311 Ga. 123
Ga.2021Background
- In Sept. 2011 Jose Marin was shot and later died during an attempted robbery; police recovered a .45-caliber bullet and casing at the scene.
- Within about 20 minutes officers located 17-year-old Jermontae Moss matching the witness description; he had a loaded .45 Taurus pistol (ballistically matched to the crime) and a hair net in his pocket.
- Ballistics tied the same pistol to a separate attempted robbery the night before in which Neftally Corado was shot; Corado identified Moss in court as that shooter and Moss later pleaded guilty to attempt to commit murder for that incident.
- Forensic testing showed no gunshot residue (GSR) on Moss’s hands and a fingerprint on the pistol magazine excluded Moss, but those reports were not admitted at trial; the jury convicted Moss of felony murder (predicated on armed robbery/aggravated battery), possession of a firearm during a crime, and theft by receiving.
- Moss (then 17 at the crimes) was originally sentenced to life without parole (LWOP); after post-trial proceedings he was resentenced to LWOP for murder and appeals claimed (1) ineffective assistance of counsel and (2) that LWOP was unauthorized for a juvenile.
Issues
| Issue | Moss's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for felony murder | Implicitly not contested on appeal | Evidence (ballistics, ID, prior shooting) supports conviction | Affirmed; evidence sufficient under Jackson v. Virginia |
| Ineffective assistance — failure to admit GSR and fingerprint reports | Counsel unreasonably failed to introduce reports that tended to exculpate him | Counsel reasonably relied on strategy of highlighting absence of inculpatory test results; reports would not likely change outcome | No ineffective assistance — no reasonable probability of different outcome (Strickland) |
| Ineffective assistance — failure to demur aggravated-battery count (argument that ‘abdomen’ is not a “member” of body) | Indictment defective; counsel should have demurred | Indictment sufficiently linked the ‘‘member’’ allegation to the lower abdomen; novel legal question; demurrer would fail | No ineffective assistance — motion would be meritless or nonfrivolous novel issue does not establish deficiency |
| Juvenile LWOP — constitutional and statutory authority | Miller requires explicit finding that defendant himself is irreparably corrupt; juvenile cannot receive LWOP under OCGA §17-10-16(a) because death penalty cannot be imposed on juveniles | Trial court made required individualized findings under Miller/Montgomery/Veal; OCGA §17-10-16(a) applies where statute authorizes death as a sentencing option (murder statute) | Affirmed: sentencing complied with juvenile-LWOP jurisprudence and §17-10-16(a) authorizes LWOP for murder convictions |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (evidence sufficiency standard)
- Strickland v. Washington, 466 U.S. 668 (two-prong ineffective-assistance test)
- Miller v. Alabama, 567 U.S. 460 (mandatory LWOP for juveniles unconstitutional; individualized consideration required)
- Montgomery v. Louisiana, 577 U.S. 190 (Miller retroactivity and remedial principles)
- Veal v. State, 298 Ga. 691 (Georgia application: ‘‘distinct determination’’ required before juvenile LWOP)
- Raines v. State, 309 Ga. 258 (Georgia precedent on juvenile LWOP and trial-court determinations)
- Davenport v. State, 309 Ga. 385 (discussing limits on sua sponte sufficiency review)
- State v. Velazquez, 283 Ga. 206 (court previously addressed interplay of statutory LWOP and death-penalty notice requirements)