S23A0936. HOLMES v. THE STATE.
S23A0936
In the Supreme Court of Georgia
Decided: February 6, 2024
COLVIN, Justice.
NOTICE: This оpinion is subject to modification resulting from motions for reconsideration under
Appellant Shomari Tahir Holmes appeals his convictions for felony murder and other crimes related to the death of his 20-month-old son, Shomari Holmes, Jr. (“Shomari“), and for cruelty to children in the first degree against Shomari‘s three-year-old half-sister,
Appellant, who was found guilty but mentally ill by a jury, asserts on appeal that the trial court: (1) abused its discretion in admitting an audio recording of an interview of Appellant conducted by Dr. Matthew Norman, a psychiatrist and expert witness for the State, and (2) erred by failing to instruct the jury on a verdict of “guilty but with intellectual disability.” As explained below, we conclude that Appellant‘s claims fail. We therefore affirm Appellant‘s convictions.
1. At trial, Appellant‘s counsel conceded that Appellant had physically abused Shomari and S.D., and that Appellant‘s abuse of Shomari caused his death, but presented evidence and argument that Appellant‘s actions were the result of his then-undiagnosed schizophrenia. The evidence at trial showed the following.
In January 2017, Appellant moved into a two-bedroom apartment in Cobb County with his romantic partner, Chantelle Driver, their 20-month-old son, Shomari, and Driver‘s three-year-old daughter, S.D.
At approximately 4:20 p.m. on February 11, 2017, Driver called 911 for assistance because Shomari was not breathing. Shomari was transported first by ambulance to Kennеstone Hospital, where medical providers revived him and placed him on mechanical ventilation, and then by helicopter to Children‘s Healthcare of Atlanta at Scottish Rite (“CHOA“) for further treatment at CHOA‘s pediatric intensive care unit. Despite this additional treatment, Shomari never recovered, and he was pronounced dead on February 16, 2017.
Physical examinations of Shomari before and after his death revealed numerous and extensive injuries. Among them were bruises on his abdomen, arms, and back, some of which were consistent with blows from a belt or a cord. Shomari had rеtinal hemorrhages, a healing fracture of his mandible (jawbone), subdural hemorrhages on both sides of his head, subdural bleeding in between the two halves of his brain, swelling of his cervical spine, an adrenal hematoma near the top of his kidney, a bruised lung, and 14 rib fractures. The Cobb County medical examiner who performed Shomari‘s autopsy determined that Shomari‘s cause of death was abusive head trauma and accordingly ruled his death a homicide. A separate examination of S.D. by a detective with the Marietta Police Department and a member of the Georgia Departmеnt of Human Services, Division of Family & Children Services, revealed numerous bruises and scratches consistent with being spanked with a belt.
On the day of Shomari‘s hospitalization, Appellant admitted to officers at his apartment and again at Kennestone Hospital that he had given both Shomari and S.D. a “whooping” earlier that day. Following Shomari‘s
Following Appellant‘s arrest, he was examined by three different experts who later testified at trial. In September 2017, Dr. Keanna Wright, a psychologist for the Georgia Department of Behavioral Health and Developmental Disabilities and an independent expert for the court, evaluated Appellant to assess his mental condition at the time of the crimes. During these interviews, Appellant initially denied having visual and auditory hallucinations but later reported that he had heard a voice that told him to “whoop” his children. Appellant also reported, however, that the voices told him, “[T]his is your child,” and “You‘re angry, stand down[.]” Notwithstanding these messages, Appellant said, “[He] thought [he] would whoop them.” Following Dr. Wright‘s interview, Appellant was independently diagnosed with schizophrenia by a psychiatrist associated with the Cobb County Adult Detention Center who did not testify at trial.
In May 2019, Dr. Robert Obst, a licensed clinical psychologist, interviewed Appellant on behalf of the defense. During the interview, Appellant stated that the voices he had heard did not tell him to hit his son, and that “[he] just did it.” Dr. Obst further testified that he agreed with Appellant‘s prior diagnosis of schizophrenia, and he opined that Appellant was in the “beginning stages” of schizophrenia at the time of the crimes.
In April 2020, Dr. Matthew Norman, a board-certified psychiatrist, examined Appellant on behalf of the State. During this interview, which was audio-recorded and played for the jury, Appellant stated that he had heard voices telling him to “discipline” his son “much stricter,” but he also reported that the voices never told him to do anything other than spank Shomari, and they had not told Appellant to hit Shomari in the head or the ribs. Appellant further stated that he knew in February 2017 that it was wrong to hit Shomari in the ribs and head to the point of breaking bones and causing a severe injury.
2. Appellant contends that the trial court abused its discretion in admitting into evidence the audio-recorded interview between Appellant and the State‘s psychiatrist, Dr. Norman. Appellant first argues that the evidence should have been excluded because it violated the trial court‘s earlier ruling excluding ultimate-issue testimony under
At trial, Appellant‘s counsel made an oral motion in limine “to keep out any testimony from any witness on their opinion as to whether [Appellant] was experiencing symptoms of psychosis on the date of the incident.” After argument from the parties, the trial court ruled that
[n]one of the medical experts can testify on the day in question as to whether or not [Appellant] was or was not experiencing psychosis based upon their observations. They could say, based upon their evaluations, what they believe psychosis looks like, and they could say what they believe for him, particularly, based upon their observations, how it would manifest itself with symptoms. They cannot take the additional step to say, and I don‘t believe I saw that from him on this day. They simply could point out... what they believe those things manifest for him generally. They cannot, pursuant to 24-7-704 (b),5 get to the ultimate issue which is his state of mind, mental state or condition, on the day in question.6
Prior to Dr. Norman taking the stand, the State indicated that it planned to tender the audio recording of Dr. Norman‘s April 1, 2020 interview with Appellant. The State further indicated that it had redacted two segments of the interview to remove Appellant‘s references to a previous arrest and a previous stay in jail not at issue here and that the State had presented the redacted versiоn of the recording to Appellant‘s trial counsel “early in the week.” Outside the presence of the jury, portions of the recording were played to confirm that the redactions were correctly made. Dr. Norman then took the stand and was qualified as an expert. After laying its foundation, the State moved to tender the audio recording of Dr. Norman‘s interview with Appellant. Appellant‘s trial counsel responded, “[n]o objection as per our previous agreement.”
The recording was then played for the jury. At the outset of the interview, Dr. Norman introduced himself to Appеllant and explained the purpose of the evaluation as follows:
DR. NORMAN: I‘m Dr. Norman. Before you and I sit down and talk, let me read
this form to you.... I‘m reading this form to tell you that the prosecuting attorney in your case has asked for a psychiatric evaluation. The Judge in your case has ordered that evaluation and I will be doing that evaluation, okay? . . .
I‘ll be evaluating your past and current mental condition and your mental condition around the time of the alleged offense. That is, how you were thinking and feeling around the time that the crime was committed. I will talk with you about your thinking and feelings —
At this pоint in the recording, Appellant‘s counsel objected, but the recording continued to play:
— and I may want to check other reports about you. This evaluation is different from one in which you‘re seeing a doctor for treatment. It is not —
The recording was then paused for the following argument and ruling on Appellant‘s objection:
TRIAL COUNSEL: I object to one of the statements made by Dr. Norman when he‘s reading this form, and I believe that it contravenes one of the rulings that you made in this case previously.
THE COURT: That objection was waived whenever [the State] tendered the exhibit and you admitted it. It is now in evidence and it may be played in [its] entirety.
The recording then resumed:
DR. NORMAN: [It is not] confidential. Anything you say or do I may discuss with the Judge, prosecutor, and your attorney, put it in my report, or testify about it in court. After I‘ve done my evaluation, I may send a written report to the prosecutor. You have the right to not answer questions about your case or your mental condition. You have the right to not talk about your actions at the time of the alleged offense. I will be audio recording the evaluation, Mr. Holmes. That‘s for my own notes. It also ensures that if your attorney says, hey, what‘d you ask him, they have the ability to listen to it and see exaсtly what we talked about, okay. Any questions about what I have read to you, sir?
DEFENDANT HOLMES: No.
DR. NORMAN: Okay. The key thing to keep in mind, Mr. Holmes, is I don‘t work for the prosecutor. I‘ve been hired by their office to do an evaluation, but my ethical obligation is to call it the way I see it. I‘m supposed to be fair and objective. That is my goal, sir. You‘ve just got to keep in mind, because I‘ve been court ordered to do this, I can‘t keep secrets. So, if there‘s something you don‘t want to tell the Judge or prosecutor or your attorney, just say, hey, man, I don‘t want to talk about that, okay? I‘ll tell you why I‘m asking the question. I‘m happy to do that. I‘m not trying tо trick you in any way. I want to be as transparent as I can, okay?
After Dr. Norman made these introductory remarks, Appellant signed a form acknowledging that he understood Dr. Norman‘s disclaimers, and the interview proceeded.
In Appellant‘s motion for new trial, Appellant raised several arguments concerning the admission of Dr. Norman‘s interview, including those that he now raises on appeal. During the hearing on Appellant‘s motion, Appellant‘s trial counsel testified that she had not been given advance notice of the time and place of Dr. Norman‘s interview with Appellant оr been “given an opportunity to participate in any way.” Trial counsel confirmed, however, that she had received the recording and a transcript of the interview “very shortly before trial.” Trial counsel explained that, when the interview was tendered and she stated that she had “[n]o objection as per our previous agreement,” she was referring to the trial court‘s “previous ruling” on ultimate-issue testimony, rather than to an agreement with the State to redact certain portions of the recording and to publish the redacted recording for the jury by playing it on the prosеcutor‘s laptop.
In its order denying Appellant‘s motion for new trial, the trial court concluded that Appellant had waived his objection to the admission of Dr. Norman‘s interview. The trial court also concluded that it had not erred because Appellant did “not have either a Sixth Amendment right to counsel or a Fifth Amendment right requiring that his Miranda rights be repeated to him during the
(b) (i) Even assuming that Appellant preserved his objection under
(ii) Appellant also argues that Dr. Norman‘s interview violated his rights under the Fifth and Sixth Amendments7 to the United States Constitution and Article 1, Section 1, Paragraph XIV of the Georgia Constitution because (i) Appellant‘s counsel was not notified of the date and time of the interview, (ii) Dr. Norman did not provide Appellant with a second, full Miranda warning,8 and thereby failed to advise him of his right to counsel, and (iii) Dr. Norman‘s introductory remarks were “intentionally misleading and deceitful,” such that they created a “violation[ ] of constitutional proportion.”
Though Appellant objected to the admission of Dr. Norman‘s interview — albeit after the recording had been tendered into evidence — Appellant did not raise the constitutional arguments he now asserts until his motion for new trial. As such, Appellant‘s constitutional claims regarding the admission of the interview are subject only to plain-error review. See Jones v. State, 317 Ga. 466, 472 (2) (893 SE2d 741) (2023) (“In order to preserve an objection for ordinary appellate review, the specific ground of the objection must be made at the time the challenged evidence is offered.” (citation and punctuation omitted)). Plain-error reviеw consists of four prongs:
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather
than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate cоurt has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
Williams v. State, 315 Ga. 490, 495 (2) (883 SE2d 733) (2023) (emphasis in the original). “The failure to meet one element of this test dooms a plain error claim.” Rogers v. State, 311 Ga. 634, 638 (3) (859 SE2d 92) (2021).
Appellant‘s claims under the Fifth and Sixth Amendments fail because, as we have repeatedly held, when a criminal defendant raises a defense of insanity and calls an expert witness to testify in his defense, the defendant must submit to an examination by the State‘s expert, during which examination the criminal defendant does “not have either a Sixth Amendment right to counsel or a Fifth Amendment right requiring that his Miranda rights be repeated to him during the interview with [the State‘s expert].” Walker v. State, 290 Ga. 467, 469 (2) (722 SE2d 72) (2012) (citation and punctuation omitted). See Nance v. State, 272 Ga. 217, 219 (2) (526 SE2d 560) (2000) (explaining that the rule requiring a defendant who elects to present the testimony of a mental health expert, “has been likened to the defendant‘s waiver of his privilege against self-incrimination should he choose to testify on his behalf“); Godfrey v. Francis, 251 Ga. 652, 657 (5) (308 SE2d 806) (1983) (holding that the appellant did not have “a constitutional right to the presence of counsel during the state‘s psychiatric examination” and that “[a] full, separate, second [Miranda] warning was not necessary” because the appellant had been given “a full and proper Miranda warning at the time of his arrest.” (citation and punctuation omitted)); Strickland v. State, 247 Ga. 219, 220 (1) (275 SE2d 29) (1981) (holding that the trial court did not err by denying defense counsel‘s request to be present during the defendant‘s court-ordered psychiatric evaluation because it was not a “critical stage” of the proceedings under the Sixth Amendment). Because Appellant‘s rights to counsel under the federal and state constitutions did not apply during his interview with Dr. Norman, his claims that those rights were violated necessarily fail to establish a clear оr obvious legal error.
To the extent Appellant relies on Estelle v. Smith, 451 U.S. 454 (101 SCt 1866, 68 LE2d 359) (1981) to contend that Dr. Norman‘s “misleading” remarks constituted a violation of “constitutional proportion,” that claim also fails. Citing Estelle, Appellant claims that “where a psychological examination is to be given for one purpose (fitness for trial), but used for another at trial (sentencing) violations of constitutional proportion can occur requiring reversal.” Appellant does not explain his argument further, but he appears to draw an unstated analogy between the use of Dr. Norman‘s interview and the use of the psychiatrist‘s interview in Estelle. Here, Appellant claims, Dr. Norman stated that he was recording the interview for his “own notes,” but the recording was ultimately used at trial to show Appellant‘s mental state at the time of the crime. Analogously, the psychiatrist in Estelle evaluated the defendant for competency to stand trial, but the psychiatrist‘s testimony was used during the penalty-phase of the defendant‘s death-penalty trial to support future dangerousness. See Estelle, 451 U.S. at 456-460 (I) (A). Because the United States Supreme Court concluded that the psychiatrist‘s testimony in Estelle violated the Fifth and Sixth Amendments to the United States Constitution, so too, Appellant impliedly claims, does Dr. Norman‘s recording. See id. at 471 (II) (B). But Estelle is clearly inapposite: unlike Appellant, the defendant in Estelle did not claim insanity or mental illness as a defense. Id. at 466 (II) (A) (2). And as Estelle itself explains, these differences matter: “[w]hen a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue he interjected into the case.” Id. at 465 (II) (A) (2). Because Appellant put his mental
3. In his second enumeration of error, Appellant contends that the trial court erred by failing to charge the jury on a possible verdict of “guilty but with intellеctual disability,” as required by sections (b) and (c) of
Appellant initially requested that the court instruct the jury on all five possible verdicts available where a defendant has raised a defense involving his mental condition, but at the charge conference, Appellant‘s counsel withdrew her request for the trial court to charge the jury on a verdict оf “guilty but with intellectual disability.” See
THE COURT: Is the Defense asking me to give ([E]) or not?
TRIAL COUNSEL: Intellectual disability, no.
THE COURT: All right, so I will take out ([E]). The State has requested that. The Defense does not want me to give that and I will not, based on that. It‘s your defense.
Consistent with this exchange, Appellant did not object after the court failed to give jury instructions regarding a verdict of guilty but with intellectual disability.
When a party fails to objеct to the trial court‘s omission of a jury charge before the jury retires to deliberate, the party‘s claims “may be reviewed on appeal only for ‘plain error.‘” Walker v. State, 301 Ga. 482, 485 (2) (801 SE2d 804) (2017) (quoting
Judgment affirmed. All the Justices concur.
COLVIN
Justice, Supreme Court of Georgia