315 Ga. 126 FINAL COPY
S22A0605. MCELRATH V. THE STATE.
BETHEL, Justice.
This is the second appearance of Damien McElrath’s case
before this Court. In 2017, a jury found McElrath guilty but
mentally ill as to felony murder but not guilty by reason of insanity
as to malice murder following a single, continuous encounter
between McElrath and his mother, Diane McElrath. The trial court
did not recognize the verdicts as repugnant and accepted them. On
appeal, we held that the verdicts were repugnant, and thus we
vacated the verdicts and remanded McElrath’s case for retrial. See
McElrath v. State, 308 Ga. 104 (839 SE2d 573) (2020). On remand,
McElrath filed a plea in bar, alleging that retrial was precluded on
double jeopardy grounds, and the trial court denied this motion.
In this appeal, McElrath argues that this Court should have
reversed rather than vacated his felony murder conviction in his previous appeal. He also challenges the trial court’s ruling on his
plea in bar, contending that retrial on all of the counts is barred
because the jury previously found him not guilty by reason of
insanity on the malice murder count. As we discuss below, however,
both of these arguments fail. We therefore affirm the trial court’s
denial of McElrath’s plea in bar.
1. McElrath first argues that this Court erred in his prior
appeal when we determined that the jury’s verdicts should be
vacated because they were repugnant. See McElrath, 308 Ga. at 108-
112 (2). McElrath argues that, instead, our Court should have
allowed the jury’s verdict of not guilty by reason of insanity on the
malice murder count to stand and should have reversed the guilty
but mentally ill verdict on the felony murder count (and the
underlying aggravated assault on which it was predicated).
However, this issue has already been conclusively decided in
McElrath’s earlier appeal before this Court, where we determined
that the jury’s verdicts on the malice murder and felony murder
counts were repugnant because they could not logically or legally
2 exist simultaneously. This was
because the not guilty by reason of insanity verdict on malice murder and the guilty but mentally ill verdict on felony murder based on aggravated assault required affirmative findings of different mental states that could not exist at the same time during the commission of those crimes as they were indicted, proved, and charged to the jury.
Id. at 112 (2) (c).
Put simply, we determined, based on the evidence presented at
trial, that it was not legally possible for McElrath to simultaneously
be both sane (guilty but mentally ill) and insane (not guilty by
reason of insanity) during the single episode of stabbing his mother.
See McElrath, 308 Ga. at 112 (2) (c). Thus, we determined that the
purported verdicts returned by the jury were a nullity and should
not have been accepted by the trial court. See id. See also 89 CJS
Trial § 1156 (2022) (stating that when findings in special verdicts
“are utterly and irreconcilably inconsistent with, or repugnant to,
each other, they neutralize, nullify, or destroy each other”).
Accordingly, we vacated both the guilty but mentally ill and the not
guilty by reason of insanity verdicts as to the malice murder and
3 felony murder charges, respectively, and remanded the case for a
new trial. See McElrath, 308 Ga. at 112 (2) (c).
Our decision in McElrath’s prior appeal is law of the case.
“Under the ‘law of the case’ rule, ‘any ruling by the Supreme Court
or the Court of Appeals in a case shall be binding in all subsequent
proceedings in that case in the lower court and in the Supreme Court
or the Court of Appeals as the case may be.’” Langlands v. State, 282
Ga. 103, 104 (2) (646 SE2d 253) (2007) (quoting OCGA § 9-11-60 (h)).
“It is well established that the law of the case doctrine applies to
holdings by appellate courts in criminal cases.” Hollmon v. State,
305 Ga. 90, 90-91 (1) (823 SE2d 771) (2019). Therefore, the questions
of whether McElrath’s conviction for felony murder should have
been reversed rather than vacated and the not guilty verdict allowed
to stand have already been decided in this case by this Court, and
our decision was binding on the trial court when it considered
McElrath’s plea in bar upon remand. See Love v. Fulton County
Board of Tax Assessors, 311 Ga. 682, 693 (3) (a) (859 SE2d 33) (2021)
(noting that an earlier appellate decision became the law of the case
4 and bound the trial court in its consideration of the case upon
remand). See also Hollmon, 305 Ga. at 91 (1); Hicks v. McGee, 289
Ga. 573, 578 (2) (713 SE2d 841) (2011) (“Georgia’s appellate courts
are required to adhere to the law of the case rule in all matters which
they consider. . . . [A]ppellate rulings remain binding as between
parties to a case, so long as the evidentiary posture of the case
remains unchanged, despite all contentions that prior rulings in the
matter are erroneous.” (citation and punctuation omitted)).
Based on the foregoing, it is clear that this appeal is not a
proper vehicle for challenging this Court’s earlier decision in this
case that the repugnant verdicts reached by the jury in McElrath’s
trial must be vacated. Under our Court’s rules, McElrath could have
filed a motion for reconsideration contesting that decision during the
reconsideration period for the prior appeal, see Supreme Court Rule
27, but he did not do so. Accordingly, we do not reconsider here our
earlier ruling that the jury’s repugnant verdicts must be vacated.
2. McElrath next argues that because the jury found him not
guilty by reason of insanity on the malice murder count, he cannot
5 be retried on any of the counts in the indictment because of the
constitutional prohibition against double jeopardy and the doctrine
of collateral estoppel. We disagree.
The Fifth Amendment to the United States Constitution
guarantees criminal defendants protection against double jeopardy.
See U. S. Const. Amend. V. Likewise, the Georgia Constitution
provides that “[n]o person shall be put in jeopardy of life or liberty
more than once for the same offense except when a new trial has
been granted after conviction or in case of mistrial.” Ga. Const. of
1983, Art. I, Sec. I, Par. XVIII. The doctrine of double jeopardy
encompasses both “procedural” and “substantive” aspects, the
former barring multiple prosecutions for crimes arising from the
same conduct, and the latter barring multiple punishments for such
crimes. See Williams v. State, 307 Ga. 778, 779 (1) (838 SE2d 235)
(2020). As the United States Supreme Court and this Court have
previously noted, a fundamental principle of procedural double
jeopardy is that a “verdict of acquittal is an absolute bar to a
subsequent prosecution for the same offense.” Williams v. State, 288
6 Ga. 7, 8 (2) (700 SE2d 564) (2010) (citing Green v. United States, 355
U. S. 184, 188 (78 SCt 221, 2 LE2d 199) (1957)). See also Bullington
v. Missouri, 451 U. S. 430, 445 (IV) (101 SCt 1852, 68 LE2d 270)
(1981); Burks v.
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315 Ga. 126 FINAL COPY
S22A0605. MCELRATH V. THE STATE.
BETHEL, Justice.
This is the second appearance of Damien McElrath’s case
before this Court. In 2017, a jury found McElrath guilty but
mentally ill as to felony murder but not guilty by reason of insanity
as to malice murder following a single, continuous encounter
between McElrath and his mother, Diane McElrath. The trial court
did not recognize the verdicts as repugnant and accepted them. On
appeal, we held that the verdicts were repugnant, and thus we
vacated the verdicts and remanded McElrath’s case for retrial. See
McElrath v. State, 308 Ga. 104 (839 SE2d 573) (2020). On remand,
McElrath filed a plea in bar, alleging that retrial was precluded on
double jeopardy grounds, and the trial court denied this motion.
In this appeal, McElrath argues that this Court should have
reversed rather than vacated his felony murder conviction in his previous appeal. He also challenges the trial court’s ruling on his
plea in bar, contending that retrial on all of the counts is barred
because the jury previously found him not guilty by reason of
insanity on the malice murder count. As we discuss below, however,
both of these arguments fail. We therefore affirm the trial court’s
denial of McElrath’s plea in bar.
1. McElrath first argues that this Court erred in his prior
appeal when we determined that the jury’s verdicts should be
vacated because they were repugnant. See McElrath, 308 Ga. at 108-
112 (2). McElrath argues that, instead, our Court should have
allowed the jury’s verdict of not guilty by reason of insanity on the
malice murder count to stand and should have reversed the guilty
but mentally ill verdict on the felony murder count (and the
underlying aggravated assault on which it was predicated).
However, this issue has already been conclusively decided in
McElrath’s earlier appeal before this Court, where we determined
that the jury’s verdicts on the malice murder and felony murder
counts were repugnant because they could not logically or legally
2 exist simultaneously. This was
because the not guilty by reason of insanity verdict on malice murder and the guilty but mentally ill verdict on felony murder based on aggravated assault required affirmative findings of different mental states that could not exist at the same time during the commission of those crimes as they were indicted, proved, and charged to the jury.
Id. at 112 (2) (c).
Put simply, we determined, based on the evidence presented at
trial, that it was not legally possible for McElrath to simultaneously
be both sane (guilty but mentally ill) and insane (not guilty by
reason of insanity) during the single episode of stabbing his mother.
See McElrath, 308 Ga. at 112 (2) (c). Thus, we determined that the
purported verdicts returned by the jury were a nullity and should
not have been accepted by the trial court. See id. See also 89 CJS
Trial § 1156 (2022) (stating that when findings in special verdicts
“are utterly and irreconcilably inconsistent with, or repugnant to,
each other, they neutralize, nullify, or destroy each other”).
Accordingly, we vacated both the guilty but mentally ill and the not
guilty by reason of insanity verdicts as to the malice murder and
3 felony murder charges, respectively, and remanded the case for a
new trial. See McElrath, 308 Ga. at 112 (2) (c).
Our decision in McElrath’s prior appeal is law of the case.
“Under the ‘law of the case’ rule, ‘any ruling by the Supreme Court
or the Court of Appeals in a case shall be binding in all subsequent
proceedings in that case in the lower court and in the Supreme Court
or the Court of Appeals as the case may be.’” Langlands v. State, 282
Ga. 103, 104 (2) (646 SE2d 253) (2007) (quoting OCGA § 9-11-60 (h)).
“It is well established that the law of the case doctrine applies to
holdings by appellate courts in criminal cases.” Hollmon v. State,
305 Ga. 90, 90-91 (1) (823 SE2d 771) (2019). Therefore, the questions
of whether McElrath’s conviction for felony murder should have
been reversed rather than vacated and the not guilty verdict allowed
to stand have already been decided in this case by this Court, and
our decision was binding on the trial court when it considered
McElrath’s plea in bar upon remand. See Love v. Fulton County
Board of Tax Assessors, 311 Ga. 682, 693 (3) (a) (859 SE2d 33) (2021)
(noting that an earlier appellate decision became the law of the case
4 and bound the trial court in its consideration of the case upon
remand). See also Hollmon, 305 Ga. at 91 (1); Hicks v. McGee, 289
Ga. 573, 578 (2) (713 SE2d 841) (2011) (“Georgia’s appellate courts
are required to adhere to the law of the case rule in all matters which
they consider. . . . [A]ppellate rulings remain binding as between
parties to a case, so long as the evidentiary posture of the case
remains unchanged, despite all contentions that prior rulings in the
matter are erroneous.” (citation and punctuation omitted)).
Based on the foregoing, it is clear that this appeal is not a
proper vehicle for challenging this Court’s earlier decision in this
case that the repugnant verdicts reached by the jury in McElrath’s
trial must be vacated. Under our Court’s rules, McElrath could have
filed a motion for reconsideration contesting that decision during the
reconsideration period for the prior appeal, see Supreme Court Rule
27, but he did not do so. Accordingly, we do not reconsider here our
earlier ruling that the jury’s repugnant verdicts must be vacated.
2. McElrath next argues that because the jury found him not
guilty by reason of insanity on the malice murder count, he cannot
5 be retried on any of the counts in the indictment because of the
constitutional prohibition against double jeopardy and the doctrine
of collateral estoppel. We disagree.
The Fifth Amendment to the United States Constitution
guarantees criminal defendants protection against double jeopardy.
See U. S. Const. Amend. V. Likewise, the Georgia Constitution
provides that “[n]o person shall be put in jeopardy of life or liberty
more than once for the same offense except when a new trial has
been granted after conviction or in case of mistrial.” Ga. Const. of
1983, Art. I, Sec. I, Par. XVIII. The doctrine of double jeopardy
encompasses both “procedural” and “substantive” aspects, the
former barring multiple prosecutions for crimes arising from the
same conduct, and the latter barring multiple punishments for such
crimes. See Williams v. State, 307 Ga. 778, 779 (1) (838 SE2d 235)
(2020). As the United States Supreme Court and this Court have
previously noted, a fundamental principle of procedural double
jeopardy is that a “verdict of acquittal is an absolute bar to a
subsequent prosecution for the same offense.” Williams v. State, 288
6 Ga. 7, 8 (2) (700 SE2d 564) (2010) (citing Green v. United States, 355
U. S. 184, 188 (78 SCt 221, 2 LE2d 199) (1957)). See also Bullington
v. Missouri, 451 U. S. 430, 445 (IV) (101 SCt 1852, 68 LE2d 270)
(1981); Burks v. United States, 437 U. S. 1, 16 (III) (98 SCt 2141, 57
LE2d 1) (1978) (noting that “we necessarily afford absolute finality
to a jury’s verdict of acquittal” (emphasis omitted)).
The bar against double jeopardy also encompasses the doctrine
of collateral estoppel, which precludes the re-litigation of an
ultimate fact issue that was determined by a valid and final
judgment. See Giddens v. State, 299 Ga. 109, 112-113 (2) (a) (786
SE2d 659) (2016).1 As the United States Supreme Court has
explained,
“[c]ollateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of
1 “Under this doctrine, when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Citation and punctuation omitted.) Giddens, 299 Ga. at 112-113 (2) (a). Collateral estoppel therefore precludes “retrial of the factual decisions that necessarily underlie the legal determination of acquittal.” Id. at 113 (2) (a). To assert this protection in a subsequent trial, the defendant bears the burden of proving from the record what facts were actually and necessarily decided in his favor in an earlier trial. See id. 7 ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.
(Emphasis supplied.) Ashe v. Swenson, 397 U. S. 436, 443 (90 SCt
1189, 25 LE2d 469) (1970). See also Roesser v. State, 294 Ga. 295,
296 (751 SE2d 297) (2013) (“When there is ‘a critical issue of
ultimate fact in all of the charges against (the defendant), a jury
verdict that necessarily decided that issue in his favor protects him
from prosecution for any charge for which that is an essential
element.’” (quoting Yeager v. United States, 557 U. S. 110, 123 (II)
(129 SCt 2360, 174 LE2d 78) (2009))).
Based on these principles, McElrath argues that the jury’s
verdict of not guilty by reason of insanity as to the malice murder
charge bars retrial as to that charge, as well as the other charges in
the indictment. Under the general principles of double jeopardy and
viewed in isolation, the jury’s purported verdict of not guilty by
reason of insanity would appear to be an acquittal that precludes
retrial, as not guilty verdicts are generally inviolate. See Yeager, 557
U. S. at 122-123 (II) (“Even if the verdict is based upon an
8 egregiously erroneous foundation, its finality is unassailable.”
(citation and punctuation omitted)); Richardson v. United States,
468 U. S. 317, 325 (104 SCt 3081, 82 LE2d 242) (1984) (“[T]he
protection of the Double Jeopardy Clause by its terms applies only
if there has been some event, such as an acquittal, which terminates
the original jeopardy.”). Viewed in context alongside the verdict of
guilty but mentally ill, however, the purported acquittal loses
considerable steam. Because the verdicts were repugnant, both are
rendered valueless. There is no way to decipher what factual finding
or determination they represent, and McElrath cannot be said with
any confidence to have been found not guilty based on insanity any
more than it can be said that the jury made a finding of sanity and
guilt with regard to the same conduct. See McElrath, 308 Ga. at 111
(2) (c) (“Where a jury renders repugnant verdicts, both verdicts must
be vacated and a new trial ordered for the same reasons applicable
to mutually exclusive verdicts.” (citing Dumas v. State, 266 Ga. 797
(471 SE2d 508) (1996))). Thus, the repugnant verdicts failed to
result in an event that terminated jeopardy, akin to a situation in
9 which a mistrial is declared after a jury is unable to reach a verdict.
Cf. Richardson, 468 U. S. at 325-326 (holding that a retrial following
a hung jury generally does not violate the Double Jeopardy Clause
because the jury’s failure to reach a verdict does not terminate the
original jeopardy). Accordingly, the general principles of double
jeopardy do not bar McElrath’s retrial on the malice murder charge.
But that does not end our analysis. McElrath has further
argued that the doctrine of collateral estoppel, which is encompassed
by the prohibition against double jeopardy, would also bar retrial.
We disagree.
As detailed in Division 1 above, the verdicts returned by the
jury were repugnant, and “any judgment and sentence entered on
repugnant verdicts are void.” See State v. Owens, 312 Ga. 212, 216
(1) (a) (862 SE2d 125) (2021) (“In considering whether verdicts were
repugnant and thus void, we have held that no valid judgment may
be entered on a void verdict.” (citations and punctuation omitted;
emphasis supplied)). Simply stated, a repugnant verdict of the sort
rendered in McElrath’s first trial is no verdict at all because it did
10 not “represent[ ] a resolution, correct or not, of some or all of the
factual elements of the offense charged.” United States v. Martin
Linen Supply Co., 430 U. S. 564, 571 (II) (97 SCt 1349, 51 LE2d 642)
(1977). And collateral estoppel only applies once there has been a
valid and final judgment. See Ashe, 397 U. S. at 443 (noting that a
“valid and final judgment” is required before collateral estoppel bars
retrial).
Moreover, while it is true that collateral estoppel “may
completely bar a subsequent prosecution where one of the facts
necessarily determined in the former proceeding is an essential
element of the conviction sought,” Malloy v. State, 293 Ga. 350, 354
(2) (a) (744 SE2d 778) (2013), this case does not call for a
straightforward application of the collateral estoppel rule.
McElrath argues that the issue of his insanity at the time he
stabbed Diane to death was an issue the jury actually and
necessarily decided in his favor when it found him not guilty by
reason of insanity on the malice murder count. However, the jury
spoke through both an acquittal by reason of insanity and
11 convictions of guilty but mentally ill — finding McElrath both insane
and sane at the time of the stabbing. See McElrath, 308 Ga. at 112
(2) (c). “The whole collateral estoppel analysis is premised on the
proposition that the jury acted rationally and lawfully.” Giddens,
299 Ga. at 118 (2) (b). Where it did not, as here, the Court cannot
infer facts, such as the defendant’s sanity (or lack thereof), that must
have been decided in order for the jury to return the verdicts it
reached. Cf. id. (“The problem is that the same jury reached
inconsistent results; once that is established principles of collateral
estoppel —which are predicated on the assumption that the jury
acted rationally and found certain facts in reaching its verdict — are
no longer useful.” (citation and punctuation omitted)). Because it
cannot be said with any confidence that the jury made a finding of
innocence based on insanity any more than it can be said that it
made a finding of sanity and guilt, the doctrine of collateral estoppel
does not bar retrial.
Accordingly, neither the doctrine of collateral estoppel nor the
more general principles of double jeopardy bar McElrath from being
12 retried as to all counts of the indictment. These claims for relief
therefore fail.
Judgment affirmed. All the Justices concur.
13 PINSON, Justice, concurring.
I concur in the Court’s opinion, but with reservations.
“[I]t has long been settled under the Fifth Amendment that a
verdict of acquittal is final, ending a defendant’s jeopardy, and even
when ‘not followed by any judgment, is a bar to a subsequent
prosecution for the same offence.’” Green v. United States, 355 U.S.
184, 188 (78 SCt 221, 2 LE2d 199) (1957) (quoting United States v.
Ball, 163 U.S. 662, 671 (16 SCt 1192, 41 LE 300) (1896)). And the
United States Supreme Court has explained that the finality of a
verdict of acquittal holds “even though the acquittal was based upon
an egregiously erroneous foundation,” Arizona v. Washington, 434
U.S. 497, 503 (II) (98 SCt 824, 54 LE2d 717) (1978) (cleaned up), and
even “when a jury returns inconsistent verdicts, convicting on one
count and acquitting on another count, where both counts turn on
the very same issue of ultimate fact[.]” Bravo-Fernandez v. United
States, 580 U.S. 5, 8 (137 SCt 352, 196 LE2d 242) (2016) (explaining
that, in such circumstances, “[t]he Government is barred by the
Double Jeopardy Clause from challenging the acquittal”).
14 The Court nonetheless concludes here that the State may seek
to retry McElrath on a count for which the jury returned an acquittal
verdict. I follow the logic: as a matter of Georgia law, the acquittal
was a “repugnant” verdict; a repugnant verdict is “void,” which
means that, unlike other merely “erroneous” verdicts, it is not a
verdict at all; and so the jury never reached a verdict that ended the
defendant’s jeopardy. Further, precedent supports the general idea
that a “void” acquittal is “no bar to subsequent indictment and trial.”
Ball, 163 U.S. at 669 (making this point with respect to “[a]n
acquittal before a court having no jurisdiction,” which “is, of course,
like all the proceedings in the case, absolutely void”). See also United
States v. Slape, 44 F4th 356, 361-62 (III) (5th Cir. 2022) (“[T]he mere
appearance of a successive prosecution—and even the erroneous
conviction or acquittal of a defendant in certain invalid
proceedings—does not suffice for the attachment of jeopardy where
a ‘fatal defect’ in a criminal prosecution renders the proceedings
‘void.’” (emphasis supplied) (quoting Ball, 163 U.S. at 669)). And the
Court’s analogy to a retrial following a “hung jury” makes some
15 sense. See Richardson v. United States, 468 U.S. 317, 324-25 (104
SCt 3081, 82 LE2d 242) (1984) (reaffirming that “a retrial following
a ‘hung jury’ does not violate the Double Jeopardy Clause” because
“the failure of the jury to reach a verdict is not an event which
terminates jeopardy”).
And yet, I can’t quite shake the doubt that these points can
reconcile the Court’s decision fully with the quite-absolute-sounding
bar against retrying a defendant who has secured an acquittal
verdict. See, e.g., Bullington v. Missouri, 451 U.S. 430, 445 (IV) (101
SCt 1852, 68 LE2d 270) (1981) (“A verdict of acquittal on the issue
of guilt or innocence is, of course, absolutely final.”); Washington,
434 U.S. at 503 (II) (“The constitutional protection against double
jeopardy unequivocally prohibits a second trial following an
acquittal.”). This case is not quite like the cases where the verdict
was void because the court lacked jurisdiction from the outset,
because jeopardy did actually attach here. Nor is it quite like the
hung-jury cases, because the jury here did actually reach a verdict.
So the Court’s conclusion here that jeopardy did not end—and so
16 McElrath can be retried—depends on a state-law-based legal fiction
that treats the jury’s verdict as though it never happened. To be
sure, the law can and must depend on legal fictions all the time. But
this one bears a lot of weight, and I am not confident that it carries
the Court’s decision over the absolute bar against retrying a
defendant after an acquittal verdict. Indeed, the Attorney General
“acknowledges that retrial of [McElrath’s] malice murder charge
would be precluded by double jeopardy under the law as it currently
stands.”
This lingering doubt is not enough to justify dissenting from an
otherwise unanimous Court, so I concur in the Court’s opinion. But
consider me dubitante.
I am authorized to state that Justice McMillian joins in this
concurrence.
17 Decided November 2, 2022.
Double jeopardy. Cobb Superior Court. Before Judge Brown.
Kilgore & Rodriguez, H. Maddox Kilgore, Carlos J. Rodriguez,
for appellant.
Flynn D. Broady, Jr., District Attorney, Linda J. Dunikoski,
Stephanie A. Green, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Meghan H. Hill, Assistant Attorney General, for appellee.