CourtListener 10680284

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official text of the opinion.

In the Supreme Court of Georgia

Decided: August 13, 2024

S22A0605. McELRATH v. THE STATE.

BETHEL, Justice.

In 2017, a jury found Damian Cornell McElrath guilty but

mentally ill of the felony murder of his adoptive mother, Diane. The

same jury also found McElrath not guilty of the malice murder of

Diane by reason of insanity. On appeal, we concluded that those two

verdicts were repugnant. See McElrath v. State, 308 Ga. 104 (839

SE2d 573) (2020) (“McElrath I”). We explained that, under this

State’s repugnant-verdicts doctrine, verdicts are repugnant if they

are not merely inconsistent but reflect two different affirmative

findings by the jury that cannot logically or legally exist at the same

time. See id. at 111 (2) (c). And we concluded that the verdicts in this

case affirmatively showed that the jury had found McElrath both

sane and insane at the same time and thus met our definition of a
repugnant verdict. See id. at 112 (2) (c). The consequence of that

conclusion at the time of McElrath I was that both verdicts were

vacated as entirely void and repugnant, and the case was remanded

for a new trial. On remand, McElrath filed a plea in bar, arguing

that, because the jury returned a verdict of not guilty on the malice

murder count, the Fifth Amendment’s Double Jeopardy Clause1 bars

the State from retrying him on that count. The trial court denied the

plea in bar, and McElrath again appealed to this Court.

In his second appeal, McElrath raised two claims: (1) that the

jury’s verdict on the felony murder count should have been reversed

rather than vacated; and (2) that the trial court erred by denying his

plea in bar as to the malice murder count. See McElrath v. State,

315 Ga. 126 (880 SE2d 518) (2022) (“McElrath II”). In Division 1 of

McElrath II, we rejected McElrath’s first argument that the guilty

but mentally ill verdict for felony murder should have been reversed,

holding that the same issue was raised and decided in McElrath I

1 See U. S. Const. Amend. V (“No person shall . . . be subject for the same

offence to be twice put in jeopardy of life or limb[.]”).
2
and that our prior decision therefore stood as the law of the case. Id.

at 127-128 (1). And in Division 2, we affirmed the trial court’s denial

of McElrath’s plea in bar, concluding that double jeopardy did not

bar retrial on the malice murder count because the not guilty verdict

was repugnant as a matter of Georgia law and therefore void. Id. at

128-131 (2).

On writ of certiorari, the United States Supreme Court

reversed this Court’s judgment on the issue of whether McElrath

could be retried on the malice murder count, explaining that

“whether an acquittal has occurred for purposes of the Double

Jeopardy Clause is a question of federal, not state, law” and that

“the ultimate question is whether the Double Jeopardy Clause

recognizes an event as an acquittal.” McElrath v. Georgia, 601 U. S.

87, 96 (III) (144 SCt 651, 217 LE2d 419) (2024). The Supreme Court

also concluded that the jury’s verdict of not guilty by reason of

insanity on the malice murder count in this case was an acquittal

for purposes of double jeopardy and, thus, that McElrath could not

be retried on that count. Id. at 97-98 (III).

3
In light of the Supreme Court’s holding, we vacate Division 2

of McElrath II, which affirmed the denial of McElrath’s plea in bar,

and, consistent with the holding of the United States Supreme

Court, we reverse the trial court’s judgment on that issue. However,

Division 1 of our decision in McElrath II concerning the proper

disposition of the felony murder verdict was not addressed by the

Supreme Court and, therefore, is unaffected by that court’s opinion. 2

See McElrath, 601 U. S. at 98 n.5 (noting that “the Georgia courts

may address as a matter of state law the status of McElrath’s

vacated conviction for felony murder”). Cf. Shadix v. Caroll County,

274 Ga. 560, 563-564 (554 SE2d 465) (2001) (explaining that “when

faced with the [Georgia] Supreme Court’s reversal of one of its

opinions, the [Georgia] Court of Appeals is required: (1) to read this

Court’s opinion within the context of the opinion being reversed; (2)

2 The Supreme Court’s holding that the jury’s verdict of not guilty by

reason of insanity was an acquittal for purposes of applying the federal Double
Jeopardy Clause does not in itself change Georgia law on repugnant verdicts.
But it does meaningfully alter the effect of a conclusion that the verdicts in a
given case are repugnant: before, all of the verdicts deemed repugnant would
be ineffective, but now, only the verdicts of conviction will be ineffective.
Whether that difference warrants reconsideration of our repugnant-verdict
doctrine is an important question we should consider in an appropriate case.
4
to determine whether any portions of the opinion being reversed

were neither addressed nor considered by the Supreme Court; and

(3) enter an appropriate disposition with regard to those portions

that is consistent with the issues addressed and considered by this

Court”). We, too, leave undisturbed our original judgment in

Division 1 of McElrath II—that the holding of McElrath I stands as

the law of the case between the parties as to the verdict on the felony

murder count— and McElrath may be retried on the felony murder

count.

Judgment reversed and case remanded with direction. All the
Justices concur.

319 Ga. 539
FINAL COPY

S22A0605. MCELRATH V. THE STATE.