Georgia Supreme Court Blog

December 17, 2009

Technical Error Dooms Appeal of 1981 Murder Conviction

Filed under: appellate procedure, criminal law, murder — Tags: , — bce30064 @ 3:18 am


In a 4-to-3 decision released November 23, 2009, the Georgia Supreme Court dismissed the appeal of a man convicted of murder 27 years ago in DeKalb County, and in doing so, overruled one of its own previous decisions as “wrongly decided.”

Richard James Harper (Source: GA DOC)



At issue in this case is what legal means criminal defendants can use to challenge their convictions. The case involves the 1981 murder of Larry Green, a security guard who worked nights at Overnite Transportation Co. According to evidence at trial, after Green left for work one night, Richard James Harper became angry when he realized his sawed-off shotgun was in Green’s car. Harper and another man went to Green’s place of business to retrieve the gun, and Green was later found in the guardhouse, shot to death.

In 1982, Harper was convicted of Green’s murder, and in 1983, the state Supreme Court upheld his conviction. Last year, in May 2008, Harper filed a “motion to vacate void judgment,” arguing that the DeKalb County trial court had lacked jurisdiction to hear his case because the murder had occurred in Fulton County and therefore the DeKalb judgment was void. The court denied his motion and he then appealed to the state Supreme Court.

In today’s majority opinion, Justice Hugh Thompson writes: “We dismiss Harper’s appeal and hold that a motion to vacate a conviction is not an appropriate remedy in a criminal case,” thereby overruling part of its 2008 decision, Chester v. State. According to the majority, prior to the Chester decision, once a conviction had been appealed and affirmed, there were only three ways a criminal defendant could challenge his or her conviction: (1) by filing a “petition for a writ of habeas corpus,” (2) a “motion in arrest of judgment,” or (3) an “extraordinary motion for new trial.” Under Chester, however, the state Supreme Court added that criminal defendants could also challenge their conviction by filing a motion alleging the conviction is void. A number of cases filed in the year since Chester was decided, including the Harper case, “have exposed the deficiencies of that opinion and we find it was wrongly decided,” the majority opinion says. “Its ruling, creating a new post-appeal procedure for challenging a criminal conviction, marked an improvident departure from more than a century of precedent, significantly undermined the finality of criminal judgments, and has proved unworkable inasmuch as Georgia law is silent as to the procedural framework and rules applicable to this newly created remedy.” The majority is joined by Presiding Justice George Carley and Justices P. Harris Hines and David Nahmias.

In a dissent, Justice Harold Melton writes that he disagrees that Chester created “a new post-appeal procedure” and should be overruled. Rather, “our decision in Chester was based on a straightforward analysis of the plain language of [Official Code of Georgia] § 17-9-4 – an analysis completely ignored by the majority – and was specifically designed to make our overall case law more consistent with the plain language of OCGA § 17-9-4, rather than less so, as our case law prior to Chester had been.” Joining in the dissent are Chief Justice Carol Hunstein and Justice Robert Benham.

Attorney for Appellant (Harper): Richard James Harper, representing himself (pro se)
Attorneys for Appellee (State): Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Dep. Chief Asst. D.A.
Summary by Georgia Supreme Court Public Information Office

Download full text of Opinion: Harper v. State (S09G0870)

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