Taking Stock: A Review of Justice Stevens’s Last Book and an Appreciation of His Extraordinary Service on the Supreme Court

RODGER CITRON

Rodger D. Citron, the Associate Dean for Research and Scholarship and a Professor of Law at Touro College, Jacob D. Fuchsberg Law Center, comments on the late Justice John Paul Stevens’s last book, The Making of a Justice: Reflections on My First 94 Years. Citron laments that, in his view, the memoir is too long yet does not say enough, but he lauds the justice for his outstanding service on the Supreme Court.

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Cobb Hospital v. Department of Community Health et al.

Dockets: S19G1007, S19C1007

Opinion Date: December 23, 2019

Judge: Per Curiam

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law, Health Law

This case involved Cobb Hospital, Inc.'s and Kennestone Hospital, Inc.'s (collectively, “Wellstar”) challenge to the decision by the Georgia Department of Community Health (“DCH”) to grant Emory University Hospital Smyrna (“Emory”) a new certificate of need (“CON”) to renovate a hospital that Emory had recently acquired. After DCH made an initial decision granting the CON, Wellstar appealed to the CON Appeal Panel. The panel’s hearing officer affirmed the decision, ruling that as a matter of law he could not consider Wellstar’s arguments regarding the validity of Emory’s existing CON, and that he would not allow Wellstar to present evidence related to those arguments. Wellstar then appealed the hearing officer’s decision to the DCH Commissioner, allegedly arguing among other things that the decision violated Wellstar’s constitutional right to due process. The Commissioner affirmed the hearing officer’s decision without ruling on the constitutional claim. In Division 2 of its opinion in this case, the Georgia Supreme Court determined the Court of Appeals erred by holding that the constitutional due process claim enumerated by Wellstar was not preserved for appellate review because it was not ruled on during the administrative proceeding that led to the filing of this case in the trial court. The Supreme Court thus granted Wellstar’s petition for a writ of certiorari to address that issue, reversed the Court of Appeals’s opinion, and remanded for that court to reconsider Wellstar’s constitutional claim.

Collins et al. v. Athens Orthopedic Clinic, P.A.

Docket: S19G0007

Opinion Date: December 23, 2019

Judge: Peterson

Areas of Law: Civil Procedure, Consumer Law, Health Law, Internet Law, Personal Injury

Plaintiffs alleged in 2016, an anonymous hacker stole the personally identifiable information, including Social Security numbers, addresses, birth dates, and health insurance details, of at least 200,000 current and former patients of Athens Orthopedic Clinic (“the Clinic”) from the Clinic’s computer databases. The hacker demanded a ransom, but the Clinic refused to pay. The hacker offered at least some of the stolen personal data for sale on the so-called “dark web,” and some of the information was made available, at least temporarily, on Pastebin, a data-storage website. The Clinic notified plaintiffs of the breach in August 2016. Each named plaintiff alleges that she has “spent time calling a credit reporting agency and placing a fraud or credit alert on her credit report to try to contain the impact of the data breach and anticipates having to spend more time and money in the future on similar activities.” Plaintiffs sought class certification and asserted claims for negligence, breach of implied contract, and unjust enrichment, seeking damages based on costs related to credit monitoring and identity theft protection, as well as attorneys’ fees. They also sought injunctive relief under the Georgia Uniform Deceptive Trade Practices Act (“UDTPA”), and a declaratory judgment to the effect that the Clinic must take certain actions to ensure the security of class members’ personal data in the future. The Clinic filed a motion to dismiss based on both OCGA 9-11-12 (b) (1) and OCGA 9-11-12 (b)(6), which the trial court granted summarily. The Georgia Supreme Court concluded the injury plaintiffs alleged they suffered was legally cognizable. Because the Court of Appeals held otherwise in affirming dismissal of plaintiffs’ negligence claims, the Supreme Court reversed that holding. Because that error may have affected the Court of Appeals’s other holdings, the Court vacated those other holdings and remanded the case.

Norfolk Southern Railway Company v. Hartry et al.

Docket: S19G0008

Opinion Date: December 23, 2019

Judge: Bethel

Areas of Law: Civil Procedure, Personal Injury, Transportation Law

On June 16, 2010, crossing gates were down at a public railway-roadway crossing -- a position that normally indicated: (1) a train was approaching the crossing; (2) a railway was performing maintenance; or (3) they were malfunctioning. As Marvin Johnson, Jr. approached the railroad crossing driving his 28-foot-long truck with attached dumpster, he saw that the gates were down but cars were driving around the gates and over the crossing. Johnson followed suit, driving around the crossing gates into the path of an oncoming train on which Winford Hartry was serving as engineer. Hartry was injured as a result of the collision. The Georgia Supreme Court granted certiorari in this case to consider whether Winford Hartry’s claim under the Federal Employers’ Liability Act (“FELA”) was precluded by regulations issued pursuant to the Federal Railroad Safety Act (“FRSA”). Because the Supreme Court concluded that FRSA and its regulations did not preclude Hartry’s FELA claim, it affirmed the decision of the Court of Appeals.

Ballin v. Georgia

Docket: S19A1087

Opinion Date: December 23, 2019

Judge: Bethel

Areas of Law: Constitutional Law, Criminal Law

Following her conviction for the murder of her husband, Derrick, Pamela Ballin appealed the denial of her motion for a new trial. Ballin argues that the trial court erred when it admitted evidence that she was the beneficiary of insurance policies on her husband’s life and that the trial court wrongly denied her motion for a mistrial following an improper statement by the prosecution. Although the trial court erroneously applied an evidentiary standard from cases decided under the former Georgia Evidence Code in admitting evidence of the life insurance policies and related testimony, the Georgia Supreme Court held that the overall strength of the evidence against Ballin rendered harmless any error. Further, Ballin’s claim of error with respect to the denial of her motion for a mistrial lacked merit.

Bullard v. Georgia

Docket: S19A1017

Opinion Date: December 23, 2019

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

Bernard Bullard was convicted of malice murder, violation of the Georgia Street Gang Terrorism and Prevention Act, and possession of a firearm during the commission of a felony in connection with the shooting death of John Johnson. On appeal, Bullard argued the evidence was insufficient to sustain his convictions and that the trial court erred in denying: a special demurrer, a motion to bifurcate the trial, and a motion in limine. Finding no reversible error, the Georgia Supreme Court affirmed.

Cash v. Georgia

Docket: S19A1280

Opinion Date: December 23, 2019

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Dundell Cash appealed his 2017 malice murder conviction for the 2006 fatal shooting of Euan Dougal outside a Columbus, Georgia nightclub. Cash's sole argument on appeal was the trial court erred by denying his motion for new trial based on an alleged violation of his constitutional right to a speedy trial. Finding no abuse of the trial court’s discretion in rejecting Cash’s speedy trial claim, the Georgia Supreme Court affirmed.

Clark v. Georgia

Docket: S19A1344

Opinion Date: December 23, 2019

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Shawn Clark appealed his malice murder conviction for killing Antonio Ellison. Clark did not dispute at trial that he intentionally shot Ellison, but claimed self-defense. On appeal, Clark argued the State failed to disprove defense of habitation beyond a reasonable doubt. Clark also argued his trial counsel was ineffective for failing to impeach a key witness with prior felony convictions, failing to object to the State’s comments on Clark’s pre-arrest silence, and failing to object to the State’s misstatements on the presumption of innocence. After review, the Georgia Supreme Court affirmed because: (1) the jury was authorized to conclude that the use of deadly force was unreasonable under the circumstances (an element of the defense of habitation statute relied on here); and (2) trial counsel was not deficient or, if he was, any deficiency did not prejudice Clark.

Denson v. Georgia

Docket: S19A1396

Opinion Date: December 23, 2019

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Calvin Denson appealed his convictions for malice murder and armed robbery in connection with the 2011 shooting death of Julian Hernandez. On appeal, Denson argued: (1) the evidence was insufficient to support his convictions; (2) the introduction of an audio recording violated his rights under the Confrontation Clause, because the recording contained statements of a witness who did not testify at trial and was not previously cross-examined; and (3) trial counsel was ineffective in failing to object to certain statements made by the prosecutor during closing arguments. After review, the Georgia Supreme Court affirmed because the evidence was legally sufficient to support Denson’s convictions, the audio recording did not contain testimonial statements and thus the Confrontation Clause did not apply, and Denson failed to show a reasonable probability that the outcome of his trial would have been different had trial counsel objected to the challenged statements.

Dozier v. Georgia

Docket: S20A0100

Opinion Date: December 23, 2019

Judge: Keith R. Blackwell

Areas of Law: Constitutional Law, Criminal Law

Jason Dozier was tried by jury and convicted of murder with malice aforethought, armed robbery, and other crimes in connection with a home invasion that led to the 2012 fatal shooting of Nicolas Jackson. Dozier appealed, claiming only that the evidence was legally insufficient to sustain his convictions. Upon review of the record and briefs, the Georgia Supreme Court found no merit in this claim of error, and affirmed.

Gebhardt v. Georgia

Docket: S19A1582

Opinion Date: December 23, 2019

Judge: Melton

Areas of Law: Constitutional Law, Criminal Law

Franklin Gebhardt was found guilty of malice murder and various other offenses in connection with the 1983 torture and stabbing death of Tim Coggins. On appeal, Gebhardt contended: (1) the evidence presented at trial was insufficient to support his murder conviction; (2) the trial court erred in denying Gebhardt’s pre-trial plea in bar with respect to the charges of aggravated assault, aggravated battery, and concealing the death of another; (3) the trial court inappropriately commented on the evidence at trial; and (4) the trial court committed several evidentiary errors. Finding no reversible error, the Georgia Supreme Court affirmed.

Georgia v. Rumph

Docket: S19A0995

Opinion Date: December 23, 2019

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

The State appealed an interlocutory order of the Superior Court of Columbia County, Georgia suppressing two statements that Christopher Rumph made to law enforcement officers prior to his arrest on murder and other criminal charges. The trial court suppressed the statements on the ground that the police had failed to give Rumph Miranda warnings prior to interviewing him. The State contended that the trial court erred in suppressing the statements because, as Rumph was not in custody, Miranda warnings were not required. After review of the record, the Georgia Supreme Court concurred with the State's reasoning and reversed the trial court’s order.

Jones v. Georgia

Docket: S19A1248

Opinion Date: December 23, 2019

Judge: Harold D. Melton

Areas of Law: Constitutional Law, Criminal Law

Jacob Jones was convicted by jury for the sexual battery of a child under age 16. He appealed his convictions and sentences for three counts of felony sexual battery, challenging the sufficiency of the evidence presented against him, and arguing the statutory sentencing scheme for felony sexual batters was unconstitutional as applied to him. Finding the evidence sufficient for a reasonable trier of fact to convict, the Georgia Supreme Court affirmed the jury's verdict. With regard to sentencing, the Supreme Court concluded that Jones' concurrent five-year probated, first offender sentences were not grossly disproportionate to the gravity of the offense charged. Therefore, the Court affirmed in all respects.

McGuire v. Georgia

Docket: S19A1215

Opinion Date: December 23, 2019

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

David McGuire was convicted by jury of the malice murder of his mother, Elaine, and for possession of a firearm during the commission of a felony. He appealed, challenging the sufficiency of the evidence as to the element of malice. Specifically, McGuire contended the evidence of malice was entirely circumstantial, and that the proved facts did not exclude his reasonable hypothesis he was provoked into a sudden, violent, and irresistible passion when the victim shot at him during a heated argument about his drinking, he wrestled the gun away from her, and he shot her as the result of the provocation. After review of the trial court record, the Georgia Supreme Court disagreed and affirmed appellant’s convictions.

Nicholson v. Georgia

Dockets: S19A1006, S19A0992

Opinion Date: December 23, 2019

Judge: David E. Nahmias

Areas of Law: Constitutional Law, Criminal Law

Appellants Marques Nicholson and Ramon Nichols were tried together and convicted of malice murder and other crimes in connection with the gang-related shooting death of Derrick Linkhorn. On appeal, both appellants contended the evidence presented at their trial was insufficient to support their convictions, and that the trial court abused its discretion by denying their motions to sever their cases for trial. Nicholson also contended the trial court erred by admitting certain cell phone records, and Nichols contended the court erred by admitting certain social media records. After review of the record and the briefs, the Georgia Supreme Court found no reversible error and affirmed both appellants' convictions.

Ramirez v. Georgia

Docket: S19A1504

Opinion Date: December 23, 2019

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

Juan Ramirez was convicted of felony murder and other crimes in connection with the 2014 shooting death of Justin Acevedo. Ileanna Martinez and Itzel Jimenez (Acevedo’s girlfriend and also a friend of a Sandra Boyzo, a mutual acquaintance of both Martinez and Jimenez) exchanged a series of heated Facebook messages regarding a dispute between Martinez and Jimenez. At the center of the dispute was Martinez’s alleged insult of Jimenez’s friend Boyzo, and the result of these messages was that Jimenez planned to meet Martinez at Martinez’s apartment to fight. Martinez was at Ramirez’s apartment while Martinez and Jimenez sent the Facebook messages, and Ramirez told Martinez that he would accompany her to her apartment “because he didn’t want nobody to jump [her]” in the anticipated fight. When Ramirez and Martinez arrived at Martinez’s apartment complex, they encountered the other group, whose members were standing on the opposite side of the street. At that point, Ramirez told Martinez not to cross the street. There were multiple accounts about what Acevedo said to Ramirez at that point. It was undisputed that in response to Acevedo’s statement or statements, Ramirez fired, and the bullet struck Acevedo in the chest, killing him. Except for Contreras, who claimed that the gun was pointed “directly towards us” when Ramirez shot, the statements of the other witnesses were consistent that Ramirez was instead pointing the gun down toward the street when he fired, and that the bullet ricocheted up and struck Acevedo. On appeal, Ramirez contended his trial counsel rendered constitutionally ineffective assistance by withdrawing a request to instruct the jury on mutual combat. After review of the trial court record, the Georgia Supreme Court disagreed and affirmed.

Reed v. Georgia

Docket: S19A1342

Opinion Date: December 23, 2019

Judge: David E. Nahmias

Areas of Law: Constitutional Law, Criminal Law

Appellant Hentrez Reed was convicted of malice murder and other crimes in connection with the 2015 shooting death of Nigel James. On appeal, he argued that his trial counsel provided ineffective assistance in three ways: (1) by not filing a motion to suppress inculpatory statements Appellant made during his interview by the police; (2) by not filing a motion to suppress his historical cell site location information; and (3) by not objecting to the admission of testimony regarding an “affidavit” he wrote and the admission of an accompanying note written by a co-defendant. Finding no reversible error, the Georgia Supreme Court affirmed.

Spence v. Georgia

Docket: S19A1334

Opinion Date: December 23, 2019

Judge: Boggs

Areas of Law: Constitutional Law, Criminal Law

Mary Ann Spence was convicted of malice murder in connection with the death of Samuel Miller (“Samuel”), a 16-month-old baby left in her care. In 2011, Spence was staying in an apartment in the Carver Homes community in Atlanta with her daughter, Classie Fields, and Fields’ three children: her five-year-old and one-year-old sons, and her nine-year-old daughter. Jennifer Miller (“Miller”), Fields’ best friend, was staying with Fields at the time, along with her two children: Samuel and his three year-old sister. At around 5:30 a.m. on April 3, 2011, Fields left her apartment and went to work. Hours later, while Miller prepared to go to church, Spence offered to stay at the apartment and watch all the boys, because she recognized that they would be difficult to handle at church. Miller accepted Spence’s offer and went to church along with her daughter and Fields’ daughter. Sometime between when Miller left for church and 12:45 p.m., the five-year-old, who was in the apartment’s living room with his brother, peered into one of the apartment’s bedrooms and saw Spence (his grandmother) and a sobbing Samuel. According to the child, Spence picked Samuel up, shook him several times, and threw him down onto a “hard” bed where he hit his head, causing his eyes to go “to sleep.” Paramedics were called, and despite efforts to revive him, Samuel was declared dead shortly after he arrived to the hospital. The ME found multiple bruises on Samuel’s chest, shoulder, and chin, and noted that his face and head were quite swollen. He determined that blunt force trauma to the head killed Samuel, and that the “tremendous” blows to his head punched a hole in his skull three-quarters-of-an-inch in diameter and caused complex fractures across the surface of his skull. Spence appealed her conviction, arguing that the evidence was insufficient to support her murder conviction. She also argued the trial court erred both in permitting the State to improperly bolster the testimony of an eyewitness and in not sua sponte charging the jury on the defense of accident. Finding no reversible error, the Georgia Supreme Court affirmed.

Wilkerson v. Georgia

Docket: S19G0472

Opinion Date: December 23, 2019

Judge: Keith R. Blackwell

Areas of Law: Constitutional Law, Criminal Law

After he was tried by jury and found guilty of ten aggravated assaults, Jason Wilkerson moved for new trial. The trial court granted his motion as to three of the assaults, concluding that the evidence was legally insufficient to prove beyond a reasonable doubt that Wilkerson was guilty of those assaults, and concluding as well that a new trial was warranted upon the “general grounds.” The State appealed, and in Georgia v. Wilkerson, 820 SE2d 60 (2018), the Court of Appeals reversed the determination that the evidence was legally insufficient, and vacated the grant of a new trial on the general grounds. With respect to the general grounds, the Court of Appeals acknowledged that a trial court has substantial discretion to award a new trial under the general grounds, but it concluded that the trial court abused its discretion by improperly conflating the standard for the general grounds and the distinct standard by which the legal sufficiency of the evidence is assessed. The Georgia Supreme Court issued a writ of certiorari to review the decision of the Court of Appeals as to the general grounds, and reversed. The Supreme Court noted the Court of Appeals was right to note that the general grounds and a challenge to the legal sufficiency of the evidence presented distinct issues. But absent some indication in the record to the contrary, "we generally presume that trial judges understand this distinction, and here, the record gives us no reason to conclude that the trial court erroneously conflated the general grounds and the legal sufficiency of the evidence."