Holmes v. State

306 Ga. 524

• Court: Supreme Court of Georgia
• Decided: August 19, 2019
• Docket: S19A0559
• Status: Published

Opinion

306 Ga. 524 FINAL COPY

S19A0559. HOLMES v. THE STATE.

BETHEL, Justice.

De’Andre Holmes appeals from the denial of his motion for new

trial after a jury found him guilty of malice murder and other

offenses in connection with the death of Cory Joseph.1 On appeal,

1 The crimes occurred on March 7, 2007. Holmes was indicted by a Richmond County grand jury on June 12, 2007, for malice murder, felony murder predicated on the underlying felony of aggravated assault, and possession of a firearm during the commission of a crime. Following a trial held in August 2008, Holmes was found guilty on all counts. On October 2, 2008, Holmes was sentenced to serve life in prison for malice murder and five years consecutive for possession of a firearm during the commission of a crime. The trial court purported to merge the felony murder count with the malice murder count, but the felony murder count was vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371- 372 (4) (434 SE2d 479) (1993). Holmes filed a motion for new trial on October 9, 2008, and orally amended the motion for new trial at the hearing on February 18, 2015. The trial court denied the motion for new trial on July 14, 2015. The trial court vacated and re-entered its order denying the motion for new trial on October 5, 2015. Holmes filed a notice of appeal on November 5, 2015. However, his notice of appeal was untimely, and this Court dismissed the appeal for lack of jurisdiction. Holmes v. State, Case No. S17A0926 (Feb. 6, 2017). The trial court granted Holmes’ motion for out-of-time appeal on June 18, 2018, and Holmes filed a notice of appeal on July 12, 2018. This case was docketed to the Court’s April 2019 term and was orally argued on April 16, 2019. Holmes argues that the evidence presented against him was

insufficient because the State failed to prove that venue was proper

in Richmond County. He further argues that the trial court failed to

exercise its discretion to act as the “thirteenth juror” in ruling upon

Holmes’ motion for new trial and instead inappropriately applied a

sufficiency-of-evidence standard to Holmes’ statutory challenge on

the general grounds. We conclude that the State presented sufficient

evidence to support Holmes’ convictions. However, because the

record shows that the trial court applied only a sufficiency-of-

evidence standard in considering Holmes’ motion for new trial on

the general grounds, we vacate in part the trial court’s order denying

his motion for new trial and remand the case so that the trial court

may exercise its discretion as the “thirteenth juror” and, in so doing,

reweigh the evidence presented at trial. As explained below, we do

not reach Holmes’ additional enumeration of error regarding the

sufficiency of the evidence presented by the State regarding venue.

1. Viewed in the light most favorable to the verdicts, the

evidence presented at trial showed the following. On the night of

2 March 7, 2007, Wilkins was in her house when she heard a crash

outside. Wilkins saw that a car had crashed through the side of her

storage shed. Wilkins went outside and saw the car try to back up,

but the car was stuck on some bricks. Wilkins saw one man exit the

passenger’s side of the car and wander through Wilkins’ yard.

Another man, later identified as Holmes, got out of the back seat on

the driver’s side and told Wilkins that she should call the police

because he did not have insurance.

Wilkins yelled for her daughter, who was in the house, to call

the police. The man who exited the passenger’s side of the vehicle

ran away across her driveway, down the street. It was dark outside,

and Wilkins could not see the passenger’s face well. Wilkins then

attempted to make Holmes sit down, as he appeared hurt and had a

spot of blood on his shirt. Holmes said he was “all right” and ran off.

One of Wilkins’ neighbors came to Wilkins’ house after the car

crashed into the shed. The neighbor smelled something burning and

went to turn off the car. When she reached into the car, the neighbor

found a person, later identified as Cory Joseph, unresponsive in the

3 driver’s seat of the vehicle.

Richmond County Sheriff’s Deputy Valentina Mancusi

responded to the scene a few minutes after Wilkins’ daughter called

911. Deputy Mancusi secured the area, found the vehicle still

running in Wilkins’ shed, and noticed Joseph sitting in the driver’s

seat, slumped over the console with his head in the front passenger

seat. Deputy Mancusi later testified that Joseph appeared to have

been shot in the back of the head, had no pulse, and was not

responsive. Emergency units responded to the scene shortly

thereafter and turned off the vehicle but were unable to revive

Joseph.

Sergeant James Gordon of the Richmond County Sheriff’s

Office crime scene unit also responded to the 911 call. When Gordon

arrived, he spoke with Wilkins and an investigator on site and

learned that the man in the car was dead from a possible gunshot.

Sergeant Gordon then began photographing and videotaping the

scene.

While examining the vehicle, Sergeant Gordon found that the

4 car’s glove compartment was open. He also noticed that Joseph’s

wallet was open, lying on the vehicle’s floorboard with three cards

belonging to Joseph strewn next to it. Sergeant Gordon also found a

nine-millimeter cartridge casing on the front passenger’s side

floorboard. Joseph had injuries to his face that were consistent with

two marks on the inside of the windshield. Gordon found a white zip-

up jacket in the driveway and collected it as evidence. Wilkins

believed that the jacket belonged to one of the men who had been in

the car. Gordon also noticed that the vehicle’s radio had been

detached from the console.

While searching the car, Sergeant Gordon located a dental grill

in the vehicle’s back seat area. The grill was turned over to the

Georgia Bureau of Investigation (GBI) for processing and was later

found to contain DNA that matched Holmes.

Sergeant Gordon testified that Joseph suffered a wound to the

back of his head that caused him to bleed. Gordon also testified that

the pattern of the blood was consistent with Joseph having been shot

before the vehicle impacted Wilkins’ shed and thrust forward into

5 the vehicle’s windshield on impact. Joseph also had an injury around

his eye and abrasions on his cheek and chin. The GBI medical

examiner who performed Joseph’s autopsy determined that Joseph’s

cause of death was a contact gunshot wound2 to the back of the head

and that his manner of death was homicide. The medical examiner

testified that the bullet traveled from the right side to the left side

of Joseph’s skull in a slightly downward trajectory.

Settron Bell, a friend of Holmes, testified at trial that he was

with Holmes on March 7, 2007. Holmes lived in Waynesboro. Bell

and Holmes were given a ride by a third person from Waynesboro to

Augusta so that they could go to Bell’s cousin’s house. Bell testified

that, when he and Holmes arrived in Augusta, they were dropped

off near an apartment complex, but rather than visiting Bell’s

cousin, they walked for about 15 minutes to a convenience store. At

2 The medical examiner explained that a contact gunshot wound occurs

when the muzzle of the firearm is pressed against the skin of the individual being shot, which causes an abrasion. The medical examiner also determined that the wound was a contact gunshot wound due to the presence of soot and powder in Joseph’s skull, noting that the nature of the wound indicated that the gun’s muzzle must have been placed against Joseph’s head as the shot was fired. 6 the store, Holmes asked Joseph for a ride. Bell entered the front

passenger seat, and Holmes entered the rear passenger door behind

Bell. They drove for about five minutes, and Bell said that Joseph

told them that he could not take them any further because he had

to go to work. Bell said that he then heard a gunshot, and the car

immediately ran off the road and crashed into Wilkins’ shed. Bell

jumped out and ran away, while Holmes stayed to talk to Wilkins.

Bell saw Holmes with a gun earlier that day before Holmes and Bell

got into the car with Joseph.

Bell saw Holmes again about a week after the shooting. Bell

said that when he talked to Holmes, Holmes was “kind of crying and

stuff and [saying] he didn’t really mean to do it[.]”

Holmes was interviewed by Detective Steve Fanning on April

15, 2007. During the interview, Holmes gave conflicting accounts as

to his whereabouts and activities in the hours leading up to Joseph’s

death. Holmes initially stated that he and Bell went to Augusta to

visit his baby’s mother and then received a ride to McDonald’s and,

later, to Burke County. After making this statement, Holmes

7 admitted getting into Joseph’s car, but he claimed that two unknown

black males were in the back seat with him. In this version, Holmes

claimed that one of the unknown men shot Joseph and that Holmes,

Bell, and the two men all fled on foot.

In June 2008, Holmes wrote a letter to Joseph’s mother,

claiming that as Joseph was dropping them off, Holmes pulled out

his gun, and that while checking its chamber, Holmes “slipped.” In

this letter, Holmes claimed that he did not know the gun was loaded,

that Bell told him to hold the gun, and that he blacked out. The

sheriff’s office obtained a DNA specimen from Holmes and

submitted the envelope containing the letter to the GBI for testing.

Holmes’ DNA was found on the envelope.

At trial, Holmes testified in his own defense. He admitted being

angry on the day of the shooting, having a gun, pulling the trigger,

and shooting Joseph, although he claimed that he shot Joseph

accidentally. He also admitted writing the letter to Joseph’s mom

and giving four different versions of the events that had occurred on

the night of Joseph’s death.

8 Though not raised by Holmes as error, in accordance with this

Court’s practice in appeals of murder cases, we have reviewed the

record and find that the evidence, as summarized above, was

sufficient to enable a rational trier of fact to find Holmes guilty

beyond a reasonable doubt of the crimes of which he was convicted.

Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)

(1979). See also Brown v. State, 302 Ga. 454, 456 (1) (b) (807 SE2d

369) (2017) (“It was for the jury to determine the credibility of the

witnesses and to resolve any conflicts or inconsistencies in the

evidence.” (citation and punctuation omitted)).

2. Holmes argues that the trial court failed to exercise its

discretion as the “thirteenth juror” because, rather than reweighing

the evidence presented at trial, it applied a sufficiency-of-evidence

standard when it considered Holmes’ motion for new trial on the

general grounds. We agree.

In his motion for new trial, Holmes specifically asserted that

the verdict was “contrary to the evidence, and without evidence to

support it,” was “decidedly and strongly against the weight of the

9 evidence,” and was “contrary to the law and principles of justice and

equity.” See OCGA §§ 5-5-20 and 5-5-21. These statutes “afford the

trial court broad discretion to sit as a ‘thirteenth juror’ and weigh

the evidence on a motion for new trial alleging these general

grounds.” (Citation and punctuation omitted.) Walker v. State, 292

Ga. 262, 264 (2) (737 SE2d 311) (2013). “In exercising that

discretion, the trial judge must consider some of the things that [he

or] she cannot when assessing the legal sufficiency of the evidence,

including any conflicts in the evidence, the credibility of witnesses,

and the weight of the evidence.” White v. State, 293 Ga. 523, 524 (2)

(753 SE2d 115) (2013).

This Court presumes, in the absence of affirmative evidence to

the contrary, that the trial court properly exercised its discretion

pursuant to OCGA §§ 5-5-20 and 5-5-21. Wilson v. State, 302 Ga.

106, 108 (II) (a) (805 SE2d 98) (2017). However, when the record

reflects that the trial court reviewed the motion for new trial only

for legal sufficiency of the evidence, the trial court has failed to

exercise such discretion. White, 293 Ga. at 525.

10 In its order denying Holmes’ motion for new trial, the trial

court found that “the State presented sufficient evidence both to

prove venue beyond a reasonable doubt, and to prove that [Holmes]

committed the offenses set forth in the indictment beyond a

reasonable doubt.” The order made no reference to the general

grounds, gave no indication that the trial court had considered or

reweighed the evidence presented at trial, and did not suggest that

the trial court had exercised its discretion pursuant to OCGA §§ 5-

5-20 and 5-5-21. Thus, although both the trial court and this Court

have determined that the evidence presented in this case satisfies

the Jackson standard of legal sufficiency, “[i]nasmuch as only the

trial court is authorized by law to review a verdict pursuant to

OCGA §§ 5-5-20 and 5-5-21, . . . the judgment must be vacated and

the case remanded to the trial court for consideration of [Holmes’]

motion for new trial under the proper legal standard.” Choisnet v.

State, 292 Ga. 860, 862 (742 SE2d 476) (2013).

3. In light of our decision to vacate a portion of the trial court’s

order denying Holmes’ motion for new trial and to remand for

11 further proceedings, it is unnecessary for us to address Holmes’

enumeration of error regarding evidence of venue at this time. That

is because, unlike a situation in which the State does not present

sufficient evidence of each of the substantive elements of a crime,

the State is not barred from retrying a defendant on the same

charges if it fails to present sufficient evidence of venue. See Grier

v. State, 275 Ga. 430, 432 (2) (569 SE2d 837) (2002); OCGA § 16-1-8

(d) (1) (“A prosecution is not barred . . . if . . . [t]he former prosecution

was before a court which lacked jurisdiction over the accused or the

crime[.]”). Thus, in light of our remand of this case to the trial court

on another ground, we need not consider whether the State

presented sufficient evidence of venue in this case because such

issue would become moot in the event the trial court granted Holmes

a new trial on remand from this Court.

We note that the post-trial proceedings in this case have

already taken more than 11 years. We therefore direct the trial

court to rule on the general-grounds issue promptly upon remand

and to ensure that any subsequent appeal is transmitted to this

12 Court expeditiously.

Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur.

DECIDED AUGUST 19, 2019. Murder. Richmond Superior Court. Before Judge Brown. Charles A. Jones, Jr., for appellant. Natalie S. Paine, District Attorney, Joshua B. Smith, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

13 Assistant Attorney General, Matthew M. Youn, Assistant Attorney General, for appellee.