CourtListener 10680400

Full text

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: February 6, 2024

S23A0936. HOLMES v. THE STATE.

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

1 Shomari was brought to the hospital by paramedics on February 11,

2017. Following his transfer to another facility, he was pronounced dead on
February 16, 2017. On June 28, 2019, a Cobb County grand jury returned the
16-count superseding indictment on which Appellant was tried. Appellant was
charged with malice murder (Count 1), three counts of felony murder (Counts
2, 4, and 6), two counts of aggravated assault (Counts 3 and 8), three counts of
aggravated battery (Counts 5, 10, and 12), and seven counts of cruelty to
children in the first degree (Counts 7, 9, 11, and 13-16). On October 30, 2019,
Appellant filed a “Notice of Intention of Defense to Raise Issue of Insanity,
Mental Illness, or Intellectual Disability at the Time of the Act.”
Appellant was tried by a jury from December 13, 2021, to December 20,
2021. The jury returned a verdict of not guilty as to malice murder (Count 1)
but found Appellant guilty but mentally ill with respect to all other counts. On
January 31, 2022, the trial court sentenced Appellant to life in prison for felony
murder (Count 2), merged Appellant’s conviction for aggravated assault (Count
3) into Count 2 for sentencing purposes, and issued nine consecutive sentences
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

of 20 years in prison for Counts 8 through 16. The trial court also vacated
Counts 4 through 7, and neither party raises a sentencing error. See Dixon v.
State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017) (“[W]hen a merger error
benefits a defendant and the State fails to raise it by cross-appeal, we
henceforth will exercise our discretion to correct the error upon our own
initiative only in exceptional circumstances.”). Appellant was accordingly
sentenced to a total of life in prison plus 180 years.
Appellant filed a motion for new trial on February 22, 2022, which he
amended through new counsel on November 10, 2022. The trial court held a
hearing on Appellant’s motion, as amended, on January 4, 2023, and denied
Appellant’s motion by written order on January 24, 2023. Appellant filed a
timely notice of appeal to this Court on February 17, 2023. The case was
docketed to this Court’s August 2023 term and submitted for a decision on the
briefs.
2
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

3
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 Shomari’s transfer to CHOA that evening, Appellant was

taken to the Marietta Police Department where he waived his

4
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

2 See Miranda v. Arizona, 384 U.S. 436, 444 (86 SCt 1602, 16 LE2d 694)

(1966).
5
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

6
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

7
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

3 We decline to consider Appellant’s right-to-counsel claim under the
Georgia Constitution because Appellant does not argue that his right to
counsel under the Sixth Amendment to the United States Constitution applies
differently than his right to counsel under Article 1, Section 1, Paragraph XIV
of the Georgia constitution and because neither the Appellant nor the trial
court distinguished between Appellant’s federal and state right-to-counsel
claims in the proceedings below. See Regan v. State, 317 Ga. 612, 612 n.2 (894
SE2d 584) (2023) (declining to consider the defendant’s equal-protection claims
under the Georgia Constitution where neither the defendant nor the trial court
below distinguished between the defendant’s claims under the federal and
state constitutions).
8
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

4 OCGA § 17-7-130.1 provides that “[w]hen a notice of an insanity
defense is filed, the court shall appoint at least one psychiatrist or licensed
psychologist to examine the defendant and to testify at trial.” See Motes v.
State, 256 Ga. 831, 832 (2) (353 SE2d 348) (1987) (explaining that “[i]f the
defendant wants to introduce expert testimony, the state must be allowed the
same privilege and the defendant must cooperate, in light of [the defendant’s]
partial waiver of the right to remain silent. If the defendant chooses to prove
insanity by means other than expert testimony . . . the partial waiver does not
arise, and the case may proceed as any other” (citation and punctuation
omitted)).
9
[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

5 OCGA § 24-7-704 (b) provides that

[n]o expert witness testifying with respect to the mental state or
condition of an accused in a criminal proceeding shall state an
opinion or inference as to whether the accused did or did not have
the mental state or condition constituting an element of the crime
charged or of a defense thereto. Such ultimate issues are matters
for the trier of fact alone.

6 Appellant’s motion in limine and the trial court’s related ruling were

made after Dr. Obst had testified on behalf of Appellant but before Dr. Wright
and Dr. Norman testified. Dr. Wright and Dr. Norman were therefore
prevented from testifying as to whether Appellant was experiencing psychosis
when the crimes were committed, even though the jury had already heard Dr.
Obst’s testimony that Appellant was suffering from the first (“prodromal”)
stage of schizophrenia at that time.
10
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. 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 Appellant 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

11
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 point 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:

12
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 exactly
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 to 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

13
not been given advance notice of the time and place of Dr. Norman’s

interview with Appellant or 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 prosecutor’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 interview

with [the State’s expert].” The trial court further found that

14
Appellant’s trial counsel had general notice of the interview and that

even though it was not legally necessary, “Dr. Norman advised

Defendant regarding the purpose of the evaluation, lack of

confidentiality, and the right to not answer any questions.” Lastly,

the trial court concluded that the portion of Dr. Norman’s interview

to which Appellant objected did not violate the court’s previous

ruling on ultimate-issue testimony under OCGA § 24-7-704 (b),

which precludes experts from stating “an opinion or inference as to

whether the accused did or did not have the mental state or

condition constituting an element . . . of a defense thereto.”

(b) (i) Even assuming that Appellant preserved his objection

under OCGA § 24-7-704 (b) to the admission of Dr. Norman’s

interview for ordinary appellate review, Appellant has failed to show

that the trial court abused its discretion by admitting it into

evidence. Appellant argues that Dr. Norman’s statement that he

would be evaluating “[Appellant’s] mental condition around the time

of the alleged offense [i.e.,] how [Appellant was] thinking and feeling

around the time that the crime was committed” violated the trial

15
court’s earlier ruling excluding expert opinion testimony on the

ultimate issue of Appellant’s mental state at the time of the crimes

under OCGA § 24-7-704 (b). Appellant claims that this statement

“clearly indicate[s] that his examination covered criminal

responsibility at the time of the alleged crime at issue which is solely

for the jury.” Dr. Norman’s remarks, however, only addressed the

purpose of the interview and did not constitute an opinion or

inference of any sort — let alone an opinion or inference about

Appellant’s mental state at the time of the crime. Dr. Norman’s

statement therefore did not violate either OCGA § 24-7-704 (b) or

the trial court’s previous ruling pursuant thereto. Moreover, our

review of the record reveals no instance in which Dr. Norman offered

an opinion about Appellant’s mental condition. As such, Appellant

fails to show the trial court abused its discretion.

(ii) Appellant also argues that Dr. Norman’s interview violated

his rights under the Fifth and Sixth Amendments7 to the United

7 Appellant contends that Dr. Norman’s failure to advise Appellant of his

right to counsel violated his rights under the Sixth Amendment as enunciated

16
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

in Miranda, but the rights described in Miranda are grounded in the Fifth
Amendment. See Dickerson v. United States, 530 U.S. 428, 433, 435 n.1 (120
SCt 2326, 147 LE2d 405) (2000) (describing the Self-Incrimination Clause of
the Fifth Amendment and the Due Process Clause of the Fourteenth
Amendment as the bases for the constitutional rule announced in Miranda).
See also Miranda, 384 at 512 (II) (noting that the Sixth Amendment “is never
expressly relied on by the [majority opinion].” (Harlan, J., dissenting)).
8 Appellant was first read his Miranda rights at the beginning of his

interview with detectives from the Marietta Police Department on the day that
Shomari was hospitalized.
17
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 review 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 court
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

18
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

19
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 or 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

20
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

21
his proof on an issue he interjected into the case.” Id. at 465 (II) (A)

(2). Because Appellant put his mental condition at issue, Estelle does

not apply, and Appellant’s argument by analogy fails to demonstrate

a clear or obvious legal error.

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 intellectual disability,” as required by sections (b)

and (c) of OCGA § 17-7-131. As we explain below, however,

Appellant did not preserve this issue for ordinary appellate review,

and he fails to show plain error.

OCGA § 17-7-131 (b) (1) provides that, “[i]n all cases in which

the defense of insanity, mental illness or intellectual disability is

interposed, the jury . . . shall find whether the defendant is: (A)

guilty; (B) not guilty; (C) not guilty by reason of insanity at the time

of the crime . . . (D) guilty but mentally ill at the time of the crime

. . . or (E) guilty but with intellectual disability.” Section (c) provides

that, where any such a defense is raised, “the trial judge shall

instruct the jury” on each of the five possible verdicts enumerated

22
above. OCGA § 17-7-131 (c). Lastly, subsection (b) (3) provides that

the “trial judge shall charge the jury, in addition to other

appropriate charges,” on the consequences to the defendant arising

from each of the five possible verdicts by means of the specific

statutory language provided therein. OCGA § 17-7-131 (b) (3).

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 of “guilty but with intellectual

disability.” See OCGA § 17-7-131 (b) (1) (E). Though the trial court

stated, “I believe by law I have to give it,” trial counsel responded,

“[I]f there’s no evidence to support the omitted option it’s harmless

error.” The trial court then confirmed that Appellant did not want it

to charge the jury on paragraph (E) as follows:

THE COURT: Is the Defense asking me to give ([E]) or
not?

TRIAL COUNSEL: Intellectual disability, no.

23
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 object 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 OCGA

§ 17-8-58 (b)). Further, we have held that, when a defendant

requests a specific jury instruction at the outset of trial but later

withdraws the request during the charge conference, the defendant

has affirmatively waived any right to the charge and the defendant’s

claim on appeal concerning the charge fails. See Walker, 301 Ga. at

485 (2) (a) (holding that the defendant affirmatively waived his right

to a voluntary manslaughter charge where counsel initially

requested the charge but later withdrew it at the charge conference).

See also Lewis v. State, 312 Ga. 537, 541 (2) (863 SE2d 65) (2021)

24
(holding that the defendant affirmatively waived an alleged error

regarding the trial court’s failure to instruct the jury on voluntary

manslaughter where trial counsel initially requested and then

affirmatively opposed the instruction at the charge conference).

Here, trial counsel initially requested that the jury be instructed on

a possible verdict of “guilty but intellectually disabled” but later

expressly requested that the court omit such instruction at the

charge conference. Trial counsel’s request for the instruction to be

omitted amounted to an affirmative waiver. As such, Appellant’s

claim fails.

Judgment affirmed. All the Justices concur.

318 Ga. 213
FINAL COPY

S23A0936. HOLMES v. THE STATE.

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

1 Shomari was brought to the hospital by paramedics on February 11,

2017. Following his transfer to another facility, he was pronounced dead on
February 16, 2017. On June 28, 2019, a Cobb County grand jury returned the
16-count superseding indictment on which Appellant was tried. Appellant was
charged with malice murder (Count 1), three counts of felony murder (Counts
2, 4, and 6), two counts of aggravated assault (Counts 3 and 8), three counts of
aggravated battery (Counts 5, 10, and 12), and seven counts of cruelty to
children in the first degree (Counts 7, 9, 11, and 13-16). On October 30, 2019,
Appellant filed a “Notice of Intention of Defense to Raise Issue of Insanity,
Mental Illness, or Intellectual Disability at the Time of the Act.”
Appellant was tried by a jury from December 13, 2021, to December 20,
2021. The jury returned a verdict of not guilty as to malice murder (Count 1)
but found Appellant guilty but mentally ill with respect to all other counts. On
January 31, 2022, the trial court sentenced Appellant to life in prison for felony
murder (Count 2), merged Appellant’s conviction for aggravated assault (Count
3) into Count 2 for sentencing purposes, and issued nine consecutive sentences
of 20 years in prison for Counts 8 through 16. The trial court also vacated
Counts 4 through 7, and neither party raises a sentencing error. See Dixon v.
State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017) (“[W]hen a merger error
benefits a defendant and the State fails to raise it by cross-appeal, we
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

henceforth will exercise our discretion to correct the error upon our own
initiative only in exceptional circumstances.”). Appellant was accordingly
sentenced to a total of life in prison plus 180 years.
Appellant filed a motion for new trial on February 22, 2022, which he
amended through new counsel on November 10, 2022. The trial court held a
hearing on Appellant’s motion, as amended, on January 4, 2023, and denied
Appellant’s motion by written order on January 24, 2023. Appellant filed a
timely notice of appeal to this Court on February 17, 2023. The case was
docketed to this Court’s August 2023 term and submitted for a decision on the
briefs.
2
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

3
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 and 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 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

2 See Miranda v. Arizona, 384 U. S. 436, 444 (86 SCt 1602, 16 LE2d 694)

(1966).
4
interview, which was video-recorded and played for the jury,

Appellant explained that he had found Shomari and S. D. sleeping