311 Ga. 698 FINAL COPY
S21A0377. HOLMES v. THE STATE.
PETERSON, Justice.
Dequan Holmes appeals his convictions for felony murder,
aggravated assault, and two counts of possession of a firearm during
the commission of a crime for the shooting death of Javares Alston
and the non-fatal shooting of Danielle Willingham.1 He argues that
the evidence was insufficient to convict him and that the trial court
committed plain error when it charged the jury to “consider with
1 The crimes occurred on June 28, 2012. On September 25, 2012, a Richmond County grand jury indicted Holmes for malice murder, felony murder, aggravated assault, and two counts of possession of a firearm during the commission of a crime. At Holmes’s trial in August 2013, a jury found Holmes not guilty of malice murder but guilty of felony murder, one count of aggravated assault, and two counts of possession of a firearm during the commission of a crime. The court sentenced him to life without parole for felony murder; twenty years of imprisonment for aggravated assault, to be served consecutively; and ten years of imprisonment for two counts of possession of a firearm during the commission of a crime, to be served consecutively. Holmes filed a motion for new trial, and following a hearing, the trial court denied his motion in an order entered on June 27, 2017. Holmes filed an untimely notice of appeal, which we dismissed. The trial court granted Holmes’s motion for an out-of-time appeal, and he then filed a timely notice of appeal. His case was docketed to this Court’s term beginning in December 2020 and submitted for a decision on the briefs. great care and caution” Holmes’s out-of-court statements. Holmes,
who was a juvenile at the time the crime was committed, also
challenges his sentence of life without parole, arguing that it
violates the Eighth Amendment to the United States Constitution
as interpreted by the United States Supreme Court. We hold that
the evidence was sufficient to convict Holmes and that any error in
the trial court’s instruction to the jury did not amount to plain error
because the instruction did not affect the outcome of his trial. We
also conclude that Holmes’s sentence of life without parole was not
prohibited by United States Supreme Court precedent, especially in
the light of that Court’s recent decision in Jones v. Mississippi, ____
U.S. ___ (141 SCt 1307, 209 LE2d 390) (2021). We therefore affirm.
The evidence presented at trial showed the following.
According to Willingham, he and Alston shared a mobile home as
roommates. Sometime after 2:00 a.m. on June 28, 2012, Willingham
was awakened by loud knocking on the front door. Peeking out, he
saw by the light of a porch lamp a person whom he later identified
as Holmes, standing outside the door and saying, “I got your money.
2 I was just playing.” Willingham knew that Holmes and Alston
socialized, but he had never been introduced to Holmes. Willingham
went to Alston’s bedroom and relayed what Holmes said. Alston told
Willingham that he had been robbed recently. Alston went to the
door and opened it, with Willingham standing behind him. Holmes
again said, “I got your money. I was just playing.” But Holmes then
pulled a gun out of his pocket and began shooting. Willingham was
shot in his thigh while running for cover but managed to hide in the
bathroom; Alston tried to run but collapsed in the hallway after
Holmes shot him three times. Holmes continued to shoot until the
gun was empty and then left. Willingham testified that neither he
nor Alston had a knife or any other weapon when they opened the
door. He also said that he did not confront Holmes and did not
believe that Alston did either, nor did he hear any scuffle after
Holmes pulled out the gun.
Willingham called 911 after finding Alston face down on the
floor and unresponsive. Paramedics attempted to resuscitate Alston,
but he was pronounced dead on the scene. The police did not find
3 any weapons on Willingham or near Alston’s body at the time. An
autopsy confirmed that Alston died of his gunshot wounds.
After leaving the scene, Holmes called a close friend, Eugene
Butler, to pick him up at the mobile home park, telling Butler that
he had “messed up” and “got him one.” Butler’s girlfriend, Princess
Brown, drove Butler to meet Holmes at the mobile home park.
Holmes told Brown and Butler that some “work” was stolen from
him and two people owed him money, he was heated about it, he
went to their door to collect the money, and when they refused to
pay, he shot them. He told Butler that he shot one person in the head
or chest and killed him, but the second person did not die. Holmes
appeared nervous and scared, saying “I messed up,” “I don’t know
what I did,” “I lost my mind,” and “I got me one.” He also laughed
and said that he was “crazy” and “that’s what they get.”
Holmes testified at trial. He said that he regularly sold drugs
to people in the mobile home park, including Alston and Willingham,
that he had sold crack cocaine to other customers the day before the
shooting, and that he went to the mobile home on the night of the
4 shooting with crack cocaine in his pocket to sell “drugs” to Alston at
Alston’s request. Holmes claimed that Alston opened the door and
invited him in but then pulled a knife on him as he was entering,
saying, “give me that ‘S’ before I kill you.” Holmes told Alston “all
right,” but when Alston reached up, Holmes grabbed his pistol and
shot Alston while Holmes was running out of the mobile home.
Holmes admitted on cross-examination that he lied when giving
statements to the police after the shooting. The State later
introduced recordings of Holmes’s four police interviews. During the
first three interviews, Holmes denied shooting Alston, but he
admitted doing so, in self-defense, during the final interview. And
not once during his four interviews did he mention selling drugs to
Alston; instead, he told the police that Alston owed him money and
told him to come at 2:00 a.m. to collect it.
1. Holmes argues that the evidence was insufficient to
support his convictions because the State failed to disprove beyond
a reasonable doubt that he acted in self-defense. We disagree.
When evaluating the sufficiency of evidence as a matter of
5 federal due process under the Fourteenth Amendment to the United
States Constitution, the proper standard of review is whether a
rational trier of fact could have found the defendant guilty beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt
2781, 61 LE2d 560) (1979). This Court views the evidence in the
“light most favorable to the verdict, with deference to the jury’s
assessment of the weight and credibility of the evidence.” Hayes v.
State, 292 Ga. 506, 506 (739 SE2d 313) (2013) (citation and
punctuation omitted).
In his trial testimony, Holmes admitted that he shot Alston
and Willingham but claimed that he shot them in self-defense. But
the jury could have rejected Holmes’s claim that he was acting in
self-defense. See Mims v. State, 310 Ga. 853, 855 (854 SE2d 742)
(2021) (“[T]he defendant’s testimony, in which he claimed he was
justified or provoked into acting, may itself be considered
substantive evidence of guilt when disbelieved by the jury, as long
as some corroborative evidence exists for the charged offense.”
(citation omitted)); see also Shaw v. State, 292 Ga. 871, 872 (1) (742
6 SE2d 707) (2013) (“[I]ssues of witness credibility and justification
are for the jury to decide, and the jury is free to reject a defendant’s
claim that he acted in self-defense.” (citation and punctuation
omitted)). Here, there was both corroborative and direct evidence
that Holmes shot Alston, and not in self-defense. Willingham
testified that he and Alston were unarmed when they opened the
door for Holmes; the police found no weapons on Alston or
Willingham or at their mobile home; Brown and Butler informed the
police that Holmes told them he shot the victims because they
refused to pay him; and Holmes’s credibility as a witness was
undermined by his in-court admission that he lied to the police and
his assertions of innocence in prior police interviews.
2. Holmes contends that the trial court committed plain error
in charging the jury to “consider with great care and caution” his
out-of-court statements. We disagree.
The relevant part of the challenged jury charge was as follows:
You should consider with great care and caution the evidence of any out-of-court statement allegedly made by the Defendant offered by the State. The jury may believe
7 any such statement in whole or in part, believing that which you find to be true and rejecting that which you find to be untrue. You alone have the right to apply the general rules of testing the believability of witnesses and to decide what weight should be given to all or part of such evidence.
Holmes argues that this pattern charge violated his right to due
process because the trial court did not clarify that the jury’s duty to
consider his statements with “great care and caution” applied only
to incriminatory statements. Without such a limitation, Holmes
argues, the jury was effectively told that it should apply a
heightened level of scrutiny to Holmes’s exculpatory statements and
his trial testimony. Holmes claims that the charge relieved the State
of its duty to prove all elements of the charged crimes beyond a
reasonable doubt because his trial testimony was the only evidence
of his sole defense (self-defense) and the trial court did not instruct
jurors to consider conflicting statements of other witnesses with the
same scrutiny.
Holmes did not object to the charge at trial, so we review this
claim only for plain error. See OCGA § 17-8-58 (b) (failure to object
8 to a jury charge “shall preclude appellate review of such portion of
the jury charge, unless such portion of the jury charge constitutes
plain error which affects substantial rights of the parties”). To
establish plain error, Holmes “must point to an error that was not
affirmatively waived, the error must have been clear and not open
to reasonable dispute, the error must have affected his substantial
rights, and the error must have seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Denson v.
State, 307 Ga. 545, 547-548 (2) (837 SE2d 261) (2019) (citation and
punctuation omitted). To show that an error affected his substantial
rights, Holmes must make an “affirmative showing that the error
probably did affect the outcome below.” McKinney v. State, 307 Ga.
129, 135 (2) (b) (834 SE2d 741) (2019) (citation and punctuation
omitted). If Holmes fails to meet any one of the elements of the plain
error test, his claim fails. See Denson, 307 Ga. at 548 (2).
Even assuming that Holmes could meet the other elements of
the plain error test, Holmes cannot show that the complained-of
charge constituted clear error. Considering the instructions in
9 context, see Campbell v. State, 292 Ga. 766, 769 (3) (740 SE2d 115)
(2013), a reasonable jury would not have understood the instruction
to mean that it should be more skeptical of Holmes’s testimony and
exculpatory statements than testimony of other witnesses. The
charge referred only to the State’s use of Holmes’s out-of-court
statements, which were mostly incriminatory, not to Holmes’s use
of those statements or his own testimony. In fact, the court
instructed the jury in a previous charge that it should evaluate
Holmes’s in-court testimony “as you would that of any other
witness.” And because the charge was given immediately after
instructions about evaluating whether the defendant’s custodial
statements were made voluntarily and with full knowledge of his
constitutional rights, a reasonable jury would likely have
understood the charge to encourage skepticism only of Holmes’s
custodial statements. See Williamson v. State, 305 Ga. 889, 896 (3)
(b) (827 SE2d 857) (2019).
3. Holmes was four days shy of his eighteenth birthday when
he shot Alston and Willingham. He argues that his sentence of life
10 without parole (“LWOP”) for the murder of Alston violated the
Eighth Amendment to the United States Constitution because the
trial court failed to consider explicitly the characteristics of minors
and failed to make a distinct determination on the record that he
was irreparably corrupt. Holmes’s Eighth Amendment claim fails,
because the United States Supreme Court has recently made clear
that the Eighth Amendment does not require sentencing judges to
say anything on the record on these points, and there is nothing in
the record here showing that the trial court did not consider the
relevant factors.
At Holmes’s sentencing hearing, the State introduced evidence
of Holmes’s previous criminal activity as a juvenile, including
attempted strong-arm robbery and third-degree burglary in South
Carolina. Holmes’s grandmother testified that Holmes was “raised
in church” and “knew right from wrong” and that his family talked
to him often “about not being in trouble.” Holmes’s trial counsel
argued that an LWOP sentence was excessive given Holmes’s age,
and that Holmes had a possibility of redemption and rehabilitation
11 because he was only 15 during the South Carolina incident and 17
when he shot Alston and Willingham.
When announcing Holmes’s sentence, the trial judge stated:
Quite frankly, I’ve never given a life without parole and I’ve had it requested many times. And I feel it is only deserving in those cases that are so severe that the Court doesn’t feel there’s any redeeming part to an individual. This case was so calculated and so senseless and followed so quickly after the attempted strong-arm robbery and the burglary in South Carolina, I feel that a sentence in this case is appropriate for life without parole . . . . I regret it, but I feel I have to do it.
The 2013 sentencing hearing was held after the United States
Supreme Court’s 2012 decision in Miller v. Alabama, 567 U.S. 460
(132 SCt 2455, 183 LE2d 407) (2012). The trial judge did not
explicitly mention Holmes’s age or discuss the characteristics of
youth during sentencing. In his order denying Holmes’s motion for
new trial, however, the judge stated that Holmes’s sentence
complied with Miller because “the Defendant’s age and juvenile
status [were] considered during the sentencing hearing.”
In Miller, the United States Supreme Court held that a
sentencing scheme mandating LWOP for those under the age of 18
12 at the time of their crimes violated the Eighth Amendment’s
prohibition on cruel and unusual punishment. See 567 U.S. at 465,
479. Four years later, the Supreme Court held in Montgomery v.
Louisiana, 577 U.S. 190 (136 SCt 718, 193 LE2d 599) (2016), that
Miller had announced a substantive rule of constitutional law that
must be given retroactive effect in state collateral review
proceedings. See id. at 212. In so doing, the Supreme Court said that
“the sentencing judge [must] take into account how children are
different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison” before sentencing a juvenile
offender to LWOP; and that “[e]ven if a court considers a child’s age
before sentencing him or her to a lifetime in prison, that sentence
still violates the Eighth Amendment for a child whose crime reflects
unfortunate yet transient immaturity.” Id. at 208 (citation and
punctuation omitted). And Montgomery emphasized that an LWOP
sentence is permitted only in “exceptional circumstances”: for “the
rare juvenile offender who exhibits such irretrievable depravity that
rehabilitation is impossible,” those “rarest of juvenile
13 offenders . . . whose crimes reflect permanent incorrigibility,” and
“those rare children whose crimes reflect irreparable corruption” —
and that an LWOP sentence is not permitted for “the vast majority
of juvenile offenders.” Id. at 208-213.
Based on this language in Montgomery, we held in Veal v.
State, 298 Ga. 691 (784 SE2d 403) (2016), that it was not enough for
a sentencing court merely to consider generally a juvenile offender’s
age and associated characteristics. See id. at 703 (5) (d). Rather, we
said that to place a defendant “in the narrow class of juvenile
murderers for whom an LWOP sentence is proportional under the
Eighth Amendment as interpreted in Miller as refined by
Montgomery[,]” a sentencing court must make a “distinct
determination on the record” that the defendant “is irreparably
corrupt or permanently incorrigible[.]” Veal, 298 Ga. at 703 (5) (d).
Furthermore, we stated in a footnote that it is “important” that a
sentencing court “explicitly consider” the primary ways that
characteristics of children are relevant to sentencing. Id. at 702 (5)
(d) n.6. Our holding in Veal was explicitly a holding of federal
14 constitutional law based on our understanding of the decisions of the
United States Supreme Court in Miller and Montgomery. In
subsequent cases, we declined to extend Veal to hold that the
determination of irreparable corruption it required is a factual
finding — let alone a finding that must be made by a jury, or beyond
a reasonable doubt. See Raines v. State, 309 Ga. 258, 268 (2) (c) (845
SE2d 613) (2020); White v. State, 307 Ga. 601, 605-606 (3) (a) (837
SE2d 838) (2020).
Earlier this year, the United States Supreme Court decided
Jones, which confirmed that we were right not to extend Veal and,
indeed, held that in Veal we read Miller and — especially —
Montgomery too broadly. In Jones, the Court considered a
defendant’s claim that the sentencing court erred by imposing
LWOP sentences for crimes that the defendant had committed as a
minor, because the sentencing court failed to make a factual finding
of permanent incorrigibility or, at the very least, an on-the-record
explanation of the sentence containing an “implicit finding” of
permanent incorrigibility. 141 SCt at 1313. But the United States
15 Supreme Court upheld the sentence, holding that Miller does not
require a separate factual finding of permanent incorrigibility before
a sentencer imposes an LWOP sentence on a murderer under age
18. See Jones, 141 SCt at 1314-1319. And the Court rejected Jones’s
alternative argument that a sentencer must at least make an on-
the-record explanation for the sentence that carried an “implicit
finding” of permanent incorrigibility, saying that an on-the-record
finding is (1) not necessary to ensure that a sentencer considers a
defendant’s youth, (2) not required by or consistent with Miller or
the Court’s analogous death penalty precedents, and (3) not dictated
by any consistent historical or contemporary sentencing practice in
the States. See id. at 1319-1321. In particular, the Court explained,
“if the sentencer has discretion to consider the defendant’s youth [as
Miller requires] . . . it would be all but impossible for a sentencer to
avoid considering that mitigating factor,” especially where defense
counsel makes arguments focused on the offender’s youth. Id. at
1319.
In short, Jones clarified that although the Eighth Amendment
16 requires that, before sentencing a juvenile murderer to LWOP, a
trial court must hold a sentencing hearing where the defendant’s
age and characteristics of children are considered, neither Miller nor
Montgomery requires a sentencer to say anything on the record
about youth and its attendant characteristics before imposing an
LWOP sentence. Therefore, to the extent that Veal suggested a
requirement that sentencers provide explicit, on-the-record
explanations regarding determinations of permanent incorrigibility
and the characteristics of children, Jones has explained that we were
mistaken.
Holmes’s challenge to his sentence thus cannot succeed.
Holmes argues that his sentence is void because the trial court did
not make a “distinct determination on the record” that Holmes was
“irreparably corrupt or permanently incorrigible.” Veal, 298 Ga. at
703 (5) (d). But Jones makes it clear that no such determination need
be made on the record. See 141 SCt at 1312-1313, 1320.
Holmes also argues that the trial court failed sufficiently to
consider “youth and its attendant characteristics” as factors at
17 Holmes’s sentencing hearing. But, under Jones, “unless the record
affirmatively reflects otherwise, the trial court will be deemed to
have considered the relevant criteria, such as mitigating
circumstances, enumerated in the sentencing rules.” Id. at 1321
(noting that appellate courts do not necessarily reverse a sentence
“merely because the sentencer could have said more about
mitigating circumstances” (citation and punctuation omitted)); see
also State v. Abbott, 309 Ga. 715, 719 (2) (848 SE2d 105) (2020)
(“Trial judges too are presumed to know the law and apply it in
making their decisions, absent some indication in the record
suggesting otherwise.” (citation, punctuation and emphasis
omitted)). Here, the trial judge, like the sentencer in Jones, had
discretion to sentence Holmes to a lesser sentence than LWOP. The
record does not show that the trial court failed to consider the
required factors; rather, the record shows that the trial court did
consider them. Holmes’s trial counsel made arguments focused on
Holmes’s youth and possibility for rehabilitation. The trial judge
heard evidence about Holmes’s childhood environment. All of this
18 happened after the Supreme Court decided Miller, so we presume
the trial court knew and applied its holding. And in denying
Holmes’s motion for new trial, the trial judge stated that he
considered Holmes’s age and juvenile status during the sentencing
hearing. Accordingly, we conclude that the trial judge sufficiently
considered the required factors in sentencing Holmes to LWOP.
Judgment affirmed. All the Justices concur.
Decided June 1, 2021.
Murder. Richmond Superior Court. Before Judge
Blanchard.
Patrick G. Sellars, Katherine M. Mason, Lucy D. Roth,
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 Assistant Attorney General, Michael A. Oldham,
Assistant Attorney General, for appellee.