Davenport v. State

FINAL COPY


              S20A0035. DAVENPORT v. THE STATE.


      BETHEL, Justice.

      Brian Colby Davenport appeals his convictions for malice

murder and other crimes in connection with the death of Debora

Lynn Abney.1          Davenport contends that the evidence was



      1 The crimes occurred on March 11, 2016.      On June 8, 2016, a Catoosa
County grand jury indicted Davenport for malice murder, felony murder,
aggravated assault, two counts of making a false statement, two counts of
possession of a firearm during the commission of a felony, and two counts of
tampering with evidence. Davenport was tried by a jury in March 2017 and
was found guilty of all counts. The trial court vacated the felony murder count
and sentenced Davenport to life in prison without the possibility of parole for
malice murder, 20 years to serve concurrent for aggravated assault, five years
to serve concurrent for each count of making a false statement, five years to
serve consecutive for each count of possession of a firearm during the
commission of a felony, and ten years to serve concurrent for each count of
tampering with evidence.
       On April 4, 2017, Davenport filed a motion for new trial, which was
subsequently amended. The trial court denied the motion for new trial on June
25, 2019, but amended Davenport’s sentence by vacating the sentence for
aggravated assault and merging the count into malice murder. The trial court
also vacated the sentence for the second count of possession of a firearm during
the commission of a felony and purported to merge that conviction with the
malice murder count, although it was actually vacated as a matter of law.
Appellate counsel filed a timely notice of appeal on July 16, 2019. This case
was docketed in this Court’s term beginning in December 2019, and submitted
for a decision on the briefs.
insufficient to convict him, and that the trial court erred by

admitting improper character evidence under OCGA § 24-4-404 (b)

(“Rule 404 (b)”) and certain hearsay evidence. We affirm because

the evidence was legally sufficient to support Davenport’s

convictions, any error in the admission of the Rule 404 (b) evidence

was harmless, and the trial court did not abuse its discretion in

admitting the hearsay evidence. However, today we also announce

that we will end our practice of sua sponte review of the

constitutional sufficiency of the evidence supporting convictions in

appeals of non-death penalty murder cases, beginning with cases

that docket to the term of court that begins in December 2020. The

Court will begin assigning cases to the December Term on August 3,

2020.

     Viewed in the light most favorable to the jury’s verdicts,2 the

evidence shows that on March 11, 2016, deputies from the Catoosa

County Sheriff’s office responded to a reported shooting. Upon



     2 See Jackson v. Virginia, 

 (III) (B) (

, 61

LE2d 560) (1979).
arrival, an officer discovered Abney slumped over in the front

passenger seat of a vehicle. Davenport was also at the scene,

shirtless.

     Davenport initially told officers that he and Abney had been in

court earlier that day for a Department of Family and Children

Services (“DFCS”) hearing concerning their two younger children

and that Abney was upset after the hearing. After leaving the

courthouse, they stopped at a few locations to purchase alcohol and

items to make sandwiches.    The two then went on a picnic, where

Abney began drinking. Davenport told officers that Abney shot

herself when he was standing at the trunk of the vehicle. He said

that he ran around the vehicle, saw that Abney had shot herself, and

called his mother (who called another person who then called 911).

     A GBI agent testified that when he arrived on the scene, he

observed Davenport wiping his head, neck, and torso with a cloth.

He did not observe any blood on Davenport, but did notice drops of
blood on Davenport’s shoes.3 A gun was found in Abney’s left hand,

though Abney was right-handed. Mud and soil were found impacted

in the barrel of the gun. The GBI agent testified the mud and soil

should not have been in the gun if the weapon had remained in

Abney’s hand after being fired. Luminol testing later revealed the

presence of blood on the dashboard of the vehicle, and the pattern

indicated that it had been wiped away. Blood particles were also

found on the front windshield. Finally, Abney had been shot in the

back of the head, and gunshot primer residue was found on

Davenport’s clothing. The medical examiner concluded that the

manner of death was homicide.

     During his interview with police, after being given Miranda

warnings,4 Davenport initially stated that upon seeing that Abney

had shot herself and was bleeding, he took off running. But after

being confronted with the finding of mud in the barrel of the gun,




     3  Although the GBI agent swabbed Davenport’s hands for gunshot
residue, the test could not be conducted by the crime lab because the samples
were improperly packaged.
      4 Miranda v. Arizona, 

 (

, 16 LE2d 694) (1966).
Davenport claimed that after he heard the gunshot, he saw the gun

go flying out of the driver’s side door. When the investigator told

Davenport that the investigator had a “problem” with Davenport’s

revised version of events, Davenport then stated that the gun fell

between the seat and the console in the vehicle, and that he got in

the driver’s seat to pick up the gun. Davenport said that he dropped

the gun getting out of the car, and then stuck the gun back in

Abney’s left hand. Davenport told investigators that he did not tell

them this version of events initially because he was worried they

would think that he shot Abney.

     Two of Abney’s daughters testified about witnessing Davenport

strike Abney and, in one instance, observed Davenport holding a gun

to Abney’s head. A police officer testified that he had previously

responded to a domestic violence incident between Davenport and

Abney. A DFCS caseworker who had been working with the family

testified that she observed recent injuries to Abney on one visit,

which Abney told her resulted from Davenport hitting and biting

her, and that on another occasion, Abney called her and confided in
her that she was afraid for her life. Abney’s mother also testified

that she observed bruising on Abney, who told her that Davenport

hit her, and that Abney told her she was afraid that Davenport

would kill her.       Abney’s other daughter testified that she saw

Davenport hitting Abney, that she would often go to pick up her

mother to get her away from Davenport, and that Davenport

regularly threatened Abney. Additionally, Abney’s former landlord

testified that she would hear Abney and Davenport arguing, and

then would see bruises on Abney the following day.5 Finally, the

expert witness called by the defense conceded that it was unlikely

that Abney contorted herself enough in the vehicle to shoot herself

with her non-dominant hand in the back of her head.

      1. Davenport argues that the evidence is legally insufficient to



      5 Davenport’s ex-wife also testified at trial regarding the frequent
physical abuse she suffered at the hands of Davenport, including several
instances of shoving, punching, and choking, and threatening to kill her if she
left him. Davenport’s daughter with his ex-wife also testified regarding the
instances of physical violence she witnessed against her mother, and three
other witnesses testified regarding an incident, 27 years prior to trial, in which
Davenport attacked his ex-wife in front of others, leading to Davenport’s
arrest.
sustain his conviction for malice murder because the evidence

presented at trial did not exclude the reasonable hypothesis that

Abney committed suicide. Although not raised as error, we also

evaluate the legal sufficiency of the evidence presented at trial on

the other counts for which Davenport was convicted.6

      When we consider the sufficiency of the evidence as a matter of

federal due process, we view the evidence in the light most favorable

to the verdict and evaluate whether a rational trier of fact could have

found the defendant guilty beyond a reasonable doubt of the crimes

of which he was convicted. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979). “Under this review, we must

put aside any questions about conflicting evidence, the credibility of

witnesses, or the weight of the evidence, leaving the resolution of

such things to the discretion of the trier of fact.” (Citation and

punctuation omitted.) Mims v. State, 

 (1) (a) (

) (2019). Further, as a matter of Georgia statutory law,



      6 But see our discussion in Division 4 regarding this Court’s impending

termination of the practice of sua sponte consideration of sufficiency.
“[t]o warrant a conviction on circumstantial evidence, the proved

facts shall not only be consistent with the hypothesis of guilt, but

shall exclude every other reasonable hypothesis save that of the

guilt of the accused.” OCGA § 24-14-6. However, “not every

hypothesis is a reasonable one, and the evidence need not exclude

every conceivable inference or hypothesis ― only those that are

reasonable.” (Citation and punctuation omitted; emphasis in

original.) Graves v. State, 

 (1) (

) (2019).

Whether a hypothesis is reasonable or not is for the jury to decide.

See id.; Outler v. State, 

 (1) (a) (

)

(2019); Murray v. State, 

 (1) (

) (1999).

     Here, Davenport’s own expert witness testified that it was

unlikely that Abney shot herself in the back of the head. The State’s

forensic pathology expert and crime scene investigation expert both

determined the case to be a homicide rather than a suicide. Further,

numerous pieces of evidence suggested that the crime scene had

been staged by the time law enforcement arrived: the gun was found

in Abney’s left hand even though she was right-handed, mud and
dirt were in the barrel of the gun, and the blood pattern on the

dashboard and glove box area appeared to have been wiped down.

Investigators also found gunshot primer residue on Davenport’s

clothes. Finally, Davenport gave inconsistent stories to police, and

he had a history of physical violence and threats toward Abney.

Considering all the evidence in the light most favorable to the

verdicts, we conclude that the jury was authorized to find beyond a

reasonable doubt that Davenport was guilty of malice murder and

the other crimes of which he was convicted. The jury was also

authorized to determine that the proved facts were not only

consistent with Davenport’s guilt but that they also excluded every

other reasonable hypothesis as to how Abney died. Thus, when

viewed as a whole, the evidence presented at trial was sufficient to

support Davenport’s convictions as a matter of due process and

under OCGA § 24-14-6. See Frazier v. State, 

 (2) (b)

(

) (2020).

     2. Davenport next argues that the trial court committed a

harmful error when it permitted the State, pursuant to OCGA § 24-
4-404 (b), to present evidence that Davenport allegedly abused his

ex-wife more than 20 years before Abney’s death. We disagree that

the admission of this evidence was harmful to Davenport.

     Assuming without deciding that the trial court abused its

discretion in admitting the challenged evidence, any error was

harmless and does not require reversal. “A nonconstitutional error

is harmless if it is highly probable that the error did not contribute

to the verdict.” Adkins v. State, 

 (3) (a) (

) (2017).   Here, the evidence presented against Davenport,

though circumstantial, was very strong. As noted above, the forensic

evidence indicated that Davenport shot Abney, attempted to cover

up the crime, and then fabricated a story to the police that Abney

killed herself. Additionally, substantial evidence was introduced

detailing Davenport’s history of violence against Abney, which

included threatening her with a firearm. Thus, considering the

evidence presented at trial and weighing it as reasonable jurors

would, we conclude that it is highly probable the outcome of the trial

would have been no different had the trial court excluded evidence
of Davenport’s history of violence against his ex-wife. See Williams

v. State, 

 (3) (

) (2017) (any error

in admitting evidence of violence against two ex-girlfriends was

harmless where evidence was overwhelming and physical evidence

contradicted defendant’s version of events).

     3. Lastly, Davenport argues that the trial court abused its

discretion in admitting hearsay evidence of prior difficulties

between him and Abney.7 We disagree.

     The State filed a notice of intent to introduce residual hearsay

testimony pursuant to OCGA § 24-8-807 (“Rule 807”). Under OCGA

§ 24-8-807,

     A statement not specifically covered by any law but
     having equivalent circumstantial guarantees of
     trustworthiness shall not be excluded by the hearsay rule,
     if the court determines that: (1) The statement is offered
     as evidence of a material fact; (2) The statement is more
     probative on the point for which it is offered than any
     other evidence which the proponent can procure through
     reasonable efforts; and (3) The general purposes of the
     rules of evidence and the interests of justice will best be
     served by admission of the statement into evidence.


     7 Davenport does not challenge the admissibility of the evidence of prior

difficulties between him and Abney under OCGA § 24-4-404 (b).
     The residual hearsay exception is “to be used very rarely and

only in exceptional circumstances, and only when there exists

certain exceptional guarantees of trustworthiness and high degrees

of probativeness and necessity.” Tanner v. State, 

(1) (

) (2017).        “Whether there are exceptional

guarantees of trustworthiness is a determination that focuses on the

declarant and the circumstances under which the declarant made

the statement to the witness.” (Emphasis in original.) Miller v. State,

 (2) (

) (2018). “A trial court’s decision to

admit hearsay evidence under Rule 807 is reviewed for an abuse of

discretion.” State v. Holmes, 

 (2) (a) (

)

(2018).   “This Court is particularly hesitant to overturn a trial

court’s admissibility ruling under the residual hearsay exception

absent a definite and firm conviction that the court made a clear

error of judgment in the conclusion it reached based upon a weighing

of the relevant factors.” (Citation and punctuation omitted.) 

     The State offered statements Abney made about Davenport’s

threats and physical abuse to her mother and the DFCS caseworker
who had been working closely with her family, as well as statements

from Abney’s daughter about Davenport’s abuse of Abney that she

witnessed, as an explanation for Davenport’s motive. Although

Davenport    claims    Abney’s    statements    lack   guarantees     of

trustworthiness due to substance abuse and mental illness issues,

the Court

     cannot say that statements from a wife to her friends or
     family . . . which describe acts of domestic violence, do not,
     in fact, bear an increased level of trustworthiness.
     Likewise, in light of the often-secretive nature of domestic
     violence, we can also envision that such statements might
     be highly probative.

Smart v. State, 

 (3) (

) (2016). See also

Jacobs v. State, 

 (2) (

) (2018)

(concluding that the trial court did not abuse its discretion in

determining that the statements from the victim to her friends and

her own text messages describing the nature of her abusive

relationship with the defendant prior to her death had the requisite

exceptional guarantees of trustworthiness to be admissible at trial

pursuant to Rule 807). Moreover, to the extent Abney’s daughter
witnessed Davenport hitting Abney, the daughter’s testimony

regarding the abuse she witnessed is not hearsay. See De La Cruz

v. State, 

 (4) (

) (2018) (testimony of

witness regarding tumultuous relationship between defendant and

victim not hearsay where it was “based purely upon his observation

of the couple”). Here, some of Abney’s statements about Davenport’s

threats and physical abuse were made to a close family member ―

that is, her mother. Further, the testimony of the DFCS caseworker

who had been working closely with her family was cumulative of the

testimony of these and other witnesses who testified to the regular

abuse Davenport inflicted upon Abney and Abney’s fear of

Davenport. Therefore, even if it was erroneously admitted, the

DFCS caseworker’s testimony was harmless. See Anglin v. State,

 (2) (

) (2017) (“[T]he erroneous

admission of hearsay is harmless where substantial, cumulative,

legally admissible evidence of the same fact is introduced.”).

Moreover, we have considered the cumulative effect of this

presumed error along with the error assumed in Division 2 and do
not find that they collectively resulted in harm to Davenport. See

State v. Lane, 

 (1) (

) (2020).

     4. In Division 1 of this opinion, we employed our customary

practice of determining sua sponte whether sufficient evidence

supported   all   of    Davenport’s   convictions   as   a   matter   of

constitutional due process, even though he raised a sufficiency

challenge only to his murder conviction. We have exercised our

discretion to decide sufficiency issues sua sponte in murder appeals

for decades. Today we announce that we will end that practice

beginning with cases docketed to the term of court that begins in

December 2020.         The Court will begin assigning cases to the

December Term on August 3, 2020.

     Our long practice of deciding unraised sufficiency claims has

been purely an exercise of discretion; no law requires it. Over the

years, reasons to change course have become clear, and the only real

reason to continue our practice is the length of time we have followed

it. That is not enough.

     (a) Sua sponte sufficiency review appears to have begun decades
ago in death penalty cases (in which it is now mandated by statute
and rule), from which it migrated to non-death penalty murder cases
and convictions for offenses other than murder without explanation.

     Some background is helpful to understanding how we reached

this point, although a definitive answer appears lost to time. As

early as 1968, we reviewed sua sponte the constitutional sufficiency

of the evidence as to at least some convictions for which a sentence

of death was imposed (although we did not explain why we did so).

See Dixon v. State, 

 (1) (

) (1968)

(although no argument was made in death penalty case as to

sufficiency of the evidence, and thus the issue was abandoned, “we

have studied the evidence and find that it discloses an extremely

brutal murder, and that the jury was authorized to find that the

defendant was the perpetrator of the crime”). The next year, we

again reviewed sua sponte sufficiency in a death penalty case, citing

only Dixon in stating that we felt “constrained” to do so. Jackson v.

State, 

 (7) (

) (1969) (“While the general

grounds of the motion for new trial were technically waived . . . ,

nevertheless, in a capital felony case such as this one, we feel
constrained to rule on them, even though they have not been

properly argued.”), reversed in part on other grounds by Furman v.

Georgia, 

 (

, 33 LE2d 346) (1972). And the

year after Jackson, we did so again. See Lee v. State, 

 (4) (

) (1970) (citing Jackson to examine general

grounds, although waived, in case in which death sentence

imposed), vacated in part on other grounds by Lee v. Georgia, 

 (

, 33 LE2d 752) (1972).8

      But this approach was not consistently applied during the late

1960s and early 1970s; in other cases in which the appellant was

sentenced to death, we expressly declined to consider sufficiency

where not argued by the appellant. See, e.g., Johnson v. State, 

 (8) (

) (1970) (“The general grounds and


      8 Several of these early instances of sua sponte sufficiency analysis refer

only to the “general grounds,” which is a term for a broader analysis Georgia
law has long empowered trial courts to conduct. See Wilkerson v. State, 

 (

) (2019) (in exercising its discretion on the “general
grounds,” the trial judge considers “some of the things that she cannot when
assessing the legal sufficiency of the evidence, including any conflicts in the
evidence, the credibility of witnesses, and the weight of the evidence”). But on
appeal, our review of a trial court’s decision on the general grounds is limited
to sufficiency. See Lewis v. State, 

 (3) (

) (2014).
other special grounds of the motion for new trial which were not

argued will be considered abandoned.”); Alexander v. State, 

 (5) (

) (1969) (“While the sufficiency of the

evidence to authorize the verdict is raised by other enumerations of

error, such question is treated as abandoned inasmuch as the same

is not argued by the appellant.”). And in other appeals of death

penalty cases, we did not address the sufficiency of the evidence.

See, e.g., Lingo v. State, 

 (

) (1970), Sullivan

v. State, 

 (

) (1969), judgment vacated in

part by Sullivan v. Georgia, 

 (

, 33 LE2d

749) (1972).

     In 1973, the Georgia legislature enacted Code of 1933, § 27-

2537 and essentially codified sufficiency review in all cases in which

an appellant had been sentenced to death. See Ga. L. 1973, pp. 159,

165-167, § 4. This new Code section, which is found in its present

form at OCGA § 17-10-35, required this Court to review the death

sentence imposed for proportionality and other criteria. See Code of

1933, § 27-2537 (c).   But it also provided that our review must
include “the factual substantiation of the verdict.” Id. § 27-2537 (i).

     Although we did not cite that statutory provision frequently in

the years that followed, there is some indication that we viewed the

new statute as requiring us to review the sufficiency of the evidence

in capital cases. See Coley v. State, 

 (IV) (

) (1974) (after setting aside sentence of death for rape, we

reviewed the sufficiency of the evidence, saying that doing so was

“mandated under the 1973 Death Penalty Statute,” despite noting

that sufficiency was not argued and “normally would be considered

abandoned”); see also Gregg v. State, 

 (1) (

) (1974) (noting the general grounds were “not argued by the

appellant and thus normally [would be] deemed to be abandoned,”

but nevertheless reviewing the evidence upon those grounds

“because of the capital punishment imposed”). During this time, we

also conducted sua sponte sufficiency review in capital cases without

citing the statute. See, e.g., Johnson v. State, 

 (

) (1978) (before addressing enumerations of error, without

citing any particular authority requiring sua sponte review,
reviewing evidence and concluding that the evidence authorized the

jury to conclude that appellant and another perpetrator were

equally involved and thus trial court did not err in overruling motion

for new trial).

     We also decided appeals in death penalty cases after the 1973

statute without affirmatively stating that we considered sufficiency.

See, e.g., Harris v. State, 

 (

) (1976). But of

course the statutorily mandated review of the death sentence in all

such cases — including considering whether the sentence “was

imposed under the influence of passion, prejudice, or any other

arbitrary factor” or was “excessive or disproportionate to the penalty

imposed in similar cases”9 — necessarily involved considerations

similar to whether the evidence in fact constitutionally supported a

conclusion that the appellant was guilty of a capital offense. See 

 (III) (concluding that the evidence supported the jury’s

finding of the statutory aggravating circumstance).

     A new set of rules governing death penalty cases, promulgated


     9 See Code of 1933, § 27-2537 (c) (1), (3) (1973); OCGA § 17-10-35.
in 1980, cemented the requirement that we should review the

sufficiency of the evidence in every case in which a death sentence

was imposed. That year, the General Assembly mandated further

procedures for appellate review of death penalty cases, enacting

legislation requiring this Court to establish a uniform procedure for

reviewing challenges to convictions and sentences in cases in which

the death penalty had been imposed. See Ga. L. 1980, pp. 390, 391-

392, § 1. Later that year, we adopted such a procedure for “every

case in which the death penalty is sought on an indictment returned

after August 15, 1980.” 246 Ga. A-1. That Unified Appeal Procedure

(UAP) provided that “[i]n all cases the Supreme Court shall

determine whether the verdicts are supported by the evidence

according to law.” 246 Ga. A-16 (UAP IV (B) (2)).10 This provided

additional support for the notion that we must review the sufficiency

of the evidence in all death penalty cases. In Conner v. State, 251




     10 The current version of the UAP includes virtually identical language.

See UAP Rule IV (B) (2). But that rule, like all parts of the UAP, “shall be
applicable only in cases in which the death penalty is sought.” UAP
Introduction.
Ga. 113, 114 (1) (

) (1983), a death penalty case, we

reviewed the sufficiency of the evidence sua sponte, explicitly stating

that the Unified Appeal Procedure required it. See also Mincey v.

State, 

 (1) (

) (1983) (sua sponte

reviewing sufficiency of the evidence in death penalty case, citing

UAP).

     This shift toward uniform review of the sufficiency of the

evidence in cases in which the death penalty had been imposed in

the 1970s and 1980s was not automatically followed, however, in

cases in which an appellant had received a lesser sentence on a

murder conviction. See, e.g., Brown v. State, 

 (2)

(

) (1975) (concluding, in murder case in which a life

sentence was imposed, that “appellant did not argue his

enumeration of error on the general grounds and it is deemed

abandoned”); see also Gay v. State, 

 (

)

(1975) (reviewing sufficiency of evidence as to murder conviction as

argued, but deeming any argument as to other conviction

abandoned). So far as we can tell, it appears to be the rare 1970s
murder case in which a life sentence was imposed in which we

considered the sufficiency of the evidence sua sponte. See Burnett

v. State, 

 (12) (

) (1978) (noting that

although we “ordinarily” would consider a sufficiency claim to be

abandoned where defendant offered no argument or citation of

authority in support of enumeration, “we have thoroughly reviewed

the record of the case and find sufficient evidence to support the

verdict”).

     In 1979, the United States Supreme Court made clear that the

Due Process Clause of the United States Constitution requires that

all criminal convictions must be supported by evidence sufficient to

authorize a rational jury to conclude that the defendant is guilty

beyond a reasonable doubt of the crimes for which he was convicted

and sentenced. See Jackson, 

. At some point

thereafter, it appears that we more frequently began conducting sua

sponte review of the sufficiency of the evidence to support all of

appellants’ convictions even in those murder cases in which the

death penalty was not imposed. See Craver v. State, 

 (

) (1980) (“Appellant does not argue the general

grounds. However, the evidence is ample to authorize a rational trier

of fact to find him guilty beyond a reasonable doubt.”). We did not

explain why we did so, although we often cited Jackson v. Virginia.

See, e.g., Johnson v. State, 

 (1) (

)

(1985); Andrews v. State, 

 (4) (

) (1985);

Craver, 

; Sutton v. State, 

 (3) (

) (1980). Of course, Jackson established the proper

standard for considering whether evidence supporting a conviction

is sufficient as a matter of due process, but Jackson says nothing

about whether a waived sufficiency argument must be considered in

any particular sort of case on direct review.

     Moreover, even post-Jackson, this Court did not engage in an

explicit sufficiency review in every murder case. See, e.g., Gibbons

v. State, 

 (

) (1984) (no explicit sufficiency

review in murder case in which a life sentence was imposed); Coles

v. State, 

 (

) (1984) (same). In short, it is

difficult to discern when we began reviewing the sufficiency of the
evidence in every murder case, let alone why we did so. But it seems

clear that it is a practice that began in death penalty cases as an

exercise of our discretion, was then codified both in statute and

Court rule (again, for death penalty cases only), and then at some

point began to carry over without explanation to convictions in

murder cases in which the death penalty was not imposed.

     (b) We cannot now identify a compelling reason to retain our
current practice of sua sponte review of the sufficiency of the evidence
in cases in which the appellant is not sentenced to death, and there
are good reasons to abandon that practice.

     Murder now carries a minimum sentence of life in prison with

the possibility of parole, a long sentence indeed. But we conduct a

sufficiency analysis for all convictions in murder cases, regardless of

sentence length, and we do not perform sua sponte sufficiency

review in non-murder cases involving life sentences or cases with

cumulative sentences exceeding any known life expectancy. See,

e.g., OCGA § 16-6-1 (b) (authorizing life imprisonment and life

without parole sentences for rape); § 16-8-41 (b) (authorizing life

imprisonment sentence for armed robbery); § 16-5-40 (authorizing

life imprisonment for kidnapping). For that matter, neither does the
Court of Appeals. Sentence length is not a reason for this practice.11

     Of course, the requirement that each criminal conviction be

supported by sufficient evidence is imposed by the United States

Constitution, and failure to satisfy that requirement results in

reversal and indeed bars retrial. See Jackson, 

;

Burks v. United States, 

 (

, 57 LE2d 1) (1978);

see also Green v. State, 

 (1) (

) (2012);

Prater v. State, 

 (4) (

) (2001). But

reversal of a criminal conviction is also required for the harmful

violation of a host of other rules of criminal law; the right to effective

assistance of counsel, the right to confront one’s accusers, the right

to a public trial, and the right against compelled self-incrimination

are just a few of the rights secured for criminal defendants by the

United States Constitution. And we have no general practice of sua

sponte considering whether these other constitutional rights were




     11 Our discussion here relates only to murder cases in which a life
sentence was imposed. As discussed above, Georgia law requires our sua
sponte consideration of several matters in cases in which the death penalty
was imposed. See OCGA § 17-10-35; UAP IV (B) (2).
violated.

     Finally, some might think that sufficiency should always be

reviewed because insufficient evidence is tantamount to actual

innocence. But such a view would misunderstand the nature of

appellate sufficiency review.    When we consider sufficiency, we

consider all the evidence admitted at trial, regardless of whether the

trial court erred in admitting some of that evidence. See Chavers v.

State, 

 (2) (

) (2019); McDaniel v.

Brown, 

 (III) (

, 175 LE2d 582) (2010).

To understand the significance of this principle, imagine two

factually identical cases, in both of which the main evidence is a

constitutionally inadmissible video that shows the defendant

committing the crime. In the first case, the video was properly

excluded from evidence; we conclude that the evidence ― without the

video ― was insufficient.       In the second case, the video was

erroneously admitted; although on appeal the defendant would have

a strong argument to reverse the conviction due to the evidentiary

error, we would conclude that the evidence ― with the video ― was
sufficient.

     Due process sufficiency is not at all the same thing as actual

innocence. And actual innocence is a claim that Georgia law allows

to be brought even when other claims might be subject to certain

procedural bars. See Perkins v. Hall, 

 (III) (D) (

) (2011); Valenzuela v. Newsome, 

 (4) (

) (1985). Accordingly, any categorical similarity that may

appear to exist between sufficiency claims and actual innocence is

superficial and cannot justify sua sponte review.

     On the other side of the ledger lie several good reasons not to

review convictions for sufficient evidence sua sponte. In our view,

and with no meaningful countervailing consideration beyond the

frequency and duration of our practice, these reasons convince us to

change course.

     First, and most importantly, our legal system presupposes an

adversarial process. See, e.g., Franks v. State, 

 (

) (2004) (in evaluating claims of ineffective assistance of

counsel, ‘‘‘we are not interested in grading lawyers’ performances;
we are interested in whether the adversarial process at trial, in fact,

worked adequately’”) (quoting Jefferson v. Zant, 

(

) (1993) (quoting White v. Singletary, 972 F2d 1218,

1221 (11th Cir. 1992))). The adversarial process aligns incentives in

a way to increase the likelihood that the strongest possible

argument is identified for each side. Although we always strive to

decide every issue correctly, we sometimes make mistakes, and the

risk of mistakes is at its highest when we consider an issue that no

party has briefed or argued. And this is doubly so when the issue is

especially record-intensive, as are almost all sufficiency issues. Our

un-briefed and thus potentially flawed sufficiency holdings become

precedent that stare decisis makes difficult to correct even when the

issue is later considered more thoughtfully.

     Next is the distinct but related point that we ordinarily should

respect strategic decisions by parties and their lawyers about what

arguments to assert on appeal. We always are obligated to inquire

into our own jurisdiction; parties cannot by agreement confer upon

us a power to adjudicate that we do not already possess. See Jenkins
v. State, 

 (

) (2008) (“It is incumbent

upon this Court to inquire into its own jurisdiction.”) (citation and

punctuation omitted); Foster v. Phinizy, 

 (

) (1905) (“parties by consent cannot confer jurisdiction upon a

court in reference to a matter of which the court has no jurisdiction”).

But as to virtually everything else, it is almost always a better

course to decide the appeal the parties bring us, rather than the

appeal we might have brought were we in counsel’s shoes.

     Finally, our practice of deciding sua sponte the sufficiency of

the evidence supporting every conviction in every murder case

consumes a volume of judicial resources far out of proportion to the

likely benefit. Direct appeals of cases with murder convictions make

up a substantial percentage of this Court’s docket; our practice of

sua sponte reviewing sufficiency in so many cases consumes a

considerable amount of resources but seldom results in a reversal of

a conviction. Many reversals that do occur involve only a sentence

for a lesser offense that has no practical effect, given that the

defendant has also received a sentence of life in prison or life without
parole for the murder. See, e.g., Harris v. State, 

(1) (

) (2018) (reversing convictions and three ten-year

concurrent sentences for false imprisonment but affirming sentence

of life imprisonment without the possibility of parole for malice

murder). And it is precisely those cases that regularly require an

even more disproportionate amount of work to grapple with poorly

developed records on issues the parties gave little to no attention in

the trial court, where the parties focused their attention on the more

serious charges carrying longer sentences.

     In short, there are multiple good reasons to change course. We

acknowledge that the decades and thousands of murder appeals in

which we have applied this practice is a potential reason to keep it.

But as discussed above, this broad practice has never had a solid

foundation; although the precise origins of our practice of deciding

sua sponte the sufficiency of the evidence for all convictions in

murder cases are unclear, they appear to have been rooted in the

death penalty, based on a statute that applies only to cases in which

the death penalty is sought, and we will continue to review the
sufficiency of murder convictions resulting in the death penalty as

that statute requires.

     Of course, before we overrule prior precedent without an

intervening change in the law, we must consider the doctrine of

stare decisis, and the most important stare decisis consideration is

the strength of the reasoning of the precedent we are reconsidering.

See State v. Jackson, 

 (5) (

) (2010).

But here, we have no holding to overrule, much less reasoning to

consider; rather, we simply have developed a practice over time in

which we have exercised our discretion in a consistent way. And in

the most recent case in which we decided to change course in our

exercise of similar discretion, we did so without a consideration of

stare decisis. See Dixon v. State, 

 (4) (

) (2017) (abandoning our discretionary practice of sua sponte

addressing merger errors that benefit the defendant, without

addressing stare decisis considerations). Thus, stare decisis does

not stand in the way of the conclusion we reach today.

     Nevertheless, the long-standing nature of the practice
counsels in favor of our not ending it without notice. It is conceivable

that a lawyer representing a defendant convicted of murder could

elect not to raise sufficiency with the expectation that this Court will

decide it in any event. To avoid any such reliance, our new approach

of not automatically considering sufficiency sua sponte in non-death

penalty cases will begin with cases docketed to the term of court that

begins in December 2020. The Court will begin assigning cases to

the December Term on August 3, 2020. We also note that our new

approach does not preclude us from exercising our discretion to

consider sufficiency sua sponte where specific circumstances

warrant such review. See Dixon, 

 (4).

     Judgment affirmed. All the Justices concur.


                       DECIDED JULY 2, 2020.
     Murder. Catoosa Superior Court. Before Judge House.
     Jerry W. Chappell II, for appellant.
     Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Leslie A. Coots, Assistant
Attorney General, for appellee.