Hart v. StateHart v. State
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Danielle Hart appeals her malice murder conviction for the beating death of her four-year-old daughter, Jamila Hart.1 As an initial matter, the State, through the Office of the Attorney General, questions whether this Court should continue exercising direct appellate jurisdiction over murder cases where the death penalty has not been sought and requests that we transfer the case to the Court of Appeals. We deny the State‘s request to transfer this case for the reasons set out below.
Turning to the merits, Hart argues that (1) the evidence was insufficient to support her conviction as a matter of federal due process; (2) her trial counsel rendered constitutionally ineffective assistance by not impeaching two witnesses and by not introducing two video recordings into evidence; (3) the trial court erred in failing to instruct the jury on confession corroboration; (4) the State failed to correct testimony it knew to be false; and (5) the cumulative harm from these errors requires a new trial. Because we conclude that the evidence was sufficient to sustain her convictions, that trial counsel did not render constitutionally ineffective assistance, that the trial court did not commit plain error in failing to instruct on confession corroboration, and that Hart‘s remaining enumerations of error are without merit, we affirm.
The evidence presented at trial showed that Jamila lived with Hart, Jamila‘s two younger sisters, and Hart‘s girlfriend, Shardea Glover in the River Ridge Apartments in Clayton County. Around 1:30 p.m. on August 24, 2014, William and Tori Johnson, who lived in the apartment complex across the hall from Hart and Glover, heard banging on their front door. When they opened the door, Glover was screaming, “[M]y child‘s not breathing, my child‘s not breathing.” They followed Glover into her apartment and found Jamila “laid out on the bed” in the back bedroom. Glover pulled down Jamila‘s pants and said, “You don‘t understand, I spanked her, I spanked her, you don‘t understand. . . . I lost control.” The Johnsons determined that Jamila was not breathing and began performing CPR until EMS arrived. Jamila was then immediately transported to a nearby hospital but did not survive her injuries.
Tori testified that Jamila‘s body was cold when she and her husband found her in the
AyAsia Cherry, who was a nursing student at the time, also lived nearby and assisted with performing CPR on Jamila. According to Cherry, Hart told her that Jamila “had choked.” However, as Cherry was performing CPR on Jamila, additional vomit was forced into Jamila‘s mouth, and Cherry noticed that the vomit was cold, which she would not have expected if Jamila had just recently choked. After Glover pulled Jamila‘s pants down, Cherry saw “blood marks on [Jamila‘s] legs.” Cherry did not see Hart crying at any point, and when she saw Hart later that afternoon, Hart was “sitting in the [breezeway,] . . . drinking a cup of beer and smoking a cigarette” and “did not look upset at all.”
Freddie Johnson, another neighbor, testified that he brought his daughter to Hart‘s apartment earlier that day so that Hart could braid his daughter‘s hair. About 20 minutes later, Hart brought his daughter back and said she could not finish her hair because her own daughter was sick. Freddie testified that when he had seen Jamila in the past, she had “acted scared” and “didn‘t seem happy at all.”
Dr. Richard Sobel, an emergency room physician, testified that Jamila had already died by the time she presented to the hospital and that “she had been dead for some time,” as evidenced by the complete lack of cardiac or brain activity. Dr. Sobel then explained the extent of Jamila‘s injuries, including swelling and bruising on her forehead from an apparent blunt-force injury, bruising and swelling of her left eye, and a large black and blue mark on her abdomen that he opined was “not fresh” and was consistent with blunt-force trauma. Jamila‘s arms had linear abrasions that were commonly seen with a “fingernail type” injury inflicted from being held, and her entire buttocks area was “massively swollen” with a breakdown of tissue and leakage of fluid. Her legs were “riddled with bruising” and “swollen to the point where tissue fluid is almost just bursting out of the swollen leg.” Based on his examination, it was difficult “to find parts that [were] probably not bruised.” He opined that the injuries would have been “grossly painful” and that Jamila “was tortured.”
Dr. Sobel explained that Jamila‘s injuries had likely been maturing or evolving for hours before she arrived at the emergency room. As she succumbed to her injuries, someone present would have seen Jamila experience anxiety, sweating, pale skin, rapid breathing, and then eventually a cessation of breathing, a process that would “take quite some time.” In his opinion, because the “dependent area,” particularly her buttocks, was so swollen, it was likely that Jamila was on her back for a while, helpless, as the swelling continued until she died an “excruciating death.”
Dr. Lora Darrisaw, the medical examiner who performed the autopsy on Jamila, identified 20 injuries on Jamila‘s head and neck, including a fractured clavicle, 20 injuries on her torso, 21 injuries to her arms, and 23 injuries to her legs. Dr. Darrisaw opined that the majority of the injuries were consistent with blunt-force trauma. Some of the injuries, including the fractured clavicle and curved linear abrasions, were consistent with Jamila having been restrained by her arms. Dr. Darrisaw concluded that the internal bleeding was so extensive that it caused a disruption of the normal function of Jamila‘s heart and brain and ultimately caused Jamila‘s death; she did not identify any other natural disease process that would have contributed to Jamila‘s death.
The State also presented the testimony of Carie Daughtry. Daughtry testified that she and Hart frequently talked while they were in jail together in the fall of 2014. One day
At that point, Hart held Jamila‘s arms over her head while Jamila was bent over the bed so that Jamila could not move, and Glover repeatedly beat Jamila with a piece of wood. Daughtry stepped down from the stand to demonstrate to the jury what Hart had described. Hart told Daughtry that Jamila was crying and yelling while she was hit, but that Hart never asked Glover to stop even though Glover “lost it.” Hart did not let go of Jamila until Jamila stopped yelling and crying. Glover continued to hit Jamila with the wooden board until “[t]he board broke.”
Afterward, Hart put Jamila on the bed and rubbed ointment on her back, but Jamila remained passed out. Hart left Jamila there and then started doing her neighbor‘s hair. When Hart returned to the bedroom to see if Jamila would eat some soup she had made, Glover was in there and told her that Jamila was not breathing. Before calling 911, Hart and Glover took the broken board outside to the trash.
Hart called Glover to testify in her defense at trial. Glover admitted that she was serving a life sentence in Pulaski State Prison after pleading guilty to Jamila‘s murder. However, Glover testified that she only gave one spanking to Jamila that day and that she was “in distress, in shock at the time” and did not recall telling officers that she spanked Jamila three times over an hour and a half.
1. We begin by addressing the State‘s request, through the Office of the Attorney General, that this Court reconsider its jurisdiction over murder cases in which the death penalty was not sought. Specifically, the State argues that this case should be transferred to the Court of Appeals because the Georgia Constitution limits this Court‘s direct appellate jurisdiction to murder cases in which the death sentence has been imposed or could be imposed, see
Turning to the legal and historical context of Paragraph III (8), which we have previously interpreted and need not construe anew, this Court has long exercised jurisdiction over all cases in which the appellant has been found guilty of murder. Before 1983, the Georgia Constitution gave us jurisdiction over “all cases of conviction of a capital felony.”
But the 1983 Constitution removed the reference to “capital felony” and replaced it with “cases in which a sentence of death was imposed or could be imposed.”
Ten years later, this Court had another opportunity to determine whether the Court of Appeals or this Court has direct appellate jurisdiction over non-death-penalty murder cases under Paragraph III (8). Despite the Thornton transfer order, in Rhyne v. State, 264 Ga. 176 (442 SE2d 742) (1994), the Court of Appeals retained and decided an appeal from a non-capital murder where the jury had been unable to reach a verdict and a mistrial was declared. This Court concluded that although the Court of Appeals should have transferred the case under Thornton, the court “did not lack jurisdiction to consider the merits of appellant‘s former appeal” because the case was not one “in which a sentence of death was imposed or could be imposed.” Id. at 177 (punctuation omitted; citing Paragraph III (8)).
Over the years, our jurisdiction over non-death-penalty murder cases pursuant to Thornton and its order to transfer all murder appeals “as a matter of policy” has been questioned. In Weatherbed v. State, 271 Ga. 736, 739 (524 SE2d 452) (1999) (Benham, C. J., concurring specially), Chief Justice Benham called on the Court to “comply with the change in its appellate jurisdiction in non-capital murder cases brought about by passage of the 1983 Georgia Constitution,” as recognized in Thornton, and to have all future murder appeals decided by the Court of Appeals in the first instance. He argued that the 1983 Constitution had limited the Court‘s jurisdiction to “cases in which a defendant has been sentenced to death,” cases “in which the possibility of the imposition of the death penalty still exists,” death penalty cases at the “interim review phase,” and “interlocutory appeals arising in cases where the defendant has been charged with a crime punishable by death” if the death penalty could still be pursued by the State at the time of the appeal. Id. at 740-41.
Despite Chief Justice Benham‘s concerns, we did not review our jurisdiction under Thornton again for a decade. In 2009, we concluded that this Court has direct appellate jurisdiction over an appeal from a contempt order issued against an assistant district attorney in a murder prosecution because, pursuant to Thornton‘s transfer order, “[t]he proper focus is on the nature of the underlying action. 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.” State v. Murray, 286 Ga. 258, 258-59 (1) (687 SE2d 790) (2009) (cleaned up). Justice Nahmias dissented, seeking to offer a better explanation than “as a matter of policy” for our order that the Court of Appeals must transfer all murder appeals to this Court. He suggested that the Court‘s “almost-unlimited certiorari jurisdiction” authorized us to take murder cases from the Court of Appeals. Id. at 266 (2) (b) (emphasis in original).
Yet, just a few years later, the members of the Court seemed to reject Thornton. In 2012, all of the Justices joined a concurring opinion authored by Chief Justice Hunstein stating for the first time that the 1983 change in constitutional text made no difference in meaning, and so our post-1983 jurisdiction remained the same as it was under the previous constitutional language. See Neal v. State, 290 Ga. 563, 567-72 (722 SE2d 765) (2012) (Hunstein, C. J., concurring) (“the Neal concurring opinion“). The Court reasoned that “the constitutional history of the 1983 Constitution makes clear that the framers intended for the division of jurisdiction between the two appellate courts to remain unchanged.” Id. at 570 (citing various transcripts from 1977-1981 committee
In more recent years, Justice Bethel authored a concurring opinion that again questioned the nature of this Court‘s jurisdiction over murder cases. See Garcia-Jarquin v. State, 314 Ga. 555, 557-65 (878 SE2d 200) (2022) (Bethel, J., concurring). Echoing Chief Justice Benham‘s special concurring opinion in Weatherbed, Justice Bethel wrote that the plain language of the 1983 Constitution “limited our jurisdiction over appeals in murder cases to only those cases in which, at the time of the appeal, a sentence of death has been imposed, cases where the State is actively seeking the death penalty, and cases where a possibility remains that the State could seek the death penalty.” Id. at 558. Justice Bethel also noted that he was persuaded by Justice Nahmias‘s suggestion in his dissenting opinion in Murray — “that this Court is empowered to assert discretionary jurisdiction over murder (and any other) cases based on our expansive power of certiorari” — and set out reasons for why this Court ought not exercise its jurisdiction over non-death-penalty murder cases, including the capacity of the Court of Appeals to efficiently handle these cases. Id. at 564-65.
Against this backdrop, we remain convinced that Thornton correctly concluded that the change of text in the 1983 Constitution meant that this Court no longer had jurisdiction over non-death-penalty murder cases and that the Neal concurring opinion‘s conclusion to the contrary is insupportable. Chief Justice Benham‘s concurring opinion in Weatherbed provided the textual analysis supporting Thornton‘s conclusion. See Weatherbed, 271 Ga. at 740-41 (Benham, C. J., concurring). The Neal concurring opinion, on the other hand, failed to properly engage with the text or apply long-standing canons of construction. See Middleton v. State, 309 Ga. 337, 345 (3) (846 SE2d 73) (2020) (It is “a core principle of statutory interpretation that changes in statutory language generally indicate an intent to change the meaning of the statute.“); Barrow v. Raffensperger, 308 Ga. 660, 672 (3) (c) (842 SE2d 884) (2020) (“When constitutional language is substantively changed, we must give that change effect.“); Olevik v. State, 302 Ga. 228, 236 (2) (c) (i) (806 SE2d 505) (2017)
In requesting that we transfer this case to the Court of Appeals, the State, through the
However, notwithstanding the merits of the policy considerations advanced by the State, other competing policy considerations are at issue as well. Stakeholders in Georgia have for decades relied on the current state of affairs. For example, both staffing decisions and numerous procedures of the Court of Appeals and Supreme Court are based on this Court‘s exclusive review of non-death-penalty murder appeals — such that it would be difficult to retreat from the Thornton transfer order without proper planning and coordination. See Garcia-Jarquin, 314 Ga. at 565 (Bethel, J., concurring) (recognizing the “significant practical impact on the operations of this Court and the Court of Appeals” if non-death-penalty murder cases were appealed to the Court of Appeals in the first instance). Accordingly, we decline to retreat from Thornton‘s transfer order at this time, which is best understood as reflecting a decision to retain jurisdiction over this and other non-death-penalty murder appeals pursuant to our certiorari jurisdiction. See Murray, 286 Ga. at 266 (2) (b) (Nahmias, J., dissenting) (explaining that “we may properly take all murder appeals as a categorical exercise of our longstanding and almost-unlimited certiorari jurisdiction” (emphasis in original)).
2. Turning to the merits of this appeal, Hart first asserts that the State failed to adduce sufficient evidence that she had either express or implied malice to sustain her conviction for malice murder as a matter of constitutional due process and under state statutory law. Specifically, she argues that the State failed to present evidence from which the jury could have inferred malice and that the only evidence she intentionally participated as a party to the crime came from Daughtry‘s testimony, which Hart contends was not corroborated in violation of
When assessing the sufficiency of the evidence as a matter of constitutional due process, we view the evidence in the light most favorable to the verdict and consider whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crime for which she was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). In doing so, “we put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the jury.” Blocker v. State, 316 Ga. 568, 574 (2) (889 SE2d 824) (2023) (citation and punctuation omitted).
So viewed, we conclude that the evidence was sufficient to support Hart‘s conviction for malice murder as a party to the crime. See
To the extent Hart argues lack of sufficiency as a matter of Georgia statutory law for failure to corroborate her confession to Daughtry under
3. Hart also raises several claims of ineffective assistance of counsel. To succeed on these claims, Hart must prove both that her counsel‘s performance was deficient and that the deficient performance prejudiced her. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To show deficient performance, Hart must demonstrate that her counsel performed “in an objectively unreasonable way, considering all of the circumstances and in the light of prevailing professional norms.” Troutman v. State, 320 Ga. 489, 494 (3) (910 SE2d 173) (2024) (citation and punctuation omitted). As to the prejudice prong, Hart “must show that there is a reasonable probability that, but for counsel‘s unprofessional error, the result of the proceeding would have been different.” Id. (citation and punctuation omitted). “This burden, though not impossible to carry, is a heavy one.” Hayes v. State, 320 Ga. 505, 514 (3) (910 SE2d 198) (2024) (citation and punctuation omitted). If a defendant fails to establish either one of these two prongs, we need not examine the other. See Summerville v. State, 320 Ga. 60, 61 (2) (907 SE2d 604) (2024).
(a) Hart first asserts that trial counsel performed deficiently when she failed to impeach Glover‘s testimony that Glover only spanked Jamila one time and “never admitted to the crime of murder.” Hart argues that trial counsel should have impeached this testimony with Glover‘s final disposition following her plea agreement and certain of Glover‘s pretrial statements to detectives, including that she could not say how many times she had spanked Jamila, but each time was ten to fifteen seconds; that after the first “butt-whooping” Glover‘s hands were so swollen that she switched to a paddle; that her goal was to hit Jamila four to five times per spanking; and that Jamila fell and bumped her head during the second beating. Hart also argues that trial counsel should have impeached Glover‘s testimony with a separate recorded statement, in which Glover told Hart, “This is me. Everything. This is me. I did it. . . . I took your daughter‘s life. . . . I killed a kid. . . . I know I took your baby. . . . This is my fault. . . . I‘m taking responsibility for every bruise, scratch, bump. Anything that kid has, that‘s me.” We are not persuaded.
We first note that, despite Hart‘s characterization that Glover never admitted to the murder, Glover did admit at trial that she was serving a life sentence in prison after pleading guilty to Jamila‘s murder. And many of the statements Hart argues should have been used to impeach Glover‘s testimony were consistent with portions of Daughtry‘s testimony, including that Glover repeatedly beat Jamila with a piece of wood; that Glover “lost it“; and that Glover continued to hit Jamila with the wooden board until “[t]he board broke.” Thus, it was a reasonable trial strategy to allow Glover to testify, without objection, to Glover‘s abuse of Jamila because counsel could use that testimony and portions of Daughtry‘s testimony in an attempt to show that Glover, rather than Hart, was responsible for the murder.
In addition, the record shows that Glover was an unpredictable and hostile witness who could have easily caused harm to Hart‘s case by implicating Hart in the murder had trial counsel attempted to impeach her testimony. Before Glover was called as a witness, the trial court spoke with Glover outside the presence of the jury about her apparent unwillingness to testify. Although Glover reiterated that she did not want to testify, the trial court ordered her to do so because she had already pleaded guilty to the indictment concerning the charges for which Hart was on trial.
At the motion for new trial hearing, trial counsel explained that she was not able to speak with Glover prior to trial and that Glover became a “very, very combative” witness and “was going into areas that [she] did not want her bringing up.”10 When Glover began to deviate from her prior statements and downplayed her actions, it became clear to trial counsel that Glover could cause more harm than good, so she “cut her short.” Trial counsel was concerned that Glover would recant “her statement to the police that maybe Hart wasn‘t involved [in the murder].” Under these circumstances, we cannot say that Hart has “overcome the strong presumption that counsel‘s performance fell within a wide range of reasonable professional conduct.” Wright v. State, 314 Ga. 355, 357 (877 SE2d 178) (2022) (citation and punctuation omitted). Accordingly, this claim of ineffective assistance fails. See Mitchell v. State, 308 Ga. 1, 9 (2) (e) (838 SE2d 820) (2020) (decision of whether to impeach a witness through introduction of certified copies of prior convictions is a matter of trial strategy); McDuffie v. State, 298 Ga. 112, 115-16 (2) (779 SE2d 620) (2015) (appellant failed to demonstrate trial counsel‘s “strategic decision not to call” a potential witness was “entirely unreasonable” where trial counsel thought potential witness would be “more harmful than helpful” (citation and punctuation omitted)).
(b) In a related claim, Hart asserts that trial counsel performed deficiently by failing to introduce two video recordings of Glover‘s pretrial statements to detectives in order to impeach Glover‘s trial testimony and to contradict harmful testimony from Hart‘s neighbors that Hart did not cry or seem upset following Jamila‘s death. Again, we are not persuaded.
At the motion for new trial hearing, trial counsel testified that, although she could have played the video recordings, there “was some reason” that she did not want to play them for the jury, but she could not remember the specific reason. She also explained that she did not want to give the State the opportunity to play portions of the recording that were not helpful. Although trial counsel could not recall each reason why she chose not to play the recordings, our review of the
In the first recording, Glover, who appeared very emotional during many parts, made numerous statements minimizing the spankings that she gave Jamila. And several times she referenced Hart‘s role in disciplining Jamila, including that “mommy (Hart) does most of the discipline, but if it gets too bad” Glover will handle it. She also told detectives, “We had a belt“; “We broke the belt“; “We went with the paddle“; and “We got a system.” (Emphasis supplied.) Glover also repeatedly referred to Hart‘s presence that day, noting that Hart would come in and ask if Jamila had eaten; that Glover kept spanking Jamila because Jamila was lying about the fight with her little sister and Hart “really wanted to know what happened [to cause the fight]“; that Glover told Jamila she needed to tell the truth because “Mommy is crying because you‘re getting a spanking“; and that she and Hart talked about how “we need to stick our ground . . . we need to follow through.” Moreover, parts of this recording corroborated Hart‘s admissions to Daughtry, including that Hart had walked in on Glover in the bathroom with Jamila; that Hart had applied ointment on Jamila; and that Glover had used a wooden slat and thrown it in the trash before officers arrived.
The second recording is of Glover and Hart in a room without any detectives. For most of the recording, Hart is very still and quiet, whereas Glover began loudly crying and vomiting when she walked in and saw Hart. The two women spent most of the recording whispering to each other in an apparent effort to coordinate their stories. Hart told Glover that she told the detectives that she had “whooped her butt four times and . . . put her in the corner and . . . explained to her what she did wrong and why.” At one point, Glover said, “I don‘t know how long you were talking, I took over because I needed to issue a spanking.” Then, Glover told Hart, “The second time was when you came back in, she gave me a different story. You remember when you came in. . . . You told me she gave a different story, so I spanked her butt for the different story.” Glover repeated, “Like I told the officers, usually we do a little bit and then we give up and I felt like today we needed to push through because I didn‘t want it to be a recurrent thing.”
Hart has not shown that no reasonable attorney would have decided against the risk of opening the door to the highly incriminating parts of these recordings by introducing them to impeach Glover‘s testimony. Accordingly, this ineffective assistance claim fails. See Castillo-Velasquez v. State, 305 Ga. 644, 651-52 (3) (827 SE2d 257) (2019) (ineffective assistance claim failed where trial counsel correctly recognized that the State could have sought to admit unfavorable portions of the medical records under the rule of completeness had counsel sought to introduce only the favorable portions); Miller v. State, 296 Ga. 9, 12 (4) (a) (764 SE2d 823) (2014) (trial counsel‘s strategic decision not to call a witness that could have opened the door to harmful evidence did not amount to ineffective assistance).
(c) Hart also asserts that her trial counsel performed deficiently by failing to impeach Dr. Sobel‘s testimony that Jamila was “tortured” by introducing Jamila‘s medical records from the months preceding her death.
At the motion for new trial hearing, trial counsel testified that she did not believe that there was anything relevant in Jamila‘s medical records that would have been helpful to her defense. She also made a strategic decision not to minimize Jamila‘s injuries, which were admittedly “brutal,” but decided instead “to face them head-on” and point to Glover as the perpetrator. We cannot say that this strategy was “so patently unreasonable that no competent attorney would have followed such a course.” Davis v. State, 299 Ga. 180, 183 (2) (787 SE2d 221) (2016) (citation and punctuation omitted).
The medical records that Hart asserts should have been admitted are from pediatric
(d) Hart also argues that the combined effect of trial counsel‘s deficient performance requires the grant of a new trial. Because we have identified no instances of deficient performance to cumulate, this claim fails. See Roseboro v. State, 308 Ga. 428, 437-38 (2) (c) (841 SE2d 706) (2020) (“Given that neither of [appellant‘s] enumerations of error amount to deficient performance on the part of trial counsel, [his] argument that the cumulative harm of these failures . . . affected the outcome of trial is without merit.” (citation and punctuation omitted)).
4. Hart argues that the trial court erred when it failed to instruct the jury on confession corroboration. As Hart concedes, because she did not object to the omission of this instruction, we review this claim for plain error. See
To establish plain error, Hart must show that the alleged instructional error (1) was not affirmatively waived; (2) was clear and obvious, rather than subject to reasonable dispute; (3) likely affected the outcome of the trial; and (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings. See Holloway v. State, 320 Ga. 653, 659 (3) (911 SE2d 543) (2025). “An appellant must establish all four elements of the test in order to demonstrate plain error, so satisfying this test is difficult, as it should be.” Id. (citation and punctuation omitted).
As noted in Division 2, we are skeptical that Hart‘s statements to Daughtry — including that Hart had held Jamila‘s arms over her head so that Jamila could not move while Glover repeatedly beat Jamila with a piece of wood; that Hart never asked Glover to stop even though Glover “lost it” and continued to hit Jamila until “[t]he board broke“; and that Hart left Jamila passed out on the bed — constituted a confession rather than an admission. See Thomas v. State, 308 Ga. 26, 30 (2) (b) (838 SE2d 801) (2020) (“A mere incriminating statement is made where the accused, though admitting to damaging circumstances, nonetheless attempts to deny responsibility for the crime charged by putting forward exculpatory or legally justifying facts.” (cleaned up)). However, even assuming that Hart‘s statements constituted a confession, Hart cannot show that the omission of a confession-corroboration charge likely affected the outcome of the trial. As summarized above, there was sufficient corroboration of Hart‘s statements to Daughtry, including Dr. Sobel‘s testimony regarding the extent of Jamila‘s injuries inflicted over a period of time, Hart‘s false statements that Jamila had “choked,” multiple neighbors’ testimony that Hart was present in the apartment when they arrived to assist Jamila, and Freddie Johnson‘s testimony that earlier in the day, Hart claimed to him that Jamila was sick. Thus, Hart cannot show plain error. See Davis v. State, 316 Ga. 418, 423 (3) (888 SE2d 546) (2023) (where there was ample, strongly inculpatory corroborating evidence at trial, appellant could not satisfy the third prong of the plain-error test).
5. Hart also asserts that the State failed to correct Glover‘s testimony that she had “never admitted to the crime of murder,” even though the State knew this testimony to be false, citing Napue v. Illinois, 360 U.S. 264, 269 (79 SCt 1173, 3 LE2d 1217) (1959) (“[A] conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment[.]“). This enumeration fails for several reasons.
“To establish a Napue violation, a defendant must show that the prosecution knowingly solicited false testimony or knowingly allowed it to go uncorrected when it appeared.” Glossip v. Oklahoma, 604 U.S. 226, 246 (III) (A) (145 SCt 612, 221 LE2d 90) (2025) (citation and punctuation omitted).
We see no Napue violation for several reasons. First, Glover was not called as a witness by the State but by Hart.11 And it is not at all clear that this principle applies to a defense witness on direct examination. See United States v. McNair, 605 F3d 1152, 1208 (IX) (2010) (“When a government lawyer elicits false testimony that goes to a witness‘s credibility, we will consider it sufficiently material to warrant a new trial only when the estimate of the truthfulness and reliability of the given witness may well be determinative of guilt or innocence.” (citation and punctuation omitted; emphasis supplied)); Daniels v. State, 349 Ga. App. 681, 684-85 (3) (824 SE2d 754) (2019) (“A defendant‘s right to due process is violated when a prosecutor
fails to correct the false testimony of a government witness.” (punctuation omitted; emphasis supplied, quoting United States v. Clarke, 442 Fed. Appx. 540, 543-44 (II) (11th Cir. 2011)).
Even assuming that Napue applies under these circumstances, we do not see there is a “reasonable likelihood [that the alleged false testimony] would have affected the judgment of the jury.” Glossip, 604 U.S. at 249 (III) (A). Although Glover was uncooperative as a defense witness and attempted to downplay her role, she admitted at trial that she was serving a life sentence in Pulaski State Prison for pleading guilty to Jamila‘s murder. Thus, it is highly doubtful that any attempt by the State to correct Glover‘s statement that she “never admitted to the crime of murder” would have affected the judgment of the jury. See Smith v. State, 320 Ga. 825, 838 (2) (912 SE2d 563) (2025) (“A determination of materiality [under Napue] requires an examination of the statements at issue in the context of the entire record.“); DeLoach v. State, 308 Ga. 283, 294-95 (3) (c) (840 SE2d 396) (2020) (rejecting appellant‘s claim under Napue and concluding that the false statement was not material where it would have been in the State‘s interest to correct the witness‘s statement and the witness‘s credibility was otherwise undermined at trial).
Moreover, the State‘s theory throughout the trial was that Glover and Hart together caused Jamila‘s death, not that Hart was solely responsible. Thus, Hart has not shown how the State allegedly used testimony from Glover that she had not admitted to committing the murder in the State‘s case against Hart, and we have found no instances of the State using this evidence to argue that Hart was solely responsible for the murder.12 See Wimes v. State, 293 Ga. 361, 363 (3) (744 SE2d 787) (2013) (“[C]onviction of a crime following a trial in which perjured testimony on a material point is knowingly used by the prosecution is an infringement on the accused‘s Fifth and Fourteenth Amendment rights to due process.” (citation and punctuation omitted; emphasis supplied)); United States v. Kallen-Zury, 629 Fed. Appx. 894, 898 (II) (11th Cir. 2015) (“[A] State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction[.]” (citation and punctuation omitted; emphasis supplied)); McNair, 605 F3d at 1208 (IX) (“To establish prosecutorial misconduct for the use of false testimony, a defendant must show the prosecutor knowingly used perjured testimony, or failed to correct what he subsequently learned was false testimony, and that the falsehood was material.” (emphasis supplied)). Accordingly, this enumeration of error fails.
6. Lastly, Hart argues that the cumulative harm from each of the above enumerations of error requires the grant of a new trial. However, because we have only assumed one possible error, i.e., that the trial court failed to give a confession-corroboration charge, there cannot be any cumulative error that would require a new trial. See Thomas v. State, 311 Ga. 573, 579 (6) (858 SE2d 504) (2021) (cumulative error analysis does not apply when there are not multiple errors to consider cumulatively).
Judgment affirmed. Peterson, C. J., Warren, P. J., and Bethel, Ellington, Colvin, and Pinson, JJ., concur. LaGrua, J., concurs specially in part.
PINSON, Justice, concurring.
I join the Court‘s decision in full, including the conclusion that the policy this Court adopted in State v. Thornton remains in force at this time. 253 Ga. 524 (322 SE2d 711) (1984). In particular, given this Court‘s limited appellate jurisdiction, I agree that the only understanding of Thornton that makes sense is that it is a policy decision to grant certiorari review in each case in the class of murder cases not already covered by Paragraph III (8) once the case is appealed. I write separately to make clear that this policy decision, particularly as it has evolved over time, should not be understood as reflecting the scope of our certiorari jurisdiction as a general matter.
The Georgia Constitution grants this Court jurisdiction to “review by certiorari cases in the Court of Appeals which are of gravity or great public importance.”
First, that policy is not consistent with our longstanding construction of the standard for granting review by certiorari. That standard asks whether a case is “of gravity or great public importance.”
Second, as the Thornton policy has evolved in practice, it may have deviated from our certiorari jurisdiction in another way. That jurisdiction is limited to review of “cases in the Court of Appeals.”
Because I do not understand the Court‘s decision to be inconsistent with these views, I join it in full.
LAGRUA, Justice, concurring specially in part.
In Division 1 of today‘s decision, a majority of the Court takes the position “that Thornton correctly concluded that the change of text in the 1983 Constitution meant that this Court no longer had jurisdiction over non-death-penalty murder cases[,]” and disapproves of language used in a handful of decisions that asserted appellate jurisdiction consistent with Thornton‘s transfer order “to the extent that the language of those decisions suggests that our jurisdiction over those cases came from Paragraph III (8) instead[.]” See Maj. Op. at 8-10 (1) and n.9. I disagree and see a sound basis for our appellate jurisdiction in some non-death-penalty murder cases under the Constitution of Georgia of 1983, Article VI, Section VI, Paragraph III (8). However, because I concur with the majority opinion that a separate basis for our appellate jurisdiction also exists under the Constitution of Georgia of 1983, Article VI, Section VI, Paragraph V, and it is on that basis which the majority opinion asserts jurisdiction before reaching the correct judgment in this case, I concur specially as to Division 1.
Our Constitution provides, among other jurisdictional bases, that the Supreme Court “shall have appellate jurisdiction” in eight specified “classes of cases” “[u]nless otherwise provided by law.”
The district attorney did not give timely notice to the defense that the state intended to seek the death penalty . . . and for this reason this is not a case “in which a sentence of death was imposed or could be imposed.” Constitution of Georgia of 1983, Art. VI, Sec. VI, Par. III (8). Hence, this appeal was filed properly in the Court of Appeals.
Id. (emphasis omitted). We then said: “As a matter of policy, however, we deem it appropriate, at the present time, that all murder cases be reviewed by this court.” Id. And, to effectuate our sua sponte policy determination, we entered an order directing the Court of Appeals to “transfer to the Supreme Court all cases in which either a sentence of death or of life imprisonment has been imposed upon conviction of murder, and all pre-conviction appeals in murder cases, whether or not timely notice was given by the district attorney[.]” Id. (citation and punctuation omitted). The Thornton transfer order has been rightly criticized by my colleagues past and present. See, e.g., State v. Murray, 286 Ga. 258, 266 (2) (a) (687 SE2d 790) (2009) (Nahmias, J., dissenting) (describing Thornton‘s
Underpinning Thornton‘s policy-based transfer order was the conclusion — unsupported by any textual analysis — that we lacked jurisdiction to entertain the appeal because the case before us was not one “‘in which a sentence of death was imposed or could be imposed.‘” 253 Ga. at 524 (1) (quoting Paragraph III (8)). And the only reason for that, per the Thornton Court, was because the district attorney prosecuting Thornton did not timely give notice of the State‘s intent to seek the death penalty — a requirement under the Unified Appeal Procedure if the death penalty is to be sought in a particular case. Id.15 In other words, the death penalty could not be sought (or ultimately, imposed) against Thornton in that particular case because the district attorney did not give timely notice of the State‘s intent to do so. According to the Thornton Court, this case-specific fact, wholly unrelated to the nature of the underlying offense or its associated penalties, meant that we lacked appellate jurisdiction under Paragraph III (8).
Today‘s decision does not attempt to defend Thornton‘s jurisdictional analysis with respect to Paragraph III (8) — nor could it. Instead, it relies on former Chief Justice Benham‘s special concurrence in Weatherbed v. State to carry the day. See 271 Ga. 736, 739-741 (524 SE2d 452) (1999) (Benham, C. J., concurring specially). According to the majority opinion, that one-justice writing “provided the textual analysis supporting Thornton‘s conclusion[,]” see Maj. Op. at 8 (1). While I am unpersuaded by former Chief Justice Benham‘s textual analysis for the reasons set out below, I fully agree with the foundational point at its heart: “From the addition of new language, we presume that some change in existing law was intended.” Weatherbed, 271 Ga. at 739 (Benham, C. J., concurring specially) (citing Balest v. Simmons, 201 Ga. App. 605 (1) (a) (411 SE2d 576) (1991)). See Barrow v. Raffensperger, 308 Ga. 660, 672 (3) (c) (842 SE2d 884) (2020) (“When constitutional language is substantively changed, we must give that change effect.“). Certainly, the change in relevant constitutional text from the 1976 Constitution (and its predecessors) to the current and operative 1983 Constitution must mean something. I am just not convinced that the change in language resulted in the change in meaning described by former Chief Justice Benham and echoed by today‘s decision. Allow me to explain.
As an initial matter, former Chief Justice Benham‘s special concurrence appears to begin from a faulty premise as it relates to the pre-1983 jurisdictional regime. That special concurrence posits that, “[i]n State v. Thornton . . . this Court recognized that the 1983 Constitution‘s grant to this Court of jurisdiction over ‘cases in which a sentence of death was imposed or could be imposed’ does not embrace all murder cases, as the previous statement of jurisdiction had.” Weatherbed, 271 Ga. at 739 (Benham, C. J., concurring specially) (citing Collins v. State, 239 Ga. 400, 402 (2) (236 SE2d 759) (1977)) (emphasis supplied). See also id. at 741 (describing Thornton‘s transfer
In addressing Thornton‘s jurisdictional holding, former Chief Justice Benham explained his view “that the 1983 Constitution did not give this Court appellate jurisdiction of an appeal wherein the defendant, though charged with murder, could not receive the death penalty.” 271 Ga. at 740 (Benham, C. J., concurring specially). After pointing to Rhyne v. State, 264 Ga. 176, 177 (442 SE2d 742) (1994) as an instance of this Court‘s “continued” recognition of Thornton‘s case-specific and fact-bound jurisdictional approach,18 he then set out his reading of the 1983 constitutional language:
Given the use of the past tense, the phrase “cases in which a sentence of death was imposed,” can only mean cases in which a defendant has been sentenced to death as a result of the judgment of conviction being appealed. The phrase “or could be imposed,” on the other hand, speaks to the future and is applicable to those cases in which the possibility of the imposition of the death penalty still exists. Under current Georgia law, that would encompass the interim review phase of death penalty cases authorized by the Unified Appeal Process (Uniform Superior Court Rule 34), and interlocutory appeals in cases where the defendant has been charged with a crime punishable by death and the time within which the district attorney must give notice of intent to seek the death penalty has not yet expired. See USCR 34.
Weatherbed, 271 Ga. at 740-741 (Benham, C. J., concurring specially).
My primary concern with former Chief Justice Benham‘s view is that it does not consider the full text of Paragraph III. See Elliott v. State, 305 Ga. 179, 186 (II) (B) (824 SE2d 265) (2019) (“[W]hen we determine the meaning of a particular word or phrase in a constitutional provision or statute, we consider text in context, not in isolation.“).19 Specifically, his approach failed to give effect to the key organizing and structural principle of Paragraph III, which confers upon this Court appellate jurisdiction in specified “classes of cases.” Instead, his textual analysis looked to Paragraph III (8) in isolation.20
In Justice Bethel‘s concurrence in Garcia-Jarquin, he articulated a view that the 1983 Constitution “chang[ed] the jurisdictional definition from the crime (capital felonies) to the punishment (cases in which a sentence of death was imposed or could be imposed).” 314 Ga. at 558 (Bethel, J., concurring). It is also plain to me that the sum class of cases specified in Paragraph III (8) now speaks in terms of actual or possible punishment (as opposed to speaking in terms of the crime at issue), and that it is the punishment of death, either in actuality (“was imposed“) or possibility (“could be imposed“), which is the trigger for our jurisdiction.21 In my view, however, ascertaining whether the death penalty is possible — that is, whether the death penalty “could be imposed” with respect to a given case on appeal — should not turn on practical considerations or case-specific facts unrelated to the nature of the underlying offense and its associated punishments. That case-specific and fact-bound practical approach was the one taken by the Thornton Court (and reiterated by former Chief Justice Benham‘s special concurrence in Weatherbed), but it is one that gives no effect to the phrase “classes of cases” as used
Not only does this approach align with the historical treatment of a capital felony (like murder) as being a unique crime warranting unique punishment,23 but it also gives effect to Paragraph III‘s organizing principle into “classes of cases” and aligns with the principle that a change in constitutional language indicates a change in meaning. See Barrow, 308 Ga. at 672 (3) (c) (“When constitutional language is substantively changed, we must give that change effect.“). As explained above, it is my view that when the 1983 Constitution was enacted, this Court‘s jurisdiction was substantively changed insofar as it was no longer limited to post-conviction appeals in capital felony cases (like murder), but was expanded to include pre-conviction appeals in capital felony cases (like murder) and post-conviction appeals in capital felony cases (like murder) that are death penalty eligible as a class,24 even if the death penalty is not actually imposed on the specific defendant.25
Additionally, this approach would allow us to avoid some pitfalls of Thornton‘s case-specific and fact-bound approach. For example, if the majority opinion is correct that “could be imposed” really means “could [still] be imposed” as a practical matter in a specific case, then the action (or inaction) by district attorneys could theoretically dictate appellate jurisdiction in certain cases before those cases are ever brought to trial. That is an approach, and result, which I cannot endorse in this context and one that we have rejected in others. See, e.g., Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 257 (1) (564 SE2d 715) (2002) (explaining in the context of a mandamus action that the “underlying subject matter” controls whether an appeal is subject to the direct or discretionary appellate procedure, rather than the relief sought or procedure invoked by a litigant in the trial court, “as litigants cannot under any circumstances dictate the procedural or jurisdictional rules of this Court“).
Finally, if we truly believe that murder is the “most heinous” crime one can commit in our society, see Luther v. State, 255 Ga. 706, 708 (1) (342 SE2d 316) (1986), it is perfectly reasonable and appropriate that the State‘s highest court be charged with considering appeals in those cases. In my mind, this is precisely what Paragraph III (8) represents by conferring mandatory appellate jurisdiction upon this Court for most of those cases. Moreover, because I see Paragraph III (8) as providing a sound basis for this Court‘s mandatory appellate jurisdiction in some non-death-penalty murder cases, I also see it as our constitutional responsibility to consider them. But today, the majority opinion takes a step in the opposite direction, and toward the abdication of our role, by recasting our constitutional responsibility as a mere exercise of our discretion under Paragraph V.
Decided June 24, 2025.
Murder. Clayton Superior Court. Before Judge Mack.
Jackie L. Tyo, for appellant.
Tasha M. Mosely, District Attorney, John D. Murray, Brianna W. Jordan, Assistant District Attorneys; Christopher M. Carr, Attorney General, Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C. Malcolm, Senior Assistant Attorneys General, Eric C. Peters, Assistant Attorney General, Stephen J. Petrany, Solicitor-General, Ross W. Bergethon, Deputy Solicitor-General, for appellee.
Notes
Thornton, 253 Ga. at 524 (1) (citation and punctuation omitted).The Court of Appeals is directed to transfer to the Supreme Court all cases in which either a sentence of death or of life imprisonment has been imposed upon conviction of murder, and all pre-conviction appeals in murder cases, whether or not timely notice was given by the district attorney as required by Unified Appeal, § II. A. 1., 246 Ga. at A-7. This order shall be effective as to cases docketed in the Court of Appeals after December 1, 1984.
Olevik v. State, 302 Ga. 228, 237-38 (2) (c) (i) (806 SE2d 505) (2017).Unlike ordinary legislation, the people — not merely elected legislators — are the “makers” of the Georgia Constitution. . . . If the subjective intent of one legislator out of 236 casts little light on the meaning of ordinary legislation, such subjective views can hardly carry more weight for a Constitution that had hundreds of thousands of citizens who voted on its ratification.
The denomination of certain crimes as capital felonies is an expression of our society‘s view that these crimes are more heinous than other classes of crimes, with murder being the most heinous of all capital felonies. It follows that defendants convicted of capital felonies, particularly murder, should be and are treated differently than defendants convicted of non-capital felonies and misdemeanors.
Luther v. State, 255 Ga. 706, 708 (1) (342 SE2d 706) (1986) (citation omitted).