CourtListener 10680228

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320 Ga. 191
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S23G1127. CAPOTE v. THE STATE.

ORDER OF THE COURT.

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.

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

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,

2
and to consider where we go from here.

For a discussion about standards of review to make sense, it is

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

3
upon such charges.” Clater v. State, 266 Ga. 511, 512 (2)
(467 SE2d 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 “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 SCt 1085, 122 LE2d 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

4
Gwinnett County, Georgia on numerous charges. In
December 2020, a detainer was placed on Capote in
accordance with the IAD.
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 & Asministratic [sic] Attention: Patsy Austin-
Gastson [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

5
concerning her efforts to locate Capote’s IAD request. The
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.
6
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

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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 omitted and 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))

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(emphasis in original).

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 “any-

evidence” 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 clearly-

erroneous standard that follows), this Court should apply the federal

9
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. United States Gypsum Co., 333 U.S. 364, 395 (68 SCt 525, 92 LE

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 IAD disposition] request[s]

[were] received by either the DA’s Office or the Clerk of Court” were

clearly erroneous.

But even applying that federal standard, I would not be able to

muster a “definite and firm conviction that a mistake has been

committed” here. See United States Gypsum, 333 U.S. at 395. To

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.
10
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 FCC, 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 &

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 FCC sent on Capote’s behalf.

And they did not definitively establish that the Gwinnett County

11
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 cross-

examination that the certified mail receipts Capote presented at the

evidentiary hearing bore “RECEIVED” stamps from the Gwinnett

County Mail Services—which she testified receives mail on behalf of

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 an 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.
12
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. City of Bessemer City, N.C., 470 U.S. 564, 575 (105

SCt 1504, 84 LE2d 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—

including its factual findings and its decision to credit the

13
investigator’s testimony as noted above—leave me “with the definite

and firm conviction that a mistake has been committed.” United

States 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, 313 Ga. at 251:

14
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 Commrs., 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),

and the phrases “any evidence” and “clearly erroneous” do not by

their plain language appear to signify the same type of review.

15
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 cases

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 of Ga., 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 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

16
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 clearly-

erroneous 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

appellate courts unless such determinations are clearly erroneous.”5

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)
(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.
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—

17
Id.

To support that proposition, we cited no Georgia case. Instead,

we cited—without explanation or analysis—two federal cases: Lego

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

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, 189-190 (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 “[t]he 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.’”).
18
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

19
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.” Johnson, 233 Ga. at 58. See,

e.g., Woodruff v. State, 233 Ga. 840, 844 (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. 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

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.” Ga. L. 1969, pp. 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.
20
determinations and credibility 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. 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

21
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 SE2d 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 SE2d 689) (1975).

Tate, 264 Ga. at 54 (cleaned up) (emphasis in original). 7

On one hand, we resurrected Swift—the pre-Johnson motion

to suppress case cited above in footnote 5 in which we applied the

any-evidence 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.
22
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. (cleaned

up) (emphasis in original). In reaching that conclusion, we cited

Woodruff, 233 Ga. at 844—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

so than the any-evidence standard). Specifically, Tate’s first

23
“principle” instructs appellate courts to review trial courts’ fact-

findings in criminal motion-to-suppress cases under the any-

evidence 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 264 Ga. at 54 (cleaned up)

(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

important marker because of the apparent confusion that followed.

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.
24
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

be deemed to be clearly erroneous if there is any evidence to support

25
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,

264 Ga. at 54); Miller v. State, 288 Ga. 286, 287-288 (702 SE2d 888)

(2010) (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, 264

Ga. at 54) (emphasis omitted).

backdrop, in 2012 we addressed in the context of a criminal case the

26
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

27
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 four civil appeals decided by this Court, two civil
appeals decided by the Court of Appeals, 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 of Ga., 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 “sometimes 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.” 291 Ga. at 13 (cleaned up). We then applied that two-
step approach in Reed, concluding that the trial court’s findings regarding
similar-transaction 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).
28
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 an

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 844
(citing only to federal cases and Johnson, 233 Ga. at 58, in applying the clearly-
erroneous standard of review); Crawford, 245 Ga. at 90-91 (citing only to
federal cases, Hurt v. State, 239 Ga. 665 (238 SE2d 542) (1977), 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).
29
earlier case of this Court) (cleaned up) (emphasis added).

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 Enterprises, Inc. v. Paulding

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.
30
County, 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).
31
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, 319 Ga. 846 (___ SE2d ___) (2024).

32
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 fact-

findings 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

33
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, 291 Ga. at 13.

I am authorized to state that Justice Pinson joins in this

concurrence.

Ordered October 31, 2024.

Certiorari to the Court of Appeals of Georgia — 368 Ga. App.

331.

Bruce S. Harvey; The Bullard Firm, Brandon A. Bullard,

Audra M. Murphey, for appellant.

Patsy Austin-Gatson, District Attorney, Christopher M. DeNeve,

John Williams, Assistant District Attorneys, for appellee.

Ashleigh B. Merchant, Donald F. Samuel; Christopher M. Carr,

Attorney General, Stephen J. Petrany, Solicitor-General, amici

curiae.

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: