Moss v. State ( 2021 )

In the Supreme Court of Georgia
Decided: March 15, 2021
S20A1520. MOSS v. THE STATE.
WARREN, Justice.
Jermontae Moss was convicted of felony murder, possession of
a firearm during the commission of a crime, and theft by receiving
stolen property in connection with the shooting death of Jose Marin. 1
1 The crimes were committed on September 22, 2011. On November 29,
2011, a Houston County grand jury indicted Moss for three counts of felony
murder, one count each of attempted armed robbery, aggravated battery, and
aggravated assault, three counts of possession of a firearm during the
commission of a crime, and one count each of theft by receiving stolen property
and carrying a concealed weapon. At a trial held from October 22 to 24, 2012,
the State withdrew the charge of carrying a concealed weapon; a jury found
Moss guilty of all the remaining counts. On October 25, 2012, the trial court
sentenced Moss to life in prison without the possibility of parole (“LWOP”) for
felony murder predicated on armed robbery, a consecutive term of five years
for a firearm count predicated on attempted armed robbery, and a concurrent
term of 10 years for the theft count. The trial court purported to merge the
remaining counts for sentencing purposes. Moss timely filed a motion for new
trial on November 5, 2012, which he amended through new counsel on March
16, 2018. In separate orders entered on September 13, 2019, the trial court
denied the amended motion for new trial but resentenced Moss to LWOP for
felony murder predicated on aggravated battery, a consecutive term of five
years for a firearm count predicated on aggravated battery, and a concurrent
On appeal, Moss contends that his trial counsel provided
constitutionally ineffective assistance and that the trial court erred
in sentencing Moss—a 17-year-old juvenile at the time of the
crimes—to life in prison without the possibility of parole (“LWOP”)
for murder. Neither of Moss’s contentions has merit, so we affirm.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at Moss’s trial showed that Marin was the owner
of Marin Mexican Food Store in Warner Robins and that, at
approximately 9:30 p.m. on September 22, 2011, Marin and Javier
Moreno were unloading merchandise from a truck behind the store.
While they worked, a man approached Marin and Moreno with a
gun and said, “Hey, give me your money.” Marin explained that they
had no money as he slowly put a case of tortillas down on the ground.
The man then shot Marin in the abdomen. Marin attempted to shoot
back with his own gun, but the perpetrator ran away in the direction
term of 10 years for the theft count. The remaining counts were merged for
sentencing purposes, vacated by operation of law, or vacated by agreement of
the parties. Moss timely filed a notice of appeal on October 9, 2019. The case
was docketed in this Court for the August 2020 term and submitted for a
decision on the briefs.
2
of Carl Vinson Parkway.
Moreno called 911 and described the perpetrator as a “black
male, skinny . . . in a white shirt and black [exercise] pants.” Moreno
also stated that the perpetrator had a red bandana covering his face
and wore a hair net over the rest of his head. When police arrived
at the scene, an officer was unable to find a pulse for Marin, who
was transported to the hospital and later died. Police recovered a
.45-caliber bullet and a .45-caliber Blazer brand casing at the scene.
Sergeant Todd Rountree responded to the 911 call at 9:53 p.m.
and drove to the mobile home park between Marin’s store and Carl
Vinson Parkway. Rountree spotted Moss, who matched the
description Moreno provided in his 911 call, holding a large object in
his waistband. During a pat-down of Moss, Rountree discovered
that Moss had a loaded .45-caliber Taurus pistol that had
apparently slipped down inside his pants to the area of his right
knee. Rountree eventually was able to move the pistol down the leg
of the pants and remove it from the bottom of the pants. Forensic
analysis later showed that the pistol Moss was carrying—which
3
previously had been reported as stolen—fired the bullet and
discharged the casing recovered from the crime scene. Moss had a
hair net in his pocket, but a red bandana was not recovered.
After police drove Moreno to the scene where Rountree had
arrested Moss, Moreno saw Moss and identified his shirt and pants
as the clothes the robber was wearing when he shot Marin. Moreno
noted that Moss’s build was the same as the shooter’s, but he did not
recognize Moss’s face or hair as matching that of the shooter. Police
transported Moss to the police station and later collected his
clothing, which included black jogging pants, gray pants, red shorts,
and a white t-shirt. After advising Moss of his rights, police
interviewed him. Moss stated that he had possessed the pistol for
about two weeks and no one else had possessed it during that time.
An officer swabbed Moss’s hands for gunshot residue (“GSR”) at the
station, but a later test of the “hand wipings” that had been collected
did not reveal the presence of GSR on Moss’s hands. The GSR
results were not presented at trial.
At trial, the State presented testimony that Moss had
4
committed a previous crime in the mobile home park where police
located Moss after Marin’s shooting that was similar to the
attempted robbery that resulted in Marin’s shooting. Specifically,
the State presented evidence that Neftally Corado had been
watching television alone in his mobile home with the door open on
the night before Marin’s attempted robbery when a black man
walked in and demanded money. The man then shot Corado and
fled. Corado survived and identified Moss in court as the shooter.
Additionally, the State presented evidence that a bullet casing found
in Corado’s mobile home after the shooting was fired from the pistol
Moss was carrying on the night of Marin’s murder.
Although Moss does not contest the legal sufficiency of the
evidence supporting his convictions, we have reviewed the record
and conclude that, when viewed in the light most favorable to the
verdicts, the evidence presented at trial was easily sufficient to
authorize a rational jury to find Moss guilty beyond a reasonable
doubt of felony murder and the related count of possession of a
firearm during the commission of a crime. See Jackson v. Virginia,
5
443 U.S. 307, 318-319 (99 SCt 2781, 61 LE2d 560) (1979). 2
2. Moss contends that he was denied the effective assistance
of trial counsel in two ways. We conclude that Moss has failed to
show that his trial counsel was constitutionally ineffective.
2 The sufficiency analysis is much less clear with respect to Moss’s
conviction for theft by receiving. But as noted, he raises no challenge on appeal
to the sufficiency of the evidence supporting that conviction, and—particularly
given our holding in Division 3 affirming Moss’s sentence of life in prison
without the possibility of parole for murder—his concurrent 10-year sentence
for theft by receiving has no practical effect. And although our Court—for the
few remaining cases that were docketed to our August term of court—generally
will continue our practice of reviewing sua sponte the sufficiency of the
evidence in non-death penalty cases, we elect not to do so with respect to Moss’s
theft by receiving conviction here. See Davenport v. State, 309 Ga. 385, 392,
399 (846 SE2d 83) (2020) (recognizing that this Court’s “long practice of
deciding unraised sufficiency claims” in murder cases “has been purely an
exercise of discretion; no law requires it” and announcing the end of our
practice of considering sufficiency sua sponte in non-death penalty cases with
cases docketed to the term of court that began in December 2020, which
includes cases docketed on or after August 3, 2020). Indeed, for the reasons
explained in Davenport, sua sponte sufficiency review is particularly fraught
where, as here, the question is a close one and the issue is not briefed by the
parties. See id. at 397-398 (emphasizing the importance of the adversarial
process and noting that the risk that the Court will make mistakes in deciding
an issue “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”). See also id. at 398 (acknowledging that
“[m]any 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”). Accordingly, for the
reasons we discussed in Davenport, we decline to exercise our discretion to
review the sufficiency of the evidence supporting Moss’s conviction for theft by
receiving and therefore leave that conviction undisturbed.
6
To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant. Strickland v. Washington, 466 U.S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,
356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a
defendant must demonstrate that his attorney “performed at trial in
an objectively unreasonable way considering all the circumstances
and in the light of prevailing professional norms.” Romer v. State,
293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466
U.S. at 687-688. To satisfy the prejudice prong, a defendant must
establish a reasonable probability that, in the absence of counsel’s
deficient performance, the result of the trial would have been
different. Strickland, 466 U.S. at 694. “If an appellant fails to meet
his or her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong.”
Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
(a) Moss contends that his trial counsel provided ineffective
7
assistance by failing to present evidence that a gunshot residue
(GSR) test revealed no GSR on Moss’s hand and that someone else’s
fingerprints had been found on the magazine of the pistol that Moss
was carrying on the night of Marin’s murder (and that was later
shown to be the murder weapon).
Prior to trial, the State provided trial counsel with a GBI report
showing that a test conducted by an analyst did not reveal the
presence of GSR on Moss’s hands. The State also gave trial counsel
a GBI report showing that a single fingerprint was found on the
magazine of the pistol Moss was carrying when he was arrested on
the night of Marin’s murder, that Moss had been excluded as the
source, and that no fingerprint was found anywhere else on the
pistol. At trial, trial counsel did not introduce either of the GBI
reports into evidence. However, he elicited testimony that the pistol
Moss was carrying was processed for fingerprints and that a GSR
test had been performed on Moss, and in closing argument argued
that the State did not present the GSR or fingerprint results because
the results did not link Moss to the shooting. In its order on Moss’s
8
motion for new trial, the trial court found that trial counsel could
have made a strategic decision not to introduce the results of the
forensic testing into evidence, and instead to argue “that the State
wholly failed to produce any results of this testing.” The trial court
further found that, even if the failure to introduce the two GBI
reports into evidence could be considered deficient performance, “it
is apparent . . . that, given that defense counsel emphasized to the
jury the lack of any testing results that incriminated Defendant,
submission of these two reports would not have likely resulted in a
different outcome.”
Pretermitting whether trial counsel was constitutionally
deficient in his failure to introduce the GSR and fingerprint reports,
Moss has failed to show a reasonable probability that, in the absence
of counsel’s deficient performance, the outcome of Moss’s trial would
have been different. See Strickland, 466 U.S. at 694. Indeed, the
GSR and fingerprint reports themselves would not have been
especially helpful to the defense. First, the presence of someone
else’s fingerprint on the pistol magazine—even coupled with the
9
absence of Moss’s fingerprints—would not necessarily exclude Moss
as the shooter, especially in light of the fact that the pistol was
discovered inside Moss’s pants. Similarly, the report on the GSR
test results specifically warned—consistent with certain trial
testimony—that the absence of GSR particles from Moss’s hands
“does not eliminate the possibility that the subject discharged a
firearm.” And second, the admission of the GSR and fingerprint
reports were duplicative of other evidence and argument presented
at trial. To that end, testimony at trial showed that Moss’s hands
and the pistol he was carrying were tested and examined for the
presence of GSR and fingerprints, and trial counsel emphasized in
argument that the State did not present the results because they did
not link Moss to the shooting. Because Moss has failed to show a
reasonable probability that the outcome of his trial would have been
different in the absence of his counsel’s allegedly deficient
performance, his claim of ineffective assistance fails. See Parker v.
State, 309 Ga. 736, 745 (848 SE2d 117) (2020) (recognizing that a
concession about a disputed fact made during trial counsel’s closing
10
argument can make it unlikely that her allegedly deficient
performance with respect to the evidentiary issue affected the
outcome of the trial); Haney v. State, 305 Ga. 785, 790 (827 SE2d
843) (2019) (recognizing that duplicative testimony can show that
an alleged deficiency regarding an evidentiary matter did not affect
the result of the trial).
(b) Moss also contends that his trial counsel was
constitutionally ineffective for failing to demur to the aggravated
battery count of the indictment, as well as the felony murder and
firearm counts that were predicated on aggravated battery. Under
OCGA § 16-5-24 (a):
A person commits the offense of aggravated battery when
he or she maliciously causes bodily harm to another by
depriving him or her of a member of his or her body, by
rendering a member of his or her body useless, or by
seriously disfiguring his or her body or a member thereof.
Here, the aggravated battery count charged that Moss “did
maliciously cause bodily harm to the person of Jose Marin by
depriving him of a member of his body, to wit: shot Jose Marin in
the lower abdomen with a firearm causing serious bodily injury
11
resulting in death.” Moss claims that this count failed to allege that
Moss “deprived” Marin of any particular member of his body and
that trial counsel was ineffective for failing to seek a demurrer.
Alternatively, Moss argues that even if the indictment could be read
to allege that Marin was deprived of his abdomen, the abdomen is
not a “member” of the body. The trial court concluded that counsel
did not provide ineffective assistance by failing to file a demurrer on
the aggravated battery and related counts because the abdomen is
a member of the body and Marin was indeed deprived of it.
As an initial matter, Moss’s ineffective assistance claim is moot
as to the aggravated battery count itself because that offense merged
into his felony-murder conviction. But Moss’s claim that the alleged
defect in the indictment also subjected the related felony murder
and firearm counts to demurrer is not moot, because both of those
counts were predicated on the aggravated battery and resulted in
convictions. See Hinkson v. State, 310 Ga. 388, 393 (850 SE2d 41)
(2020) (although the defendant was convicted only of felony murder
based on aggravated assault and his complaints about all other
12
charges in the indictment were moot, this Court nevertheless
considered his contentions about alleged defects in the count
charging the predicate felony of aggravated assault).
As for Moss’s first argument—that the aggravated battery
count failed to allege that Moss deprived Marin of any particular
member of his body—we disagree. The indictment used the
traditional phrase “to wit” to explicitly link its general allegation
that Moss “cause[d] bodily harm to the person of Jose Marin by
depriving him of a member of his body” to its more specific allegation
that Moss “shot Jose Marin in the lower abdomen with a firearm
causing serious bodily injury resulting in death.” (Emphasis
supplied.) See Black’s Law Dictionary (9th ed. 2009) (defining “to
wit” as “[t]hat is to say; namely”). And in any event, the indictment
necessarily implied as much because Marin’s abdomen was the only
location on his body specified and because no other bodily member
was mentioned. See, e.g., Subar v. State, 309 Ga. 805, 809 (848 SE2d
109) (2020) (“The allegation that [the defendant] entered [the
victim]’s home without authority and with the intent to commit
13
various felonies necessarily implied that [the defendant] intended to
commit the underlying crimes inside the residence.”); Jordan v.
State, 307 Ga. 450, 455 (836 SE2d 86) (2019) (“The allegation that
the house ‘was the dwelling house of . . . [the victim]’ necessarily
implied that he had the authority to be present therein.”). Because
the aggravated battery count sufficiently alleged that Marin’s
abdomen was the member of his body of which he was deprived as a
result of Moss’s action, a demurrer based on Moss’s first argument
would not have been successful, and Moss “cannot show deficient
performance, as counsel cannot be ineffective for failing to make a
meritless motion.” Subar, 309 Ga. at 809 (citation and punctuation
omitted).
As for Moss’s second argument—that even if the indictment
could be read to allege that Marin was deprived of his abdomen, the
abdomen is not a “member” of the body—Moss conceded during the
hearing on his motion for new trial that Georgia courts have “not
addressed this particular body part” in the context of aggravated
battery, and we have not found any case that has done so. This
14
Court has generally defined “member” in OCGA § 16-5-24 (a) as a
“bodily part or organ,” Mitchell v. State, 238 Ga. 167, 168 (231 SE2d
773) (1977), and Georgia courts have construed “member” to include
an eye, jaw, brain, spleen, ear, leg, shoulder, finger, genital organ,
tooth, rectum, elbow, nose, and wrist. 3 But our research has not
uncovered Georgia cases explaining or offering examples of body
parts or organs that do not constitute a bodily “member.” Because
existing precedent does not resolve whether “abdomen” is included
in the definition of bodily “member,” Moss cannot show that trial
counsel’s failure to file a demurrer claiming that the abdomen is not
a bodily “member” amounted to deficient performance. See Griffin
3 See Mitchell, 238 Ga. at 168 (eye); Baker v. State, 245 Ga. 657, 667 (266
SE2d 477) (1980) (jaw); Miller v. State, 275 Ga. 730, 731-732 (571 SE2d 788)
(2002) (brain); Jarrard v. State, 152 Ga. App. 553, 555 (263 SE2d 444) (1979)
(spleen); Drayton v. State, 167 Ga. App. 477, 477 (306 SE2d 731) (1983) (ear);
Howard v. State, 173 Ga. App. 585, 585 (327 SE2d 554) (1985) (leg); Terry v.
State, 188 Ga. App. 748, 748 (374 SE2d 235) (1988) (shoulder); Ganas v. State,
245 Ga. App. 645, 646 (537 SE2d 758) (2000) (finger); Byrd v. State, 251 Ga.
App. 83, 84 (553 SE2d 380) (2001) (genital organ); Rivers v. State, 255 Ga. App.
422, 423-424 (565 SE2d 596) (2002) (tooth); Parham v. State, 270 Ga. App. 54,
55 (606 SE2d 79) (2004) (rectum); Walls v. State, 283 Ga. App. 560, 561 (642
SE2d 195) (2007) (elbow); Jones v. State, 283 Ga. App. 631, 633 (642 SE2d 331)
(2007) (nose); Goss v. State, 289 Ga. App. 734, 736 (658 SE2d 168) (2008)
(wrist).
15
v. State, 309 Ga. 516, 520 (847 SE2d 168) (2020) (Where “we have
not yet squarely decided” an issue, “trial counsel’s failure to raise a
novel legal argument does not constitute ineffective assistance of
counsel.”) (citation and punctuation omitted); Rhoden v. State, 303
Ga. 482, 486 (813 SE2d 375) (2018) (“[T]here is no requirement for
an attorney to prognosticate future law in order to render effective
representation. Counsel is not obligated to argue beyond existing
precedent.”) (citations and punctuation omitted).
3. Moss contends that the trial court was not authorized to
sentence Moss, who was a 17-year-old juvenile when he committed
the crimes, to LWOP for murder. We disagree.
(a) Pointing to excerpts from cases like Veal v. State, 298 Ga.
691 (784 SE2d 403) (2016), and Miller v. Alabama, 567 U.S. 460,
472-473 (132 SCt 2455, 183 LE2d 407) (2012), Moss first argues that
the trial court was required to make a specific determination that
Moss himself (as opposed to his conduct) was “irreparably corrupt,”
Veal, 298 Ga. at 702 (emphasis omitted), and that the trial court
16
failed in its obligation to make such a determination here. 4 See
Miller, 567 U.S. at 472-473 (“Deciding that a ‘juvenile offender
forever will be a danger to society’ would require ‘making a judgment
that he is incorrigible.’”) (quoting Graham v. Florida, 560 U.S. 48,
72 (130 SCt 2011, 176 LE2d 825) (2010)) (punctuation omitted).
The record shows, however, that the trial court made the
determinations required by U.S. Supreme Court case law and this
Court’s precedents interpreting it. Specifically, in Miller,
the [United States] Supreme Court held that “mandatory
life without parole for those under the age of 18 at the
time of their crimes violates the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’” As a
result, the Court required “a sentencer . . . to take into
account how children are different, and how those
differences counsel against irrevocably sentencing them
to a lifetime in prison,” and it specifically noted that “a
judge or jury must have the opportunity to consider
mitigating circumstances before imposing the harshest
possible penalty for juveniles.”
4 Miller was decided four months before Moss’s original sentence was
entered, and the trial court did not make a determination about whether
Moss’s crimes reflected irreparable corruption or permanent incorrigibility
before entry of Moss’s original LWOP sentence. After Moss’s amended motion
for new trial was filed, Moss and the State agreed that Moss was entitled to a
new sentencing hearing for the trial court to make such a determination before
Moss could be sentenced to LWOP for crimes committed as a juvenile.
17
Raines v. State, 309 Ga. 258, 260 (845 SE2d 613) (2020) (quoting
Miller, 567 U.S. at 480, 489). And in Veal, this Court concluded that,
under Miller (as refined by Montgomery v. Louisiana, 570 U.S. 190(136 SCt 718, 193 LE2d 599) (2016)), “a trial court must make a
‘distinct determination’ that the defendant is an ‘exceptionally rare’
juvenile who is ‘irreparably corrupt’ or ‘whose crimes reflect
permanent incorrigibility’ before sentencing a juvenile convicted of
murder to life without parole.” Raines, 309 Ga. at 261 (quoting Veal,
298 Ga. at 701-703).
Indeed, the trial court offered ample support for its conclusion
that Moss’s “behavior does not reflect an immature youth who
merely makes impulsive and reckless decisions on occasion, or has
an underdeveloped sense of responsibility; rather, it betrays one who
is deliberate, malevolent, and exhibits a depraved heart” and that
Moss’s crimes do not reflect “unfortunate yet transient immaturity.”
(Citation and punctuation omitted.) It reviewed Moss’s juvenile
history, including (among other things) prior arrests for burglary
and obstruction, prior possession of drugs, and admitted
18
involvement with the “Bloods” gang. It determined that Moss—who
was on probation when he shot Marin—shot a different person
(Corado) the night before Marin’s murder during a separate
attempted robbery, and noted that Moss ultimately pleaded guilty
to criminal attempt to commit murder for that offense. And it
concluded that Moss’s “criminal behavior has escalated during the
last several years,” that Moss “[s]how[ed] no hesitation, remorse, or
reflection whatsoever” when he shot and killed Marin, and that
Moss “appeared to be shooting just for the sake of killing.” Based on
these things, and after acknowledging that it must consider Moss’s
“youth and its attendant characteristics, along with the nature of
his crime,” Miller, 132 SCt at 2460, the trial court resentenced Moss
to LWOP, concluding that Moss’s “actions reflect irreparable
corruption” (emphasis in original), his “behavior exhibits an
irretrievable depravity which appears to foreclose any reasonable
prospects for rehabilitation,” and “[h]e thus falls into that ‘rarest of
juvenile offenders ... whose crimes reflect permanent
incorrigibility; whose crimes reflect irreparable corruption . . . .’”
19
(Quoting Veal, 298 Ga. at 702 (emphasis omitted)).
It is true, as Moss points out, that at one point in its lengthy
order the trial court also opined on the role of the “Divine” in the
ultimate judgment of a human being:
This Court cannot find, in this case or in any other, that
the Defendant himself is “irretrievably corrupt” or
“permanently incorrigible.” And it is this Court’s firm
opinion that no court at any level is ever able to make
such a determination; it is beyond human capacity. Only
a Divine Judge could look into a person and determine
that he is permanently and irretrievably corrupt; that he
has reached a state from which there is no return, no hope
of redemption, no hope of any restoration.
(Emphasis in original.) But we do not view Miller or Montgomery—
or cases from this Court applying Miller and Montgomery, such as
Veal, White, and Raines—as requiring the trial court to conduct a
metaphysical assessment of a juvenile defendant. Given the express
determinations contained in the trial court’s order and summarized
in part above, we cannot say that the trial court’s additional
observations about the metaphysical—especially when viewed in
the full context of the court’s order—somehow rendered the trial
20
court’s analysis erroneous. 5
(b) Moss also contends that he cannot be sentenced to LWOP
because OCGA § 17-10-16 (a) prohibits the imposition of an LWOP
sentence on a juvenile. We disagree.
OCGA § 17-10-16 (a) provides:
Notwithstanding any other provision of law, a person who
is convicted of an offense . . . for which the death penalty
may be imposed under the laws of this state may be
sentenced to death, imprisonment for life without parole,
or life imprisonment as provided in Article 2 of this
chapter.
Moss reasons that the portion of OCGA § 17-10-16 (a) that
permits an LWOP sentence when a person is “convicted of an offense
. . . for which the death penalty may be imposed” is not satisfied here
because the death penalty may not be imposed upon juveniles. Moss
cites no direct authority for this analysis, 6 but necessarily implies
5 Moss also contends that a jury, and not a judge, must find him
irreparably corrupt for an LWOP sentence to be imposed. He correctly
concedes, however, that this Court recently held otherwise in Raines, 309 Ga.
at 268-273.
6 Moss analogizes to State v. Velazquez, 283 Ga. 206 (657 SE2d 838)
(2008), to argue that even when one statute (such as OCGA § 16-5-1 (e) (1)
here) provides LWOP as a sentencing option, OCGA § 17-10-16 (a) prevents
imposition of that sentence if either Georgia statutory law or United States
21
that the “notwithstanding any other provision of law” portion of
OCGA § 17-10-16 (a) references, and indeed grafts into the statute,
the United States Supreme Court’s Eighth Amendment
jurisprudence. See, e.g., Roper v. Simmons, 543 U.S. 551, 578 (125
SCt 1183, 161 LE2d 1) (2005) (holding that the Eighth Amendment
prohibits the death penalty for juveniles).
This interpretation, however, ignores the complete statutory
text “read . . . in its most natural and reasonable way.” Blackwell v.
State, 302 Ga. 820, 828 (809 SE2d 727) (2018) (in construing a
statute, “we must read the statutory text in its most natural and
reasonable way, as an ordinary speaker of the English language
Supreme Court case law dictate that the death penalty cannot be imposed for
that offense. In Velazquez, a 4-3 majority of this Court held that a person
convicted of rape could not be sentenced to LWOP—which was enumerated as
an authorized sentence in the rape statute, see OCGA § 16-6-1 (b)—where the
State did not file a notice of intent to seek the death penalty. See Velazquez,
283 Ga. at 206-209. The Velazquez majority reasoned that under OCGA § 17-
10-32.1 and other law in effect at that time, an LWOP sentence was not
available if the death penalty constitutionally could not be imposed and thus
prevented the State from filing a notice of intent to seek the death penalty. See
Velazquez, 283 Ga. at 208-209. But Georgia law no longer requires as a
prerequisite for an LWOP sentence that the State file a notice of intent to seek
the death penalty, and OCGA § 17-10-32.1 has since been repealed. Velazquez
therefore has no bearing on our analysis of OCGA § 17-10-16 (a).
22
would.”) (citation and punctuation omitted). To that end, OCGA
§ 17-10-16 (a)’s reference to an offense “for which the death penalty
may be imposed under the laws of this state” (emphasis supplied) is
most naturally understood to mean an offense for which the
governing Georgia statute lists the death penalty as a sentencing
option. See Neal v. State, 290 Ga. 563, 569 (722 SE2d 765) (2012)
(Hunstein, C.J., concurring, joined by all other Justices)
(interpreting constitutional language identifying cases in which a
death sentence “could be imposed” to include all life-imprisonment
murder cases because, under the homicide statute, “murder is
clearly a crime in which a defendant, upon conviction, can be
punished by death as compared to other crimes”); Atlanta & W.P.R.
Co. v. Hemmings, 192 Ga. 724, 728 (16 SE2d 537) (1941)
(interpreting phrase “any law of the State” in a constitutional
provision to mean a “legislative enactment” and not a court
decision). Applied here, we conclude that OCGA § 17-10-16 (a) is
satisfied because OCGA § 16-5-1 (e) (1) enumerates death as a
23
potential sentence for murder.7 To hold otherwise would import into
a Georgia statute an evolving body of United States Supreme Court
case law when the text says nothing about constitutional limitations
in general or juveniles in particular. Cf. Raines, 309 Ga. at 265 (“The
prohibition against imposing the death penalty on juveniles and the
requirement that a specific determination of irreparable corruption
be made before imposing a sentence of LWOP on a juvenile are
constitutional constraints imposed by the Supreme Court’s
interpretation of the Eighth Amendment—not by any Georgia
statute.”) (emphasis in original).
Perhaps in anticipation of this conclusion, Moss also argues
that if we do not adopt his interpretation of OCGA § 17-10-16 (a),
the statute will be rendered “mere surplusage” because its only
possible meaning is “that those who cannot constitutionally be
sentenced to death may also not be sentenced to life without parole.”
7 OCGA § 16-5-1 (e) (1) provides: “A person convicted of the offense of
murder shall be punished by death, by imprisonment for life without parole, or
by imprisonment for life.”
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But that is not so. Although it is true that the General Assembly
has made a number of changes to the statutory scheme for murder—
including repealing other statutes pertaining to LWOP sentences
and adding OCGA § 16-5-1 (e) (1), which enumerates LWOP as a
potential sentence for persons convicted of murder—OCGA § 17-10-
16 (a) still retains meaning. Indeed, by its plain terms, OCGA § 17-
10-16 (a) authorizes death, LWOP, and life in prison as sentences
for persons convicted of offenses for which the death penalty may be
imposed. And even to the extent OCGA § 16-5-1 (e) (1) controls
sentencing for the specific offense of murder, OCGA § 17-10-16 (a)
still serves as a general background rule that authorizes LWOP (as
well as death and life in prison) sentences for other offenses that
meet its requirements, whether those offenses currently exist in
Georgia law or may be enacted in the future. Moss’s claim therefore
fails.
Judgment affirmed. All the Justices concur.
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