¶1In the Supreme Court of Georgia
¶2 Decided: June 1, 2021
¶3 S21A0377. HOLMES v. THE STATE.
¶4 PETERSON, Justice.
¶5 Dequan Holmes appeals his convictions for felony murder,
¶6aggravated assault, and two counts of possession of a firearm during
¶7the commission of a crime for the shooting death of Javares Alston
¶8and the non-fatal shooting of Danielle Willingham. 1 He argues that
¶9 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. the evidence was insufficient to convict him and that the trial court
¶10committed plain error when it charged the jury to “consider with
¶11great care and caution” Holmes’s out-of-court statements. Holmes,
¶12who was a juvenile at the time the crime was committed, also
¶13challenges his sentence of life without parole, arguing that it
¶14violates the Eighth Amendment to the United States Constitution
¶15as interpreted by the United States Supreme Court. We hold that
¶16the evidence was sufficient to convict Holmes and that any error in
¶17the trial court’s instruction to the jury did not amount to plain error
¶18because the instruction did not affect the outcome of his trial. We
¶19also conclude that Holmes’s sentence of life without parole was not
¶20prohibited by United States Supreme Court precedent, especially in
¶21the light of that Court’s recent decision in Jones v. Mississippi, ____
¶22U.S. ___ (141 SCt 1307, 209 LE2d 390) (2021). We therefore affirm.
¶23 The evidence presented at trial showed the following.
¶24According to Willingham, he and Alston shared a mobile home as
¶25roommates. Sometime after 2:00 a.m. on June 28, 2012, Willingham
¶26was awakened by loud knocking on the front door. Peeking out, he
¶27 2 saw by the light of a porch lamp a person whom he later identified
¶28as Holmes, standing outside the door and saying, “I got your money.
¶29I was just playing.” Willingham knew that Holmes and Alston
¶30socialized, but he had never been introduced to Holmes. Willingham
¶31went to Alston’s bedroom and relayed what Holmes said. Alston told
¶32Willingham that he had been robbed recently. Alston went to the
¶33door and opened it, with Willingham standing behind him. Holmes
¶34again said, “I got your money. I was just playing.” But Holmes then
¶35pulled a gun out of his pocket and began shooting. Willingham was
¶36shot in his thigh while running for cover but managed to hide in the
¶37bathroom; Alston tried to run but collapsed in the hallway after
¶38Holmes shot him three times. Holmes continued to shoot until the
¶39gun was empty and then left. Willingham testified that neither he
¶40nor Alston had a knife or any other weapon when they opened the
¶41door. He also said that he did not confront Holmes and did not
¶42believe that Alston did either, nor did he hear any scuffle after
¶43Holmes pulled out the gun.
¶44 Willingham called 911 after finding Alston face down on the
¶45 3 floor and unresponsive. Paramedics attempted to resuscitate Alston,
¶46but he was pronounced dead on the scene. The police did not find
¶47any weapons on Willingham or near Alston’s body at the time. An
¶48autopsy confirmed that Alston died of his gunshot wounds.
¶49 After leaving the scene, Holmes called a close friend, Eugene
¶50Butler, to pick him up at the mobile home park, telling Butler that
¶51he had “messed up” and “got him one.” Butler’s girlfriend, Princess
¶52Brown, drove Butler to meet Holmes at the mobile home park.
¶53Holmes told Brown and Butler that some “work” was stolen from
¶54him and two people owed him money, he was heated about it, he
¶55went to their door to collect the money, and when they refused to
¶56pay, he shot them. He told Butler that he shot one person in the head
¶57or chest and killed him, but the second person did not die. Holmes
¶58appeared nervous and scared, saying “I messed up,” “I don’t know
¶59what I did,” “I lost my mind,” and “I got me one.” He also laughed
¶60and said that he was “crazy” and “that’s what they get.”
¶61 Holmes testified at trial. He said that he regularly sold drugs
¶62to people in the mobile home park, including Alston and Willingham,
¶63 4 that he had sold crack cocaine to other customers the day before the
¶64shooting, and that he went to the mobile home on the night of the
¶65shooting with crack cocaine in his pocket to sell “drugs” to Alston at
¶66Alston’s request. Holmes claimed that Alston opened the door and
¶67invited him in but then pulled a knife on him as he was entering,
¶68saying, “give me that ‘S’ before I kill you.” Holmes told Alston “all
¶69right,” but when Alston reached up, Holmes grabbed his pistol and
¶70shot Alston while Holmes was running out of the mobile home.
¶71Holmes admitted on cross-examination that he lied when giving
¶72statements to the police after the shooting. The State later
¶73introduced recordings of Holmes’s four police interviews. During the
¶74first three interviews, Holmes denied shooting Alston, but he
¶75admitted doing so, in self-defense, during the final interview. And
¶76not once during his four interviews did he mention selling drugs to
¶77Alston; instead, he told the police that Alston owed him money and
¶78told him to come at 2:00 a.m. to collect it.
¶79 1. Holmes argues that the evidence was insufficient to
¶80support his convictions because the State failed to disprove beyond
¶81 5 a reasonable doubt that he acted in self-defense. We disagree.
¶82 When evaluating the sufficiency of evidence as a matter of
¶83federal due process under the Fourteenth Amendment to the United
¶84States Constitution, the proper standard of review is whether a
¶85rational trier of fact could have found the defendant guilty beyond a
¶86reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt
¶872781, 61 LE2d 560) (1979). This Court views the evidence in the
¶88“light most favorable to the verdict, with deference to the jury’s
¶89assessment of the weight and credibility of the evidence.” Hayes v.
¶90State, 292 Ga. 506, 506 (739 SE2d 313) (2013) (citation and
¶91punctuation omitted).
¶92 In his trial testimony, Holmes admitted that he shot Alston
¶93and Willingham but claimed that he shot them in self-defense. But
¶94the jury could have rejected Holmes’s claim that he was acting in
¶95self-defense. See Mims v. State, ___ Ga. ___, ____ (854 SE2d 742)
¶96(2021) (“[T]he defendant’s testimony, in which he claimed he was
¶97justified or provoked into acting, may itself be considered
¶98substantive evidence of guilt when disbelieved by the jury, as long
¶99 6 as some corroborative evidence exists for the charged offense.”
¶100(citation omitted)); see also Shaw v. State, 292 Ga. 871, 872 (1) (742
¶101SE2d 707) (2013) (“[I]ssues of witness credibility and justification
¶102are for the jury to decide, and the jury is free to reject a defendant’s
¶103claim that he acted in self-defense.” (citation and punctuation
¶104omitted)). Here, there was both corroborative and direct evidence
¶105that Holmes shot Alston, and not in self-defense. Willingham
¶106testified that he and Alston were unarmed when they opened the
¶107door for Holmes; the police found no weapons on Alston or
¶108Willingham or at their mobile home; Brown and Butler informed the
¶109police that Holmes told them he shot the victims because they
¶110refused to pay him; and Holmes’s credibility as a witness was
¶111undermined by his in-court admission that he lied to the police and
¶112his assertions of innocence in prior police interviews.
¶113 2. Holmes contends that the trial court committed plain error
¶114in charging the jury to “consider with great care and caution” his
¶115out-of-court statements. We disagree.
¶116 The relevant part of the challenged jury charge was as follows:
¶117 7 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 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.
¶118Holmes argues that this pattern charge violated his right to due
¶119process because the trial court did not clarify that the jury’s duty to
¶120consider his statements with “great care and caution” applied only
¶121to incriminatory statements. Without such a limitation, Holmes
¶122argues, the jury was effectively told that it should apply a
¶123heightened level of scrutiny to Holmes’s exculpatory statements and
¶124his trial testimony. Holmes claims that the charge relieved the State
¶125of its duty to prove all elements of the charged crimes beyond a
¶126reasonable doubt because his trial testimony was the only evidence
¶127of his sole defense (self-defense) and the trial court did not instruct
¶128jurors to consider conflicting statements of other witnesses with the
¶129same scrutiny.
¶130 8 Holmes did not object to the charge at trial, so we review this
¶131claim only for plain error. See OCGA § 17-8-58 (b) (failure to object
¶132to a jury charge “shall preclude appellate review of such portion of
¶133the jury charge, unless such portion of the jury charge constitutes
¶134plain error which affects substantial rights of the parties”). To
¶135establish plain error, Holmes “must point to an error that was not
¶136affirmatively waived, the error must have been clear and not open
¶137to reasonable dispute, the error must have affected his substantial
¶138rights, and the error must have seriously affected the fairness,
¶139integrity, or public reputation of judicial proceedings.” Denson v.
¶140State, 307 Ga. 545, 547-548 (2) (837 SE2d 261) (2019) (citation and
¶141punctuation omitted). To show that an error affected his substantial
¶142rights, Holmes must make an “affirmative showing that the error
¶143probably did affect the outcome below.” McKinney v. State, 307 Ga.
¶144129, 135 (2) (b) (834 SE2d 741) (2019) (citation and punctuation
¶145omitted). If Holmes fails to meet any one of the elements of the plain
¶146error test, his claim fails. See Denson, 307 Ga. at 548 (2).
¶147 Even assuming that Holmes could meet the other elements of
¶148 9 the plain error test, Holmes cannot show that the complained-of
¶149charge constituted clear error. Considering the instructions in
¶150context, see Campbell v. State, 292 Ga. 766, 769 (3) (740 SE2d 115)
¶151(2013), a reasonable jury would not have understood the instruction
¶152to mean that it should be more skeptical of Holmes’s testimony and
¶153exculpatory statements than testimony of other witnesses. The
¶154charge referred only to the State’s use of Holmes’s out-of-court
¶155statements, which were mostly incriminatory, not to Holmes’s use
¶156of those statements or his own testimony. In fact, the court
¶157instructed the jury in a previous charge that it should evaluate
¶158Holmes’s in-court testimony “as you would that of any other
¶159witness.” And because the charge was given immediately after
¶160instructions about evaluating whether the defendant’s custodial
¶161statements were made voluntarily and with full knowledge of his
¶162constitutional rights, a reasonable jury would likely have
¶163understood the charge to encourage skepticism only of Holmes’s
¶164custodial statements. See Williamson v. State, 305 Ga. 889, 896 (3)
¶165(b) (827 SE2d 857) (2019).
¶166 10 3. Holmes was four days shy of his eighteenth birthday when
¶167he shot Alston and Willingham. He argues that his sentence of life
¶168without parole (“LWOP”) for the murder of Alston violated the
¶169Eighth Amendment to the United States Constitution because the
¶170trial court failed to consider explicitly the characteristics of minors
¶171and failed to make a distinct determination on the record that he
¶172was irreparably corrupt. Holmes’s Eighth Amendment claim fails,
¶173because the United States Supreme Court has recently made clear
¶174that the Eighth Amendment does not require sentencing judges to
¶175say anything on the record on these points, and there is nothing in
¶176the record here showing that the trial court did not consider the
¶177relevant factors.
¶178 At Holmes’s sentencing hearing, the State introduced evidence
¶179of Holmes’s previous criminal activity as a juvenile, including
¶180attempted strong-armed robbery and third-degree burglary in South
¶181Carolina. Holmes’s grandmother testified that Holmes was “raised
¶182in church” and “knew right from wrong” and that his family talked
¶183to him often “about not being in trouble.” Holmes’s trial counsel
¶184 11 argued that an LWOP sentence was excessive given Holmes’s age,
¶185and that Holmes had a possibility of redemption and rehabilitation
¶186because he was only 15 during the South Carolina incident and 17
¶187when he shot Alston and Willingham.
¶188 When announcing Holmes’s sentence, the trial judge stated:
¶189 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.
¶190 The 2013 sentencing hearing was held after the United States
¶191Supreme Court’s 2012 decision in Miller v. Alabama, 567 U.S. 460
¶192(132 SCt 2455, 183 LE2d 407) (2012). The trial judge did not
¶193explicitly mention Holmes’s age or discuss the characteristics of
¶194youth during sentencing. In his order denying Holmes’s motion for
¶195new trial, however, the judge stated that Holmes’s sentence
¶196complied with Miller because “the Defendant’s age and juvenile
¶197status [were] considered during the sentencing hearing.”
¶198 12 In Miller, the United States Supreme Court held that a
¶199sentencing scheme mandating LWOP for those under the age of 18
¶200at the time of their crimes violated the Eighth Amendment’s
¶201prohibition on cruel and unusual punishment. See 567 U.S. at 465,
¶202479. Four years later, the Supreme Court held in Montgomery v.
¶203Louisiana, 577 U.S. 190 (136 SCt 718, 193 LE2d 599) (2016), that
¶204Miller had announced a substantive rule of constitutional law that
¶205must be given retroactive effect in state collateral review
¶206proceedings. See id. at 212. In so doing, the Supreme Court said that
¶207“the sentencing judge [must] take into account how children are
¶208different, and how those differences counsel against irrevocably
¶209sentencing them to a lifetime in prison” before sentencing a juvenile
¶210offender to LWOP; and that “[e]ven if a court considers a child’s age
¶211before sentencing him or her to a lifetime in prison, that sentence
¶212still violates the Eighth Amendment for a child whose crime reflects
¶213unfortunate yet transient immaturity.” Id. at 208 (citation and
¶214punctuation omitted). And Montgomery emphasized that an LWOP
¶215sentence is permitted only in “exceptional circumstances”: for “the
¶216 13 rare juvenile offender who exhibits such irretrievable depravity that
¶217rehabilitation is impossible,” those “rarest of juvenile
¶218offenders . . . whose crimes reflect permanent incorrigibility,” and
¶219“those rare children whose crimes reflect irreparable corruption” —
¶220and that a[n] LWOP sentence is not permitted for “the vast majority
¶221of juvenile offenders.” Id. at 208-213.
¶222 Based on this language in Montgomery, we held in Veal v.
¶223State, 298 Ga. 691 (784 SE2d 403) (2016), that it was not enough for
¶224a sentencing court merely to consider generally a juvenile offender’s
¶225age and associated characteristics. See id. at 703 (5) (d). Rather, we
¶226said that to place a defendant “in the narrow class of juvenile
¶227murderers for whom an LWOP sentence is proportional under the
¶228Eighth Amendment as interpreted in Miller as refined by
¶229Montgomery[,]” a sentencing court must make a “distinct
¶230determination on the record” that the defendant “is irreparably
¶231corrupt or permanently incorrigible[.]” Veal, 298 Ga. at 703 (5) (d).
¶232Furthermore, we stated in a footnote that it is “important” that a
¶233sentencing court “explicitly consider” the primary ways that
¶234 14 characteristics of children are relevant to sentencing. Id. at 702 (5)
¶235(d) n.6. Our holding in Veal was explicitly a holding of federal
¶236constitutional law based on our understanding of the decisions of the
¶237United States Supreme Court in Miller and Montgomery. In
¶238subsequent cases, we declined to extend Veal to hold that the
¶239determination of irreparable corruption it required is a factual
¶240finding — let alone a finding that must be made by a jury, or beyond
¶241a reasonable doubt. See Raines v. State, 309 Ga. 258, 268 (2) (c) (845
¶242SE2d 613) (2020); White v. State, 307 Ga. 601, 605-606 (3) (a) (837
¶243SE2d 838) (2020).
¶244 Earlier this year, the United States Supreme Court decided
¶245Jones, which confirmed that we were right not to extend Veal and,
¶246indeed, held that in Veal we read Miller and — especially —
¶247Montgomery too broadly. In Jones, the Court considered a
¶248defendant’s claim that the sentencing court erred by imposing
¶249LWOP sentences for crimes that the defendant had committed as a
¶250minor, because the sentencing court failed to make a factual finding
¶251of permanent incorrigibility or, at the very least, an on-the-record
¶252 15 explanation of the sentence containing an “implicit finding” of
¶253permanent incorrigibility. 141 SCt at 1313. But the United States
¶254Supreme Court upheld the sentence, holding that Miller does not
¶255require a separate factual finding of permanent incorrigibility before
¶256a sentencer imposes an LWOP sentence on a murderer under age
¶25718. See Jones, 141 SCt at 1314-1319. And the Court rejected Jones’s
¶258alternative argument that a sentencer must at least make an on-
¶259the-record explanation for the sentence that carried an “implicit
¶260finding” of permanent incorrigibility, saying that an on-the-record
¶261finding is (1) not necessary to ensure that a sentencer considers a
¶262defendant’s youth, (2) not required by or consistent with Miller or
¶263the Court’s analogous death penalty precedents, and (3) not dictated
¶264by any consistent historical or contemporary sentencing practice in
¶265the States. See id. at 1319-1321. In particular, the Court explained,
¶266“if the sentencer has discretion to consider the defendant’s youth [as
¶267Miller requires] . . . it would be all but impossible for a sentencer to
¶268avoid considering that mitigating factor,” especially where defense
¶269counsel makes arguments focused on the offender’s youth. Id. at
¶270 16 1319.
¶271 In short, Jones clarified that although the Eighth Amendment
¶272requires that, before sentencing a juvenile murderer to LWOP, a
¶273trial court must hold a sentencing hearing where the defendant’s
¶274age and characteristics of children are considered, neither Miller nor
¶275Montgomery requires a sentencer to say anything on the record
¶276about youth and its attendant characteristics before imposing an
¶277LWOP sentence. Therefore, to the extent that Veal suggested a
¶278requirement that sentencers provide explicit, on-the-record
¶279explanations regarding determinations of permanent incorrigibility
¶280and the characteristics of children, Jones has explained that we were
¶281mistaken.
¶282 Holmes’s challenge to his sentence thus cannot succeed.
¶283Holmes argues that his sentence is void because the trial court did
¶284not make a “distinct determination on the record” that Holmes was
¶285“irreparably corrupt or permanently incorrigible.” Veal, 298 Ga. at
¶286703 (5) (d). But Jones makes it clear that no such determination need
¶287be made on the record. See 141 SCt at 1312-1313, 1320.
¶288 17 Holmes also argues that the trial court failed sufficiently to
¶289consider “youth and its attendant characteristics” as factors at
¶290Holmes’s sentencing hearing. But, under Jones, “unless the record
¶291affirmatively reflects otherwise, the trial court will be deemed to
¶292have considered the relevant criteria, such as mitigating
¶293circumstances, enumerated in the sentencing rules.” Id. at 1321
¶294(noting that appellate courts do not necessarily reverse a sentence
¶295“merely because the sentencer could have said more about
¶296mitigating circumstances” (citation and punctuation omitted)); see
¶297also State v. Abbott, 309 Ga. 715, 719 (2) (848 SE2d 105) (2020)
¶298(“Trial judges too are presumed to know the law and apply it in
¶299making their decisions, absent some indication in the record
¶300suggesting otherwise.” (citation and punctuation omitted)). Here,
¶301the trial judge, like the sentencer in Jones, had discretion to
¶302sentence Holmes to a lesser sentence than LWOP. The record does
¶303not show that the trial court failed to consider the required factors;
¶304rather, the record shows that the trial court did consider them.
¶305Holmes’s trial counsel made arguments focused on Holmes’s youth
¶306 18 and possibility for rehabilitation. The trial judge heard evidence
¶307about Holmes’s childhood environment. All of this happened after
¶308the Supreme Court decided Miller, so we presume the trial court
¶309knew and applied its holding. And in denying Holmes’s motion for
¶310new trial, the trial judge stated that he considered Holmes’s age and
¶311juvenile status during the sentencing hearing. Accordingly, we
¶312conclude that the trial judge sufficiently considered the required
¶313factors in sentencing Holmes to LWOP.
¶314 Judgment affirmed. All the Justices concur.
¶315 19