McElrath v. State

¶1 SUPREME COURT OF GEORGIA

¶2 November 2, 2022

¶3 The Honorable Supreme Court met pursuant to adjournment.

¶4The following order was passed:

¶5 Upon consideration, the Court has revised the deadline for motions for reconsideration in this matter. It is ordered that a motion for reconsideration, if any, including motions submitted via the Court’s electronic filing system, must be received in the Clerk’s Office by 2 p.m. on Wednesday, November 9, 2022.

¶6 SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta

¶7 I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

¶8 , Clerk  NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

¶9In the Supreme Court of Georgia

¶10 Decided: November 2, 2022

¶11 S22A0605. McELRATH v. THE STATE.

¶12 BETHEL, Justice.

¶13 This is the second appearance of Damien McElrath’s case

¶14before this Court. In 2017, a jury found McElrath guilty but

¶15mentally ill as to felony murder but not guilty by reason of insanity

¶16as to malice murder following a single, continuous encounter

¶17between McElrath and his mother, Diane McElrath. The trial court

¶18did not recognize the verdicts as repugnant and accepted them. On

¶19appeal, we held that the verdicts were repugnant, and thus we

¶20vacated the verdicts and remanded McElrath’s case for retrial. See

¶21McElrath v. State, 308 Ga. 104 (839 SE2d 573) (2020). On remand,

¶22McElrath filed a plea in bar, alleging that retrial was precluded on

¶23double jeopardy grounds, and the trial court denied this motion.

¶24 In this appeal, McElrath argues that this Court should have

¶25 1 reversed rather than vacated his felony murder conviction in his

¶26previous appeal. He also challenges the trial court’s ruling on his

¶27plea in bar, contending that retrial on all of the counts is barred

¶28because the jury previously found him not guilty by reason of

¶29insanity on the malice murder count. As we discuss below, however,

¶30both of these arguments fail. We therefore affirm the trial court’s

¶31denial of McElrath’s plea in bar.

¶32 1. McElrath first argues that this Court erred in his prior

¶33appeal when we determined that the jury’s verdicts should be

¶34vacated because they were repugnant. See McElrath, 308 Ga. at 108-

¶35112 (2). McElrath argues that, instead, our Court should have

¶36allowed the jury’s verdict of not guilty by reason of insanity on the

¶37malice murder count to stand and should have reversed the guilty

¶38but mentally ill verdict on the felony murder count (and the

¶39underlying aggravated assault on which it was predicated).

¶40However, this issue has already been conclusively decided in

¶41McElrath’s earlier appeal before this Court, where we determined

¶42that the jury’s verdicts on the malice murder and felony murder

¶43 2 counts were repugnant because they could not logically or legally

¶44exist simultaneously. This was

¶45 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.

¶46Id. at 112 (2) (c).

¶47 Put simply, we determined, based on the evidence presented at

¶48trial, that it was not legally possible for McElrath to simultaneously

¶49be both sane (guilty but mentally ill) and insane (not guilty by

¶50reason of insanity) during the single episode of stabbing his mother.

¶51See id. Thus, we determined that the purported verdicts returned by

¶52the jury were a nullity and should not have been accepted by the

¶53trial court. See id. See also 89 C.J.S. Trial § 1156 (2022) (stating that

¶54when findings in special verdicts “are utterly and irreconcilably

¶55inconsistent with, or repugnant to, each other, they neutralize,

¶56nullify, or destroy each other”). Accordingly, we vacated both the

¶57guilty but mentally ill and the not guilty by reason of insanity

¶58 3 verdicts as to the malice murder and felony murder charges,

¶59respectively, and remanded the case for a new trial. See McElrath,

¶60308 Ga. at 112 (2) (c).

¶61 Our decision in McElrath’s prior appeal is law of the case.

¶62“Under the ‘law of the case’ rule, ‘any ruling by the Supreme Court

¶63or the Court of Appeals in a case shall be binding in all subsequent

¶64proceedings in that case in the lower court and in the Supreme Court

¶65or the Court of Appeals as the case may be.’” Langlands v. State, 282

¶66Ga. 103, 104 (2) (646 SE2d 253) (2007) (quoting OCGA § 9-11-60 (h)).

¶67“It is well-established that the law of the case doctrine applies to

¶68holdings by appellate courts in criminal cases.” Hollmon v. State,

¶69305 Ga. 90, 90-91 (1) (823 SE2d 771) (2019). Therefore, the questions

¶70of whether McElrath’s conviction for felony murder should have

¶71been reversed rather than vacated and the not guilty verdict allowed

¶72to stand have already been decided in this case by this Court, and

¶73our decision was binding on the trial court when it considered

¶74McElrath’s plea in bar upon remand. See Love v. Fulton County

¶75Board of Tax Assessors, 311 Ga. 682, 693 (3) (a) (859 SE2d 33) (2021)

¶76 4 (noting that an earlier appellate decision became the law of the case

¶77and bound the trial court in its consideration of the case upon

¶78remand). See also Hollman, 305 Ga. at 91 (1); Hicks v. McGee, 289

¶79Ga. 573, 578 (2) (713 SE2d 841) (2011) (“Georgia’s appellate courts

¶80are required to adhere to the law of the case rule in all matters which

¶81they consider. . . . [A]ppellate rulings remain binding as between

¶82parties to a case, so long as the evidentiary posture of the case

¶83remains unchanged, despite all contentions that prior rulings in the

¶84matter are erroneous.” (citation omitted)).

¶85 Based on the foregoing, it is clear that this appeal is not a

¶86proper vehicle for challenging this Court’s earlier decision in this

¶87case that the repugnant verdicts reached by the jury in McElrath’s

¶88trial must be vacated. Under our Court’s rules, McElrath could have

¶89filed a motion for reconsideration contesting that decision during the

¶90reconsideration period for the prior appeal, see Supreme Court Rule

¶9127, but he did not do so. Accordingly, we do not reconsider here our

¶92earlier ruling that the jury’s repugnant verdicts must be vacated.

¶93 2. McElrath next argues that because the jury found him not

¶94 5 guilty by reason of insanity on the malice murder count, he cannot

¶95be retried on any of the counts in the indictment because of the

¶96constitutional prohibition against double jeopardy and the doctrine

¶97of collateral estoppel. We disagree.

¶98 The Fifth Amendment to the United States Constitution

¶99guarantees criminal defendants protection against double jeopardy.

¶100See U. S. Const. Amend. V. Likewise, the Georgia Constitution

¶101provides that “[n]o person shall be put in jeopardy of life or liberty

¶102more than once for the same offense except when a new trial has

¶103been granted after conviction or in case of mistrial.” Ga. Const., Art.

¶104I, Sec. I, Par. XVIII. The doctrine of double jeopardy encompasses

¶105both “procedural” and “substantive” aspects, the former barring

¶106multiple prosecutions for crimes arising from the same conduct, and

¶107the latter barring multiple punishments for such crimes. See

¶108Williams v. State, 307 Ga. 778, 779 (1) (838 SE2d 235) (2020). As the

¶109United States Supreme Court and this Court have previously noted,

¶110a fundamental principle of procedural double jeopardy is that a

¶111“verdict of acquittal is an absolute bar to a subsequent prosecution

¶112 6 for the same offense.” Williams v. State, 288 Ga. 7, 8 (2) (700 SE2d

¶113564) (2010) (citing Green v. United States, 255 U. S. 184, 188 (78 SCt

¶114221, 2 LE2d 199) (1957)). See also Bullington v. Missouri, 451 U. S.

¶115430, 445 (IV) (101 SCt 1852, 68 LE2d 270) (1981); Burks v. United

¶116States, 437 U. S. 1, 16 (III) (98 SCt 2141, 57 LE2d 1) (1978) (noting

¶117that “we necessarily afford absolute finality to a jury’s verdict of

¶118acquittal”).

¶119 The bar against double jeopardy also encompasses the doctrine

¶120of collateral estoppel, which precludes the re-litigation of an

¶121ultimate fact issue that was determined by a valid and final

¶122judgment. See Giddens v. State, 299 Ga. 109, 112-113 (2) (a) (786

¶123SE2d 659) (2016).1 As the United States Supreme Court has

¶124explained,

¶125 ‘[c]ollateral estoppel’ is an awkward phrase, but it stands

¶126 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.” (Citation omitted.) 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 Giddens, 299 Ga. at 113 (2) (a). 7  for an extremely important principle in our adversary system of justice. It means simply that 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.

¶127(Emphasis supplied.) Ashe v. Swenson, 397 U. S. 436, 443 (90 SCt

¶1281189, 25 LE2d 469) (1970). See also Roesser v. State, 294 Ga. 295,

¶129296 (751 SE2d 297) (2013) (“When there is ‘a critical issue of

¶130ultimate fact in all of the charges against [the defendant], a jury

¶131verdict that necessarily decided that issue in his favor protects him

¶132from prosecution for any charge for which that is an essential

¶133element.’” (quoting Yeager v. United States, 557 U. S. 110, 123 (129

¶134SCt 2360, 174 LE2d 78) (2009)).

¶135 Based on these principles, McElrath argues that the jury’s

¶136verdict of not guilty by reason of insanity as to the malice murder

¶137charge bars retrial as to that charge, as well as the other charges in

¶138the indictment. Under the general principles of double jeopardy and

¶139viewed in isolation, the jury’s purported verdict of not guilty by

¶140reason of insanity would appear to be an acquittal that precludes

¶141retrial, as not guilty verdicts are generally inviolate. See Yeager, 557

¶142 8 U. S. at 122 (II) (“Even if the verdict is based upon an egregiously

¶143erroneous foundation, its finality is unassailable.” (citation and

¶144punctuation omitted)); Richardson v. United States, 468 U. S. 317,

¶145325 (104 SCt 3081, 82 LE2d 242) (1984) (“[T]he protection of the

¶146Double Jeopardy Clause by its terms applies only if there has been

¶147some event, such as an acquittal, which terminates the original

¶148jeopardy[.]”). Viewed in context alongside the verdict of guilty but

¶149mentally ill, however, the purported acquittal loses considerable

¶150steam. Because the verdicts were repugnant, both are rendered

¶151valueless. There is no way to decipher what factual finding or

¶152determination they represent, and McElrath cannot be said with

¶153any confidence to have been found not guilty based on insanity any

¶154more than it can be said that the jury made a finding of sanity and

¶155guilt with regard to the same conduct. See McElrath, 308 Ga. at 111

¶156(2) (c) (“Where a jury renders repugnant verdicts, both verdicts must

¶157be vacated and a new trial ordered for the same reasons applicable

¶158to mutually exclusive verdicts.” (citing Dumas v. State, 266 Ga. 797

¶159(471 SE2d 508) (1996)). Thus, the repugnant verdicts failed to result

¶160 9 in an event that terminated jeopardy, akin to a situation in which a

¶161mistrial is declared after a jury is unable to reach a verdict. Cf.

¶162Richardson, 468 U. S. at 325-326 (holding that a re-trial following a

¶163hung jury generally does not violate the Double Jeopardy Clause

¶164because the jury’s failure to reach a verdict does not terminate the

¶165original jeopardy). Accordingly, the general principles of double

¶166jeopardy do not bar McElrath’s retrial on the malice murder charge.

¶167 But that does not end our analysis. McElrath has further

¶168argued that the doctrine of collateral estoppel, which is encompassed

¶169by the prohibition against double jeopardy, would also bar retrial.

¶170We disagree.

¶171 As detailed in Division 1 above, the verdicts returned by the

¶172jury were repugnant, and “any judgment and sentence entered on

¶173repugnant verdicts are void.” See State v. Owens, 312 Ga. 212, 216

¶174(1) (a) (862 SE2d 125) (2021) (“In considering whether verdicts were

¶175repugnant and thus void, we have held that no valid judgment may

¶176be entered on a void verdict. (emphasis supplied; citations and

¶177punctuation omitted)). Simply stated, a repugnant verdict of the sort

¶178 10 rendered in McElrath’s first trial is no verdict at all because it did

¶179not “represent a resolution, correct or not, of some or all of the

¶180factual elements of the offense charged.” United States v. Martin

¶181Linen Supply Co., 430 U. S. 564, 571 (II) (97 SCt 1349, 51 LE2d 642)

¶182(1977). And collateral estoppel only applies once there has been a

¶183valid and final judgment. See Ashe, 397 U. S. at 443 (noting that a

¶184“valid and final judgment” is required before collateral estoppel bars

¶185retrial).

¶186 Moreover, while it is true that collateral estoppel “may

¶187completely bar a subsequent prosecution where one of the facts

¶188necessarily determined in the former proceeding is an essential

¶189element of the conviction sought,” Malloy v. State, 293 Ga. 350, 354

¶190(2) (a) (744 SE2d 778) (2013), this case does not call for a

¶191straightforward application of the collateral estoppel rule.

¶192 McElrath argues that the issue of his insanity at the time he

¶193stabbed Diane to death was an issue the jury actually and

¶194necessarily decided in his favor when it found him not guilty by

¶195reason of insanity on the malice murder count. However, the jury

¶196 11 spoke through both an acquittal by reason of insanity and

¶197convictions of guilty but mentally ill – finding McElrath both insane

¶198and sane at the time of the stabbing. See McElrath, 308 Ga. 112 (2)

¶199(c). “The whole collateral estoppel analysis is premised on the

¶200proposition that the jury acted rationally and lawfully.” Giddens,

¶201299 Ga. at 118. Where it did not, as here, the Court cannot infer

¶202facts, such as the defendant’s sanity (or lack thereof), that must have

¶203been decided in order for the jury to return the verdicts it reached.

¶204Cf. id. (“The problem is that the same jury reached inconsistent

¶205results; once that is established principles of collateral estoppel –

¶206which are predicated on the assumption that the jury acted

¶207rationally and found certain facts in reaching its verdict – are no

¶208longer useful.” (citation omitted)). Because it cannot be said with

¶209any confidence that the jury made a finding of innocence based on

¶210insanity any more than it can be said that it made a finding of sanity

¶211and guilt, the doctrine of collateral estoppel does not bar retrial.

¶212 Accordingly, neither the doctrine of collateral estoppel nor the

¶213more general principles of double jeopardy bar McElrath from being

¶214 12 retried as to all counts of the indictment. These claims for relief

¶215therefore fail.

¶216 Judgment affirmed. All the Justices concur.

¶217 13  PINSON, Justice, concurring.

¶218 I concur in the Court’s opinion, but with reservations.

¶219 “[I]t has long been settled under the Fifth Amendment that a

¶220verdict of acquittal is final, ending a defendant’s jeopardy, and even

¶221when ‘not followed by any judgment, is a bar to a subsequent

¶222prosecution for the same offence.’” Green v. United States, 355 U.S.

¶223184, 188 (78 SCt 221, 2 LEd2d 199) (1957) (quoting Ball v. United

¶224States, 163 U.S. 662, 671 (16 SCt 1192, 41 LEd 300) (1896)). And the

¶225United States Supreme Court has explained that the finality of a

¶226verdict of acquittal holds “even though the acquittal was based upon

¶227an egregiously erroneous foundation,” Arizona v. Washington, 434

¶228U.S. 497, 503 (II) (98 SCt 824, 54 LE2d 717) (1978) (cleaned up), and

¶229even “when a jury returns inconsistent verdicts, convicting on one

¶230count and acquitting on another count, where both counts turn on

¶231the very same issue of ultimate fact[.]” Bravo-Fernandez v. United

¶232States, 580 U.S. 5, 8 (137 SCt 352, 196 LEd2d 242) (2016)

¶233(explaining that, in such circumstances, “[t]he Government is barred

¶234by the Double Jeopardy Clause from challenging the acquittal”).

¶235 14  The Court nonetheless concludes here that the State may seek

¶236to retry McElrath on a count for which the jury returned an acquittal

¶237verdict. I follow the logic: as a matter of Georgia law, the acquittal

¶238was a “repugnant” verdict; a repugnant verdict is “void,” which

¶239means that, unlike other merely “erroneous” verdicts, it is not a

¶240verdict at all; and so the jury never reached a verdict that ended the

¶241defendant’s jeopardy. Further, precedent supports the general idea

¶242that a “void” acquittal is “no bar to subsequent indictment and trial.”

¶243Ball, 163 U.S. at 669 (making this point with respect to “[a]n

¶244acquittal before a court having no jurisdiction,” which “is, of course,

¶245like all the proceedings in the case, absolutely void”). See also United

¶246States v. Slape, 44 F4th 356, 361-62 (5th Cir. 2022) (“[T]he mere

¶247appearance of a successive prosecution—and even the erroneous

¶248conviction or acquittal of a defendant in certain invalid

¶249proceedings—does not suffice for the attachment of jeopardy where

¶250a ‘fatal defect’ in a criminal prosecution renders the proceedings

¶251‘void.’” (quoting Ball, 163 U.S. at 669)). And the Court’s analogy to a

¶252retrial following a “hung jury” makes some sense. See Richardson v.

¶253 15 United States, 468 U.S. 317, 324, 325 (104 SCt 3081, 82 LE2d 242)

¶254(1984) (reaffirming that “a retrial following a ‘hung jury’ does not

¶255violate the Double Jeopardy Clause” because “the failure of the jury

¶256to reach a verdict is not an event which terminates jeopardy”).

¶257 And yet, I can’t quite shake the doubt that these points can

¶258reconcile the Court’s decision fully with the quite-absolute-sounding

¶259bar against retrying a defendant who has secured an acquittal

¶260verdict. See, e.g., Bullington v. Missouri, 451 U.S. 430, 445 (IV) (101

¶261SCt 1852, 68 LEd2d 270) (1981) (“A verdict of acquittal on the issue

¶262of guilt or innocence is, of course, absolutely final.”); Arizona v.

¶263Washington, 434 U.S. at 503 (II) (“The constitutional protection

¶264against double jeopardy unequivocally prohibits a second trial

¶265following an acquittal.”). This case is not quite like the cases where

¶266the verdict was void because the court lacked jurisdiction from the

¶267outset, because jeopardy did actually attach here. Nor is it quite like

¶268the hung-jury cases, because the jury here did actually reach a

¶269verdict. So the Court’s conclusion here that jeopardy did not end—

¶270and so McElrath can be retried—depends on a state-law-based legal

¶271 16 fiction that treats the jury’s verdict as though it never happened. To

¶272be sure, the law can and must depend on legal fictions all the time.

¶273But this one bears a lot of weight, and I am not confident that it

¶274carries the Court’s decision over the absolute bar against retrying a

¶275defendant after an acquittal verdict. Indeed, the Attorney General

¶276“acknowledges that retrial of [McElrath’s] malice murder charge

¶277would be precluded by double jeopardy under the law as it currently

¶278stands.”

¶279 This lingering doubt is not enough to justify dissenting from an

¶280otherwise unanimous Court, so I concur in the Court’s opinion. But

¶281consider me dubitante.

¶282 I am authorized to state that Justice McMillian joins in this

¶283concurrence.

¶284 17