Holmes v. State

897 S.E.2d 829

HOLMES

v.The STATE.

S23A0936

Supreme Court of Georgia.

Decided: February 6, 2024

Superior Court, Cobb County, Jason D. Marbutt, Judge

Reid G. Kennedy, Law Offices of Kennedy and Kennedy, 1495 Powers Perry Road, Marietta, Georgia 30067-9436, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Clint Christopher Malcolm, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Linda Jeanne Dunikoski, A.D.A., Flynn Duncan Broady, Jr., Leslie Anna Coots, A.D.A., Cobb County District Attorney’s Office, 70 Haynes Street, Third Floor, Marietta, Georgia 30090, Elizabeth Marian York, A.D.A., Cobb Judicial Circuit District Attorney’s Office, 70 Haynes Street, Marietta, Georgia 30090, for Appellee.

Colvin, Justice.

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, S.D.¹ 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 Kennestone 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 retinal 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 Department 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 Sho- marl’s transfer to CHOA that evening, Appellant was taken to the Marietta Police Department where he waived his Miranda rights² and was interviewed by detectives. During the interview, which was video-recorded and played for the jury, Appellant explained that he had found Shomari and S.D. sleeping in the same bed together on multiple occasions. Appellant further claimed that he had witnessed the children engaging in inappropriate sexual behavior, including taking each other’s diapers off and touching each other’s genitals. Appellant explained that talking to his children had failed to correct this behavior, and so, over the course of the previous week, he had spanked both children on five separate occasions for getting in the same bed. Appellant stated that he initially spanked the children with his hand but that he began using a belt on the day before Shomari was hospitalized. Further questioning revealed that Appellant had also punched Shomari "quite a bit" with "force" in his head and abdomen. Appellant admitted that he had punched Shomari between two and four times on each of the three days preceding Shomari’s hospitalization.

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.

[1] 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 OCGA § 24-7-704 (b). Appellant also argues that Dr. Norman’s interview violated Appellant’s right to counsel under the Fifth and Sixth Amendments to the United States Constitution and Article 1, Section 1, Paragraph XIV of the Georgia Constitution in several different ways.³ For the reasons explained below, these claims fail.

(a) A review of the record shows that in October 2019, Appellant’s counsel filed a "Notice of Intention of Defense to Raise Issue of Insanity, Mental Illness, or Intellectual Disability at the Time of the Act." Following this notice, the State moved for an independent psychological evaluation pursuant to OCGA § 17-7-130.1.⁴ On March, 17, 2020, the trial court granted the State’s motion and ordered that "[t]he defendant … make himself available to the State’s psychiatrist/psychologist for the purpose of an independent psychological evaluation." Counsel for the State and the defense were served with a copy of the order. Consistent with the trial court’s order, Dr. Norman interviewed Appellant on April 1,2020.

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 version 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....