I took

your baby. . . . This is my fault. . . . I’m taking responsibility for

every bruise, scratch, bump. Anything that kid has, that’s me.” We

are not persuaded.

“Generally, a matter of reasonable trial strategy and tactics

28
does not constitute ineffective assistance of counsel, and hindsight

has no place in an assessment of the performance of trial counsel.”

Bryant v. State, 306 Ga. 687, 697 (2) (c) (832 SE2d 826) (2019)

(citation and punctuation omitted). And “[t]he decision whether to

impeach a witness is a matter of trial strategy that typically will not

support a claim of ineffective assistance.” Dinkins v. State, 300 Ga.

713, 716 (4) (b) (797 SE2d 858) (2017) (citation and punctuation

omitted).

We first note that, despite Hart’s characterization that Glover

never admitted to the murder, Glover did admit at trial that she was

serving a life sentence in prison after pleading guilty to Jamila’s

murder. And many of the statements Hart argues should have been

used to impeach Glover’s testimony were consistent with portions of

Daughtry’s testimony, including that Glover repeatedly beat Jamila

with a piece of wood; that Glover “lost it”; and that Glover continued

to hit Jamila with the wooden board until “[t]he board broke.” Thus,

it was a reasonable trial strategy to allow Glover to testify, without

objection, to Glover’s abuse of Jamila because counsel could use that

29
testimony and portions of Daughtry’s testimony in an attempt to

show that Glover, rather than Hart, was responsible for the murder.

In addition, the record shows that Glover was an unpredictable

and hostile witness who could have easily caused harm to Hart’s

case by implicating Hart in the murder had trial counsel attempted

to impeach her testimony. Before Glover was called as a witness, the

trial court spoke with Glover outside the presence of the jury about

her apparent unwillingness to testify. Although Glover reiterated

that she did not want to testify, the trial court ordered her to do so

because she had already pleaded guilty to the indictment concerning

the charges for which Hart was on trial.

At the motion for new trial hearing, trial counsel explained

that she was not able to speak with Glover prior to trial and that

Glover became a “very, very combative” witness and “was going into

areas that [she] did not want her bringing up.” 10 When Glover began

10 Trial counsel testified that Hart’s and Glover’s romantic relationship

“carried on even while they were incarcerated,” but by the time the trial began,
“one of them had gotten a new girlfriend, and the relationship ha[d] been
falling apart.”
30
to deviate from her prior statements and downplayed her actions, it

became clear to trial counsel that Glover could cause more harm

than good, so she “cut her short.” Trial counsel was concerned that

Glover would recant “her statement to the police that maybe Hart

wasn’t involved [in the murder].” Under these circumstances, we

cannot say that Hart has “overcome the strong presumption that

counsel’s performance fell within a wide range of reasonable

professional conduct.” Wright v. State, 314 Ga. 355, 357 (877 SE2d

178) (2022) (citation omitted). Accordingly, this claim of ineffective

assistance fails. See Mitchell v. State, 308 Ga. 1, 9 (2) (e) (838 SE2d

820) (2020) (decision of whether to impeach a witness through

introduction of certified copies of prior convictions is a matter of trial

strategy); McDuffie v. State, 298 Ga. 112, 115-116 (2) (779 SE2d 620)

(2015) (appellant failed to demonstrate trial counsel’s “strategic

decision not to call” a potential witness was “entirely unreasonable”

where trial counsel thought potential witness would be “more

harmful than helpful” (citation and punctuation omitted)).

(b) In a related claim, Hart asserts that trial counsel performed

31
deficiently by failing to introduce two video recordings of Glover’s

pretrial statements to detectives in order to impeach Glover’s trial

testimony and to contradict harmful testimony from Hart’s

neighbors that Hart did not cry or seem upset following Jamila’s

death. Again, we are not persuaded.

At the motion for new trial hearing, trial counsel testified that,

although she could have played the video recordings, there “was

some reason” that she did not want to play them for the jury, but

she could not remember the specific reason. She also explained that

she did not want to give the State the opportunity to play portions

of the recording that were not helpful. Although trial counsel could

not recall each reason why she chose not to play the recordings, our

review of the record reveals several objective reasons counsel could

have chosen to forgo using this evidence. See Lane v. State, 312 Ga.

619, 623 (2) (a) (864 SE2d 34) (2021) (“[W]e are not limited in our

assessment of the objective reasonableness of lawyer performance to

the subjective reasons offered by trial counsel for his conduct.”

(citation and punctuation omitted)).

32
In the first recording, Glover, who appeared very emotional

during many parts, made numerous statements minimizing the

spankings that she gave Jamila. And several times she referenced

Hart’s role in disciplining Jamila, including that “mommy (Hart)

does most of the discipline, but if it gets too bad” Glover will handle

it. She also told detectives, “We had a belt”; “We broke the belt”; “We

went with the paddle”; and “We got a system.” Glover also repeatedly

referred to Hart’s presence that day, noting that Hart would come

in and ask if Jamila had eaten; that Glover kept spanking Jamila

because Jamila was lying about the fight with her little sister and

Hart “really wanted to know what happened [to cause the fight]”;

that Glover told Jamila she needed to tell the truth because

“Mommy is crying because you’re getting a spanking”; and that she

and Hart talked about how “we need to stick our ground . . . we need

to follow through.” Moreover, parts of this recording corroborated

Hart’s admissions to Daughtry, including that Hart had walked in

on Glover in the bathroom with Jamila; that Hart had applied

ointment on Jamila; and that Glover had used a wooden slat and

33
thrown it in the trash before officers arrived.

The second recording is of Glover and Hart in a room without

any detectives. For most of the recording, Hart is very still and quiet,

whereas Glover began loudly crying and vomiting when she walked

in and saw Hart. The two women spent most of the recording

whispering to each other in an apparent effort to coordinate their

stories. Hart told Glover that she told the detectives that she had

“whooped her butt four times and . . . put her in the corner and . . .

explained to her what she did wrong and why.” At one point, Glover

said, “I don’t know how long you were talking, I took over because I

needed to issue a spanking.” Then, Glover told Hart, “The second

time was when you came back in, she gave me a different story. You

remember when you came in. . . . You told me she gave a different

story, so I spanked her butt for the different story.” Glover repeated,

“Like I told the officers, usually we do a little bit and then we give

up and I felt like today we needed to push through because I didn’t

want it to be a recurrent thing.”

Hart has not shown that no reasonable attorney would have

34
decided against the risk of opening the door to the highly

incriminating parts of these recordings by introducing them to

impeach Glover’s testimony. Accordingly, this ineffective assistance

claim fails. See Castillo-Velasquez v. State, 305 Ga. 644, 651-52 (3)

(827 SE2d 257) (2019) (ineffective assistance claim failed where trial

counsel correctly recognized that the State could have sought to

admit unfavorable portions of the medical records under the rule of

completeness had counsel sought to introduce only the favorable

portions); Miller v. State, 296 Ga. 9, 12 (4) (a) (764 SE2d 823) (2014)

(trial counsel’s strategic decision not to call a witness that could

have opened the door to harmful evidence did not amount to

ineffective assistance).

(c) Hart also asserts that her trial counsel performed

deficiently by failing to impeach Dr. Sobel’s testimony that Jamila

was “tortured” by introducing Jamila’s medical records from the

months preceding her death.

At the motion for new trial hearing, trial counsel testified that

she did not believe that there was anything relevant in Jamila’s

35
medical records that would have been helpful to her defense. She

also made a strategic decision not to minimize Jamila’s injuries,

which were admittedly “brutal,” but decided instead “to face them

head-on” and point to Glover as the perpetrator. We cannot say that

this strategy was “so patently unreasonable that no competent

attorney would have followed such a course.” Davis v. State, 299 Ga.

180, 183 (2) (787 SE2d 221) (2016) (citation and punctuation

omitted)).

The medical records that Hart asserts should have been

admitted are from pediatric visits in May and June 2014 that

focused on Jamila’s suspected allergy-related asthma. Hart has not

shown how this information would have “impeached” Dr. Sobel’s

testimony that Jamila died a painful death – several months later –

over the course of hours from blunt-force trauma. Accordingly, this

ineffective assistance of counsel claim fails. See Morrison v. State,

303 Ga. 120, 125-26 (5) (b) (810 SE2d 508) (2018) (no deficiency in

counsel’s failure to introduce medical-records evidence where

counsel testified that the records would not have had any significant

36
bearing one way or the other on the trial).

(d) Hart also argues that the combined effect of trial counsel’s

deficient performance requires the grant of a new trial. Because we

have identified no instances of deficient performance to cumulate,

this claim fails. See Roseboro v. State, 308 Ga. 428, 437-38 (2) (c)

(841 SE2d 706) (2020) (“Given that neither of [appellant’s]

enumerations of error amount to deficient performance on the part

of trial counsel, [his] argument that the cumulative harm of these

failures . . . affected the outcome of trial is without merit.” (citation

and punctuation omitted)).

4. Hart argues that the trial court erred when it failed to

instruct the jury on confession corroboration. As Hart concedes,

because she did not object to the omission of this instruction, we

review this claim for plain error. See OCGA § 17-8-58 (b).

To establish plain error, Hart must show that (1) the alleged

instructional error was not affirmatively waived; (2) was clear and

obvious, rather than subject to reasonable dispute; (3) likely affected

the outcome of the trial; and (4) seriously affected the fairness,

37
integrity, or public reputation of judicial proceedings. See Holloway

v. State, 320 Ga. 653, 659 (3) (911 SE2d 543) (2025). “An appellant

must establish all four elements of the test in order to demonstrate

plain error, so satisfying this test is difficult, as it should be.” Id.

(citation omitted).

As noted in Division 2, we are skeptical that Hart’s statements

to Daughtry – including that Hart had held Jamila’s arms over her

head so that Jamila could not move while Glover repeatedly beat

Jamila with a piece of wood; that Hart never asked Glover to stop

even though Glover “lost it” and continued to hit Jamila until “[t]he

board broke”; and that Hart left Jamila passed out on the bed –

constituted a confession rather than an admission. See Thomas v.

State, 308 Ga. 26, 30 (2) (b) (838 SE2d 801) (2020) (“A mere

incriminating statement is made where the accused, though

admitting to damaging circumstances, nonetheless attempts to deny

responsibility for the crime charged by putting forward exculpatory

or legally justifying facts.” (cleaned up)). However, even assuming

that Hart’s statements constituted a confession, Hart cannot show

38
that the omission of a confession-corroboration charge likely affected

the outcome of the trial. As summarized above, there was sufficient

corroboration of Hart’s statements to Daughtry, including Dr.

Sobel’s testimony regarding the extent of Jamila’s injuries inflicted

over a period of time, Hart’s false statements that Jamila had

“choked,” multiple neighbors’ testimony that Hart was present in

the apartment when they arrived to assist Jamila, and Freddie

Johnson’s testimony that earlier in the day, Hart claimed to him

that Jamila was sick. Thus, Hart cannot show plain error. See Davis

v. State, 316 Ga. 418, 423 (3) (888 SE2d 546) (2023) (where there

was ample, strongly inculpatory corroborating evidence at trial,

appellant could not satisfy the third prong of the plain-error test).

5. Hart also asserts that the State failed to correct Glover’s

testimony that she had “never admitted to the crime of murder,”

even though the State knew this testimony to be false, citing Napue

v. Illinois, 360 U.S. 264, 269 (79 SCt 1173, 3 LE2d 1217) (1959) (“[A]

conviction obtained through use of false evidence, known to be such

by representatives of the State, must fall under the Fourteenth

39
Amendment[.]”). This enumeration fails for several reasons.

“To establish a Napue violation, a defendant must show that

the prosecution knowingly solicited false testimony or knowingly

allowed it to go uncorrected when it appeared.” Glossip v. Oklahoma,

604 U.S. ___, ___ (III) (A) (145 SCt 612, 221 LE2d 90) (2025) (citation

and punctuation omitted). Even if a defendant makes this showing,

a new trial is warranted only if the false testimony “may have had

an effect on the outcome of the trial . . . that is, if it in any reasonable

likelihood could have affected the judgment of the jury.” Id. (citation

and punctuation omitted).

We see no Napue violation for several reasons. First, Glover

was not called as a witness by the State but by Hart. 11 And it is not

at all clear that this principle applies to a defense witness on direct

examination. See United States v. McNair, 605 F3d 1152, 1208 (IX)

(2010) (“When a government lawyer elicits false testimony that goes

to a witness’s credibility, we will consider it sufficiently material to

warrant a new trial only when the estimate of the truthfulness and

11 In fact, the State did not even cross-examine Glover at trial.

40
reliability of the given witness may well be determinative of guilt or

innocence.” (emphasis supplied; citation and punctuation omitted));

Daniels v. State, 349 Ga. App. 681, 684-85 (3) (824 SE2d 754) (2019)

(“A defendant’s right to due process is violated when a prosecutor

fails to correct the false testimony of a government witness.”

(emphasis supplied; citing United States v. Clark, 442 Fed. Appx.

540, 543-44 (II) (11th Cir. 2011)).

Even assuming that Napue applies under these circumstances,

we do not see there is a “reasonable likelihood [that the alleged false

testimony] could have affected the judgment of the jury.” Glossip,

604 U.S. at ___. Although Glover was uncooperative as a defense

witness and attempted to downplay her role, she admitted at trial

that she was serving a life sentence in Pulaski State Prison for

pleading guilty to Jamila’s murder. Thus, it is highly doubtful that

any attempt by the State to correct Glover’s statement that she

“never admitted to the crime of murder” would have affected the

judgment of the jury. See Smith v. State, 320 Ga. 825, 838 (2) (912

SE2d 563) (2025) (“A determination of materiality [under Napue]

41
requires an examination of the statements at issue in the context of

the entire record.”); DeLoach v. State, 308 Ga. 283, 294-95 (3) (840

SE2d 396) (2020) (rejecting appellant’s claim under Napue and

concluding that the false statement was not material where it would

have been in the State’s interest to correct the witness’s statement

and the witness’s credibility was otherwise undermined at trial).

Moreover, the State’s theory throughout the trial was that

Glover and Hart together caused Jamila’s death, not that Hart was

solely responsible. Thus, Hart has not shown how the State allegedly

used testimony from Glover that she had not admitted to committing

the murder in the State’s case against Hart, and we have found no

instances of the State using this evidence to argue that Hart was

solely responsible for the murder.12 See Wimes v. State, 293 Ga. 361,

363 (3) (744 SE2d 787) (2013) (“[C]onviction of a crime following a

trial in which perjured testimony on a material point is knowingly

12 Although the opening statements and closing arguments were not
transcribed, the prosecutor testified at the motion for new trial hearing that
the State’s theory of the case was that Glover and Hart “joined together and
beat four-year-old Jamila to death.”
42
used by the prosecution is an infringement on the accused’s Fifth and

Fourteenth Amendment rights to due process.” (emphasis supplied;

citation and punctuation omitted)); United States v. Kallen-Zury,

629 Fed. Appx. 894, 898 (II) (11th Cir. 2015) (“[A] State may not

knowingly use false evidence, including false testimony, to obtain a

tainted conviction[.]” (emphasis supplied; citation and punctuation

omitted)); McNair, 605 F3d at 1208 (IX) (“To establish prosecutorial

misconduct for the use of false testimony, a defendant must show

the prosecutor knowingly used perjured testimony, or failed to correct

what he subsequently learned was false testimony, and that the

falsehood was material.” (emphasis supplied)). Accordingly, this

enumeration of error fails.

6. Lastly, Hart argues that the cumulative harm from each of

the above enumerations of error requires the grant of a new trial.

However, because we have only assumed one possible error, i.e., that

the trial court failed to give a confession-corroboration charge, there

cannot be any cumulative error that would require a new trial. See

Thomas v. State, 311 Ga. 573, 579 (6) (858 SE2d 504) (2021)

43
(cumulative error analysis does not apply when there are not

multiple errors to consider cumulatively).

Judgment affirmed. Peterson, CJ, Warren, PJ, and Bethel,
Ellington, Colvin, and Pinson, JJ, concur. LaGrua, J, concurs
specially in part.

44
PINSON, Justice, concurring.

I join the Court’s decision in full, including the conclusion that

the policy this Court adopted in Thornton v. State remains in force

at this time. In particular, given this Court’s limited appellate

jurisdiction, I agree that the only understanding of Thornton that

makes sense is that it is a policy decision to grant certiorari review

in each case in the class of murder cases not already covered by

Paragraph III (8) once the case is appealed. I write separately to

make clear that this policy decision, particularly as it has evolved

over time, should not be understood as reflecting the scope of our

certiorari jurisdiction as a general matter.

The Georgia Constitution grants this Court jurisdiction to

“review by certiorari cases in the Court of Appeals which are of

gravity or great public importance.” Ga. Const. of 1983 Art. VI, Sec.

VI, Par. V. The Thornton policy as it currently stands departs from

the proper understanding of our certiorari jurisdiction in two ways.

First, that policy is not consistent with our longstanding

construction of the standard for granting review by certiorari. That

45
standard asks whether a case is “of gravity or great public

importance.” Id. Although we have expansive discretion to

determine whether that standard applies in a given case, we have

generally understood and applied it to exclude review “merely to

correct an asserted error, particularly when the asserted error

concerns only the sufficiency of evidence, the correctness of factual

findings, or the application of a properly stated rule of law to the

facts of a particular case.” See Ga. S. Ct. R. 40 (1). See also Mobuary

v. State, 312 Ga. 337, 341 (862 SE2d 553) (2021) (Nahmias, CJ,

dissenting) (“[T]his Court routinely sees petitions for certiorari that

identify errors made by the Court of Appeals, including case-

dispositive errors that are always of importance to the petitioners

who lost in that court but often present no issue of ‘gravity or great

public importance,’ which is why we also routinely deny those

petitions.”); Central of Georgia Ry. Co. v. Yesbik, 146 Ga. 620, 621-

622 (91 SE 873) (1917) (addressing the 1916 constitutional

amendment granting the certiorari power and explaining that the

Court “should be chary of action in respect to certiorari, and should

46
not require by certiorari any case to be certified from the Court of

Appeals for review and determination, unless it involves gravity and

importance”). But many of the cases in the class of murder cases not

already covered by Paragraph III (8) — the class of cases we decided

in Thornton to review as a policy matter — simply do not meet that

standard as we have applied it to every other case in which a party

petitions our court for certiorari. That said, we have continued to

apply the well-settled construction of this standard after Thornton,

and that construction, not the relaxed one implicit in Thornton’s

policy, remains the proper construction of the standard for granting

certiorari.

Second, as the Thornton policy has evolved in practice, it may

have deviated from our certiorari jurisdiction in another way. That

jurisdiction is limited to review of “cases in the Court of Appeals.”

Ga. Const. of 1983 Art. VI, Sec. VI, Par. V (emphasis added). The

Thornton policy itself was consistent with this language at the time

we adopted it: we directed the Court of Appeals to transfer these

cases to us after they were docketed in the Court of Appeals. But

47
these days, appeals from murder cases are uniformly docketed

directly in our Court without making a stop in the Court of Appeals,

likely as a matter of judicial economy. If a case has never been “in”

the Court of Appeals, however, there is a serious argument that our

certiorari jurisdiction does not extend to that case. See William Tidd,

The Practice of the Court of King’s Bench 329 (3d ed. 1803)

(describing how, at common law, a writ of certiorari “lieth where the

king would be certified of any record which is in” the lower court

(emphasis added)); Ga. Const. of 1798 Art. III, Sec. I (giving superior

courts “power to correct errors in inferior judicatories by writs of

certiorari” (first italics added)); Ga. L. 1916 at 19 (amending the

constitution to grant the Supreme Court the power to issue writs of

certiorari for the first time, which allowed a case “to be certified . . .

from the Court of Appeals for review” (emphasis added)). 13 That

13 Of course, if we were to determine that these cases are not properly

docketed in our Court directly, the remedy would be to transfer the case to the
Court of Appeals, see OCGA § 5-3-13 (b), which would then, in keeping with
the Thornton policy, transfer the case back to us. My point here is merely that
the Thornton policy does not reflect the way our certiorari jurisdiction works
as a general matter.

48
straightforward understanding of our certiorari jurisdiction is

neither addressed nor foreclosed by today’s decision or the practice

of docketing Thornton-policy cases in our Court without a stop in the

Court of Appeals.

Because I do not understand the Court’s decision to be

inconsistent with these views, I join it in full.

49
LAGRUA, Justice, concurring specially.

In Division (1) of today’s decision, a majority of the Court takes

the position “that Thornton correctly concluded that the change of

text in the 1983 Constitution meant that this Court no longer had

jurisdiction over non-death penalty murders cases[,]” and

disapproves of language used in a handful of decisions that asserted

appellate jurisdiction consistent with Thornton’s transfer order “to

the extent that the language of those decisions suggests that our

jurisdiction over those cases came from Paragraph III (8) instead[.]”

See Maj. Op. at -- and n.-. I disagree and see a sound basis for our

appellate jurisdiction in some non-death penalty murder cases

under the Constitution of Georgia of 1983, Article VI, Section VI,

Paragraph III (8). However, because I concur with the majority

opinion that a separate basis for our appellate jurisdiction also

exists under the Constitution of Georgia of 1983, Article VI, Section

VI, Paragraph V, and it is on that basis which the majority opinion

asserts jurisdiction before reaching the correct judgment in this

case, I concur specially as to Division (1).

50
Our Constitution provides, among other jurisdictional bases,

that the Supreme Court “shall have appellate jurisdiction” in eight

specified “classes of cases” “unless otherwise provided by law.” Ga.

Const. of 1983, Art. VI, Sec. VI, Par. III. Among those eight classes

of cases are “[a]ll cases in which a sentence of death was imposed or

could be imposed.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (8)

(hereinafter “Paragraph III (8)”). Members of this Court have

debated the extent of our jurisdiction under Paragraph III (8) for

nearly half a century, beginning with State v. Thornton, 253 Ga. 524,

524 (1) (322 SE2d711) (1984). There, the State appealed an

unfavorable pre-trial suppression ruling in a murder case to the

Court of Appeals which, in turn, transferred the appeal to this

Court. Id. Faced with our first opportunity to interpret the newly

enacted language of Paragraph III (8), we failed to interpret the

constitutional language at all. See id. Instead, we summarily

concluded:

The district attorney did not give timely notice to the
defense that the state intended to seek the death penalty
. . . and for this reason this is not a case “in which a

51
sentence of death was imposed or could be imposed.”
Constitution of Georgia of 1983, Art. VI, Sec. VI. Par. III
(8). Hence, this appeal was filed properly in the Court of
Appeals.

Id. We then said: “As a matter of policy, however, we deem it

appropriate, at the present time, that all murder cases be reviewed

by this court.” Id. And, to effectuate our sua sponte policy

determination, we entered an order directing the Court of Appeals

to “transfer to the Supreme 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[.]”

Id. The Thornton transfer order has been rightly criticized by my

colleagues past and present. See, e.g., State v. Murray, 286 Ga. 258,

266 (2) (a) (687 SE2d 790) (2009) (Nahmias, J, dissenting)

(describing Thornton’s “troubling” policy-based jurisdictional

holding as “a proposition seemingly at odds with the fundamental

principle[s] underlying our democratic system of government”). Yet,

today’s decision “decline[s] to retreat from Thornton’s transfer

52
order[.]” Maj. Op. at --.14

Underpinning Thornton’s policy-based transfer order was the

conclusion – unsupported by any textual analysis – that we lacked

jurisdiction to entertain the appeal because the case before us was

not one “in which a sentence of death was imposed or could be

imposed.” 253 Ga. at 524 (1) (citing Paragraph III (8)). And the only

reason for that, per the Thornton Court, was because the district

attorney prosecuting Thornton did not timely give notice of the

State’s intent to seek the death penalty – a requirement under the

Unified Appeal Procedure if the death penalty is to be sought in a

particular case. Id. 15 In other words, the death penalty could not be

14 I concur with the majority opinion to the extent it concludes that we

may “retain jurisdiction over this and other non-death-penalty murder appeals
pursuant to our certiorari jurisdiction.” See Ga. Const. of 1983, Art. VI, Sec.
VI, Par. V (hereinafter, “Paragraph V”). However, the majority opinion
suggests in error that Thornton “is best understood as reflecting” that
conclusion. See Maj. Op. at --. Thornton made no mention of Paragraph V, and
then-Justice Nahmias’s concurrence in Murray is the impetus for the idea that
Thornton’s jurisdictional holding “can be supported” by Paragraph V. See 286
Ga. at 266 (b) (2). The fact that Paragraph V can support Thornton’s
questionable holding does not mean Thornton itself stands for that proposition.
15 The Unified Appeal Procedure, promulgated by this Court consistent

with OCGA § 17-10-36 (a) and (b), requires prosecuting attorneys to “state
whether he or she intends to seek the death penalty[,]” during the “First

53
sought (or ultimately, imposed) against Thornton in that particular

case because the district attorney did not give timely notice of the

State’s intent to do so. According to the Thornton Court, this case-

specific fact, wholly unrelated to the nature of the underlying offense

or its associated penalties, meant that we lacked appellate

jurisdiction under Paragraph III (8).

Today’s decision does not attempt to defend Thornton’s

jurisdictional analysis with respect to Paragraph III (8) – nor could

it. Instead, it relies on former Chief Justice Benham’s special

concurrence in Weatherbed v. State to carry the day. See 271 Ga.

736, 739-741 (524 SE2d 452) (1999) (Benham, CJ, concurring

specially). According to the majority opinion, that one-justice

writing “provided the textual analysis supporting Thornton’s

conclusion[,]” See Maj. Op. at --. While I am unpersuaded by former

Chief Justice Benham’s textual analysis for the reasons set out

Proceeding,” which is to be held “[a]t the earliest possible opportunity after
indictment and before arraignment[.]” See Unified Appeal Procedure, Rule II
(C) (1) (accessible at https://www.gasupreme.us/other-codes-rules/) (last visited
June 11, 2025). See also Georgia Uniform Superior Court Rule 34.
54
below, I fully agree with the foundational point at its heart: “From

the addition of new language, we presume that some change in

existing law was intended.” Weatherbed, 271 Ga. at 739 (Benham,

CJ, concurring specially) (citing Balest v. Simmons, 201 Ga. App.

605 (1) (a) (411 SE2d 576) (1991)). See Barrow v. Raffensperger, 308

Ga. 660, 672 (3) (c) (842 SE2d 884) (2020) (“When constitutional

language is substantively changed, we must give that change

effect.”). Certainly, the change in relevant constitutional text from

the 1976 Constitution (and its predecessors) to the current and

operative 1983 Constitution must mean something. I am just not

convinced that the change in language resulted in the change in

meaning described by former Chief Justice Benham and echoed by

today’s decision. Allow me to explain.

As an initial matter, former Chief Justice Benham’s special

concurrence appears to begin from a faulty premise as it relates to

the pre-1983 jurisdictional regime. That special concurrence posits

that, “[i]n State v. Thornton . . . this Court recognized that the 1983

Constitution’s grant to this Court of jurisdiction over ‘cases in which

55
a sentence of death was imposed or could be imposed’ does not

embrace all murder cases, as the previous statement of jurisdiction

had.” Weatherbed, 271 Ga. at 739 (Benham, CJ, concurring

specially) (citing Collins v. State, 239 Ga. 400 (2) (236 SE2d 759)

(1977)) (emphasis supplied). See also id. at 741 (describing

Thornton’s transfer order to have “continued the jurisdictional line

drawn by the 1976 Constitution”). But this Court’s jurisdiction did

not “embrace all murder cases” before 1983. Instead, we had

jurisdiction in all “cases of conviction of a capital felony.” 16 See Ga.

Const. of 1976, Art. VI, Sec. II, Par. IV; Ga. Const. of 1945, Art. VI,

Sec. II, Par. IV; Garcia-Jarquin, 314 Ga. at 557-558 (Bethel, J,

concurring) (observing consistency in jurisdictional language used

16 In Collins, we reiterated our longstanding view that “the expression

‘capital felony,’ when used in our law, is merely descriptive of those felonies to
which the death penalty is affixed as a punishment under given circumstances
to distinguish such felonies from that class in which under no circumstances
would death ever be inflicted as a penalty for the violation of the same.” See
239 Ga. at 402 (2) (citing Caesar v. State, 127 Ga. 710, 712 (57 SE 66) (1906)).
Therefore, in light of the United States Supreme Court’s decision in Coker v.
Georgia, 433 U.S. 584 (97 SCt 2861; 53 LEd2d 982) (1977), and our precedent
in Gregg v. State, 233 Ga. 117 (210 SE2d 659) (1974), we held in Collins that
convictions for rape, kidnapping, and armed robbery (where the victim is not
killed) “are no longer convictions of capital felonies for appellate jurisdictional
purposes[.]” 239 Ga. at 402-403 (2).
56
in the 1945 and 1976 Constitutions) (citations omitted).17 While the

former “cases of conviction of a capital felony” language was in effect,

our appellate jurisdiction turned on two considerations: (1) whether

the case at issue involved a capital felony offense (like murder), and

(2) whether the case at issue that involved that capital felony offense

(like murder) resulted in a conviction. Thus, in the “cases of

conviction of a capital felony” era, we did not have jurisdiction in “all

murder cases” because pre-conviction appeals in capital felony cases

were properly had in the Court of Appeals. See, e.g., Robinson v.

State, 209 Ga. 48, 48-49 (1), (3) (70 SE2d 514) (1959) (transferring

appeal from writ of error in rape case to Court of Appeals for lack of

jurisdiction because “there has been no trial, and the Supreme Court

has jurisdiction in criminal cases as such only when there has been

a conviction of a capital felony”) (citations omitted); McCrary v.

State, 215 Ga. 887, 889 (1) (114 SE2d 133) (1960) (“The mere fact

17 See also Neal v. State, 290 Ga. 563, 567-568 (722 SE2d 765) (2012)

(Hunstein, CJ, concurring) (explaining that “all cases of conviction of a capital
felony” were first conferred upon this Court for jurisdictional purposes after
creation of the Court of Appeals in 1906) (citations omitted).
57
that a capital offense is charged in an indictment does not give this

court jurisdiction of a criminal case, but there must be a conviction

of a capital felony.”) (citation omitted; emphasis in original); Spell v.

State, 225 Ga. 237, 237 (167 SE2d 642) (1969) (transferring appeal

to Court of Appeals for lack of jurisdiction because “there had been

no trial upon the murder charge” and the case had not yet resulted

in a conviction); State v. Watson, 143 Ga. App. 785, 785 (240 SE2d

194) (1977) (asserting jurisdiction over appeal from pre-trial

suppression ruling), disapproved on other grounds, State v.

Strickman, 253 Ga. 287, 287 (319 SE2d 864) (1984); State v. Dubose,

161 Ga. App. 144, 145-146 (291 SE2d 39) (1982) (same). See also,

Murray, 286 Ga. at 265 n.9 (2) (a) (Nahmias, J, concurring)

(observing that “only appeals from capital felony convictions” were

within this Court’s jurisdiction under the pre-1983 Constitutions)

(emphasis in original).

In addressing Thornton’s jurisdictional holding, former Chief

Justice Benham explained his view “that the 1983 Constitution did

not give this Court appellate jurisdiction of an appeal wherein the

58
defendant, though charged with murder, could not receive the death

penalty.” 271 Ga. at 740 (Benham, CJ, concurring specially). After

pointing to Rhyne v. State, 264 Ga. 176, 177 (442 SE2d 742) (1994)

as an instance of this Court’s “continued” recognition of Thornton’s

case-specific and fact-bound jurisdictional approach, 18 he then set

out his reading of the 1983 constitutional language:

Given the use of the past tense, the phrase “cases in which
a sentence of death was imposed,” can only mean cases in
which a defendant has been sentenced to death as a result
of the judgment of conviction being appealed. The phrase
“or could be imposed,” on the other hand, speaks to the
future and is applicable to those cases in which the
possibility of the imposition of the death penalty still
exists. Under current Georgia law, that would encompass
the interim review phase of death penalty cases authored
by the Unified Appeal Process (Uniform Superior Court
Rule 34), and interlocutory appeals in cases where the
defendant has been charged with a crime punishable by
death and the time within which the district attorney
must give notice of intent to seek the death penalty has
not yet expired. See USCR 34.

18 Justice Nahmias observed in his Neal concurrence that, as of 2012,

Rhyne was “the only case in which we have directly applied [Thornton’s]
holding.” 290 Ga. at 573 (Nahmias, J, concurring) (citation omitted). See also,
Murray, 286 Ga. at 265 n.9 (2) (a) (pointing to Rhyne as an example of a case
“follow[ing] that holding”) (citation omitted). Much like Thornton, the
jurisdictional holding in Rhyne is unsupported by any textual analysis. See 264
Ga. at 177. To date, most – if not all – of our cases relying upon Thornton as
the basis for this Court’s jurisdiction do so under the guise of its policy-based
transfer order.
59
Weatherbed, 271 Ga. at 740-741 (Benham, CJ, concurring specially).

My primary concern with former Chief Justice Benham’s view

is that it does not consider the full text of Paragraph III. See Elliott

v. State, 305 Ga. 179, 186 (II) (B) (824 SE2d 265) (2019) (“[W]hen we

determine the meaning of a particular word or phrase in a

constitutional provision or statute, we consider text in context, not

in isolation.”) (citation omitted).19 Specifically, his approach failed to

give effect to the key organizing and structural principle of

Paragraph III, which confers upon this Court appellate jurisdiction

in specified “classes of cases.” Instead, his textual analysis looked to

Paragraph III (8) in isolation. 20

19 See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 167 (2012) (“Perhaps no interpretive fault is more
common than the failure to follow the whole-text canon, which calls on the
judicial interpreter to consider the entire text, in view of its structure and of
the physical and logical relation of its many parts.”) (citation omitted; emphasis
supplied).
20 I agree with former Chief Justice Benham and my colleagues that the

sum class of “cases in which a sentence of death was imposed or could be
imposed” is properly interpreted as two sub-classes of a greater whole. See
Weatherbed, 271 Ga. at 740-741 (Benham, CJ, concurring) (taking a bifurcated
approach in examining the text of Paragraph III (8)); Garcia-Jarquin, 314 Ga.
at 564 (Bethel, J, concurring) (observing that “the language of the 1983

60
In Justice Bethel’s concurrence in Garcia-Jarquin, he

articulated a view that the 1983 Constitution “changed the

jurisdictional definition from the crime (capital felonies) to the

punishment (cases in which a sentence of death was imposed or

could be imposed).” 314 Ga. at 558 (Bethel, J, concurring). It is also

plain to me that the sum class of cases specified in Paragraph III (8)

now speaks in terms of actual or possible punishment (as opposed to

speaking in terms of the crime at issue), and that it is the

punishment of death, either in actuality (“was imposed”) or

possibility (“could be imposed”), which is the trigger for our

jurisdiction. 21 In my view, however, ascertaining whether the death

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”) (emphasis in original). See also Walton Elec. Membership Corp.
v. Ga. Power Co., 320 Ga. 740, 750 (2) (a) (911 SE2d 559) (2025) (“We have long
observed that the word ‘or’ is generally used in a disjunctive sense to signal
alternatives.”) (cleaned up).
21 There has been no debate among members of this Court with respect

to the “was imposed” sub-class of cases within Paragraph III (8). And I agree
with former Chief Justice Benham this sub-class is comprised of “cases in
which a defendant has been sentenced to death as a result of the judgment of
conviction being appealed.” Weatherbed, 271 Ga. at 740-741 (Benham, CJ,
concurring specially). It strikes me that the sub-class of cases in which a
sentence of death “was imposed” reflects one half of the pre-1983 jurisdictional

61
penalty is possible – that is, whether the death penalty “could be

imposed” with respect to a given case on appeal – should not turn on

practical considerations or case-specific facts unrelated to the

nature of the underlying offense and its associated punishments.

That case-specific and fact-bound practical approach was the one

taken by the Thornton Court (and reiterated by former Chief Justice

Benham’s special concurrence in Weatherbed), but it is one that

gives no effect to the phrase “classes of cases” as used in Paragraph

III. See Thornton, 253 Ga. at 524 (1); Weatherbed, 271 Ga. at 740-

741 (Benham, CJ, concurring specially). The Weatherbed majority

opinion, however, observed that such case-specific facts unrelated to

the nature of the underlying offense do not change the top-line

classification of a given case as it relates to its possible punishments.

See 271 Ga. at 738-739 (“Under the definition [of capital felony] used

in Collins, malice murder is a capital felony because it belongs to a

calculus – the prerequisite of a conviction – but, unlike the pre-1983
jurisdictional regime, the 1983 Constitution now mandates that the penalty of
death have actually been imposed as a result of that conviction for our
jurisdiction to attach in this “was imposed” sub-class.
62
class of case in which the death penalty can, under certain

circumstances, be imposed. The fact that the State has chosen not to

pursue the death penalty does not change the class of case to which

it belongs.”) (internal citations omitted; emphasis in original). In

sum, I submit that, when evaluating our appellate jurisdiction

under Paragraph III (8)’s “could be imposed” sub-class of cases, we

should ask whether the death penalty “could be imposed” in the

abstract for the underlying offense, and if so, our jurisdiction

attaches. 22 After all, it is the nature of the underlying offense (i.e.,

“capital” or “not capital”) which permits the State the option to seek

the death penalty as a possible punishment in the first place, and no

amount of revisionist history can divorce the tie between the crime

and its possible punishment.

Not only does this approach align with the historical treatment

22 In this sense, I view the “could be imposed” sub-class of cases within

Paragraph III (8) to reflect the second half of the pre-1983 jurisdictional
calculus – the prerequisite of a capital felony – but, unlike the pre-1983
jurisdictional regime, the 1983 Constitution no longer requires that the capital
felony have resulted in a conviction for this Court’s jurisdiction to attach in
this “could be imposed” sub-class. See Collins, 239 Ga. at 402 (2) (defining what
makes a felony “capital”).
63
of a capital felony (like murder) as being a unique crime warranting

unique punishment, 23 but it also gives effect to Paragraph III’s

organizing principle into “classes of cases” and aligns with the

principle that a change in constitutional language indicates a

change in meaning. See Barrow, 308 Ga. at 672 (3) (c) (“When

constitutional language is substantively changed, we must give that

change effect.”). As explained above, it is my view that when the

1983 Constitution was enacted, this Court’s jurisdiction was

substantively changed insofar as it was no longer limited to post-

conviction appeals in capital felony cases (like murder), but was

expanded to include pre-conviction appeals in capital felony cases

(like murder) and post-conviction appeals in capital felony cases

(like murder) that are death penalty eligible as a class,24 even if the

23 “The denomination of certain crimes as capital felonies is an
expression of our society’s view that these crimes are more heinous than other
classes of crimes, with murder being the most heinous of all capital felonies. It
follows that defendants convicted of capital felonies, particularly murder,
should be and are treated differently than defendants convicted of non-capital
felonies and misdemeanors.” Luther v. State, 255 Ga. 706, 708 (1) (342 SE2d
706) (1986) (citation omitted).
24 Other capital felony offenses that are death penalty eligible, like

treason and aircraft hijacking, would also fit within our jurisdiction under this

64
death penalty is not actually imposed on the specific defendant.25

The approach articulated above also does not result in the “was

imposed” sub-class being rendered surplusage. See Maj. Op. at –

(relying in part on the surplusage canon to discredit the Neal

approach. OCGA § 17-1-30 (a) (authorizing imposition of the death penalty for
those offenses). See OCGA § 16-5-1 (e) (authorizing imposition of the death
penalty for murder). However, as Collins demonstrates, federal and state
constitutional considerations can render certain offenses ineligible for the
death penalty as a class, despite statutory authorization for that punishment
as a possible outcome. See Collins, 239 Ga. at 402-403 (2). When that occurs,
the offense itself is no longer classified as a capital felony offense because
“under no circumstances would death ever be inflicted as a penalty” for the
same. Id.
25 In this respect, I agree with the Neal concurrence that the 1983

Constitution “did not change our jurisdiction to hear and decide appeals
involving life-imprisonment murder convictions.” 290 Ga. at 569 (Hunstein,
CJ, concurring). However, I also agree with the majority opinion that the Neal
concurrence is flawed. Putting aside the majority opinion’s suggestion that
transcripts from the Select Committee on Constitutional Revision are
essentially meaningless to this equation – a proposition plainly at odds with
what all seven justices on this Court (including then-Justice Benham) thought
just 13 years ago – I disagree with the ultimate point made by the Neal
concurrence that the 1983 Constitution “was intended to maintain the existing
jurisdiction of the appellate courts.” Id. at 571 (Hunstein, CJ, concurring). Like
Chief Justice Benham’s concurrence in Weatherbed, the Neal concurrence also
failed to take into account that pre-conviction appeals in capital felony cases
belonged in the Court of Appeals before 1983. Thus, while the Neal concurrence
was correct in stating that the 1983 Constitution “maintain[ed] the existing
jurisdiction of the appellate courts[]” with respect to “appeals involving life-
imprisonment murder convictions” – i.e., post-conviction murder appeals – the
Neal concurrence was mistaken in its view that the 1983 Constitution
“maintain[ed] the existing jurisdiction of the appellate courts” with respect to
appeals in all murder cases, generally.
65
concurrence). 26 An appeal in a capital felony case where the death

penalty “was imposed” requires a conviction and imposition of the

death penalty, while a pre-conviction appeal in a capital felony case,

or a post-conviction appeal in a capital felony case where the death

penalty was available but not imposed, would be included within the

sub-class of cases in which a sentence of death “could be imposed.”

Put differently, the sub-class of cases in which the death penalty

“was imposed” naturally excludes cases where the death penalty

was not in fact imposed (either because the case has not yet resulted

in conviction or because the death penalty was not available as a

practical matter), and the sub-class of cases in which the death

penalty “could be imposed” naturally excludes those in which it has

in fact been imposed. Rather than interpreting the text in a manner

that “deprives another provision of all independent effect,” which

was the result of the Neal concurrence’s approach to “could be

26 See Scalia & Garner, Reading Law at 176 (explaining that “[i]f a
provision is susceptible of (1) a meaning that gives it an effect already achieved
by another provision, or that deprives another provision of all independent
effect, and (2) another meaning that leaves both provisions with some
independent operations, the latter should be preferred”).
66
imposed,” what I have described above allows us to take the

“preferred” approach and give independent meaning and effect to

both sub-classes of cases within Paragraph III (8). See Scalia &

Garner, Reading Law at 176.

Additionally, this approach would allow us to avoid some

pitfalls of Thornton’s case-specific and fact-bound approach. For

example, if the majority opinion is correct that “could be imposed”

really means “could [still] be imposed” as a practical matter in a

specific case, then the action (or inaction) by district attorneys could

theoretically dictate appellate jurisdiction in certain cases before

those cases are ever brought to trial. That is an approach, and result,

which I cannot endorse in this context and one that we have rejected

in others. See, e.g., Ferguson v. Composite State Bd. of Med.

Examiners, 275 Ga. 255, 257 (1) (564 SE2d 715) (2002) (explaining

in the context of a mandamus action that the “underlying subject

matter” controls whether an appeal is subject to the direct or

discretionary appellate procedure, rather than the relief sought or

procedure invoked by a litigant in the trial court, “as litigants cannot

67
under any circumstances dictate the procedural or jurisdictional

rules of this Court”).

Finally, if we truly believe that murder is the “most heinous”

crime one can commit in our society, see Luther, 255 Ga. at 708 (1),

it is perfectly reasonable and appropriate that the State’s highest

court be charged with considering appeals in those cases. In my

mind, this is precisely what Paragraph III (8) represents by

conferring mandatory appellate jurisdiction upon this Court for

most of those cases. Moreover, because I see Paragraph III (8) as

providing a sound basis for this Court’s mandatory appellate

jurisdiction in some non-death penalty murder cases, I also see it as

our constitutional responsibility to consider them. But today, the

majority opinion takes a step in the opposite direction, and toward

the abdication of our role, by recasting our constitutional

responsibility as a mere exercise of our discretion under Paragraph

V.

68