309 Ga. 385 FINAL COPY
S20A0035. DAVENPORT v. THE STATE.
BETHEL, Justice.
Brian Colby Davenport appeals his convictions for malice
murder and other crimes in connection with the death of Debora
Lynn Abney.1 Davenport contends that the evidence was
1 The crimes occurred on March 11, 2016. On June 8, 2016, a Catoosa County grand jury indicted Davenport for malice murder, felony murder, aggravated assault, two counts of making a false statement, two counts of possession of a firearm during the commission of a felony, and two counts of tampering with evidence. Davenport was tried by a jury in March 2017 and was found guilty of all counts. The trial court vacated the felony murder count and sentenced Davenport to life in prison without the possibility of parole for malice murder, 20 years to serve concurrent for aggravated assault, five years to serve concurrent for each count of making a false statement, five years to serve consecutive for each count of possession of a firearm during the commission of a felony, and ten years to serve concurrent for each count of tampering with evidence. On April 4, 2017, Davenport filed a motion for new trial, which was subsequently amended. The trial court denied the motion for new trial on June 25, 2019, but amended Davenport’s sentence by vacating the sentence for aggravated assault and merging the count into malice murder. The trial court also vacated the sentence for the second count of possession of a firearm during the commission of a felony and purported to merge that conviction with the malice murder count, although it was actually vacated as a matter of law. Appellate counsel filed a timely notice of appeal on July 16, 2019. This case was docketed in this Court’s term beginning in December 2019, and submitted for a decision on the briefs. insufficient to convict him, and that the trial court erred by
admitting improper character evidence under OCGA § 24-4-404 (b)
(“Rule 404 (b)”) and certain hearsay evidence. We affirm because
the evidence was legally sufficient to support Davenport’s
convictions, any error in the admission of the Rule 404 (b) evidence
was harmless, and the trial court did not abuse its discretion in
admitting the hearsay evidence. However, today we also announce
that we will end our practice of sua sponte review of the
constitutional sufficiency of the evidence supporting convictions in
appeals of non-death penalty murder cases, beginning with cases
that docket to the term of court that begins in December 2020. The
Court will begin assigning cases to the December Term on August 3,
2020.
Viewed in the light most favorable to the jury’s verdicts,2 the
evidence shows that on March 11, 2016, deputies from the Catoosa
County Sheriff’s office responded to a reported shooting. Upon
2 See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979). arrival, an officer discovered Abney slumped over in the front
passenger seat of a vehicle. Davenport was also at the scene,
shirtless.
Davenport initially told officers that he and Abney had been in
court earlier that day for a Department of Family and Children
Services (“DFCS”) hearing concerning their two younger children
and that Abney was upset after the hearing. After leaving the
courthouse, they stopped at a few locations to purchase alcohol and
items to make sandwiches. The two then went on a picnic, where
Abney began drinking. Davenport told officers that Abney shot
herself when he was standing at the trunk of the vehicle. He said
that he ran around the vehicle, saw that Abney had shot herself, and
called his mother (who called another person who then called 911).
A GBI agent testified that when he arrived on the scene, he
observed Davenport wiping his head, neck, and torso with a cloth.
He did not observe any blood on Davenport, but did notice drops of blood on Davenport’s shoes.3 A gun was found in Abney’s left hand,
though Abney was right-handed. Mud and soil were found impacted
in the barrel of the gun. The GBI agent testified the mud and soil
should not have been in the gun if the weapon had remained in
Abney’s hand after being fired. Luminol testing later revealed the
presence of blood on the dashboard of the vehicle, and the pattern
indicated that it had been wiped away. Blood particles were also
found on the front windshield. Finally, Abney had been shot in the
back of the head, and gunshot primer residue was found on
Davenport’s clothing. The medical examiner concluded that the
manner of death was homicide.
During his interview with police, after being given Miranda
warnings,4 Davenport initially stated that upon seeing that Abney
had shot herself and was bleeding, he took off running. But after
being confronted with the finding of mud in the barrel of the gun,
3 Although the GBI agent swabbed Davenport’s hands for gunshot residue, the test could not be conducted by the crime lab because the samples were improperly packaged. 4 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Davenport claimed that after he heard the gunshot, he saw the gun
go flying out of the driver’s side door. When the investigator told
Davenport that the investigator had a “problem” with Davenport’s
revised version of events, Davenport then stated that the gun fell
between the seat and the console in the vehicle, and that he got in
the driver’s seat to pick up the gun. Davenport said that he dropped
the gun getting out of the car, and then stuck the gun back in
Abney’s left hand. Davenport told investigators that he did not tell
them this version of events initially because he was worried they
would think that he shot Abney.
Two of Abney’s daughters testified about witnessing Davenport
strike Abney and, in one instance, observed Davenport holding a gun
to Abney’s head. A police officer testified that he had previously
responded to a domestic violence incident between Davenport and
Abney. A DFCS caseworker who had been working with the family
testified that she observed recent injuries to Abney on one visit,
which Abney told her resulted from Davenport hitting and biting
her, and that on another occasion, Abney called her and confided in her that she was afraid for her life. Abney’s mother also testified
that she observed bruising on Abney, who told her that Davenport
hit her, and that Abney told her she was afraid that Davenport
would kill her. Abney’s other daughter testified that she saw
Davenport hitting Abney, that she would often go to pick up her
mother to get her away from Davenport, and that Davenport
regularly threatened Abney. Additionally, Abney’s former landlord
testified that she would hear Abney and Davenport arguing, and
then would see bruises on Abney the following day.5 Finally, the
expert witness called by the defense conceded that it was unlikely
that Abney contorted herself enough in the vehicle to shoot herself
with her non-dominant hand in the back of her head.
1. Davenport argues that the evidence is legally insufficient to
5 Davenport’s ex-wife also testified at trial regarding the frequent physical abuse she suffered at the hands of Davenport, including several instances of shoving, punching, and choking, and threatening to kill her if she left him. Davenport’s daughter with his ex-wife also testified regarding the instances of physical violence she witnessed against her mother, and three other witnesses testified regarding an incident, 27 years prior to trial, in which Davenport attacked his ex-wife in front of others, leading to Davenport’s arrest. sustain his conviction for malice murder because the evidence
presented at trial did not exclude the reasonable hypothesis that
Abney committed suicide. Although not raised as error, we also
evaluate the legal sufficiency of the evidence presented at trial on
the other counts for which Davenport was convicted.6
When we consider the sufficiency of the evidence as a matter of
federal due process, we view the evidence in the light most favorable
to the verdict and evaluate whether a rational trier of fact could have
found the defendant guilty beyond a reasonable doubt of the crimes
of which he was convicted. See Jackson v. Virginia, 443 U. S. 307,
319 (99 SCt 2781, 61 LE2d 560) (1979). “Under this review, we must
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 trier of fact.” (Citation and
punctuation omitted.) Mims v. State, 304 Ga. 851, 853 (1) (a) (823
SE2d 325) (2019). Further, as a matter of Georgia statutory law,
6 But see our discussion in Division 4 regarding this Court’s impending
termination of the practice of sua sponte consideration of sufficiency. “[t]o warrant a conviction on circumstantial evidence, the proved
facts shall not only be consistent with the hypothesis of guilt, but
shall exclude every other reasonable hypothesis save that of the
guilt of the accused.” OCGA § 24-14-6. However, “not every
hypothesis is a reasonable one, and the evidence need not exclude
every conceivable inference or hypothesis ― only those that are
reasonable.” (Citation and punctuation omitted; emphasis in
original.) Graves v. State, 306 Ga. 485, 487 (1) (831 SE2d 747) (2019).
Whether a hypothesis is reasonable or not is for the jury to decide.
See id.; Outler v. State, 305 Ga. 701, 703 (1) (a) (827 SE2d 659)
(2019); Murray v. State, 271 Ga. 504, 505 (1) (521 SE2d 564) (1999).
Here, Davenport’s own expert witness testified that it was
unlikely that Abney shot herself in the back of the head. The State’s
forensic pathology expert and crime scene investigation expert both
determined the case to be a homicide rather than a suicide. Further,
numerous pieces of evidence suggested that the crime scene had
been staged by the time law enforcement arrived: the gun was found
in Abney’s left hand even though she was right-handed, mud and dirt were in the barrel of the gun, and the blood pattern on the
dashboard and glove box area appeared to have been wiped down.
Investigators also found gunshot primer residue on Davenport’s
clothes. Finally, Davenport gave inconsistent stories to police, and
he had a history of physical violence and threats toward Abney.
Considering all the evidence in the light most favorable to the
verdicts, we conclude that the jury was authorized to find beyond a
reasonable doubt that Davenport was guilty of malice murder and
the other crimes of which he was convicted. The jury was also
authorized to determine that the proved facts were not only
consistent with Davenport’s guilt but that they also excluded every
other reasonable hypothesis as to how Abney died. Thus, when
viewed as a whole, the evidence presented at trial was sufficient to
support Davenport’s convictions as a matter of due process and
under OCGA § 24-14-6. See Frazier v. State, 308 Ga. 450, 454 (2) (b)
(841 SE2d 692) (2020).
2. Davenport next argues that the trial court committed a
harmful error when it permitted the State, pursuant to OCGA § 24- 4-404 (b), to present evidence that Davenport allegedly abused his
ex-wife more than 20 years before Abney’s death. We disagree that
the admission of this evidence was harmful to Davenport.
Assuming without deciding that the trial court abused its
discretion in admitting the challenged evidence, any error was
harmless and does not require reversal. “A nonconstitutional error
is harmless if it is highly probable that the error did not contribute
to the verdict.” Adkins v. State, 301 Ga. 153, 158 (3) (a) (800 SE2d
341) (2017). Here, the evidence presented against Davenport,
though circumstantial, was very strong. As noted above, the forensic
evidence indicated that Davenport shot Abney, attempted to cover
up the crime, and then fabricated a story to the police that Abney
killed herself. Additionally, substantial evidence was introduced
detailing Davenport’s history of violence against Abney, which
included threatening her with a firearm. Thus, considering the
evidence presented at trial and weighing it as reasonable jurors
would, we conclude that it is highly probable the outcome of the trial
would have been no different had the trial court excluded evidence of Davenport’s history of violence against his ex-wife. See Williams
v. State, 302 Ga. 147, 153-154 (3) (805 SE2d 873) (2017) (any error
in admitting evidence of violence against two ex-girlfriends was
harmless where evidence was overwhelming and physical evidence
contradicted defendant’s version of events).
3. Lastly, Davenport argues that the trial court abused its
discretion in admitting hearsay evidence of prior difficulties
between him and Abney.7 We disagree.
The State filed a notice of intent to introduce residual hearsay
testimony pursuant to OCGA § 24-8-807 (“Rule 807”). Under OCGA
§ 24-8-807,
A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.
7 Davenport does not challenge the admissibility of the evidence of prior
difficulties between him and Abney under OCGA § 24-4-404 (b). The residual hearsay exception is “to be used very rarely and
only in exceptional circumstances, and only when there exists
certain exceptional guarantees of trustworthiness and high degrees
of probativeness and necessity.” Tanner v. State, 301 Ga. 852, 855
(1) (804 SE2d 377) (2017). “Whether there are exceptional
guarantees of trustworthiness is a determination that focuses on the
declarant and the circumstances under which the declarant made
the statement to the witness.” (Emphasis in original.) Miller v. State,
303 Ga. 1, 5 (2) (810 SE2d 123) (2018). “A trial court’s decision to
admit hearsay evidence under Rule 807 is reviewed for an abuse of
discretion.” State v. Holmes, 304 Ga. 524, 529 (2) (a) (820 SE2d 26)
(2018). “This Court is particularly hesitant to overturn a trial
court’s admissibility ruling under the residual hearsay exception
absent a definite and firm conviction that the court made a clear
error of judgment in the conclusion it reached based upon a weighing
of the relevant factors.” (Citation and punctuation omitted.) Id.
The State offered statements Abney made about Davenport’s
threats and physical abuse to her mother and the DFCS caseworker who had been working closely with her family, as well as statements
from Abney’s daughter about Davenport’s abuse of Abney that she
witnessed, as an explanation for Davenport’s motive. Although
Davenport claims Abney’s statements lack guarantees of
trustworthiness due to substance abuse and mental illness issues,
the Court
cannot say that statements from a wife to her friends or family . . . which describe acts of domestic violence, do not, in fact, bear an increased level of trustworthiness. Likewise, in light of the often-secretive nature of domestic violence, we can also envision that such statements might be highly probative.
Smart v. State, 299 Ga. 414, 422 (3) (788 SE2d 442) (2016). See also
Jacobs v. State, 303 Ga. 245, 251 (2) (811 SE2d 372) (2018)
(concluding that the trial court did not abuse its discretion in
determining that the statements from the victim to her friends and
her own text messages describing the nature of her abusive
relationship with the defendant prior to her death had the requisite
exceptional guarantees of trustworthiness to be admissible at trial
pursuant to Rule 807). Moreover, to the extent Abney’s daughter witnessed Davenport hitting Abney, the daughter’s testimony
regarding the abuse she witnessed is not hearsay. See De La Cruz
v. State, 303 Ga. 24, 28 (4) (810 SE2d 84) (2018) (testimony of
witness regarding tumultuous relationship between defendant and
victim not hearsay where it was “based purely upon his observation
of the couple”). Here, some of Abney’s statements about Davenport’s
threats and physical abuse were made to a close family member ―
that is, her mother. Further, the testimony of the DFCS caseworker
who had been working closely with her family was cumulative of the
testimony of these and other witnesses who testified to the regular
abuse Davenport inflicted upon Abney and Abney’s fear of
Davenport. Therefore, even if it was erroneously admitted, the
DFCS caseworker’s testimony was harmless. See Anglin v. State,
302 Ga. 333, 336 (2) (806 SE2d 573) (2017) (“[T]he erroneous
admission of hearsay is harmless where substantial, cumulative,
legally admissible evidence of the same fact is introduced.”).
Moreover, we have considered the cumulative effect of this
presumed error along with the error assumed in Division 2 and do not find that they collectively resulted in harm to Davenport. See
State v. Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020).
4. In Division 1 of this opinion, we employed our customary
practice of determining sua sponte whether sufficient evidence
supported all of Davenport’s convictions as a matter of
constitutional due process, even though he raised a sufficiency
challenge only to his murder conviction. We have exercised our
discretion to decide sufficiency issues sua sponte in murder appeals
for decades. Today we announce that we will end that practice
beginning with cases docketed to the term of court that begins in
December 2020. The Court will begin assigning cases to the
December Term on August 3, 2020.
Our long practice of deciding unraised sufficiency claims has
been purely an exercise of discretion; no law requires it. Over the
years, reasons to change course have become clear, and the only real
reason to continue our practice is the length of time we have followed
it. That is not enough.
(a) Sua sponte sufficiency review appears to have begun decades ago in death penalty cases (in which it is now mandated by statute and rule), from which it migrated to non-death penalty murder cases and convictions for offenses other than murder without explanation.
Some background is helpful to understanding how we reached
this point, although a definitive answer appears lost to time. As
early as 1968, we reviewed sua sponte the constitutional sufficiency
of the evidence as to at least some convictions for which a sentence
of death was imposed (although we did not explain why we did so).
See Dixon v. State, 224 Ga. 636, 637 (1) (163 SE2d 737) (1968)
(although no argument was made in death penalty case as to
sufficiency of the evidence, and thus the issue was abandoned, “we
have studied the evidence and find that it discloses an extremely
brutal murder, and that the jury was authorized to find that the
defendant was the perpetrator of the crime”). The next year, we
again reviewed sua sponte sufficiency in a death penalty case, citing
only Dixon in stating that we felt “constrained” to do so. Jackson v.
State, 225 Ga. 790, 794 (7) (171 SE2d 501) (1969) (“While the general
grounds of the motion for new trial were technically waived . . . ,
nevertheless, in a capital felony case such as this one, we feel constrained to rule on them, even though they have not been
properly argued.”), reversed in part on other grounds by Furman v.
Georgia, 408 U. S. 238 (92 SCt 2726, 33 LE2d 346) (1972). And the
year after Jackson, we did so again. See Lee v. State, 226 Ga. 162,
163 (4) (173 SE2d 209) (1970) (citing Jackson to examine general
grounds, although waived, in case in which death sentence
imposed), vacated in part on other grounds by Lee v. Georgia, 408 U.
S. 936 (92 SCt 2860, 33 LE2d 752) (1972).8
But this approach was not consistently applied during the late
1960s and early 1970s; in other cases in which the appellant was
sentenced to death, we expressly declined to consider sufficiency
where not argued by the appellant. See, e.g., Johnson v. State, 226
Ga. 511, 516 (8) (175 SE2d 840) (1970) (“The general grounds and
8 Several of these early instances of sua sponte sufficiency analysis refer
only to the “general grounds,” which is a term for a broader analysis Georgia law has long empowered trial courts to conduct. See Wilkerson v. State, 307 Ga. 574, 575 (837 SE2d 300) (2019) (in exercising its discretion on the “general grounds,” the trial judge considers “some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence”). But on appeal, our review of a trial court’s decision on the general grounds is limited to sufficiency. See Lewis v. State, 296 Ga. 259, 261 (3) (765 SE2d 911) (2014). other special grounds of the motion for new trial which were not
argued will be considered abandoned.”); Alexander v. State, 225 Ga.
358, 360-361 (5) (168 SE2d 315) (1969) (“While the sufficiency of the
evidence to authorize the verdict is raised by other enumerations of
error, such question is treated as abandoned inasmuch as the same
is not argued by the appellant.”). And in other appeals of death
penalty cases, we did not address the sufficiency of the evidence.
See, e.g., Lingo v. State, 226 Ga. 496 (175 SE2d 657) (1970), Sullivan
v. State, 225 Ga. 301 (168 SE2d 133) (1969), judgment vacated in
part by Sullivan v. Georgia, 408 U. S. 935 (92 SCt 2854, 33 LE2d
749) (1972).
In 1973, the Georgia legislature enacted Code of 1933, § 27-
2537 and essentially codified sufficiency review in all cases in which
an appellant had been sentenced to death. See Ga. L. 1973, pp. 159,
165-167, § 4. This new Code section, which is found in its present
form at OCGA § 17-10-35, required this Court to review the death
sentence imposed for proportionality and other criteria. See Code of
1933, § 27-2537 (c). But it also provided that our review must include “the factual substantiation of the verdict.” Id. § 27-2537 (i).
Although we did not cite that statutory provision frequently in
the years that followed, there is some indication that we viewed the
new statute as requiring us to review the sufficiency of the evidence
in capital cases. See Coley v. State, 231 Ga. 829, 837 (IV) (204 SE2d
612) (1974) (after setting aside sentence of death for rape, we
reviewed the sufficiency of the evidence, saying that doing so was
“mandated under the 1973 Death Penalty Statute,” despite noting
that sufficiency was not argued and “normally would be considered
abandoned”); see also Gregg v. State, 233 Ga. 117, 118 (1) (210 SE2d
659) (1974) (noting the general grounds were “not argued by the
appellant and thus normally [would be] deemed to be abandoned,”
but nevertheless reviewing the evidence upon those grounds
“because of the capital punishment imposed”). During this time, we
also conducted sua sponte sufficiency review in capital cases without
citing the statute. See, e.g., Johnson v. State, 242 Ga. 649, 650 (250
SE2d 394) (1978) (before addressing enumerations of error, without
citing any particular authority requiring sua sponte review, reviewing evidence and concluding that the evidence authorized the
jury to conclude that appellant and another perpetrator were
equally involved and thus trial court did not err in overruling motion
for new trial).
We also decided appeals in death penalty cases after the 1973
statute without affirmatively stating that we considered sufficiency.
See, e.g., Harris v. State, 237 Ga. 718 (230 SE2d 1) (1976). But of
course the statutorily mandated review of the death sentence in all
such cases — including considering whether the sentence “was
imposed under the influence of passion, prejudice, or any other
arbitrary factor” or was “excessive or disproportionate to the penalty
imposed in similar cases”9 — necessarily involved considerations
similar to whether the evidence in fact constitutionally supported a
conclusion that the appellant was guilty of a capital offense. See id.
at 734 (III) (concluding that the evidence supported the jury’s
finding of the statutory aggravating circumstance).
A new set of rules governing death penalty cases, promulgated
9 See Code of 1933, § 27-2537 (c) (1), (3) (1973); OCGA § 17-10-35. in 1980, cemented the requirement that we should review the
sufficiency of the evidence in every case in which a death sentence
was imposed. That year, the General Assembly mandated further
procedures for appellate review of death penalty cases, enacting
legislation requiring this Court to establish a uniform procedure for
reviewing challenges to convictions and sentences in cases in which
the death penalty had been imposed. See Ga. L. 1980, pp. 390, 391-
392, § 1. Later that year, we adopted such a procedure for “every
case in which the death penalty is sought on an indictment returned
after August 15, 1980.” 246 Ga. A-1. That Unified Appeal Procedure
(UAP) provided that “[i]n all cases the Supreme Court shall
determine whether the verdicts are supported by the evidence
according to law.” 246 Ga. A-16 (UAP IV (B) (2)).10 This provided
additional support for the notion that we must review the sufficiency
of the evidence in all death penalty cases. In Conner v. State, 251
10 The current version of the UAP includes virtually identical language.
See UAP Rule IV (B) (2). But that rule, like all parts of the UAP, “shall be applicable only in cases in which the death penalty is sought.” UAP Introduction. Ga. 113, 114 (1) (303 SE2d 266) (1983), a death penalty case, we
reviewed the sufficiency of the evidence sua sponte, explicitly stating
that the Unified Appeal Procedure required it. See also Mincey v.
State, 251 Ga. 255, 255 (1) (304 SE2d 882) (1983) (sua sponte
reviewing sufficiency of the evidence in death penalty case, citing
UAP).
This shift toward uniform review of the sufficiency of the
evidence in cases in which the death penalty had been imposed in
the 1970s and 1980s was not automatically followed, however, in
cases in which an appellant had received a lesser sentence on a
murder conviction. See, e.g., Brown v. State, 234 Ga. 632, 634 (2)
(217 SE2d 150) (1975) (concluding, in murder case in which a life
sentence was imposed, that “appellant did not argue his
enumeration of error on the general grounds and it is deemed
abandoned”); see also Gay v. State, 235 Ga. 240 (219 SE2d 156)
(1975) (reviewing sufficiency of evidence as to murder conviction as
argued, but deeming any argument as to other conviction
abandoned). So far as we can tell, it appears to be the rare 1970s murder case in which a life sentence was imposed in which we
considered the sufficiency of the evidence sua sponte. See Burnett
v. State, 240 Ga. 681, 689 (12) (242 SE2d 79) (1978) (noting that
although we “ordinarily” would consider a sufficiency claim to be
abandoned where defendant offered no argument or citation of
authority in support of enumeration, “we have thoroughly reviewed
the record of the case and find sufficient evidence to support the
verdict”).
In 1979, the United States Supreme Court made clear that the
Due Process Clause of the United States Constitution requires that
all criminal convictions must be supported by evidence sufficient to
authorize a rational jury to conclude that the defendant is guilty
beyond a reasonable doubt of the crimes for which he was convicted
and sentenced. See Jackson, 443 U. S. at 313-320. At some point
thereafter, it appears that we more frequently began conducting sua
sponte review of the sufficiency of the evidence to support all of
appellants’ convictions even in those murder cases in which the
death penalty was not imposed. See Craver v. State, 246 Ga. 467, 467 (271 SE2d 862) (1980) (“Appellant does not argue the general
grounds. However, the evidence is ample to authorize a rational trier
of fact to find him guilty beyond a reasonable doubt.”). We did not
explain why we did so, although we often cited Jackson v. Virginia.
See, e.g., Johnson v. State, 254 Ga. 591, 595 (1) (331 SE2d 578)
(1985); Andrews v. State, 254 Ga. 498, 500 (4) (330 SE2d 873) (1985);
Craver, 246 Ga. at 467; Sutton v. State, 245 Ga. 192, 193 (3) (264
SE2d 184) (1980). Of course, Jackson established the proper
standard for considering whether evidence supporting a conviction
is sufficient as a matter of due process, but Jackson says nothing
about whether a waived sufficiency argument must be considered in
any particular sort of case on direct review.
Moreover, even post-Jackson, this Court did not engage in an
explicit sufficiency review in every murder case. See, e.g., Gibbons
v. State, 253 Ga. 283 (319 SE2d 861) (1984) (no explicit sufficiency
review in murder case in which a life sentence was imposed); Coles
v. State, 253 Ga. 12 (315 SE2d 655) (1984) (same). In short, it is
difficult to discern when we began reviewing the sufficiency of the evidence in every murder case, let alone why we did so. But it seems
clear that it is a practice that began in death penalty cases as an
exercise of our discretion, was then codified both in statute and
Court rule (again, for death penalty cases only), and then at some
point began to carry over without explanation to convictions in
murder cases in which the death penalty was not imposed.
(b) We cannot now identify a compelling reason to retain our current practice of sua sponte review of the sufficiency of the evidence in cases in which the appellant is not sentenced to death, and there are good reasons to abandon that practice.
Murder now carries a minimum sentence of life in prison with
the possibility of parole, a long sentence indeed. But we conduct a
sufficiency analysis for all convictions in murder cases, regardless of
sentence length, and we do not perform sua sponte sufficiency
review in non-murder cases involving life sentences or cases with
cumulative sentences exceeding any known life expectancy. See,
e.g., OCGA § 16-6-1 (b) (authorizing life imprisonment and life
without parole sentences for rape); § 16-8-41 (b) (authorizing life
imprisonment sentence for armed robbery); § 16-5-40 (authorizing
life imprisonment for kidnapping). For that matter, neither does the Court of Appeals. Sentence length is not a reason for this practice.11
Of course, the requirement that each criminal conviction be
supported by sufficient evidence is imposed by the United States
Constitution, and failure to satisfy that requirement results in
reversal and indeed bars retrial. See Jackson, 443 U. S. at 313-320;
Burks v. United States, 437 U. S. 1 (98 SCt 2141, 57 LE2d 1) (1978);
see also Green v. State, 291 Ga. 287, 288 (1) (728 SE2d 668) (2012);
Prater v. State, 273 Ga. 477, 481 (4) (545 SE2d 864) (2001). But
reversal of a criminal conviction is also required for the harmful
violation of a host of other rules of criminal law; the right to effective
assistance of counsel, the right to confront one’s accusers, the right
to a public trial, and the right against compelled self-incrimination
are just a few of the rights secured for criminal defendants by the
United States Constitution. And we have no general practice of sua
sponte considering whether these other constitutional rights were
11 Our discussion here relates only to murder cases in which a life sentence was imposed. As discussed above, Georgia law requires our sua sponte consideration of several matters in cases in which the death penalty was imposed. See OCGA § 17-10-35; UAP IV (B) (2). violated.
Finally, some might think that sufficiency should always be
reviewed because insufficient evidence is tantamount to actual
innocence. But such a view would misunderstand the nature of
appellate sufficiency review. When we consider sufficiency, we
consider all the evidence admitted at trial, regardless of whether the
trial court erred in admitting some of that evidence. See Chavers v.
State, 304 Ga. 887, 891 (2) (823 SE2d 283) (2019); McDaniel v.
Brown, 558 U. S. 120, 131 (III) (130 SCt 665, 175 LE2d 582) (2010).
To understand the significance of this principle, imagine two
factually identical cases, in both of which the main evidence is a
constitutionally inadmissible video that shows the defendant
committing the crime. In the first case, the video was properly
excluded from evidence; we conclude that the evidence ― without the
video ― was insufficient. In the second case, the video was
erroneously admitted; although on appeal the defendant would have
a strong argument to reverse the conviction due to the evidentiary
error, we would conclude that the evidence ― with the video ― was sufficient.
Due process sufficiency is not at all the same thing as actual
innocence. And actual innocence is a claim that Georgia law allows
to be brought even when other claims might be subject to certain
procedural bars. See Perkins v. Hall, 288 Ga. 810, 824 (III) (D) (708
SE2d 335) (2011); Valenzuela v. Newsome, 253 Ga. 793, 796 (4) (325
SE2d 370) (1985). Accordingly, any categorical similarity that may
appear to exist between sufficiency claims and actual innocence is
superficial and cannot justify sua sponte review.
On the other side of the ledger lie several good reasons not to
review convictions for sufficient evidence sua sponte. In our view,
and with no meaningful countervailing consideration beyond the
frequency and duration of our practice, these reasons convince us to
change course.
First, and most importantly, our legal system presupposes an
adversarial process. See, e.g., Franks v. State, 278 Ga. 246, 250 (599
SE2d 134) (2004) (in evaluating claims of ineffective assistance of
counsel, ‘‘‘we are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact,
worked adequately’”) (quoting Jefferson v. Zant, 263 Ga. 316, 318
(431 SE2d 110) (1993) (quoting White v. Singletary, 972 F2d 1218,
1221 (11th Cir. 1992))). The adversarial process aligns incentives in
a way to increase the likelihood that the strongest possible
argument is identified for each side. Although we always strive to
decide every issue correctly, we sometimes make mistakes, and the
risk of mistakes is at its highest when we consider an issue that no
party has briefed or argued. And this is doubly so when the issue is
especially record-intensive, as are almost all sufficiency issues. Our
un-briefed and thus potentially flawed sufficiency holdings become
precedent that stare decisis makes difficult to correct even when the
issue is later considered more thoughtfully.
Next is the distinct but related point that we ordinarily should
respect strategic decisions by parties and their lawyers about what
arguments to assert on appeal. We always are obligated to inquire
into our own jurisdiction; parties cannot by agreement confer upon
us a power to adjudicate that we do not already possess. See Jenkins v. State, 284 Ga. 642, 642 (670 SE2d 425) (2008) (“It is incumbent
upon this Court to inquire into its own jurisdiction.”) (citation and
punctuation omitted); Foster v. Phinizy, 121 Ga. 673, 678 (49 SE
865) (1905) (“parties by consent cannot confer jurisdiction upon a
court in reference to a matter of which the court has no jurisdiction”).
But as to virtually everything else, it is almost always a better
course to decide the appeal the parties bring us, rather than the
appeal we might have brought were we in counsel’s shoes.
Finally, our practice of deciding sua sponte the sufficiency of
the evidence supporting every conviction in every murder case
consumes a volume of judicial resources far out of proportion to the
likely benefit. Direct appeals of cases with murder convictions make
up a substantial percentage of this Court’s docket; our practice of
sua sponte reviewing sufficiency in so many cases consumes a
considerable amount of resources but seldom results in a reversal of
a conviction. Many reversals that do occur involve only a sentence
for a lesser offense that has no practical effect, given that the
defendant has also received a sentence of life in prison or life without parole for the murder. See, e.g., Harris v. State, 304 Ga. 276, 279
(1) (818 SE2d 530) (2018) (reversing convictions and three ten-year
concurrent sentences for false imprisonment but affirming sentence
of life imprisonment without the possibility of parole for malice
murder). And it is precisely those cases that regularly require an
even more disproportionate amount of work to grapple with poorly
developed records on issues the parties gave little to no attention in
the trial court, where the parties focused their attention on the more
serious charges carrying longer sentences.
In short, there are multiple good reasons to change course. We
acknowledge that the decades and thousands of murder appeals in
which we have applied this practice is a potential reason to keep it.
But as discussed above, this broad practice has never had a solid
foundation; although the precise origins of our practice of deciding
sua sponte the sufficiency of the evidence for all convictions in
murder cases are unclear, they appear to have been rooted in the
death penalty, based on a statute that applies only to cases in which
the death penalty is sought, and we will continue to review the sufficiency of murder convictions resulting in the death penalty as
that statute requires.
Of course, before we overrule prior precedent without an
intervening change in the law, we must consider the doctrine of
stare decisis, and the most important stare decisis consideration is
the strength of the reasoning of the precedent we are reconsidering.
See State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010).
But here, we have no holding to overrule, much less reasoning to
consider; rather, we simply have developed a practice over time in
which we have exercised our discretion in a consistent way. And in
the most recent case in which we decided to change course in our
exercise of similar discretion, we did so without a consideration of
stare decisis. See Dixon v. State, 302 Ga. 691, 696-698 (4) (808 SE2d
696) (2017) (abandoning our discretionary practice of sua sponte
addressing merger errors that benefit the defendant, without
addressing stare decisis considerations). Thus, stare decisis does
not stand in the way of the conclusion we reach today.
Nevertheless, the long-standing nature of the practice counsels in favor of our not ending it without notice. It is conceivable
that a lawyer representing a defendant convicted of murder could
elect not to raise sufficiency with the expectation that this Court will
decide it in any event. To avoid any such reliance, our new approach
of not automatically considering sufficiency sua sponte in non-death
penalty cases will begin with cases docketed to the term of court that
begins in December 2020. The Court will begin assigning cases to
the December Term on August 3, 2020. We also note that our new
approach does not preclude us from exercising our discretion to
consider sufficiency sua sponte where specific circumstances
warrant such review. See Dixon, 302 Ga. at 696-698 (4).
Judgment affirmed. All the Justices concur.
DECIDED JULY 2, 2020. Murder. Catoosa Superior Court. Before Judge House. Jerry W. Chappell II, for appellant. Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Leslie A. Coots, Assistant Attorney General, for appellee.