Holmes v. State

293 Ga. 229

744 S.E.2d 701

HOLMES

v.The STATE.

No. S13A0369.

Supreme Court of Georgia.

June 17, 2013.

Frances C. Kuo, Stephen T. Maples, Decatur, for appellant.

Deborah D. Wellborn, Asst. Dist. Atty., Robert D. James, Jr., Dist. Atty., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Rochelle Warren Gordon, Asst. Atty. Gen., for appellee.

HINES, Justice.

Derrick Paul Holmes appeals his convictions and sentences for the malice murder of Nakisha Rawls, possession of a firearm during the commission of a felony, and violating the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act. For the reasons that follow, we affirm. ¹

Construed to support the verdicts, the evidence showed that Rawls and Holmes knew each other for more than seven years. Rawls was a prostitute and Holmes was her pimp; Holmes had other prostitutes working for him as well, all of whom he kept under control by threats and violence. For several months before her death, Rawls spoke of leaving prostitution and she twice left Holmes; she left a third time, was living with her mother, and feared that Holmes would harm her.

Two days before Rawls was killed, Emma Grant, a prostitute who worked for Holmes, helped him follow Rawls's mother from her place of work to the apartment complex in which she lived. Holmes told Grant to rent a vehicle with tinted windows; the next day, Grant's mother rented a white SUV with tinted windows, which Grant turned over to Holmes.

In the hours before Rawls was killed, a white SUV was seen repeatedly driving in the parking lot of the apartment complex where Rawls and her mother were living; a resident became suspicious and recorded the license number of the SUV. While the SUV was in the parking lot, Rawls exited the apartment building and got into a black Cadillac near the SUV; two men carrying firearms emerged from the SUV and shot into the Cadillac. Rawls was struck by eleven bullets, primarily in the head and torso, and died of multiple gunshot wounds. A law enforcement officer who responded to the crime scene received the license number of the SUV from the resident who had noted it; Holmes's fingerprints were found on the SUV's rental agreement.

Telephone calls from Holmes's cell phone in the minutes before Rawls was killed originated from the area of a cell tower close to the scene of the shooting. Holmes and Andre Smith were arrested after a road rage incident in November 2008; a pistol recovered at that time proved to have been used in the shooting of Rawls.

1. The evidence authorized the jury to find Holmes guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Evidence that Holmes violated the RICO Act included certain items that were the product of a vehicle search that occurred more than two years before Rawls was killed. During the incident that brought about the search, Holmes, while in an area known for prostitute activity in College Park, was seated behind the wheel of the Cadillac that later proved to be the vehicle in which Rawls was killed; he was approached by a city police officer and gave consent to search the vehicle; and the search yielded the items that were introduced at trial. Holmes contends that the fruits of the search should have been suppressed because he was stopped by the officer on suspicion of violating a city ordinance, and the State did not allege and prove the ordinance at issue. See Lucas v. State, 284 Ga.App. 450, 451, 644 S.E.2d 302 (2007); see also Childers v. Richmond County, 266 Ga. 276, 277, 467 S.E.2d 176 (1996). However, his argument is misplaced. Although the officer stated his belief that Holmes, Grant, and another person in the vehicle were violating a city ordinance he called “loitering for illegal sexual purposes,” the officer's testimony was clear that he was engaged in an operation designed to suppress prostitution, and had determined that the activity he observed led him to believe the persons were engaged in a “prostitution deal.” Furthermore, during the hearing on the motion to suppress, the State argued that the officer had reasonable suspicion that the persons observed were engaged in prostitution. Prostitution is a crime in Georgia, see OCGA § 16–6–9, and it was the crime that the District Attorney resolved to pursue based upon the incident; no local ordinance needed to be proved to establish that the officer had a reasonable suspicion to stop the vehicle Holmes was driving. Rather, the question presented to the trial court was whether the investigative stop was proper in that it was

justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.... This specific, articulable suspicion must be based on the totality of the circumstances—e.g., objective observations, information from police reports, the modes or patterns of certain kinds of lawbreakers, and the inferences drawn and deductions made by a trained law enforcement officer.

Ciak v. State, 278 Ga. 27, 30(3), 597 S.E.2d 392 (2004). See also Burgeson v. State, 267 Ga. 102, 105(3)(a), 475 S.E.2d 580 (1996). And, using this standard, the trial court found that there was articulable suspicion that the occupants of the car were engaged in criminal activity.

Morever, the trial court also noted that the police officer was authorized to approach the parked Cadillac, ask questions of the occupants, and even ask for consent to search the vehicle, without a requirement that the officer have articulable suspicion. See In the Interest of D.H., 285 Ga. 51, 53(2), 673 S.E.2d 191 (2009); Baker v. State, 300 Ga.App. 307, 309, 684 S.E.2d 427 (2009). The presence of a marked police car at the scene of the questioning, along with the unmarked car driven by the first officer, does not, under the totality of the circumstances, require a finding that the occupants of the Cadillac did not believe that they were free to leave when the officer asked for consent to search the Cadillac. See State v. Cauley, 282 Ga.App. 191, 197–198(2), 638 S.E.2d 351 (2006). Accordingly, we cannot conclude that the trialcourt erred in denying the motion to suppress. See Barrett v. State, 289 Ga. 197, 200(1), 709 S.E.2d 816 (2011); Cauley, supra.

3. Holmes contends that his trial counsel failed to provide effective representation, and that his motion for new trial on that ground should have been granted. In order to prevail on this claim, he must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong of the required test, he must overcome the “strong presumption” that counsel's performance fell within a “wide range of reasonable professional conduct,” and that counsel's decisions were “made in the exercise of reasonable professional judgment.” Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. Id. at 784, 325 S.E.2d 362. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Id. at 783, 325 S.E.2d 362. “ ‘[W]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

a) Count One of the indictment charged Holmes with violating the RICO Act through a pattern of criminal activity in furtherance of his pimping enterprise. Holmes urges that counsel should have moved to redact from that portion of the indictment certain acts alleged that could not be reasonably construed as overt acts in furtherance of such a conspiracy, but that nonetheless would be prejudicial in the eyes of the jury.² But, even assuming that there were extraneous assertions in...