In the Supreme Court of Georgia

Decided: September 7, 2022

S22A0727. GARCIA-JARQUIN v. THE STATE.

 COLVIN, Justice.

Following a jury trial, Appellant Ylarrio Garcia-Jarquin was 

convicted of malice murder, aggravated assault, and possession of a 

firearm during the commission of a felony in connection with the 

shooting death of Edel Mendoza and the aggravated assault of 

Miguel Canil.1 Appellant claims that the evidence presented at trial

 1 On October 10, 2016, a Cherokee County grand jury indicted Appellant 

on charges of malice murder (Count 1), felony murder predicated on 

aggravated assault (Count 2), aggravated assault of Mendoza (Count 3), 

aggravated assault of Canil (Count 4), and possession of a firearm during the 

commission of a felony (Count 5). At a jury trial held from August 28 to 

September 1, 2017, the jury found Appellant guilty of all charges. The trial 

court sentenced Appellant to life in prison for malice murder, twenty years 

consecutive for the aggravated assault of Canil, and five years for the weapon 

charge to run consecutive to the aggravated assault. The remaining counts 

were either vacated by operation of law or merged for sentencing purposes.

Appellant filed a motion for new trial through new counsel on December 

4, 2017, and amended the motion on October 19, 2020. After conducting a 

hearing, the trial court denied the motion as amended on January 26, 2022. 

Appellant timely filed a notice of appeal. The appeal was docketed to the April
2

was insufficient to support his conviction for the aggravated assault 

of Canil.2 For the reasons that follow, we affirm.

When evaluating the sufficiency of evidence as a matter of 

constitutional due process, we must determine whether, viewing the 

evidence in the light most favorable to the verdict, “any rational trier 

of fact could have found the essential elements of the crime beyond 

a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)

(99 SCt 2781, 61 LE2d 560) (1979) (emphasis omitted). “This Court 

 

2022 term of this Court and submitted for a decision on the briefs. 

After the appeal was docketed, the State, “out of an abundance of 

caution,” filed a motion to transfer the case to the Court of Appeals because 

Appellant only challenged his conviction for the aggravated assault of Canil. 

However, because Appellant’s conviction for aggravated assault arises out of 

his murder case, was brought under the same indictment as his murder charge, 

and was obtained in the same trial as his murder conviction, this Court retains 

jurisdiction. See, e.g., Neal v. State, 290 Ga. 563, 567 (722 SE2d 765) (2012) 

(Hunstein, C.J., concurring, opinion joined by all Justices, reiterating that this 

Court’s constitutional jurisdiction extends to all direct appeals in murder 

cases). Therefore, we deny the State’s motion to transfer.

2 Appellant does not challenge the sufficiency of the evidence concerning 

his convictions for malice murder and possession of a firearm, and this Court 

no longer routinely reviews the sufficiency of the evidence sua sponte in nondeath penalty cases. See Davenport v. State, 309 Ga. 385, 391-392 (4) (846 

SE2d 83) (2020).
3

does not reweigh evidence or resolve conflicts in testimony; instead, 

evidence is reviewed in a light most favorable to the verdict, with 

deference to the jury’s assessment of the weight and credibility of 

the evidence.” Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) 

(2013) (punctuation omitted).

Viewing the evidence in this light, the record shows that, on 

July 18, 2016, Appellant drank beer at the Taqueria Oaxequana for 

approximately six hours. Surveillance recordings showed that 

Appellant left the restaurant around 6:30 p.m., and returned 

approximately 20 minutes later carrying a firearm. Upon his 

return, Appellant continued to drink.

Mendoza arrived at the restaurant with two men, one of whom

was Canil. Soon thereafter, Appellant began taunting Mendoza by 

pointing his finger like a gun and patting his right hip where his gun 

was concealed. The men exchanged some words but did not 

approach one another. Mendoza turned to talk to Canil and eat his 
4

food; meanwhile, Appellant approached the cash register and told 

the waitress that “[Mendoza] thinks he’s all that.” Appellant walked 

toward Mendoza’s table with his hand resting on his right hip and 

made more threatening gestures. Appellant lifted his shirt, showing 

off his gun, and told the men that he “[was] not afraid.” Canil 

testified at trial that this scared him because he thought Appellant 

could “shoot [his entire group],” so he “just wanted to get out of 

there.” 

Appellant walked to the jukebox and played two songs: one 

describing the violent nature of cartel leader El-Chapo and one 

about a pistol duel. Appellant passed Mendoza’s table one more 

time, once again using his hands to mimic shooting a gun. When 

Mendoza stood, Appellant pulled a gun and pointed it at his chest. 

Mendoza grabbed a chair and ran away carrying it as a shield, but 

Appellant continued tracking him with the gun and pulled the slide 

back. Other patrons, including Canil, took cover. Appellant shot 
5

Mendoza three times; Mendoza fell to the ground and eventually 

died of his wounds. Canil testified that, though Appellant never 

pointed the gun at him, he was scared that he “might [also] get shot” 

and that the incident left him “traumatized.”

Appellant fled the restaurant and was later found in a nearby 

field with a gun in his possession. Ballistics analysis of the shell 

casings and bullets recovered from the crime scene showed that the 

gun found on Appellant was the gun used in the shooting. Appellant 

spoke with police and admitted shooting Mendoza, but he claimed 

he did so out of self-defense.

Appellant claims that the evidence was legally insufficient to 

support his conviction for the aggravated assault of Canil because 

the State failed to establish that Appellant pointed a weapon at 

Canil. We disagree. Aggravated assault occurs when a person

“assaults . . . [w]ith a deadly weapon or with any object, device, or 

instrument which, when used offensively against a person, is likely 
6

to or actually does result in serious bodily injury.” OCGA § 16-5-21 

(a) (2). A person commits an assault when he “[c]ommits an act 

which places another in reasonable apprehension of immediately 

receiving a violent injury.” OCGA § 16-5-20 (a) (2). Contrary to 

Appellant’s assertion, “OCGA § 16-5-21 (a) (2)[] does not require the 

deadly weapon to have been pointed directly at each victim, but 

merely that the defendant use the deadly weapon in such manner 

as to place another in reasonable apprehension of immediately 

receiving a violent injury.” Green v. State, 304 Ga. 385, 388 (1) (a)

(818 SE2d 535) (2018) (citation and punctuation omitted). 

Here, the evidence presented at trial showed that Appellant 

harassed and taunted Mendoza throughout the night, that

Appellant showed Mendoza and Canil a gun and said “he was not 

afraid,” that Canil was scared by Appellant’s threats, and that Canil 

ran for cover as soon as Appellant fired his weapon. This evidence 

was sufficient to establish that Canil was placed in reasonable 
7

apprehension of immediately receiving a violent injury. See Howard 

v. State, 288 Ga. 741, 742 (1) (707 SE2d 80) (2011) (“Testimony that 

the victims ran from the gunfire is sufficient evidence that 

Appellants placed them in reasonable apprehension of immediately 

receiving a violent injury.”); Roberts v. State, 267 Ga. 669 (1) (482 

SE2d 245) (1997) (sufficient evidence to support aggravated assault 

conviction where victim testified that he ran when he saw two men 

start shooting and other people being shot). Accordingly, the jury 

was authorized to find Appellant guilty beyond a reasonable doubt

of the aggravated assault of Canil. See Jackson, 443 U.S. at 319.

Judgment affirmed. All the Justices concur, except Pinson, J., 

not participating.
8

BETHEL, Justice, concurring.

I concur fully in the judgment reached in this case and the 

reasoning we have applied in rejecting the appellant’s claim of error. 

However, I write separately to question the nature of this Court’s

jurisdiction and to invite a careful consideration of that question.

This Court has long exercised jurisdiction over all cases in 

which the appellant has been found guilty of murder. From 1945 

until 1983, that jurisdiction was based on the provision of the 

Georgia Constitutions of 1945 and 1976, respectively, which gave 

this Court jurisdiction over “all cases of conviction of a capital 

felony.” See Georgia Constitution of 1945, Art. VI, Sec. II, Par. IV 

(providing that the jurisdiction of the Supreme Court includes “all 

cases of conviction of a capital felony”); Georgia Constitution of 1976, 

Art. VI, Sec. II, Par. IV (same). See also Collins v. State, 239 Ga. 400, 

402 (2) (236 SE2d 759) (1977) (determining that “capital felony” 

means “felonies to which the death penalty is affixed as a 
9

punishment under given circumstances,” as opposed to felonies “in 

which under no circumstances would death ever be inflicted as a 

penalty” (citation and emphasis omitted)). Our current Constitution 

changed that provision to confer upon this Court jurisdiction over 

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

imposed.” Georgia Const. of 1983, Art. VI, Sec. VI, Para. III (8).

Because, at all relevant times, murder has been a capital felony 

in Georgia, it is clear to me that under the 1945 and 1976 Georgia 

Constitutions, this Court had jurisdiction over all appeals in murder 

cases, even those in which the death penalty was not sought or 

imposed. But despite this Court’s longstanding practice, I interpret 

the plain language of the 1983 Constitution to have limited our 

jurisdiction over appeals in murder cases to only those cases in 

which, at the time of the appeal, a sentence of death has been 

imposed, cases where the State is actively seeking the death penalty, 

and cases where a possibility remains that the State could seek the 
10

death penalty. By changing the jurisdictional definition from the 

crime (capital felonies) to the punishment (cases in which a sentence 

of death was or could be imposed), the new constitutional language 

eliminated a large category of cases from this Court’s jurisdiction: 

direct appeals following a conviction in cases in which a sentence of 

death was not imposed. And this change also impacted a smaller 

category of cases subject to this Court’s jurisdiction: interlocutory 

appeals where the procedural posture of the case definitively 

excludes the possibility that the death penalty will be imposed. 

Further, subsequent developments in the United States Supreme 

Court’s jurisprudence regarding the imposition of the death penalty 

have likewise limited the scope of cases in which a sentence of death 

could be imposed.3

 3 Since the adoption of the 1983 Constitution, the United States Supreme 

Court has determined that a number of procedural requirements, such as the 

giving of pre-trial notice, apply when the State seeks to impose the death 

penalty. See, e.g., Lankford v. Idaho, 500 U. S. 110, 121-122 (111 SCt 1723, 
11

Like so many appeals in murder cases that this Court has ruled 

upon since the 1983 Constitution came into effect, at no point in this 

case did the district attorney seek the death penalty much less file 

a notice that the State intended to seek the death penalty against 

the appellant, see Unified Appeal Procedure, Rule II (C) (1) 

(requiring the State to provide pre-trial written notice to seek the 

death penalty); Wagner v. State, 282 Ga. 149, 152-153 (646 SE2d 

149) (2007) (addressing written notices to seek the death penalty 

with respect to the Unified Appeal Procedure and the requirements 

 

115 LE2d 173) (1991) (holding that adequate notice to seek death penalty is 

required under Due Process Clause for the State to seek a death sentence). In 

addition, the Supreme Court’s rulings have steadily limited the availability of 

the death penalty based on the type of crime committed, the age and mental 

capacity of the defendant, and other factors. See, e.g., Hall v. Florida, 572 U. 

S. 701, 704 (I), 134 S.Ct. 1986, 188 LE2d 1007 (2014) (“[T]he Eighth and 

Fourteenth Amendments to the [United States] Constitution forbid the 

execution of persons with intellectual disability.”); Kennedy v. Louisiana, 554 

U. S. 407 (128 SCt 2641, 171 LE2d 525) (2008) (holding that the Eighth 

Amendment prohibits the death penalty for rape where the crime did not result 

in the victim’s death); Roper v. Simmons, 543 U. S. 551 (125 SCt 1183, 161 

LE2d 1) (2005) (holding that the death penalty cannot be imposed against 

juvenile offenders). These decisions have necessarily narrowed the range of 

cases in which the death penalty in Georgia “could be imposed.”
12

of due process); OCGA § 17-10-36 (a) (requiring the promulgation of 

the Unified Appeal Procedure), nor did the jury impose a sentence 

of death.4 And, although a sentence of death can be available for one 

who is found guilty of murder, the appellant was sentenced to a term 

of life imprisonment, not the death penalty, and the State has not 

challenged that sentence on appeal. Thus, under our State’s laws 

and the significant body of law that has developed in recent decades 

regarding the imposition of a death sentence in the United States, I 

feel compelled to conclude this appeal is not among the “cases in 

which a sentence of death was imposed or could be imposed.” Ga. 

Const. of 1983, Art. VI, Sec. 6, Para. III (8) (emphasis supplied). 

Because no other provision of the Georgia Constitution or any 

statute appears to give this Court exclusive jurisdiction over this 

case and numerous others like it in the years since the above-cited 

 4 It is also worth noting that at no point has the State suggested or

argued that any of the aggravating factors required to pursue the death 

penalty are present in this case. See OCGA § 17-10-30 (b).
13

provision of the Georgia Constitution of 1983 took effect, I write 

separately to renew the dialogue among this Court’s members (and 

perhaps beyond) regarding our jurisdiction over every direct appeal 

arising from a case in which a defendant has been convicted of 

murder, regardless of whether a death sentence was imposed or ever 

sought in the first place.5

My reading of Georgia Constitution of 1983, Art. VI, Sec. VI, 

Par. III (8) seems to be in accord with this Court’s initial 

interpretation of this constitutional provision. In State v. Thornton, 

253 Ga. 524, 524 (1) (322 SE2d 711) (1984), this Court determined 

that it lacked jurisdiction over the appeal and that it had been 

properly filed in the Court of Appeals. However, citing no 

constitutional or statutory authority, the Court announced that “as 

 5 The procedural posture of this case only further points to the need to 

revisit this question. Here, the appellant has not raised an enumeration of 

error related to his murder conviction. See Maj. Op. at 2 n.2. It appears that 

this fact prompted the State to file a motion to transfer this appeal to the Court 

of Appeals. See Maj. Op. at 2 n.1.
14

a matter of policy,” it deemed it appropriate that this Court review 

murder cases. Id. It then ordered the Court of Appeals to transfer to 

this Court 

all cases in which either a sentence of death or of life 

imprisonment has been imposed upon conviction of 

murder, and all pre-conviction appeals in murder cases, 

whether or not timely notice was given by the district 

attorney as required by [the Unified Appeal Procedure].

Id.

This Court and the Court of Appeals appear to have operated 

under the “policy statement” expressed in Thornton without much 

further consideration until 1999. That year, then-Chief Justice 

Benham wrote a special concurrence in Weatherbed v. State, 271 Ga. 

736, 739 (524 SE2d 334) (1999), in which he called on the Court to 

“comply with the change in its appellate jurisdiction in non-capital 
15

murder cases brought about by the passage of the 1983 Georgia 

Constitution,” as recognized in Thornton. The former Chief Justice 

noted that Thornton had properly interpreted the change to the 

Court’s jurisdiction brought on by the 1983 Constitution but 

lamented that, “[f]or policy reasons not identified” in Thornton, the 

Court had continued to exercise jurisdiction over all appeals in 

murder cases. Id. at 740 (Benham, C.J., concurring specially). Chief 

Justice Benham then suggested that the 1983 Constitution had 

limited the Court’s jurisdiction to “cases in which a defendant has 

been sentenced to death,” cases “in which the possibility of the 

imposition of the death penalty still exists,” death penalty cases at 

the interim review phase, and “interlocutory appeals arising in cases 

where the defendant has been charged with a crime punishable by 

death” if the death penalty could still be pursued by the State at the 

time of the appeal. Id.

Then-Chief Justice Benham’s calls for reform went unheeded, 
16

and issues regarding the scope of the Court’s jurisdiction over 

murder cases appear to have avoided the Court’s published 

consideration until 2009. That year, in a 4-3 decision in State v. 

Murray, 286 Ga. 258, 259 (1) (687 SE2d 790) (2009), the Court 

determined that its jurisdiction over appeals in murder cases

extended to appeals from contempt orders issued against a 

prosecutor in an underlying murder prosecution. The Court 

determined that the jurisdictional issue focused “on the nature of 

the underlying action,” rather than the relief sought on appeal, 

noting that “if the underlying action is a murder case, this Court has 

jurisdiction of the appeal, regardless of whether the order being 

appealed is based on facts having some bearing on the underlying 

criminal trial.” Id. Then-Presiding Justice Carley authored a

concurrence joined by then-Justice Hines, noting that Thornton had, 

as a matter of policy, established a bright-line rule that had “serve[d] 

both Georgia appellate courts well.” Id. at 259-260 (Carley, P.J., 
17

concurring).

Then-Justice Melton, in dissent, reasoned that the majority in 

Murray had “judicially [rewritten] our constitutionally-mandated 

jurisdiction” to include cases involving contempt of court, which it 

had previously held was not within its appellate jurisdiction. Id. at 

260-261 (Melton, J., dissenting) (citing Nowlin v. Davis, 278 Ga. 240, 

n.1 (599 SE2d 128) (2004)). Then-Justice Nahmias also dissented, 

reasoning that the appeal in Murray was moot. Id. at 264 (1) 

(Nahmias, J., dissenting). He also agreed with Justice Melton that 

the appeal from the contempt order was “too collateral to the murder 

case in which it happened to arise for our jurisdiction to rest upon 

Thornton” and that the Court had no other reason for taking 

jurisdiction. Id.

Then-Justice Nahmias elaborated that, although Thornton

cited no authority and provided little reason for its holding requiring 

the Court of Appeals to transfer murder appeals to the Supreme 
18

Court, Thornton’s holding could be followed because of the Court’s 

“almost-unlimited certiorari jurisdiction,” Id. at 266 (2) (b) 

(Nahmias, J., dissenting) (noting this Court’s holding in Daniels v. 

State, 248 Ga. 591, 591 n.1 (285 SE2d 516) (1981), that the Supreme 

Court has the constitutional authority to require, by certiorari or 

otherwise, any case to be certified from the Court of Appeals, even 

before it is decided by that Court). The Nahmias dissent then noted 

that the Georgia Constitution gives the Court discretion to take 

cases from the Court of Appeals, the exercise of which may be guided 

by policy considerations. Id. 

The Court returned to this issue again in Neal v. State, 290 Ga. 

563 (722 SE2d 765) (2012), in a concurrence authored by then-Chief 

Justice Hunstein and joined by all other members of the Court. The 

concurrence determined that the Court had jurisdiction in all 

murder cases under Art. VI, Sec. VI, Par. III (8) of the 1983 

Constitution because “murder cases are a class of cases in which a 
19

sentence of death could be imposed.” Neal, 290 Ga. at 567 (Hunstein, 

C.J., concurring). The concurrence noted that the Georgia Supreme 

Court has always had appellate jurisdiction over all murder cases 

and that the 1983 Constitution had not disturbed that arrangement. 

It rested this determination both on the fact that murder remains 

the only offense for which a sentence of death can be imposed 

constitutionally and that our murder statute provides for death as a 

possible punishment.6 Moreover, the concurrence examined both the 

 6 This conclusion that the death penalty can only be imposed in murder 

cases is also dubious. Prior to Neal, this Court recognized that the death 

penalty could be imposed for the offense of kidnapping with bodily injury under 

OCGA § 16-5-40 (b) where the bodily injury was the victim’s death and the 

defendant was not convicted of murder. See Sears v. State, 270 Ga. 834, 841-

842 (4) (514 SE2d 426) (1999); OCGA § 16-5-40 (d) (4) (providing for a sentence 

of “[l]ife imprisonment or death if the person kidnapped received bodily 

injury”). And although the Supreme Court’s decision in Kennedy sharply 

limited the range of offenses for which the death penalty is available, the 

Court’s dicta in that case at least left open the possibility that the offenses of 

aircraft hijacking (OCGA § 16-5-44 (c)) and treason (OCGA § 16-11-1 (b)) also 

remain death-eligible in Georgia. See 554 U. S. at 437 (IV) (A) (“Our concern 

here is limited to crimes against individual persons. We do not address, for 

example, crimes defining and punishing treason, espionage, terrorism, and 

drug kingpin activity, which are offenses against the State. As it relates to 

crimes against individuals, though, the death penalty should not be expanded 
20

drafting history of the 1977 convention that drafted the proposed 

1983 Constitution and the transcripts of committee meetings in 

which these provisions were discussed. The Court gleaned from 

those materials that, despite wording changes to the provisions 

governing the Court’s jurisdiction, “the language . . . was intended 

to maintain the existing jurisdiction of the appellate courts,” thus 

moving away from the Court’s statements in Thornton to the 

contrary. Id. at 571 (Hunstein, C.J., concurring). 

I am unmoved by the analysis of the committee deliberations 

in the Neal concurrence. See id. The well-documented reasons to 

 

to instances where the victim’s life was not taken.”). With that statement by 

the Supreme Court in mind, I also take issue with a statement in our Court’s 

decision in Bradshaw v. State, 284 Ga. 675, 681 (3) (671 SE2d 485) (2008). 

There, we stated, rather curiously, that “[l]ife imprisonment is the only 

punishment available for the [crime] of hijacking an aircraft” even though 

OCGA § 16-5-44 (c) clearly provides for a sentence of death for that offense. It 

appears to me, however, that this statement may have been made in the 

context of discussing the minimum sentence available for the offense of aircraft 

hijacking, as that was the context in which the available sentences for aircraft 

hijacking and a number of other Georgia offenses were being discussed in 

Bradshaw. See id. at 680-681 (3).
21

distrust legislative history apply, perhaps with even greater force, 

to the adoption of constitutional language by the people.7 Only the 

language adopted is a reliable indicator of the intention of those who 

 7 As we noted in Olevik v. State, 

Our objective focus is even more important when we 

interpret the Constitution. Unlike ordinary legislation, the people 

— not merely elected legislators — are the “makers” of the Georgia 

Constitution. See Ga. Const. of 1983, Art. X, Sec. I, Par. II 

(proposals to amend or replace constitution require a vote of the 

people); see also Wheeler v. Bd. of Trustees of Fargo Consolidated 

School Dist., 200 Ga. 323, 333 (3) (37 SE2d 322) (1946) (“The fiat 

of the people, and only the fiat of the people, can breathe life into 

a constitution.”). If the subjective intent of one legislator out of 236 

casts little light on the meaning of ordinary legislation, such 

subjective views can hardly carry more weight for a Constitution 

that had hundreds of thousands of citizens who voted on its 

ratification. See Ga. L. 1983, p. 2070 (1983 Constitution ratified 

with 567,663 yes votes and 211,342 no votes). That said, 

considering what the framers of our Constitution understood the 

words they selected to mean can be a useful data point in 

determining what the words meant to the public at large. See 

Gwinnett County School Dist. v. Cox, 289 Ga. 265, 307-308 (710 

SE2d 773) (2011) (Nahmias, J., dissenting) (“In construing our 

Constitution, we . . . sometimes look to the understanding 

expressed by people directly involved in drafting the document. . . 

. The best evidence [of their intent], of course, is not what various 

framers said to each other at various points during the process, but 

what they ultimately drafted together — the actual Constitution 

that the citizens of Georgia then ratified.”).

302 Ga. 228, 237-239 (806 SE2d 505) (2017).
22

adopted it. See, e.g., Olevik v. State, 302 Ga. 228, 235 (2) (c) (806 

SE2d 505) (2017) (“[T]he text is always our starting point for 

determining original public meaning [of a constitutional provision] 

(and often our ending point, as well)[.]”); Lathrop v. Deal, 301 Ga. 

408, 429 (III) (B) (801 SE2d 867) (2017) (reasoning that the plain 

and natural meaning governs because “[c]onstitutions are the result 

of popular will”). 

Without regard to what the committee members might have 

thought or believed about the language they included for the

consideration of the people of Georgia, the people themselves elected 

to be governed by the actual language in the 1983 Constitution. 

Moreover, were we to employ ordinary canons of construction to the 

interpretation of the language of the 1983 Constitution, we would be 

wise to start first with a consideration of a change from preexisting 

language before endeavoring to divine intent from committee 

proceedings. See Jones v. Peach Trader Inc., 302 Ga. 504, 514 (III) 
23

(807 SE2d 840) (2017) (“[C]hanges in statutory language generally 

indicate an intent to change the meaning of the statute.” (citation 

and punctuation omitted)); Bishop v. State, 341 Ga. App. 590, 593 

(802 SE2d 39) (2017) (Bethel, J., concurring) (“Any attempt to 

discern legislative intent beyond the express language passed by a 

legislative body is as practical and productive as attempting to nail 

Jell-O to the wall.”). See also Elliott v. State, 305 Ga. 179, 208-209

(824 SE2d 265) (2019) (referencing a meeting of Subcommittee on 

Rights of Persons wherein Justice Bowles noted in reference to 

constitutional drafting that “change should be made where change 

is necessary but” courts view a change in words as “an intention on 

the part of the framers to give it a different meaning from the 

meaning that theretofore existed”). And here, as mentioned above, 

the change in language carries clear meaning that is readily 

distinguishable from the language employed in the prior 

constitutions. See Weatherbed, 271 Ga. at 739 (Benham, C.J., 
24

concurring specially) (noting that “[f]rom the addition of new 

language [to the 1983 Constitution regarding this Court’s 

jurisdiction], we presume some change in the existing law was 

intended”).

Moreover, the Neal concurrence ignores the fact that the 

language of the 1983 Constitution draws a distinction between two 

classes of cases over which this Court has jurisdiction: cases in 

which the death penalty was imposed or could be imposed. Neal

clearly determined that the “could be imposed” language was 

sufficient to give this Court jurisdiction over essentially every 

appeal arising from a case that includes a murder charge. But in 

doing so, its interpretation renders the words “was imposed” (and 

the distinction between the two types of cases) meaningless and 

completely superfluous. That reading of the 1983 Constitution thus 

runs afoul of this Court’s routine admonition that “courts generally 

should avoid a construction that makes some language mere 
25

surplusage.” Middleton v. State, 309 Ga. 337, 342 (3) (846 SE2d 73) 

(2020) (cleaned up). That canon of statutory construction applies 

with at least equal force in the constitutional context. And reading 

words into or out of the Constitution is a power reserved exclusively 

to the people through the amendment process. 

Although I see significant problems with the rationale relied 

upon in the Neal concurrence, I am persuaded by then-Justice 

Nahmias’s suggestion in his dissent in Murray that this Court is 

empowered to assert discretionary jurisdiction over murder (and 

any other) cases based on our expansive power of certiorari. See 

Murray, 286 Ga. at 266-272 (2) (b) (Nahmias, J., dissenting). Thus, 

I am not compelled to dissent in this case based on a belief that we 

have considered this case or thousands of other murder cases since 

1983 without legal authority or that the State’s motion to transfer 

this case to the Court of Appeals must be granted. Rather, I am 

convinced we exercise jurisdiction in these cases solely as a 
26

discretionary matter. But I am not entirely certain we should.

The Court of Appeals, which ordinarily sits in three-judge 

panels, considers scores of felony convictions and life sentences 

annually. Further, it has a history of producing non-precedential 

opinions. In short, the Court of Appeals is a proven, efficient, 

responsible intermediate appellate court with exceptionally broad 

jurisdiction. Deciding non-capital direct appeals arising from 

murder convictions is clearly within the capacity of the members of 

that court. And certiorari review by this Court would remain 

available for any murder case presenting an issue of “great concern, 

gravity, or importance to the public.” Supreme Court Rule 40.

This Court, by contrast, always sits as a whole court and does 

not issue non-precedential opinions. Thus, under the current state 

of affairs, the amount of state appellate judicial resources dedicated 

in a direct appeal of a murder conviction where the sentence of life 

in prison with a possibility of parole was imposed is likely greater 
27

than those dedicated to a serial sex offender sentenced to multiple 

life sentences without the possibility of parole.8 Even with the 

admittedly tragic reality involving the loss of human life, I am not 

certain that all the legal issues raised in murder cases we hear 

constitute matters of “great concern, gravity, or importance to the 

public” of the sort that warrants a fast-track to this Court. All 

manner of human depravity, personal and family loss and tragedy, 

and cases that capture public attention fail to qualify when a 

petition for a writ of certiorari is considered by this Court. I believe 

the same to be true of most non-capital murder cases and see no 

 8 To partially understand the significance of the impact of sitting in 

divisions versus sitting exclusively as a whole court, consider a hypothetical 

term in which 45 murder appeals reach the appellate docket. Under this 

Court’s structure and practice and assuming a normal, balanced distribution, 

each Justice would be tasked with authoring five such opinions while 

participating and voting on the remaining 40 cases. By contrast, assuming a 

normal distribution of those same 45 cases across five three-judge panels of the 

Court of Appeals, each panel would receive nine such cases. Thus, excluding 

any allowance for the typically small number of cases that move to 

consideration by the whole court, each judge would author three opinions and 

participate and vote in only six more.
28

logical reason to maintain a built-in bypass for these cases. Thus, to 

the extent our discretionary authority is being used to exercise 

jurisdiction in non-capital murder cases, I think the time has come 

to reconsider.

In doing so, I am mindful that following the clear language of 

the 1983 Constitution with respect to direct appeals would have a 

significant practical impact on the operations of this Court and the 

Court of Appeals. Responsible resource stewardship would almost 

certainly require an analysis of the impact on the Court of Appeals. 

That question and whether any net taxpayer savings could be

realized should be a matter of discussion with the Court of Appeals 

and the General Assembly. This is a discussion that may take time. 

But, that is no reason not to have it.