NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
SUPREME COURT OF GEORGIA
Case No. S23G1127
October 31, 2024
ALFREDO CAPOTE v. THE STATE.
Upon consideration, the deadline for a motion for
reconsideration in this case has been revised. It is ordered that a
motion for reconsideration, if any, must be filed no later than 4:30
pm on Wednesday, November 6, 2024.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
SUPREME COURT OF GEORGIA
Case No. S23G1127
October 31, 2024
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
ALFREDO CAPOTE v. THE STATE.
After careful consideration of the full record and the briefs of
the parties, the Court has determined that the writ of certiorari
issued in Case No. S23G1127 was improvidently granted.
Accordingly, the writ is vacated, and the petition for certiorari in
Case No. S23C1127 is denied.
All the Justices concur.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
2
In the Supreme Court of Georgia
Decided: October 31, 2024
S23G1127. CAPOTE v. THE STATE.
WARREN, Justice, concurring.
Factually, this case is about whether the Court of Appeals
correctly affirmed the trial court’s denial of Alfredo Capote’s motion
to dismiss an indictment against him on the ground that its
underlying factual findings were not “clearly erroneous.” See Capote
v. State, 368 Ga. App. 331 (890 SE2d 75) (2023). But our Court did
not grant a writ of certiorari to review that fact-specific question; we
granted certiorari to examine the correct standard of review
appellate courts should apply when reviewing a trial court’s factual
findings in a criminal case. In doing so, we posed two questions: (1)
whether this Court’s precedent interpreting the clearly-erroneous
standard of review of factual findings in criminal cases—which
equates that standard with the any-evidence standard—is correctly
3
decided; and (2) if it is not correctly decided, whether this Court’s
precedent on the clearly-erroneous standard should be overruled.
Those questions suggested an interest in examining the difference,
if any, between the any-evidence standard and the clearly-erroneous
standard—especially given that this Court has equated the two in
both civil and criminal cases.
Having now received and reviewed the full record, and after
review of the parties’ briefs and oral arguments, the Court has
determined that the writ of certiorari was improvidently granted, so
it vacates the writ and denies Capote’s petition for certiorari.
Because I now see that this case is not a good vehicle for deciding
the issues we set forth in granting certiorari, I concur in that
decision. I write separately, however, to offer some historical
perspective about the standards of review Georgia appellate courts
have applied in reviewing trial court fact-findings in criminal cases,
and to consider where we go from here.
*
For a discussion about standards of review to make sense, it is
4
helpful to understand the factual context in which the question
about the standards arose. That’s because a standard of review often
feels like an academic rubric until it is applied to a particular set of
factual or legal findings—and it is often only at that point that a
difference in a standard of review bubbles to the surface. In light of
that need for context, I review the relevant background of this case
before reviewing the standards of review at issue here.
1. Factual and Procedural Background.
(a) The Court of Appeals summarized the pertinent facts of this
case as follows.
Alfredo Capote appeals from the trial court’s order
denying his motion to dismiss a pending indictment based
on the State’s alleged failure to comply with Article III (a)
of the Interstate Agreement on Detainers Act (“IAD”),
OCGA § 42-6-20. . . .
“The IAD is an interstate compact intended, among other
things, to provide procedures for the orderly disposition of
outstanding charges against prisoners incarcerated in
out-of-state facilities and detainers based upon such
charges.” Clater v. State, 266 Ga. 511, 512 (2), 467 S.E.2d
537 (1996). The IAD is codified in Georgia at OCGA § 42-6-20. At issue in this case is Article III of the IAD, which
provides the procedure for an accused who is indicted in
this State while incarcerated in another state to obtain a
5
“speedy trial” – to be tried within 180 days of the required
notice – on the Georgia charges. Subsection (b) of Article
III further provides:
The written notice and request for final disposition
referred to in paragraph (a) here shall be given or
sent by the prisoner to the warden, commissioner of
corrections or other official having custody of him,
who shall promptly forward it together with the
certificate to the appropriate prosecuting official and
court by registered or certified mail or statutory
overnight delivery, return receipt requested.
However, the 180-day time period “does not commence
until the prisoner’s request for final disposition of the
charges against him has actually been delivered to the
court and the prosecuting officer of the jurisdiction that
lodged the detainer against him.” Fex v. Michigan, 507 U.
S. 43, 52, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993). See also
OCGA § 42-6-20, Article III (a) (defendant shall be
brought to trial within 180 days after “he shall have
caused to be delivered to the prosecuting officer and the
appropriate court of the prosecuting officer’s jurisdiction
written notice of . . . his request for a final disposition to
be made of the indictment”).
Pertinent here, the record shows that, following a
conviction on federal wire fraud charges, Capote was
incarcerated in the Federal Correctional Complex in
Beaumont, Texas (“FCC”). Shortly before he was
convicted on the federal charge, Capote was indicted in
Gwinnett County, Georgia on numerous charges. In
December 2020, a detainer was placed on Capote in
accordance with the IAD.
6
On July 7, 2021, Capote requested that the FCC warden
file on his behalf an IAD notice and request for disposition
of the Gwinnett County charges. On that same day, the
FCC warden sent a letter to Patsy Austin-Gatson, the
Gwinnett County District Attorney, notifying her of
Capote’s IAD request for disposition and attaching
certain forms required in connection with the request. A
form attached to the letter had a preprinted notification
that the letter had been sent to the prosecuting official
and to the clerk of court by certified mail, return receipt
requested. On that same day, the warden also sent Capote
written verification that his IAD request had been sent.
No action was taken on the Gwinnett County charges and
on January 28, 2022, Capote filed a motion to dismiss for
failure to dispose of the charges within 180 days as
required by Article III (a) of the IAD. The State opposed
the motion, arguing, among other things, that neither the
Gwinnett County District Attorney nor the Gwinnett
County Clerk of Superior Court had ever received the IAD
disposition request.
A hearing was held on the motion on April 22, 2022. At
the hearing, in addition to submitting the letter from the
warden addressed to the District Attorney, Capote also
introduced copies of the return receipts for “Article
addressed to: Gwinnett County District Clerk Attention
Tiana P. Garner” and “Article addressed to: the Gwinnett
Justice and Asministratic [sic] Attention: Patsy AustinGaston [sic]”; these return receipts were stamped received
by “Gwinnett County Mail Services” on July 27, 2021.
The State presented the testimony of an Investigator with
the Gwinnett County District Attorney’s office concerning
her efforts to locate Capote’s IAD request. The
7
Investigator testified that she was familiar with the
Gwinnett County District Attorney’s procedures on how
IAD disposition requests were handled and tracked, and
she testified in detail regarding the steps she took in
attempting to locate Capote’s IAD request. She also
testified about who in the office would have handled or
received copies of an IAD request. She found no evidence
documenting receipt of the IAD request, and she was
unable to find anybody in the District Attorney’s office
with any knowledge of the IAD request. The investigator
also said that she looked through the Gwinnett Superior
Court’s Odyssey filing system and was unable to find any
documents related to Capote’s IAD request in the court's
files. 1
1 Based on my review of the record on appeal, I add the following details:
Regarding her search of Gwinnett County Superior Court’s Odyssey filing
system, the investigator explained that “[t]he Odyssey system . . . where the
[courts] keep their filings did not contain any documents related to [Capote’s]
IAD[.]” To conduct that search of the District Attorney’s office, the investigator “followed the procedural steps and . . . identified where the IAD [disposition
requests] should have gone through the office” once they were delivered by
mail. She testified that once mail is received by a receptionist or other person
in the District Attorney’s office, that person “would have immediately given
that document to the legal assistant assigned to the case number on the
document. And that legal assistant would have then taken that document,
documented it in tracker, which is our system[,]” before giving a “copy of it to
the assigned prosecutor[.]” She then explained that “if those things were
enacted[,] [the] tracker would have populated several things because of the
roles each person played[,]” “[but] none of those things were found in [her]
search.” The investigator also admitted that she was not able to “find anybody
who had even some knowledge” of Capote’s IAD disposition request in the
District Attorney’s office. On cross-examination, however, the investigator
admitted that the certified mail receipts Capote presented at the hearing for
the mail sent to the District Attorney and the Clerk of Court bore the
“RECEIVED” stamp of the Gwinnett County Mail Services, which she testified
receives mail on behalf of the Clerk of Court and the District Attorney in the
courthouse.
8
On June 8, 2022, the trial court entered an order denying
Capote’s motion to dismiss. Because there was no
evidence that the return receipts introduced by Capote at
the hearing corresponded to the documents supposedly
sent by the FCC warden, the trial court determined that
there was nothing to “affirmatively establish[ ]” that the
letter sent by the FCC to the District Attorney’s office
complied with the Article III (b) requirement that the IAD
notice be sent to the appropriate prosecuting official and
court by registered or certified mail or statutory overnight
delivery, return receipt requested. Further, crediting the
testimony of the Investigator, the trial court also found
that there was no evidence that the request was actually
received by the Gwinnett County District Attorney’s office
or the Clerk of Court.
Capote, 368 Ga. App. at 331-333.
(b) Court of Appeals’s Analysis. After granting Capote’s
request for interlocutory review, the Court of Appeals affirmed the
trial court. See Capote, 368 Ga. App. at 333-334. In reviewing the
trial court’s findings of fact, the Court of Appeals explained that the
exhibits Capote presented in support of his motion
may have shown compliance with the mailing
requirements of the IAD sufficient to create a rebuttable
presumption that the letter was received by someone. But
we disagree with Capote that the trial court was required
to find that the letter was delivered to the prosecuting
officer and the appropriate court. The return receipt
showed only that it was delivered to Gwinnett County
9
Mail Services, and the trial court specifically credited the
testimony of [Investigator Tarver] in determining that
the IAD request had not actually been delivered to the
prosecuting officer or the court. This finding was
supported by at least some evidence, and thus we cannot
say that the trial court clearly erred.
Id. (emphasis added). In a specially concurring opinion, Presiding
Judge Dillard “acknowledge[d] that both parties presented
compelling evidence as to whether Capote’s IAD request was
delivered to both the Gwinnett County District Attorney’s Office and
the Gwinnett County Clerk of the Superior Court.” Id. at 334
(Dillard, P.J., concurring specially). He emphasized, however, that
the applicable standard of review for the trial court’s factual findings
was clear error; that “the clearly erroneous standard is, of course,
equivalent to the highly deferential ‘any evidence’ standard”; and
that because “there was some evidence supporting the trial court’s
conclusion that, for whatever reason, the district attorney’s office
and the superior court did not actually receive Capote’s IAD
request,” the trial court was due to be affirmed. See id. at 334-335
(citing Morrell v. State, 313 Ga. 247, 251 (869 SE2d 447) (2022))
10
(emphasis in original) (cleaned up).
2. This Case Does Not Present an Adequate Vehicle For
Resolving The Questions Presented on Certiorari About the Standard
of Review for Trial Court Fact-Findings in Criminal Cases.
As the specially concurring opinion in the Court of Appeals
highlighted, we have stated in our criminal precedents that an
appellate court “accept[s] a trial court’s factual findings unless
clearly erroneous and review[s] a trial court’s ultimate decision on
the issue for an abuse of discretion.” Morrell, 313 Ga. at 251.
Somewhat confusingly, however, “[t]he clearly erroneous standard
is equivalent to the highly deferential ‘any evidence’ standard, which
means we will not reverse a trial court’s factual findings if there is
any evidence in the record to support them.” Id.
In the present matter, the Court of Appeals applied the “anyevidence” standard to the trial court’s factual findings and affirmed
the denial of Capote’s motion to dismiss. See Capote, 368 Ga. App.
at 333-334. On certiorari, Capote contends that instead of applying
the Georgia any-evidence standard (and the Georgia clearlyerroneous standard that follows), this Court should apply the federal
11
clearly-erroneous standard2—and that application of that different
standard would require a reversal based on the very same facts.
Capote points to that federal standard—that is, that a “finding is
‘clearly erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed,” United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (68 SCt 525, 92 LEd 746)
(1948)—and contends that the trial court’s factual findings that
“[t]here is no evidence that establishes that the return receipts
presented by [Capote] were for the request sent by the” warden and
that “there was no record of [Capote’s Interstate Agreement on
Detainers Act (“IAD”) disposition] request[s] [were] received by
either the DA’s Office or the Clerk of Court” were clearly erroneous.
Id.
But even applying that federal standard, I would not be able to
muster a “definite and firm conviction that a mistake has been
2 The main thrust of Capote’s legal argument involves interpretation of
the 1983 Georgia Constitution and its predecessors. I do not address those
arguments here.
12
committed” here. See id. To that end, the record shows that Capote
presented several exhibits at the hearing on his motion to dismiss—
including an exhibit containing a written memorandum titled
“RESPONSE TO INMATE REQUEST TO STAFF” from the warden
of the Federal Correctional Complex in Beaumont, Texas,
confirming that he “mailed via certified return [r]eceipt” Capote’s
IAD disposition requests to the “District Attorney, District Clerk
and IAD Administrator of the State of Georgia,” and a copy of the
IAD disposition request addressed to the Gwinnett County District
Attorney, with the “Clerk of Court” and “State IAD Administrator”
carbon copied. He also presented copies of return receipts for
“Article Addressed to: Gwinnett County District Clerk[,]” “Attention
Tiana P. Garner” and “Article Addressed to: the Gwinnett Justice
and Asministratic[,]” [sic] “Attention: Patsy Austin-Gastson [sic],”
that were stamped as received by “Gwinnett County Mail Services”
on July 27, 2021.
But none of those exhibits affirmatively established the
contents of the mail the warden of the Federal Correctional Complex
13
in Beaumont, Texas, sent on Capote’s behalf. And they did not
definitively establish that the Gwinnett County District Attorney,
the Gwinnett County Clerk of Court, or Georgia’s IAD administrator
actually received Capote’s IAD disposition request.3
Additionally, an investigator with the Gwinnett County
District Attorney’s office testified that “she was unable to find
anybody in the District Attorney’s office with any knowledge of the
IAD request[,]” and “she looked through the Gwinnett Superior
Court’s Odyssey filing system and was unable to find any documents
related to Capote’s IAD request in the court’s files.” Capote, 368 Ga.
App. at 333. And although the investigator admitted on crossexamination that the certified mail receipts Capote presented at the
evidentiary hearing bore “RECEIVED” stamps from the Gwinnett
3 In its order denying Capote’s motion to dismiss, the trial court relied
on this point—that is, the lack of evidence that the warden actually sent the
disposition requests and the DA’s Office or the Clerk of Court actually received
the disposition requests. Compare OCGA § 42-6-20 Art. III (a), (b) (referencing
the requirement for a imprisoned person seeking to avail himself of the IAD to
“cause to be delivered” a notice that a warden or other qualifying official “shall promptly forward”). The interpretation of that aspect of the IAD presents a
matter of federal statutory construction that neither the trial court nor the
Court of Appeals considered, however, and I do not attempt to address it here.
14
County Mail Services—which she testified receives mail on behalf of
the Clerk of Court and the District Attorney—the trial court credited
the investigator’s testimony about there being “no record of
[Capote’s IAD disposition] request being received by either the DA’s
Office or the Clerk of Court.”
As a result, whatever questions I may have about the District
Attorney’s and the Clerk of Court’s process for receiving, cataloging,
and distributing mail (and, assuming its authenticity, how a
“RECEIVED” stamp could have been affixed to the return receipts
in this case without either the DA’s Office or the Clerk of Court
knowing), I would not be able to say that the exhibits Capote
presented necessarily contradicted the investigator’s story or that
the investigator’s story was “so internally inconsistent or
implausible on its face that a reasonable factfinder would not credit
it.” Anderson v. Bessemer City, N.C., 470 U.S. 564, 575 (105 SCt
1504, 84 LEd 518) (1985).
In sum: even applying the federal clearly-erroneous standard
of review, I would not be able to say that the trial court’s findings—
15
including its factual findings and its decision to credit the
investigator’s testimony as noted above—leave me “with the definite
and firm conviction that a mistake has been committed.” U.S.
Gypsum, 333 U.S. at 395. And if that is so, the standard of review
this Court applies to the trial court’s findings—that is, whether this
Court applies the federal clearly-erroneous standard, as opposed to
Georgia’s any-evidence standard—makes no practical difference to
the resolution of Capote’s appeal. For that reason, this case does not
provide an adequate vehicle to answer the questions presented on
certiorari, and I therefore concur in the dismissal of Capote’s
petition as improvidently granted.
3. The History of Georgia’s Standard for Reviewing Trial Court
Fact-Findings in Criminal Cases
Dismissing this case as improvidently granted leaves
untouched the standard of review for criminal cases this Court
articulated in Reed v. State, 291 Ga. 10, 13 (727 SE2d 112) (2012),
and reiterated in Morrell v. State, 313 Ga. 247, 251 (869 SE2d 447)
(2022):
16
For evidentiary rulings, we accept a trial court’s factual
findings unless clearly erroneous and review a trial
court’s ultimate decision on the issue for an abuse of
discretion. The clearly erroneous standard is equivalent
to the highly deferential “any evidence” standard, which
means we will not reverse a trial court’s factual findings
if there is any evidence in the record to support them.
Morrell, 313 Ga. at 251 (cleaned up) (citing Reed, 291 Ga. at 13).
But it impresses me as noteworthy—if not a bit unusual—that
our Court has concluded that two standards that appear to be
textually distinct (that is, the “any evidence” and the “clearly
erroneous” standards) are the same for purposes of appellate review
of trial court fact-findings in criminal cases. It is all the more
unusual given that our Court typically ascribes meaning to
differences in text, cf. Florida Rock Indus., Inc. v. Clayton County
Bd of Comm’rs, 316 Ga. 380, 381 (888 SE2d 573) (2023) (Peterson,
P.J., concurring) (“[A]s a matter of plain meaning, it is hard not to
notice the difference in terms. ‘Any evidence’ seems to mean what it
says, so “substantial evidence” would presumably have to mean
something else. After all, we normally presume “that the legislature
did not intend to enact meaningless language.”) (emphasis omitted),
17
and the phrases “any evidence” and “clearly erroneous” do not by
their plain language appear to signify the same type of review.
Assessing the correctness of this standard of review requires a
brief review of how that standard developed in the first place. And
as explained more below, I have more questions than answers when
it comes to the evolution of Georgia’s “any evidence”/“clearly
erroneous” standard of review of trial court fact-findings in criminal
appeals.
(a) Application of a federal clearly-erroneous standard in
motion-to-suppress cases in the 1970s. In the 1970s, this Court
began articulating a specific standard of review when reviewing a
trial court’s fact-findings in criminal cases.4 We did so in a set of
4 The Supreme Court of Georgia was founded in 1845. See Acts of 1845,
18. But it appears that for many decades, we seldom set out—at least in
express terms—the standard by which we reviewed the factual findings of
lower courts in criminal cases. One standard that we did apply fairly
consistently was an “any evidence” standard when reviewing a trial court’s
denial of a motion for new trial on the basis that the verdict was unsupported
by the evidence. See, e.g., Carnes v. State, 28 Ga. 192, 194 (1859) (“In criminal
cases jurors are judges of the law as well as the fact. They have, upon a full
charge upon the law of the case by the court, and upon hearing all the evidence,
found the law and the facts against the plaintiff in error; the judge who heard
the cause refused to grant a new trial. There is some evidence to sustain the
18
cases pertaining to motions to suppress. For the most part, however,
the standard of review we applied in those cases was neither an “any
evidence” type of review nor the type of “clearly erroneous” standard
we now equate with it. Instead, we applied some version of a clearlyerroneous standard derived from federal case law. Specifically, in
Johnson v. State, 233 Ga. 58, 58 (209 SE2d 629) (1974), in reviewing
a trial court’s factual findings regarding an “alleged confession made
. . . during an in-custody interrogation by a law enforcement officer,”
we stated: “Factual and credibility determinations of this sort made
by a trial judge after a suppression hearing must be accepted by
verdict, and we will not, in such a case, disturb the judgment of the court
below.”); Mathews v. State, 104 Ga. 497 (30 SE 727) (1898) (explaining, where
the defendant appealed the trial court’s denial of his motion for new trial on
the ground that, among other things, “the verdict . . . was without evidence to
support it[,]” that “[i]t being the province of the jury to pass upon questions of fact, and to determine the truth when the evidence is conflicting; this court will not disturb their finding, which was approved by the trial judge, if there is any
evidence to support it[]”); Graham v. State, 110 Ga. 251 (34 SE 210, 210) (1899)
(“Though the testimony, which was conflicting, might have authorized a
conviction of voluntary manslaughter, the verdict finding the accused guilty of
murder was not without evidence to support it. This being so, and there being
no complaint that any error of law was committed at the trial, no cause for
reversing the judgment below appears.”). But those cases, which generally
focus on the deference afforded to jury verdicts, do not directly answer
questions about the standard of review an appellate court should apply when
reviewing a lower court’s findings of fact.
19
appellate courts unless such determinations are clearly erroneous.”5
Id.
To support that proposition, we cited no Georgia case. Instead,
we cited—without explanation or analysis—two federal cases: Lego
5 Notably, we applied a different standard of review in State v. Swift, 232
Ga. 535, 536 (207 SE2d 459) (1974)—decided only months before Johnson—
when we expressly applied the any-evidence standard to review a trial court’s
fact and credibility findings underlying its denial of a motion to suppress
physical evidence:
On motion to suppress evidence, the trial judge sits as the trier of
the facts, hears the evidence, and his findings based upon
conflicting evidence are analogous to the verdict of a jury and
should not be disturbed by a reviewing court if there is any
evidence to support it.
232 Ga. at 536 (cleaned up) (emphasis added).
We further explained:
The credibility of the witness is for the trial judge’s determination.
His judgment will not be disturbed by a reviewing court if there is
any evidence to support it. Therefore, where there is a conflict in
the evidence on the motion to suppress, the ruling of the trial court
will be upheld where there is any evidence to authorize a finding
in support of his order.
Id. (cleaned up) (emphasis added).
Swift appears to be the outlier—at least for a few decades—and I have
found only two cases citing Swift for this standard of review. See Orkin v.
State, 236 Ga. 176, 189 (223 SE2d 61) (1976) (explaining that “[w]here there is
evidence to support the decision of a trial judge on motion to suppress evidence,
that decision will not be disturbed on appeal” and concluding that “the facts
authorized” the trial court’s fact-findings) (citing Swift, 232 Ga. at 535)); Tate v. State, 264 Ga. 53, 54 (440 SE2d 646) (1994) (quoting Swift, 232 Ga. at 536,
for the proposition that “[t]he trial judge ‘hears the evidence, and his findings
based upon conflicting evidence are analogous to the verdict of a jury and
should not be disturbed by a reviewing court if there is any evidence to support
it.’”).
20
v. Twomey, 404 U.S. 477 (92 SCt 619, 30 LE2d 618) (1972), and
United States v. Watson, 469 F2d 362, 365 (5th Cir. 1972). It is not
at all clear to me how Lego articulates, or even supports, the type of
clearly-erroneous standard for which we cited it; Lego is a federal
habeas case in which the United States Supreme Court evaluated
the standard by which a state must prove that a criminal
defendant’s confession is voluntary. See Lego, 404 U.S. at 489
(holding in relevant part that “the prosecution must prove at least
by a preponderance of the evidence that the confession was
voluntary. Of course, the States are free, pursuant to their own law,
to adopt a higher standard.”). In Watson, by contrast, the Fifth
Circuit did state the standard of review we later set forth in
Johnson—but did so without citing any legal authority for that
proposition. See Watson, 469 F2d at 365 (“In passing on whether
the government has shown admissibility by a preponderance, we
must, of course, accept the factual determinations and credibility
choices made by the trial judge unless they are clearly erroneous.”).
Still lacking explanation for why we selected and applied a
21
standard derived from these federal cases,6 we continued citing and
relying on Lego and Watson (and their progeny) over the next two
decades for the proposition that “[f]actual and credibility
determinations of this sort made by a trial judge after a suppression
hearing must be accepted by appellate courts unless such
determinations are clearly erroneous.” See, e.g., Woodruff v. State,
233 Ga. 840, 843 (213 SE2d 689) (1975) (“[T]he trial court’s decision
on questions of fact and credibility at a suppression hearing must be
accepted unless clearly erroneous.”) (citing Lego, 404 U.S. at 477;
Watson, 469 F2d at 365; Johnson, 233 Ga. at 58)); Gates v. State, 244
Ga. 587, 590-591 (261 SE2d 349) (1979) (“Unless clearly erroneous,
a trial court’s findings as to factual determinations and credibility
6 Our lack of explanation, and our reflexive importation of a federal
standard, is all the more confounding against the backdrop of the Georgia
General Assembly enacting in 1969 a predecessor to OCGA § 9-11-52, which
provided in part that “[f]indings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to
judge of the credibility of the witnesses.” 1969 Ga. Acts, 645-647 (emphasis
added). Of course, this statute—which is part of the Civil Practice Act—
applies by its own terms only to civil cases. But it had been enacted for almost
five years by the time we decided Johnson, and it is curious that in setting out
a “clearly erroneous” standard of review in that case, we did not even take note
of the existence of the clearly-erroneous standard that already existed for civil
cases in Georgia.
22
relating to the admissibility of a confession will be upheld on
appeal.”) (citing Watson, 469 F2d at 365; Johnson, 233 Ga. at 58;
and High v. State, 233 Ga. 153 (210 SE2d 673) (1974)); Crawford v.
State, 245 Ga. 89, 90-91 (263 SE2d 131) (1980) (“Unless clearly
erroneous, a trial court’s findings as to factual determinations and
credibility relating to the admissibility of a confession will be upheld
on appeal.”) (citing Lego, 404 U.S. at 477; Watson, 469 F2d at 365;
and Gates, 244 Ga. at 587)); Berry v. State, 254 Ga. 101, 104 (326
SE2d 748) (1985) (“Unless clearly erroneous, a trial court’s findings
as to factual determinations and credibility relating to the
admissibility of a confession will be upheld on appeal.”) (citing Gates,
244 Ga. at 590-591; Crawford, 245 Ga. at 89)).
(b) The standard of review began to evolve in the 1990s. We
added gloss to—and ultimately sowed confusion about—the
standard of review for trial court fact-findings in criminal cases in
Tate v. State, 264 Ga. 53, 54 (440 SE2d 646) (1994). In Tate, the
defendant moved to suppress evidence of cocaine that was found in
his vehicle during a traffic stop; the trial court granted the motion
23
to suppress; and the Court of Appeals reversed the trial court. Id.
at 53. In rejecting the Court of Appeals’s reasoning, we articulated
certain “principles” that should “guide” an appellate court’s review
of the trial court’s factual findings on a motion to suppress:
First, when a motion to suppress is heard by the trial
judge, that judge sits as the trier of facts. The trial judge
“hears the evidence, and his findings based upon
conflicting evidence are analogous to the verdict of a jury
and should not be disturbed by a reviewing court if there
is any evidence to support it.” State v. Swift, 232 Ga. 535,
536, 207 S.E.2d 459 (1974). Second, the trial court’s
decision with regard to questions of fact and credibility
must be accepted unless clearly erroneous. Woodruff v.
State, 233 Ga. 840, 844, 213 S.E.2d 689 (1975).
Tate, 264 Ga. at 54 (emphasis in original) (cleaned up). 7
On one hand, we resurrected Swift—the pre-Johnson motion
to suppress case cited above in footnote in which we applied the anyevidence standard of review—for the principle that a “reviewing
court” “should not . . . disturb[]” a trial court’s “findings based upon
conflicting evidence . . . if there is any evidence to support it.” Tate,
7 We also stated a third principle that is less relevant to this discussion:
that “the reviewing court must construe the evidence most favorably to the
upholding of the trial court’s findings and judgment.” Tate, 264 Ga. at 54.
24
264 Ga. at 54 (quoting Swift, 232 Ga. at 536). We supported that
conclusion by reasoning that when a “trial judge hears the evidence,
and his findings [are] based upon conflicting evidence,” they are
“analogous to the verdict of a jury.” Tate, 264 Ga. at 54 (quoting
Swift, 232 Ga. at 536). And on the other hand, we explained that
“the trial court’s decision with regard to questions of fact and
credibility must be accepted unless clearly erroneous.” Id.
(emphasis in original). In reaching that conclusion, we cited
Woodruff v. State, 233 Ga. 840, 844 (213 SE2d 689) (1975)—a
progeny of Johnson in which we applied a federally-imported
clearly-erroneous standard in reviewing a trial court’s factual
findings. See Tate, 264 Ga. at 54.
With the announcement of these “principles,” Tate created
tension that is difficult to reconcile: within the same opinion, our
Court purported to instruct appellate courts to review a trial court’s
findings of fact on a motion to suppress using both an any-evidence
standard (a highly deferential standard) and a clearly-erroneous
standard (also a deferential standard, but one that is generally less
25
so than the any-evidence standard). Specifically, Tate’s first
“principle” instructs appellate courts to review trial courts’ factfindings in criminal motion-to-suppress cases under the anyevidence standard, whereas Tate’s second “principle” instructs
appellate courts that a different set of findings—a trial court’s
“decision with regard to questions of fact and credibility”—“must be
accepted unless clearly erroneous.” See id. at 54 (emphasis in
original).
It is hard to say what to make of Tate. Whether Tate’s
treatment of the standards of review in that criminal case
inadvertently conflated the any-evidence and clearly-erroneous
tests in its first two “principles” or was instead an attempt to set out
nuanced aspects of appellate review, 8 the case serves as an
8 Reasonable minds could view Tate differently. For example, it may be
that Tate’s first “principle” is more of an explanation of the deference typically afforded to jury verdicts (and analogs to it), rather than a recitation of a
traditional standard of review an appellate court would apply to the factual
findings a trial court made in the ordinary course of a case. But this
imprecision—and the lack of clarity about how Tate’s first and second
“principles” interact—is part of what has caused persistent confusion about the
standard of review appellate courts should apply to a trial court’s factual
findings in criminal cases.
26
important marker because of the apparent confusion that followed.
That confusion bears out in many of the hundreds of Georgia cases
that have cited Tate for its standard of review “principles,” but
appear to conflate the any-evidence and clearly-erroneous standards
or otherwise recite what appears to be a dual standard of review that
makes it difficult to parse which standard this Court actually
applied and whether the Court even viewed the two standards as
distinct. See, e.g., State v. David, 269 Ga. 533, 535 (501 SE2d 494)
(1998) (“In reviewing a trial court’s decision on a motion to suppress,
an appellate court must adopt the trial court’s findings of fact unless
they are clearly erroneous and not supported by any evidence
admitted at the suppression hearing.”); State v. Thomas, 275 Ga.
167, 168 (562 SE2d 501) (2002) (stating that “[a] trial court’s
findings of fact will not be deemed to be clearly erroneous if there is
any evidence to support them” and holding that “the trial court’s
findings were authorized by the evidence in the record and are not
clearly erroneous”); Davis v. State, 278 Ga. 305, 306-307 (602 SE2d
563) (2004) (explaining that “[a] trial court’s findings of fact will not
27
be deemed to be clearly erroneous if there is any evidence to support
them” and holding that “the trial court’s findings were authorized
by the evidence in the record and are not clearly erroneous”); Brown
v. State, 278 Ga. 724, 726-727 (609 SE2d 312) (2004) (explaining, in
ruling on a motion to suppress, that “the trial court sits as the trier
of facts, and its findings regarding them are not disturbed on appeal
if there is any evidence to support them; the trial court’s decisions
with regard to questions of fact and credibility must be accepted
unless clearly erroneous, and a reviewing court construes the
evidence most favorably to the trial court’s findings[]”) (citing Tate,
290 Ga. at 54); Miller, 288 Ga. at 287 (explaining that “[t]o properly
follow the first principle, we must focus on the facts found by the
trial court in its order, as the trial court sits as trier of fact[,]” and
apply the clearly-erroneous standard to the trial court’s “overt[]”
credibility determination underlying a finding of fact in a
suppression order) (citing Tate, 290 Ga. at 54) (emphasis omitted).
(c) We set forth a single standard of review in 2012. Against this
backdrop, in 2012 we addressed in the context of a criminal case the
28
standard for appellate courts to apply when reviewing a trial court’s
factual findings. In that case, Reed v. State, 291 Ga. 10, 13 (727
SE2d 112) (2012), the defendant was convicted of murder (among
other crimes) and contended that the trial court had erred in
admitting similar-transaction evidence against him at trial. In the
course of addressing a different standard—the standard for
reviewing a trial court’s admission of similar-transaction evidence—
we stated:
In Georgia, it is well-settled that the ‘clearly erroneous’
standard for reviewing findings of fact is equivalent to the
highly deferential ‘any evidence’ test.
Id. at 13 (also distinguishing the “abuse of discretion” standard from
the “clearly erroneous” standard, explaining that “‘abuse of
discretion’ . . . is at least slightly less deferential than the ‘any
evidence’ test,” and deducing that the “abuse of discretion” standard
is “different from and not quite as deferential as the ‘clearly
erroneous’ test”). To support our characterization of this standard
as “well-settled,” we cited seven Georgia appellate cases—but no
29
criminal cases from this Court.9 And we articulated this standard
without reference to Tate, though in some sense we created an
amalgam of Tate’s first two “principles.”10 We bolstered our
conclusion by re-examining language from a decades-old habeas
corpus case, Balkcom v. Vickers, 220 Ga. 345, 348 (138 SE2d 868)
(1964), and overruling it “to the extent that it implie[d] that, in
Georgia, the ‘any evidence’ rule differs from the ‘clearly erroneous’
standard.” Reed, 291 Ga. at 13.11
9 Instead, we cited six civil appeals decided by this Court and one
criminal appeal decided by the Court of Appeals. See Patel v. Patel, 285 Ga.
391, 392 (677 SE2d 114) (2009) (civil); Delbello v. Bilyeu, 274 Ga. 776, 777 (560
SE2d 3) (2002) (civil); Turpin v. Todd, 271 Ga. 386, 390 (519 SE2d 678) (1999)
(habeas corpus); Hall v. Ault, 240 Ga. 585 (242 SE2d 101) (1978) (civil);
Brenntag Mid South v. Smart, 308 Ga. App. 899, 902 (710 SE2d 569) (2011)
(civil); Shook v. State, 221 Ga. App. 151, 152 (470 SE2d 535) (1996) (civil
forfeiture); and Jones v. State, 146 Ga. App. 88, 90 (245 SE2d 449) (1978)
(criminal).
10 Notably, however, the standard we articulated in Reed did not address
the standard of review for trial court credibility findings, which the second Tate “principle” did address.
11 We stated that “[s]ometimes the appellate courts find it necessary to
use more than one standard of review to evaluate a single trial-court ruling”
and that “in various contexts, we accept factual findings unless they are clearly
erroneous and review a trial court’s ultimate decision on the particular issue
for abuse of discretion.” Id. at 13 (cleaned up). We then applied that two-step
approach in Reed, concluding that the trial court’s findings regarding similartransaction evidence were not clearly erroneous, and that the trial court did
not abuse its discretion in its ultimate ruling that the similar-transaction
evidence was admissible. Id. at 14 (cleaned up).
30
Despite whatever shortcomings Reed’s reasoning may have
had, see footnote 9, it seems clear that Reed attempted to eliminate
any doubts or confusion that stemmed from, or lingered after, the
decades of cases noted above in which this Court inconsistently
applied the any-evidence and clearly-erroneous standards of review.
And by expressly overruling Georgia cases “to the extent that [they]
implie[d] that, in Georgia, the ‘any evidence’ rule differs from the
‘clearly erroneous’ standard,” Reed, 291 Ga. at 13, Reed overruled
more than just the offending portions of Vickers: it also had the effect
of overruling, sub silentio, earlier cases from this Court to the extent
such cases purported to apply a federal clearly-erroneous standard
to a trial court’s factual findings in criminal cases. 12 See Mobley v.
State, 307 Ga. 59, 75 n.20 (834 SE2d 785) (2019) (explaining how a
decision of this Court can “amount[] to a sub silentio overruling” of
12 See, e.g., Johnson, 233 Ga. at 58 (citing only to federal cases in
applying the clearly-erroneous standard of review); Woodruff, 233 Ga. at 843
(citing only to federal cases and Johnson, 233 Ga. at 58, in applying the clearlyerroneous standard of review); Crawford, 245 Ga. at 90-91 (citing only to
federal cases, Hurt, 239 Ga. at 665, and Gates, 244 Ga. at 587); Berry, 254 Ga.
at 104 (citing to Crawford, 245 Ga. at 90-91 and Gates, 244 Ga. at 590-591).
31
an earlier case of this Court) (citation and punctuation omitted).
Why did we take this approach in Reed, relying almost
exclusively on civil cases, to establish a standard of review in
criminal appeals? I am not sure, but I suspect it has something to
do with the parallel and also-inconsistent development of standards
of review in civil appeals. See, e.g., Code § 81A-152 (1969) (“In all
actions in Superior Court tried upon the facts without a jury, the
court shall find the facts specially and state separately its
conclusions of law thereon and judgment shall be entered . . . .
Findings of fact shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to
judge of the credibility of the witnesses.”) (emphasis added); OCGA
§ 9-11-52 (1987) (succeeding Code § 81A-152; also setting forth a
“clearly erroneous” standard of review for trial court fact-findings in
civil cases).13 See also Brook Forest Enters, Inc. v. Paulding County,
13 It is worth emphasizing that in civil cases, unlike in criminal cases,
the General Assembly has codified a standard—“clearly erroneous”—for
review of a trial court’s factual findings. See OCGA § 9-11-52 (a) (1987).
Whether Georgia courts have correctly interpreted that statutory text in civil
cases is not the subject of this concurrence.
32
231 Ga. 695, 695 (203 SE2d 860) (1974) (in a civil case, referencing
the “clearly erroneous” language from Code § 81A-152 and then
applying some version of an any-evidence standard); Hall v. Ault,
240 Ga. 585, 586 (242 SE2d 101) (1978) (in reviewing an
administrative proceeding, construing the clearly-erroneous
standard of review in the predecessor to OCGA § 45-20-9 (m) 14 as
equivalent to an any-evidence standard and relying in part on Brook
Forest to do so).
Why do I think that? Because Hall v. Ault is one of the handful
of non-criminal cases we cited in Reed to support the proposition
that “any evidence” equals “clearly erroneous” and “clearly
erroneous” equals “any evidence” when an appellate court reviews a
trial court’s fact-findings in a criminal case. As best I can tell, it
14 Georgia Code Ann. § 40-2207.1 (m) then said: “The review shall be
conducted by the court without a jury and shall be confined to the record. The
court shall not substitute its judgment for that of the board as to the weight of
the evidence on questions of fact. The court may affirm the decision or order of
the board or remand the case for further proceedings. The court may reverse
the decision or order of the board if substantial rights of the petitioner have
been prejudiced because the board’s findings, inferences, conclusions, decisions
or orders are: . . . (4) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . .” This provision is now codified
at OCGA § 45-20-9 (m).
33
seems that Reed borrowed from a line of non-criminal cases—
including Brook Forest and Hall—to erase the distinction, if any,
between the any-evidence and clearly-erroneous standards of review
of trial court factual findings in the criminal context.
Whatever our motivation and (unexplained) reasoning was in
articulating the singular “clearly erroneous”/“any evidence”
standard in Reed, our Court has been applying that standard for a
dozen years in criminal appeals. We doubled down on that standard,
citing Reed, only two years ago in Morrell v. State:
For evidentiary rulings, we accept a trial court’s factual
findings unless clearly erroneous and review a trial
court’s ultimate decision on the issue for an abuse of
discretion. The clearly erroneous standard is equivalent
to the highly deferential “any evidence” standard, which
means we will not reverse a trial court’s factual findings
if there is any evidence in the record to support them.
Morrell v. State, 313 Ga. 247, 251 (869 SE2d 447) (2022) (citing
Jordan v. State, 305 Ga. 12, 17 (823 SE2d 336) (2019); Reed, 291 Ga.
at 13. And we continue to apply that standard in criminal cases
today. See, e.g., Pierce v. State, S24A0525, 2024 WL 4350982 (Ga.
Oct. 1, 2024).
34
4. Conclusion
I had hoped that this case would present an opportunity to
determine an appropriate framework or set of principles for
determining the proper standard for appellate review of factfindings in criminal cases. But the parties here have not offered a
persuasive theory on that front. And as shown above, my efforts
have generated more questions than answers. Without anything
approaching certainty as to the right set of principles for
determining the appropriate standard of review in this context, I see
no basis for revisiting that question.
In the meantime, Reed’s emphatic rejection of the notion that
the any-evidence standard differs from the clearly-erroneous
standard, as well as this Court’s continued application over the past
decade of the standard Reed articulated, shows that Reed’s standard
of review for a trial court’s findings in criminal cases remains intact
today. Georgia law is thus clear—at least at present, and in the
criminal context—that we “accept a trial court’s factual findings
unless clearly erroneous” and “[t]he clearly erroneous standard is
35
equivalent to the highly deferential ‘any evidence’ standard, which
means we will not reverse a trial court’s factual findings if there is
any evidence in the record to support them.” Morrell, 313 Ga. at
251. See also Reed, 251 Ga. at 13.
I am authorized to state that Justice Pinson joins in this
concurrence.
36