YOUNG v. THE STATE 6-24-2021 Substitute Opinion Issued. ( 2021 )


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  • In the Supreme Court of Georgia
    Decided: June 24, 2021
    S21P0078. YOUNG v. THE STATE.
    MELTON, Chief Justice.
    A jury found Rodney Renia Young guilty of the murder of Gary
    Jones and related crimes. The jury declined in its guilt/innocence
    phase verdict to find him “mentally retarded.” 1 At the conclusion of
    the sentencing phase, the jury found multiple statutory aggravating
    circumstances and sentenced Young to death for the murder. For
    the reasons set forth below, we affirm Young’s convictions and
    1 The mental condition now referred to as “intellectual disability” in the
    mental health profession and in Georgia law was previously, including at the
    time of Young’s trial, referred to as “mental retardation.” See Hall v. Florida,
    
    572 U. S. 701
    , 704 (I) (134 SCt 1986, 188 LE2d 1007) (2014) (noting the change
    in terminology); OCGA § 17-7-131 (as amended in 2017 by Ga. L. 2017, p. 471,
    § 3). We use both terms in this opinion, using “intellectual disability” in our
    discussions of the condition in general terms and using “mental retardation”
    in our discussions, particularly in quotations, of the specific proceedings below
    and the law that applied to them.
    sentences.2
    1. Young had a seven-year relationship with Gary Jones’s
    mother, Doris Jones, that was rife with arguments about money and
    Young’s infidelity and included multiple breakups. After Young
    came to visit Doris in Georgia in November 2007 and the pair
    became engaged, Doris moved in with Young at his basement
    apartment in Bridgeton, New Jersey, in January 2008. The couple
    2 The victim was killed on March 30, 2008. A Newton County grand jury
    indicted Young on June 6, 2008, on one count of malice murder, two counts of
    felony murder, one count of aggravated assault, and one count of burglary. On
    August 7, 2008, the State filed written notice of its intent to seek the death
    penalty. The trial began with jury selection on February 6, 2012. The jury
    found Young guilty on all charges on February 17, 2012. On February 21, 2012,
    the jury recommended a death sentence for the murder, and that same day the
    trial court filed an order imposing a death sentence on the malice murder
    count. On February 22, 2012, the trial court filed an order merging the felony
    murders with the malice murder (although they were actually vacated by
    operation of law, see Willis v. State, 
    304 Ga. 686
    , 686 n.1 (820 SE2d 640)
    (2018)), merging the aggravated assault with the malice murder, and deferring
    sentencing on the burglary. On March 9, 2012, the trial court filed an order
    imposing a 20-year sentence for the burglary, to be served concurrently with
    the death sentence. On March 5, 2012, Young filed a motion for new trial, and
    he amended the motion on April 1, 2014, and September 5, 2017. Following
    multiple hearings, the motion was denied on April 9, 2019. Young filed a notice
    of appeal on June 6, 2019. An appeal was initially docketed in this Court on
    December 11, 2019, as Case No. S20P0630; however, on December 19, 2019,
    this Court struck the case from the docket and remanded it, directing the trial
    court to ensure that the record was complete. Following this remand, the case
    was redocketed to the term of this Court beginning in December 2020, and the
    case was orally argued on March 23, 2021.
    2
    argued in New Jersey, and Doris moved back to Georgia to once
    again live with her son, Gary, in Covington. Young wrote Doris
    multiple letters between January and March 2008, asking her to
    return to him. On March 3, Young obtained approval from his
    employer for time off on March 26 to 28. He subsequently contacted
    his half-sister, whom he had never personally met and who lived in
    Atlanta, and he told her that he was coming to see her while on
    vacation. Prior to his trip, Young borrowed a GPS device from his
    co-worker and obtained instructions on how to use it.
    On March 28, Doris received yet another letter from Young,
    which she did not read immediately. When Doris awoke the next
    day, laundry that she had washed the night before had been folded,
    despite the fact that Gary had been staying with his girlfriend and
    no one else was home. That same weekend, Doris noticed that the
    laundry room window had a hole in it and that the screen on that
    window was missing.      Testimony, cell phone records, and the
    memory of the GPS device that Young borrowed all showed that,
    from March 28 to 30, Young drove repeatedly from his half-sister’s
    3
    home in Atlanta to the area of Gary’s home in Covington. A witness
    testified that he gave a man with a New Jersey license plate
    directions from Covington Square to Gary’s neighborhood; this
    witness later identified Young from a photographic line-up as that
    man.
    On March 30, Gary attended church with his girlfriend and
    then returned home with a plan to meet his girlfriend later for
    dinner. A little after 1:00 p.m. that day, Gary told his grandmother
    on the telephone that he was arriving at his home and would call
    her back in 15 minutes, which he never did. Doris discovered Gary’s
    body in the home at approximately 11:20 p.m. that night and called
    911. Gary was lying on his side on the floor in the dining room, and
    he was tied to an overturned chair with duct tape, a telephone cord,
    and fabric from some curtains. A bloody butcher knife and a bloody
    hammer were found next to his body. The victim’s body had multiple
    fractures to the skull, the left eye protruded from its socket, there
    were sharp force injuries to the neck, head, and face, and there were
    compression marks on the hands and legs indicating that the victim
    4
    was alive while bound. Glass in a door leading into the dining room
    from an outside patio had been shattered, and the home showed
    signs of a struggle, with blood in the foyer, living room, and dining
    room. The home had multiple writings on the walls, including the
    following as recounted by an investigator: “ATL mob $25,000, dead
    in 20 days, 20 days to get out of state or dead, the hit be on you, were
    know what you drive, ATL m-o-b, I want my f***ing money, $25,000,
    you work at GRNCS.” The writings were matched at trial to Young’s
    handwriting, and investigators testified that they were unaware of
    a gang called the “ATL mob.”
    Upon learning that Young had called her brother-in-law, Doris
    called Young on the day after the murder. Young told Doris that he
    would come to get her things and move her back to New Jersey and
    that he had seen Gary in a dream asking him to take care of her.
    Investigators interviewed Young in New Jersey on April 3, 2008; he
    had two cuts on his right hand, and he denied traveling recently to
    Georgia. A search of Young’s car yielded printed directions from
    New Jersey to Covington and Doris’s ring that had been discovered
    5
    missing from Gary’s home, and a search of Young’s basement
    apartment in New Jersey yielded Gary’s cell phone and duct tape
    that was matched to the duct tape used to bind Gary.
    Young presented evidence in the guilt/innocence phase in
    support of a possible finding of “mental retardation” by the jury,
    including testimony from staff members at his former high school
    stating that he had been in special education, had been classified as
    “educable mentally retarded” and therefore must have been tested
    with an IQ of between 60 and 69, and had struggled intellectually in
    academics and in sports.      However, Young did not present any
    expert testimony regarding his alleged intellectual disability or any
    actual IQ test results. The State countered Young’s evidence with
    cross-examination and direct testimony showing Young’s ability to
    function normally at work and in various other settings in life. The
    State also presented testimony from an expert who, although he had
    not evaluated Young and had not formed an opinion as to whether
    Young was intellectually disabled, was able to testify about the
    subject of intellectual disability in general terms.
    6
    After reviewing the record, we conclude that the evidence
    presented in the guilt/innocence phase was sufficient to authorize a
    rational trier of fact to find beyond a reasonable doubt that Young
    was guilty of all of the charges of which he was convicted and to find,
    considering the conflicting testimony on the subject, that Young had
    failed to prove beyond a reasonable doubt that he was “mentally
    retarded.” See Jackson v. Virginia, 
    443 U. S. 307
    , 319 (III) (B) (99
    SCt 2781, 61 LE2d 560) (1979) (providing the constitutional
    standard for the review of the sufficiency of the evidence of a crime);
    King v. State, 
    273 Ga. 258
    , 259 (1) (539 SE2d 783) (2000) (reviewing
    the sufficiency of the evidence regarding alleged intellectual
    disability); UAP IV (B) (2) (providing that, in all death penalty cases,
    this Court will determine whether the verdicts are supported by the
    evidence).
    Pretrial Issues
    2.   We reject Young’s argument, including his arguments
    specific to the practices of the prosecutor in his case, that Georgia’s
    death penalty laws are unconstitutional in that they allegedly
    7
    permit unfettered discretion to prosecutors in choosing whether or
    not to seek the death penalty and thereby result in arbitrary and
    capricious results. See Arrington v. State, 
    286 Ga. 335
    , 336-337 (4)
    (687 SE2d 438) (2009); Walker v. State, 
    281 Ga. 157
    , 161 (6) (635
    SE2d 740) (2006).
    3. The trial court properly refused Young’s attempt to plead
    guilty but mentally retarded to his murder charge in exchange for a
    life sentence, because the State objected to such a plea.           See
    Stripling v. State, 
    289 Ga. 370
    , 376 (3) (711 SE2d 665) (2011).
    4. We reject Young’s arguments that he is entitled to a new
    trial based on several alleged discovery violations by the State.
    (a) The record shows that the State disclosed the identity of
    Wanda Wilcher as a potential sentencing phase witness but listed
    her address as “private” because she had a restraining order against
    Young. The prosecutor represented to the trial court that she would
    have informed defense counsel of the witness’s address if counsel
    had inquired. Under the circumstances, we conclude that the trial
    court did not abuse its discretion in not finding any prejudice to
    8
    Young or bad faith on the part of the prosecutor and, accordingly, in
    allowing the witness to testify after first allowing defense counsel
    an opportunity to interview the witness. See Wilkins v. State, 
    291 Ga. 483
    , 486-487 (5) (731 SE2d 346) (2012) (applying OCGA § 17-16-
    6).
    (b) The record reveals that Young was aware well before trial
    of recordings of certain conversations between him and Doris Jones
    and, more importantly, that the State served him with the actual
    recordings by the statutory deadline.
    (c) The trial court properly held that the State had no duty to
    disclose the criminal histories of witnesses, because Young had
    access to those records himself. See Jackson v. State, 
    306 Ga. 69
    , 89
    (6) (d) (829 SE2d 142) (2019).
    (d) After initially noting from the bench that the issue, at least
    at that time, was moot in light of the State’s representation that it
    was aware of no such records, the trial court then also filed a written
    order denying Young’s request for any psychiatric records of the
    State’s witnesses based on its finding that “[n]o particularized
    9
    showing of necessity for or even existence of these records ha[d] been
    made.” We see no error. See King, 
    273 Ga. at 262-263
     (11) (holding
    that the defendant was not entitled to the psychiatric histories of
    the State’s witnesses where he failed to show that the hypothetical
    records were critical to his defense, that substantially similar
    evidence was otherwise unavailable, and that the records were not
    privileged); McMichen v. State, 
    265 Ga. 598
    , 611 (24) (458 SE2d 833)
    (1995) (“In requesting the psychiatric histories of the state’s
    witnesses, McMichen failed even to allege that such histories
    existed.”).
    (e) The trial court properly declined to conduct an in camera
    review of the personnel records of the law enforcement officers who
    would testify at trial, because Young made no “specific showing of
    need.” Cromartie v. State, 
    270 Ga. 780
    , 785-786 (12) (514 SE2d 205)
    (1999).
    5. Young argues that the State’s use of funds from a victim
    assistance account, see OCGA § 15-21-130 et seq., to reimburse four
    witnesses for their lost wages without disclosing this fact to him at
    10
    trial constituted unconstitutional evidence suppression because
    evidence of the use of the funds would have served as impeachment
    evidence. To succeed on an evidence suppression claim, a defendant
    must establish four elements:      (1) the State possessed evidence
    favorable to the defendant; (2) the defendant did not possess the
    evidence and could not obtain it with reasonable diligence; (3) the
    State suppressed the evidence; and (4) the suppression created a
    reasonable probability of a different outcome of the trial.        See
    McCray v. State, 
    301 Ga. 241
    , 246 (2) (c) (799 SE2d 206) (2017). The
    trial court found that the first three elements had been satisfied, but
    it correctly determined that Young’s claim failed on the fourth
    element.
    As to the two witnesses at issue who testified regarding
    Young’s guilt, their testimony showing his presence in Georgia at
    the time of the murder was cumulative of multiple other
    independent pieces of evidence showing that same fact. As to the
    two witnesses at issue who testified regarding Young’s alleged
    intellectual disability, the witnesses were his co-workers who stated
    11
    merely that he had not been a problem employee, was a “good
    operator,” and was punctual. Finally, as to the one witness at issue
    who testified in the sentencing phase, the witness stated that Young
    had physically abused her while they were dating, and she showed
    the jury a scar on her face from that abuse; however, a certified copy
    of a restraining order regarding this witness was independently
    admitted into evidence, and similar testimony showing Young’s
    abusive nature was presented through Doris Jones. We also note
    that evidence regarding the State’s reimbursement of these
    witnesses’ actual lost wages would not have been strong
    impeachment evidence.      Pretermitting whether the other three
    elements of this evidence suppression claim have been satisfied, we
    hold that the trial court’s conclusion regarding the fourth element,
    materiality, was not erroneous and that the overall claim was
    therefore properly denied. See United States v. Payne, 63 F3d 1200,
    1210-1211 (II) (A) (2) (2d Cir. 1995) (noting that the suppression of
    impeachment evidence does not warrant a new trial where the
    testimony of the witness who might have been impeached was
    12
    corroborated by other evidence and holding that the evidence
    presented at trial was “sufficiently strong” to support the appellate
    court’s concluding that the suppression in the case “d[id] not
    undermine [the appellate court’s] confidence in the outcome of the
    trial” and that the suppressed evidence therefore was “not
    material”). Cf. Schofield v. Palmer, 
    279 Ga. 848
    , 851 (1), 853 (3) (621
    SE2d 726) (2005) (reaching a different conclusion where, unlike in
    Young’s case where the witnesses enjoyed no actual gain but merely
    received reimbursement of their lost wages, “the GBI paid [a
    confidential informant] $500 for providing information implicating
    [the defendant]”).
    Issues Related to the Jury
    6. Young challenged the composition of both his grand jury
    source list and his traverse jury source list. The trial court denied
    both challenges, and we see no error.
    (a) (i) In his challenge to his grand jury source list, Young first
    claimed that an underrepresentation of African-American persons
    on the list violated both his statutory and constitutional rights. As
    13
    in a previous case in which this Court denied relief, the undisputed
    evidence in Young’s case
    showed that the jury commission in [Newton] County,
    pursuant to this Court’s directive in the Unified Appeal
    Procedure, attempted to balance the percentages of
    various cognizable groups of persons on the [relevant]
    jury source list to match the percentages of those groups
    of persons reported in the most-recently available
    Decennial Census.
    Williams v. State, 
    287 Ga. 735
    , 735 (699 SE2d 25) (2010), superseded
    by the Jury Composition Reform Act of 2011 as noted in Ellington v.
    State, 
    292 Ga. 109
    , 118 (4) n.2 (735 SE2d 736) (2012), disapproved
    on other grounds by Willis v. State, 
    304 Ga. 686
    , 706 (11) (a) n.3 (820
    SE2d 640) (2018). See also Ricks v. State, 
    301 Ga. 171
    , 173 (1) (800
    SE2d 307) (2017) (noting changes since Williams in the Code, in the
    Unified Appeal Procedure, and in relevant rules). In Williams, the
    then-established process for constructing the jury list had combined
    with shifting demographics in Clayton County to result in a
    disparity of 17.49 percentage points between the percentage of
    African-American persons on the jury source list and the percentage
    of African-American persons as shown in the 2000 Census. See
    
    14 Williams, 287
     Ga. at 737-738 (2). In Young’s case, the disparity was
    11.67 percentage points, or 11.37 percentage points if only the
    numbers of citizens involved were considered. See Smith v. State,
    
    275 Ga. 715
    , 721 (4) (571 SE2d 740) (2002) (stating regarding cases
    where citizenship appears to be a significant factor: “When alleging
    underrepresentation of a distinctive group, a defendant ‘must, to
    establish a prima facie case, present data showing that the
    percentage of persons in that group [on the jury list] is significantly
    lower than the percentage eligible to serve on juries.’” (quoting
    United States v. Artero, 121 F3d 1256, 1262 (III) (B) (9th Cir. 1997)
    (emphasis supplied)). The trial court did not err in following this
    Court’s binding case law on this issue, particularly our prior
    holdings that the jury composition system then in place served “a
    ‘sufficiently significant state interest’ to rebut an otherwise-valid
    prima facie [claim],” and thus denying this portion of Young’s
    challenge to his grand jury. Williams, 287 Ga. at 738 (2) (quoting
    Ramirez v. State, 
    276 Ga. 158
    , 162 (1) (c) (575 SE2d 462) (2003)).
    15
    (ii) Young’s challenge to his grand jury source list also included
    an allegation of an underrepresentation of Hispanic persons.
    Young’s expert testified that the Newton County jury commission
    had not separately accounted for Hispanic persons on the relevant
    jury certificate; however, the expert estimated the number of
    Hispanic persons included on the source list by performing a search
    for common Hispanic surnames.             The expert testified that, as
    compared to census estimates of the population at the time of
    Young’s indictment, Hispanic citizens were underrepresented on the
    grand jury source list by an absolute disparity of 0.91 percentage
    points. 3 See Smith, 
    275 Ga. at 721
     (4). We note further that the
    uncontested testimony of the expert also showed that, as compared
    to the 2000 Census, the absolute disparity was 0.42 percentage
    points. Based on our holdings in Williams and Ramirez, which are
    discussed above, the figure based on the 2000 Census was the correct
    one to consider; however, considering either figure, the trial court
    3 Young’s argument on appeal focuses on numbers of persons rather than
    on percentages; however, the numbers alleged by Young in his brief align with
    the percentages testified to by Young’s expert.
    16
    did not err in concluding that no impermissible underrepresentation
    had been shown. See 
    id. at 723
     (4); Morrow v. State, 
    272 Ga. 691
    ,
    695 (1) (532 SE2d 78) (2000).             Furthermore, even if an
    underrepresentation had been shown, there would be no reversible
    error, because Young did not even attempt to show in the trial court
    that Hispanic persons were a cognizable group in Newton County, a
    necessary part to his claim. See Smith, 
    275 Ga. at 718
     (2) (holding
    that whether a group is a cognizable group in a given county is a
    matter of fact to be found by the trial court).
    (b) Regarding the traverse jury source list, the trial court
    found, after discounting an obvious error on the jury certificate and
    crediting the testimony of Young’s expert, that there was an
    absolute disparity of 2.88 percentage points between the percentage
    of Hispanic persons on the 2011 jury list as compared to the
    percentage of Hispanic persons in the actual population in 2010.
    The uncontested testimony of Young’s expert also showed that the
    absolute disparity was 1.38 percentage points when only Hispanic
    citizens were considered. Considering either figure, the trial court
    17
    did not err in concluding that no impermissible underrepresentation
    had been shown. See Smith, 
    275 Ga. at 723
     (4); Morrow, 
    272 Ga. at 695
     (1).
    7. The trial court did not err by refusing to compensate jurors
    beyond the amount authorized by OCGA § 15-12-7 (a) (2).                  See
    Stinski v. State, 
    286 Ga. 839
    , 846 (21) (691 SE2d 854) (2010).
    8. After Young moved the trial court to order the State to
    disclose information about jurors concerning their possible
    connections to the State or possible driving and arrest records, the
    trial court accepted the representation from the State that it would
    reveal any false answers by jurors known to it on such subjects
    during voir dire. We see no error. See Stinski, 286 Ga. at 846 (23).
    9. Young argues that his right to be present was violated
    during several bench conferences held during jury selection. 4
    Although these bench conferences were not transcribed, despite the
    trial court’s having granted Young’s motion that all bench
    4  In his brief in this Court, Young provides identical citations to the
    record for two different jurors among the several he discusses. We have
    reviewed the record as to both of these jurors.
    18
    conferences   should   be,   the   trial   court   entered   an   order
    reconstructing the record of what transpired, see OCGA § 5-6-41 (f)
    (providing for supplementation of the record), and Young presented
    testimony at his motion for new trial hearing on the matter. As
    found by the trial court in its order denying the motion for new trial,
    Young sat during jury selection at the defense table with his three
    attorneys, he observed the voir dire, he remained at the defense
    table with one of his attorneys during the bench conferences, and yet
    he never objected to his absence from those bench conferences. The
    attorney who remained with Young refused to disclose the nature of
    their discussions, but Young testified that he and that lawyer did
    engage in conversations.
    Jury selection is a critical stage at which a defendant generally
    is entitled to be present, including at bench conferences.         See
    Murphy v. State, 
    299 Ga. 238
    , 240 (2) (787 SE2d 721) (2016);
    Sammons v. State, 
    279 Ga. 386
    , 387 (2) (612 SE2d 785) (2005). But
    see Heywood v. State, 
    292 Ga. 771
    , 774 (3) (743 SE2d 12) (2013)
    (holding that a defendant has no right to be present when only legal
    19
    arguments and logistical or procedural matters are discussed).
    However, “the right to be present may be waived if the defendant
    later acquiesces in the proceedings occurring in his absence,”
    Jackson v. State, 
    278 Ga. 235
    , 237 (3) (599 SE2d 129) (2004) (citation
    and punctuation omitted), and “[a]cquiescence may occur when
    counsel makes no objection and a defendant remains silent after he
    or she is made aware of the proceedings occurring in his or her
    absence,” Murphy, 299 Ga. at 241 (2). And, in the absence of any
    controlling authority to the contrary, we reject Young’s argument
    that his right to be present could not have been waived simply
    because this was a death penalty trial.
    The record shows that Young was present throughout all of the
    voir dire, that he was present in the courtroom during each of the
    bench conferences at issue here, that the purpose of each was
    obvious from its inception or announced afterward by the trial court,
    that the result of each was announced in open court, and that
    neither Young nor his counsel ever objected.        Accordingly, we
    conclude that the trial court did not err in concluding in its order
    20
    that Young acquiesced in the waiver of his presence that was made
    by his counsel. Cf. Champ v. State, 
    310 Ga. 832
    , 834-848 (2) (a, b, and
    c) (854 SE2d 706) (2021) (remanding where the trial court had not ruled
    on the defendant’s acquiescence in counsel’s waiver).
    10. We reaffirm our prior case law rejecting claims like Young’s
    regarding the process of qualifying jurors based on their death
    penalty views. See Willis, 304 Ga. at 694-695 (4).
    11. Young argues that the trial court erred by excusing three
    prospective jurors based on their voir dire responses regarding their
    willingness to consider a death sentence. As we have explained:
    [T]he     proper    standard      for    determining     the
    disqualification of a prospective juror based upon his
    views on capital punishment is whether the juror’s views
    would prevent or substantially impair the performance of
    his duties as a juror in accordance with his instructions
    and his oath. This standard does not require that a juror’s
    bias be proved with unmistakable clarity. Instead, the
    relevant inquiry on appeal is whether the trial court’s
    finding that a prospective juror is disqualified is
    supported by the record as a whole. An appellate court
    . . . must pay deference to the trial court’s determination.
    This deference encompasses the trial court’s resolution of
    any equivocations and conflicts in the prospective jurors’
    responses on voir dire. Whether to strike a juror for cause
    is within the discretion of the trial court and the trial
    court’s rulings are proper absent some manifest abuse of
    21
    discretion.
    Humphreys v. State, 
    287 Ga. 63
    , 71-72 (5) (694 SE2d 316) (2010)
    (citations and punctuation omitted), disapproved on other grounds
    by Willis, 304 Ga. at 706 (11) (a) n.3. See also Willis, 304 Ga. at 698
    (9) (“[T]he erroneous exclusion from the list from which a
    defendant’s jury is selected of a single prospective juror based on his
    or her purported unwillingness to consider a death sentence
    mandates the reversal of a death sentence.”). After our careful
    review of the voir dire of the jurors at issue, we conclude that the
    trial court did not abuse its discretion by excusing them.
    12. Young also argues that the trial court erred by refusing to
    excuse eight prospective jurors based on their voir dire responses
    regarding the death penalty. First, applying the same standards set
    forth in Division 11, and after our careful review of the voir dire of
    the jurors in question, we conclude that the trial court did not abuse
    its discretion.    See Humphreys, 287 Ga. at 72 (5) (“The same
    standard applies to a court’s decision to qualify a prospective juror
    over defendant’s objection.” (citation and punctuation omitted)).
    22
    Furthermore, declining Young’s invitation to overrule our recent
    holding to the contrary, we conclude that any error regarding these
    jurors would have been harmless because none of them served on
    the 12-person jury that rendered the verdicts in Young’s case. See
    Willis, 304 Ga. at 701-707 (11).
    13. Young argues that the trial court improperly limited voir
    dire regarding prospective jurors’ willingness to consider a sentence
    less than death upon a conviction for murder, as distinguished from
    cases where a complete defense has been proven or where only a
    lesser crime has been proven. First, we conclude that this issue was
    waived for the purposes of ordinary appellate review by Young’s
    failure to object at the time of the announced limitations on his voir
    dire. See Martin v. State, 
    298 Ga. 259
    , 278-279 (6) (d) (779 SE2d
    342) (2015), disapproved on other grounds by Willis, 304 Ga. at 706
    (11) (a) n.3; Braley v. State, 
    276 Ga. 47
    , 52 (18) (572 SE2d 583)
    (2002).5 Furthermore, our review of the voir dire reveals that the
    5 In Martin, we explained that a special form of review applies to cases
    where a death sentence has been imposed. We stated:
    23
    trial court, rather than disallowing Young’s questions, simply
    directed him to make his questions more focused, and we therefore
    conclude that the trial court did not abuse its discretion.                See
    Arrington, 286 Ga. at 338 (7) (“The scope of voir dire is generally a
    matter for the trial court’s discretion.”).
    14. Young argues that the trial court improperly limited his
    voir dire of one juror on the subject of the juror’s views on
    intellectual disability. The trial court, after correctly noting that
    similar questioning of the juror had already been allowed, simply
    instructed Young to “rephrase [his] question” and specifically
    authorized Young to “go into something more deeply” on the issue.
    At that point, Young raised no objection to the trial court’s
    instructions but instead stated: “[W]e’ll move on from that. We got
    This form of review in death penalty cases arises not from any
    ordinary appellate review principle; instead, it arises from the
    statutory mandate for this Court to ensure that no death sentence
    is “imposed under the influence of passion, prejudice, or any other
    arbitrary factor.” OCGA § 17-10-35 (c) (1).
    Martin, 298 Ga. at 278 (6) (d). We also explained that this special review
    “include[s] a plenary review of the record” that “guards against any obvious
    impropriety at trial, whether objected to or not, that in reasonable probability
    led to the jury’s decision to impose a death sentence.” Id. at 279 (6) (d). We
    conduct this special review below in Division 49.
    24
    enough questions on that. . . .” Accordingly, we hold that this claim
    has been waived for the purposes of ordinary appellate review. See
    Martin, 298 Ga. at 278-279 (6) (d); Braley, 276 Ga. at 52 (18).
    Furthermore, we conclude that the trial court did not abuse its
    discretion. See Arrington, 286 Ga. at 338 (7) (“The scope of voir dire
    is generally a matter for the trial court’s discretion.”).
    Issues Related to the Guilt/Innocence Phase
    15. There is no merit to Young’s argument that Georgia’s
    murder statute, OCGA § 16-5-1, is unconstitutional. See Lamar v.
    State, 
    278 Ga. 150
    , 155 (10) (598 SE2d 488) (2004).
    16. Young argues that his constitutional rights were violated
    by the placement of an electronic stun belt on him during his trial.
    Young filed a pretrial motion objecting to the use of such a stun belt
    for security purposes at his trial, and the trial court ruled, with
    Young present, that the issue was moot because no stun belt was
    being used at the time. However, the trial court stated that it would
    conduct a hearing on the issue if the use of a stun belt were
    requested in the future. About halfway through the guilt/innocence
    25
    phase of the trial, while the trial court, again in Young’s presence,
    was hearing arguments regarding a juror who was afraid of Young,
    the prosecutor stated: “[O]bviously [the juror] doesn’t know that Mr.
    Young’s wearing a shock belt. . . .” The prosecutor’s statement was
    then reinforced in the State’s brief filed in the trial court in response
    to Young’s motion to remove this fearful juror. That brief stated:
    “The jurors do not have the knowledge that the Court, State, and
    Defendant have with respect to the ‘shock belt’ device that the
    Defendant is wearing underneath his non jail-garb clothing.”
    Although the defendant himself obviously was aware that he was
    wearing the stun belt from the beginning and that defense counsel
    were aware of it at least from the time of the hearing and the State’s
    brief, no concern regarding the stun belt was ever raised by Young
    or his counsel during the trial.
    After Young raised the issue of the stun belt for the first time
    in his third amendment to his motion for new trial, the trial court
    conducted a hearing on the matter. In its order denying the claim,
    despite Young’s testimony at the hearing that the stun belt made
    26
    him “uncomfortable” and “scared” and prevented him from speaking
    directly to the two of his three attorneys who were seated farther
    down the defense table, the trial court noted that Young also
    “testified that the stun belt did not prevent him from speaking to or
    conferring with his third attorney who sat next to him throughout
    the trial.” The court also noted that this third attorney testified that
    she indeed spoke to Young during the trial, and the court further
    noted that the attorney “said nothing about any anxiety or
    reluctance [on Young’s part] to speak with her.” Based on this
    evidence, the trial court found that “there is no credible evidence
    that the stun belt had any effect, adverse or otherwise, on the
    defendant’s Sixth Amendment and due process rights to be present
    at trial and to participate in his defense.”
    Furthermore, the trial court noted other testimony at the
    hearing showing that the deputies who fitted Young with the stun
    belt explained to Young “the operation of the stun belt and what
    would have to occur before it was used,” explained to Young that he
    “would be warned or given instructions before the belt was ever
    27
    activated,” and explained to Young the circumstances that would
    warrant the use of the stun belt, which did not include anything
    about Young’s speaking to his attorneys. The court further noted
    testimony showing that “care was taken to be sure the device did not
    fit too tightly” and that Young “never complained . . . about the belt
    being uncomfortable or preventing him from communicating with
    his attorneys.” Based on these findings, the court finally concluded:
    “The constitutional rights of the defendant to counsel and to
    participate in his defense were not impacted by the use of the stun
    belt.”
    As to any portion of this claim regarding the stun belt that is
    related to the time period following the hearing regarding a fearful
    juror in which the State specifically noted that Young was wearing
    the belt, we conclude that the claim was waived for the purposes of
    ordinary appellate review by Young’s failure to raise it. See Martin,
    298 Ga. at 278-279 (6) (d); Weldon v. State, 
    297 Ga. 537
    , 541 (775
    SE2d 522) (2015) (“Failure to raise the issue [regarding a stun belt]
    deprives the trial court of the opportunity to take appropriate
    28
    remedial action and waives appellate review of any alleged
    impropriety.”). Cf. People v. Harris, 
    904 NE2d 1200
    , 1206-1207 (III)
    (Ill. App. Ct. 2009) (holding that a similar issue was amenable to
    that court’s plain error review, which is analogous to the review we
    conduct below in the Sentence Review section of this opinion). To
    the extent that this waiver might not apply to the time period prior
    to the hearing regarding the fearful juror because defense counsel
    were entitled to rely on the trial court’s original ruling that any use
    of a stun belt would only follow a request for that security measure
    and a hearing on the matter, we conclude, based on the trial court’s
    findings in its order denying Young’s motion for new trial, that the
    lack of such a hearing was harmless beyond a reasonable doubt and
    therefore does not require a new trial. See Chapman v. California,
    
    386 U. S. 18
    , 24 (III) (87 SCt 824, 17 LE2d 705) (1967) (holding that,
    in general, constitutional violations require reversal unless found to
    be harmless beyond a reasonable doubt).         Cf. United States v.
    Durham, 287 F3d 1297, 1308-1309 (D) (11th Cir. 2002) (applying a
    harmless beyond a reasonable doubt standard of review to a claim
    29
    regarding a stun belt); State v. Bates, 125 P3d 42, 47 (Or. Ct. App.
    2005) (concluding “that there is little likelihood that the verdict was
    affected by any inhibition defendant may have experienced as a
    result of being required to wear the stun belt” and “that any error
    was harmless beyond a reasonable doubt”).6
    17. The trial court did not abuse its discretion in denying
    Young’s motion in limine regarding testimony from Doris Jones
    describing signs of a forced entry into the victim’s laundry room
    prior to the day of the murder on grounds of relevance and the
    allegedly speculative nature of that testimony, particularly in light
    of the other evidence showing that Young had driven to the home
    prior to the day of the murder. See Crozier v. State, 
    263 Ga. 866
    ,
    867 (2) (440 SE2d 635) (1994) (“Any evidence is relevant which
    logically tends to prove or to disprove a material fact which is at
    issue in the case, and every act or circumstance serving to elucidate
    or to throw light upon a material issue or issues is relevant. . . . The
    6 We do not endorse, however, the State’s failure to comply with the
    trial court’s pretrial order regarding the use of a shock belt.
    30
    trial court has great discretion to determine relevancy and
    materiality of evidence, and admission is favored in doubtful cases.”
    (citation and punctuation omitted)). Insofar as Young’s additional
    oral objection to the testimony also addressed a hearsay account of
    the victim’s whereabouts on the night of the crime from his
    girlfriend, we see no reversible error, because the testimony was
    “cumulative of legally admissible evidence” from the girlfriend
    herself. Wright v. State, 
    291 Ga. 869
    , 872 (3) (a) (734 SE2d 876)
    (2012) (citation and punctuation omitted).
    18. The trial court did not abuse its discretion in applying the
    former necessity exception to the hearsay rule to allow testimony
    from Doris Jones regarding a statement that the victim had made to
    her about a warning he had given to Young regarding Young’s
    possibly “putting his hands on” her. See Jennings v. State, 
    288 Ga. 120
    , 121-122 (3) (702 SE2d 151) (2010).7
    7 We note that Young’s trial was not governed by Georgia’s current
    Evidence Code, which took effect on January 1, 2013. See Parker v. State, 
    296 Ga. 586
    , 588 (1) (769 SE2d 329) (2015) (citing Ga. L. 2011, p. 99, § 101).
    31
    19. Young’s claim regarding the absence of a warrant to obtain
    location data for his cell phone was waived for the purposes of
    ordinary appellate review by his failure to raise the issue at trial.
    See Martin, 298 Ga. at 278-279 (6) (d). See also Carpenter v. United
    States, __ U. S. __, __ (IV) (138 SCt 2206, 2222, 201 LE2d 507) (2018)
    (addressing the privacy of cell phone location data).
    20. Young’s claim regarding the probative value versus the
    prejudicial effect of a recorded 911 call from Doris Jones has been
    waived for the purposes of ordinary appellate review by his failure
    to object at trial. See Martin, 298 Ga. at 278-279 (6) (d); Bryant v.
    State, 
    288 Ga. 876
    , 887 (8) (c) (708 SE2d 362) (2011).
    21. Young argues that testimony from Doris Jones regarding
    a statement from her sister recounting a report from a third person
    about Young’s whereabouts during the crimes, along with certain
    testimony from Annie Sampson, Sonny Goodson, Wesley Horne, Leo
    Rivers, and Latrice Rivers, constituted improper hearsay testimony.
    These claims were waived for the purposes of ordinary appellate
    32
    review by Young’s failure to object at trial. 8 See Martin, 298 Ga. at
    278-279 (6) (d); Bryant, 288 Ga. at 887 (8) (c).
    22. Young argues that an investigator gave speculative and
    improper opinion testimony by stating that it would have been
    “understandable” for Young to have been in Georgia and that it
    would have been “natural” for Young freely to admit as much,
    because, as Young had told the investigator, Young had been to
    Georgia in the past. First, this issue was waived for the purposes of
    ordinary appellate review by Young’s failure to object at trial. See
    Martin, 298 Ga. at 278-279 (6) (d); Bryant, 288 Ga. at 887 (8) (c).
    And, in any event, the testimony was not improper. See Harris v.
    8  Young concedes that his hearsay argument regarding Annie Sampson
    was not preserved for ordinary appellate review. Our own review of the record
    reveals that the trial court’s order reconstructing portions of the record
    concluded that a hearsay objection was raised in the bench conferences held
    during Ms. Sampson’s testimony. See OCGA § 5-6-41 (f) (providing for
    amendments to the record).           However, Young’s “Proposed Record
    Reconstruction and Request for Hearing” stated that neither party could
    “recall the substance of the objection,” and, in keeping with that
    representation, the trial court made no finding regarding what the substance
    of the hearsay objection might have concerned. Because there is no record of
    what specific hearsay objection was raised or why it was denied, we accept
    Young’s concession on appeal that the issue was not preserved for ordinary
    appellate review.
    33
    State, 
    279 Ga. 304
    , 305-306 (1) (612 SE2d 789) (2005)        (“A lay
    witness may relate his or her opinion as to the existence of any fact
    so long as the opinion is based upon the person’s own experiences
    and observations, and so long as the matter referred to is within the
    scope of the average juror’s knowledge.”).
    23. The trial court did not abuse its discretion in admitting
    photographs of the victim taken during his autopsy while medical
    instruments were used to retract tissue in order to reveal relevant
    injuries. See Brown v. State, 
    250 Ga. 862
    , 867 (5) (302 SE2d 347)
    (1983) (“A photograph which depicts the victim after autopsy
    incisions are made or after the state of the body is changed by
    authorities or the pathologist will not be admissible unless
    necessary to show some material fact which becomes apparent only
    because of the autopsy.”), abrogated by the current Evidence Code
    as stated in Venturino v. State, 
    306 Ga. 391
    , 396 (2) (b) (830 SE2d
    110) (2019). See also Bunnell v. State, 
    292 Ga. 253
    , 258 (5) (735
    SE2d 281) (2013) (noting a trial court’s discretion regarding autopsy
    photographs); Simmons v. State, 
    291 Ga. 705
    , 711 (8) (b) (733 SE2d
    34
    280) (2012) (addressing photographs taken during the use of medical
    instruments such as forceps). This holding is not changed by the
    fact that Young’s trial strategy included an admission of his guilt,
    because the State was entitled to prove its case for guilt rather than
    to rely on Young’s admissions. See Morgan v. State, 
    307 Ga. 889
    ,
    896 (3) (b) (838 SE2d 878) (2020) (“[A] criminal defendant may not
    stipulate or admit his way out of the full evidentiary force of the case
    as the State chooses to present it.” (citation and punctuation
    omitted)).
    24. During the guilt/innocence phase, a witness testified that
    she had been Young’s friend for over ten years and that their
    relationship had at some points been sexual.           In addition to
    corroborating several of the details of the State’s evidence regarding
    Young’s whereabouts and cell phone calls near the time of the
    murder, the witness also testified that Young came to her house on
    the day following the murder after he got off work and that she then
    saw him again later that night at his house.                  With no
    contemporaneous objection from Young, the State asked her if she
    35
    and Young had sex that night, and she answered affirmatively.
    After this testimony was concluded and after a lunch break,
    defense counsel argued that the testimony about the witness and
    Young having sex was improper because it was irrelevant to the
    question of Young’s guilt. Defense counsel stated that Young was
    not seeking a curative instruction but instead was asking that the
    State be precluded from discussing the testimony about sex during
    its closing argument in the guilt/innocence phase on the ground that
    the testimony was irrelevant to the question of guilt but was highly
    prejudicial. The trial court ruled:
    Well, I can see that it would be corroborative in terms of
    Ms. [Doris] Jones’ testimony about the defendant
    allegedly being unfaithful, that this would corroborate
    her perception of the nature of their relationship and why
    they would have arguments and to show that her
    testimony concerning his conduct, that would be evidence
    to support that her suspicions or her statements were
    well-founded. So I do find that it would have some
    corroborative value there. So in terms of just totally
    precluding them from arguing her testimony, I’m going to
    deny that request. I mean, anything can be argued in the
    wrong way. Anything can be – you can have incorrect
    argument, but I’m not going to preclude them from even
    mentioning it. They can’t use it just to attack the
    character or whatever, but to, for the proper purpose that
    36
    I just described.
    We conclude that the trial court did not abuse its discretion in ruling
    on Young’s argument concerning the relevance of the witness’s
    testimony to the question of guilt. See Spiller v. State, 
    282 Ga. 351
    ,
    354 (3) (647 SE2d 64) (2007) (holding that the trial court had not
    abused its discretion in allowing a certain inference to be made in a
    closing argument, because the “inference was a permissible one from
    the evidence presented at trial”). See also Moore v. State, 
    295 Ga. 709
    , 714 (3) (763 SE2d 670) (2014) (addressing the propriety of
    evidence that might incidentally place the character of the
    defendant at issue but is otherwise relevant).
    Pursuant to the trial court’s ruling on relevance, the State
    argued in its guilt/innocence phase closing argument, while arguing
    how various behaviors that Young was capable of were relevant to
    the various “adaptive functioning areas” used in considering a
    possible finding of intellectual disability: “And the fact, again, that
    he’s able to have this other relationship with another woman shows
    that he is multi-faceted, and there’s a lot more to Rodney Young than
    37
    what you’ve seen in this trial.” To the extent that Young argues on
    appeal, in addition to the ground of relevance discussed above, that
    the State’s argument regarding the issue of intellectual disability
    was unconstitutional, we conclude that the issue was waived for the
    purposes of ordinary appellate review by Young’s failure to make
    this specific objection at trial. See Martin, 298 Ga. at 278-279 (6)
    (d).
    25. Young argues that requiring him to prove his intellectual
    disability beyond a reasonable doubt in order to be exempted from a
    death sentence was unconstitutional. Seeing no clear direction in
    the law to hold otherwise, we adhere to our prior decisions upholding
    Georgia’s standard of proof.
    (a) In 1988, Georgia was the first state in the nation to enact
    a statutory ban on the execution of intellectually disabled persons.
    See OCGA § 17-7-131 (c) (3), (j) (as amended by Ga. L. 1988, p. 1003,
    § 1). In 1989, shortly after Georgia enacted this groundbreaking
    statute, the United States Supreme Court held that there was no
    similar protection in the United States Constitution. See Penry v.
    38
    Lynaugh, 
    492 U. S. 302
     (109 SCt 2934, 106 LE2d 256) (1989).
    However, this Court held in 1989 that such a protection did exist
    under the Georgia Constitution and accordingly extended the new
    statutory protection to apply to persons tried in Georgia before the
    statute’s effective date. See Fleming v. Zant, 
    259 Ga. 687
    , 690 (3)
    (386 SE2d 339) (1989) (“[Penry] was based in great part on the
    absence of any ‘national consensus’ against executing the mentally
    retarded.   In contrast, the objective evidence indicates that a
    consensus against execution of the mentally retarded does exist
    among Georgians.”). This Court then further extended Georgia’s
    protection of intellectually disabled persons to those who could have
    but did not raise the issue at trial, concluding that allowing such
    defaulted claims in a prisoner’s first state habeas proceeding was
    necessary to prevent a possible miscarriage of justice. See Turpin v.
    Hill, 
    269 Ga. 302
    , 303 (3) (b) (498 SE2d 52) (1998) (citing OCGA § 9-
    14-48 (d)). In 2002, the United States Supreme Court, concluding
    that a “national consensus” on the issue had developed in the 14
    years since Georgia enacted its statutory protection for persons with
    39
    intellectual disabilities, overruled Penry and announced that the
    execution of intellectually disabled persons violated the United
    States Constitution. Atkins v. Virginia, 
    536 U. S. 304
    , 316 (III) (122
    SCt 2242, 153 LE2d 335) (2002). See 
    id. at 321
     (IV) (“Construing
    and applying the Eighth Amendment in the light of our ‘evolving
    standards of decency,’ we therefore conclude that such punishment
    is excessive and that the [United States] Constitution ‘places a
    substantive restriction on the State’s power to take the life’ of a
    mentally retarded offender.” (quoting Ford v. Wainwright, 
    477 U. S. 399
    , 405 (II) (106 SCt 2595, 91 LE2d 335) (1986)).
    (b) While Georgia was the first state to ban the execution of
    intellectually disabled persons, it has from the initial adoption of
    that ban imposed a burden to prove intellectual disability on
    defendants under a beyond a reasonable doubt standard.9 This
    9 The Georgia Code provides: “The defendant may be found ‘guilty but
    with intellectual disability’ if the jury, or court acting as trier of facts, finds
    beyond a reasonable doubt that the defendant is guilty of the crime charged
    and is intellectually disabled.” OCGA § 17-7-131 (c) (3) (as amended in 2017
    to use the term “intellectual disability”). This Court has held: “[T]he plain
    language of OCGA § 17-7-131 (c) (3) requires that the defendant prove his
    40
    standard of proof has been challenged several times in this Court on
    constitutional grounds, particularly in light of the fact that some
    other states impose only a clear and convincing evidence standard
    on defendants seeking to prove their intellectual disability and the
    majority of states that still have the death penalty impose only a
    preponderance of the evidence standard on defendants.                      See
    Raulerson v. Warden, 928 F3d 987, 1013-1014 (I) (B) (11th Cir. 2019)
    (Jordan, J., concurring in part and dissenting in part) (discussing
    the varying standards of proof applied). This Court’s last published
    decision upholding Georgia’s standard of proof was in Stripling v.
    State in 2011. See 
    289 Ga. at 371
     (1) (“We have previously addressed
    this very issue, and we now reiterate our prior holding that Georgia’s
    beyond a reasonable doubt standard is not unconstitutional.” (citing
    mental retardation beyond a reasonable doubt. . . .” Burgess v. State, 
    264 Ga. 777
    , 789-790 (36) (450 SE2d 680) (1994). Although we initially directed that a
    preponderance of the evidence standard should be applied to claims of
    intellectual disability raised by habeas petitioners who had been tried prior to
    the effective date of the statutory protection, our later case law has strongly
    suggested that even those cases should also have employed the beyond a
    reasonable doubt standard. See Hill, 
    269 Ga. at 303-304
     (4).
    41
    Head v. Hill, 
    277 Ga. 255
    , 260-263 (II) (B) (587 SE2d 613) (2003)).
    In Stripling, we explained:
    In addressing this issue previously, we first noted that,
    although the Supreme Court of the United States had
    recognized a constitutional right of mentally retarded
    defendants to be exempt from the death penalty, it had
    not directed the states to apply any particular burden of
    proof to claims of mental retardation. See Atkins v.
    Virginia, 
    536 U.S. 304
     (122 SCt 2242, 153 LE2d 335)
    (2002) (identifying a national consensus against
    executing mentally retarded persons and holding that
    executing such persons was therefore unconstitutional).
    Instead, we noted that the Supreme Court “specifically
    left ‘“to the States the task of developing appropriate ways
    to enforce the (federal) constitutional restriction”’ on
    executing the mentally retarded.” Hill, 
    277 Ga. at 260
     (II)
    (B) (quoting Atkins, 
    536 U. S. at 317
     (III) (citation
    omitted)). See also Bobby v. Bies, __ U. S. __, __ (I) (129
    SC 2145, 2150 (I), 173 LEd2d 1173) (2009) (“Our opinion
    [in Atkins] did not provide definitive procedural or
    substantive guides for determining when a person who
    claims mental retardation ‘will be so impaired as to fall
    (within Atkins’ compass).’” (quoting Atkins, 
    536 U. S. at 317
     (III)). . . .
    Stripling, 
    289 Ga. at 371-372
     (1). We reaffirmed our prior holding
    that claims of intellectual disability are more closely analogous to
    claims of insanity, which the Supreme Court has held could be
    subjected to a beyond a reasonable doubt standard, than they were
    42
    to claims of incompetence to stand trial, which the Supreme Court
    has held could not be subjected to a standard higher than a
    preponderance of the evidence. See 
    id. at 372
     (1) (discussing Leland
    v. Oregon, 
    343 U. S. 790
     (72 SCt 1002, 96 LE 1302) (1952), and
    Cooper v. Oklahoma, 
    517 U. S. 348
     (116 SCt 1373, 134 LE2d 498)
    (1996)).   We concluded our discussion regarding the purely
    procedural aspect of the standards that we were reaffirming by
    stating:
    Thus, in light of the specific statement by the Supreme
    Court that it had not established any particular
    procedural standards that must be applied to mental
    retardation, the similarity of mental retardation claims to
    claims of insanity at the time of the commission of crimes,
    and the persuasive effect of having sister states who have
    refused to declare the preponderance of the evidence
    standard to be constitutionally required, we held that
    Georgia’s beyond a reasonable doubt standard was not
    unconstitutional from a procedural point of view.
    
    Id. at 372-373
     (1).
    After concluding our analysis of Georgia’s standard of proof on
    procedural grounds, we also reaffirmed our prior holding
    that Georgia’s beyond a reasonable doubt standard
    further served to define the category of mental
    43
    retardation within Georgia law and that, in [setting this
    standard], Georgia had not acted outside the bounds of
    the national consensus about the treatment of mentally
    retarded persons identified by the Supreme Court in
    Atkins.
    Stripling, 
    289 Ga. at 373
     (1). We further noted that “Georgia was
    not alone in defining mental retardation through the use of a
    heightened standard of proof at the time of Atkins” and that the
    several states at that time applying a clear and convincing evidence
    standard had been counted among the states forming a national
    consensus. Stripling, 
    289 Ga. at 373
     (1). We observed:
    [T]he Supreme Court noted as follows:
    To the extent there is serious disagreement
    about the execution of mentally retarded
    offenders, it is in determining which offenders
    are in fact retarded. . . . Not all people who
    claim to be mentally retarded will be so
    impaired as to fall within the range of mentally
    retarded offenders about whom there is a
    national consensus.
    
    Id. at 374
     (1) (quoting Atkins, 
    536 U. S. at 317
     (III)). We concluded
    this portion of our analysis by stating:
    Therefore, we reaffirm that Georgia’s statutory definition
    of mental retardation, with its requirement that only
    44
    mental deficiencies capable of proof beyond a reasonable
    doubt [qualify for protection], is not unconstitutional
    under Atkins.
    
    Id.
    (c) (i)   First, Young assails our prior holdings affirming
    Georgia’s beyond a reasonable doubt standard in reference to the
    second portion of the analysis set forth in Stripling, which addressed
    the matter from a more substantive perspective. The United States
    Supreme Court has recently stated: “In Atkins v. Virginia, we held
    that the Constitution ‘restrict[s] . . . the State’s power to take the life
    of’ any intellectually disabled individual.” Moore v. Texas, __ U. S.
    __, __ (II) (137 SCt 1039, 1048, 197 LE2d 416) (2017). Accordingly,
    we disapprove anything in our prior decisions suggesting otherwise,
    particularly those parts of our prior decisions suggesting that
    “Georgia’s beyond a reasonable doubt standard further served to
    define the category of mental retardation.” Stripling, 
    289 Ga. at 373
    (1). See Atkins, 
    536 U. S. at 317
     (III); Hill, 
    277 Ga. at 262
     (II) (B).
    See also Williams v. Cahill, 303 P3d 532, 550 (Ariz. Ct. App. 2013)
    (Eckerstrom, P.J., dissenting) (“But this paragraph [from Atkins], by
    45
    its terms, only invites states to develop ‘ways to enforce’ the
    constitutional restriction imposed in Atkins.        No part of that
    language suggests the states are likewise entrusted with the power
    to redefine the substance of the constitutional restriction itself.”).
    While we continue to take some guidance from the Supreme Court’s
    observation that there is disagreement among the states “in
    determining which offenders are in fact retarded,” we acknowledge
    that this observation is relevant only to the procedures for
    determining whether defendants are intellectually disabled and
    that every state is constitutionally required to recognize prevailing
    clinical definitions of intellectual disability in defining the category
    of persons who are constitutionally protected, including those who
    are “mildly mentally retarded.” Atkins, 
    536 U. S. at 308
     (I), 317 (III).
    See Moore, 137 SCt at 1049 (II) (“Hall indicated that being informed
    by the medical community does not demand adherence to everything
    stated in the latest medical guide. But neither does our precedent
    license disregard of current medical standards.”); Hall v. Florida,
    
    572 U. S. 701
    , 720-721 (III) (C) (134 SCt 1986, 188 LE2d 1007)
    46
    (2014) (“If the States were to have complete autonomy to define
    intellectual disability as they wished, the Court’s decision in Atkins
    could become a nullity, and the Eighth Amendment’s protection of
    human dignity would not become a reality. This Court thus reads
    Atkins to provide substantial guidance on the definition of
    intellectual disability.”). On this point, we emphasize that Georgia,
    by statute and through case law, has always applied such prevailing
    clinical standards. See, e.g., Stripling v. State, 
    261 Ga. 1
    , 4 (3) (b)
    (401 SE2d 500) (1991). See also Hill v. Humphrey, 662 F3d 1335,
    1352 (III) (D) (11th Cir. 2011) (“It is undisputed that Georgia’s
    statutory definition of mental retardation is consistent with the
    clinical definitions cited in Atkins.”).
    (ii) We turn now to the procedural issue that Young raises
    regarding the constitutionality of Georgia’s standard of proof. On
    this question, we begin and end with the Supreme Court’s statement
    in Atkins that it “‘l[eft] to the States the task of developing
    appropriate ways to enforce the [federal] constitutional restriction’”
    on executing intellectually disabled persons. Atkins, 
    536 U. S. at
    47
    317 (III) (quoting Ford, 
    477 U. S. at
    416 (V) (A) (plurality portion of
    opinion)). 10 We acknowledge that the states’ freedom to develop
    appropriate procedures does not leave them unfettered from general
    constitutional principles, but we conclude, despite Young’s
    arguments to the contrary discussed below,11 that it does permit the
    procedure that the Georgia General Assembly has chosen.
    First, Young argues that the Supreme Court’s recent decisions
    in Hall v. Florida and Moore v. Texas require this Court’s
    disapproval of Georgia’s beyond a reasonable doubt standard. See
    Moore, 137 SCt 1039 (addressing the “wholly nonclinical” factors
    10  We again emphasize that the substantive question of intellectual
    disability is not at issue here. As the Supreme Court has stated about its
    principle of leaving to the states the responsibility for creating appropriate
    procedures: “Fidelity to this important principle of federalism, however,
    should not be construed to demean the substantive character of the federal
    right at issue.” Montgomery v. Louisiana, 
    577 U. S. 190
    , 211 (III) (136 SCt 718,
    193 LE2d 599) (2016). See People v. Vasquez, 84 P3d 1019, 1022 (III) (B) (1)
    (Colo. 2004) (“Atkins placed a ‘substantive restriction on the State’s power to
    take the life of a mentally retarded offender.’ Atkins, 
    536 U.S. at 321
     (internal
    quotation marks omitted) (emphasis added).            Far from announcing a
    procedural rule, Atkins merely declared that the Eighth Amendment now
    prohibits the execution of the mentally retarded. Id.”).
    11 We also consider here the parallel arguments made by the amici
    curiae, The Arc of the United States, The Arc of Georgia, and the Georgia
    Advocacy Office.
    48
    that Texas applied); Hall, 
    572 U. S. 701
     (addressing a “strict IQ score
    cutoff” applied by Florida). We have considered these decisions
    carefully, especially as discussed in this opinion regarding the
    procedural question of Georgia’s standard of proof. However, we
    note that they directly addressed only questions regarding the
    substantive definition of intellectual disability and the requirement
    that states must, as Georgia indisputably does, adhere to prevailing
    clinical definitions of intellectual disability in fashioning such a
    definition. Thus, if this Court’s precedents regarding the beyond a
    reasonable doubt standard are somehow incorrect, it would not be
    because of the core holding of Hall or Moore.
    Next, Young argues that this Court has previously relied on
    inapposite case law from the United States Supreme Court in
    upholding the beyond a reasonable doubt standard. As we noted
    above, we have previously discussed the Supreme Court decisions of
    Cooper v. Oklahoma and Leland v. Oregon as being relevant to our
    evaluation of the constitutionality of Georgia’s beyond a reasonable
    doubt standard. See Cooper, 
    517 U. S. 348
    ; Leland, 
    343 U. S. 790
    .
    49
    See also Stripling, 
    289 Ga. at 372
     (1) (discussing Cooper and
    Leland); Hill, 
    277 Ga. at 261
     (II) (B) (same).     Despite Young’s
    arguments that we should do otherwise, and although we
    acknowledge that neither case is a perfect fit to answer the question
    presented here, we continue to take more guidance from Leland
    than from Cooper.
    In Cooper, the Supreme Court held as a matter of federal due
    process that a defendant could not be required to prove his or her
    incompetence to stand trial by clear and convincing evidence. See
    Cooper, 
    517 U. S. at 350
    , 369 (V). Cf. 
    id. at 355
     (II) (“Our recent
    decision in Medina v. California, 
    505 U.S. 437
    , 
    120 L. Ed. 2d 353
    ,
    
    112 S. Ct. 2572
     (1992), establishes that a State may presume that
    the defendant is competent and require him to shoulder the burden
    of proving his incompetence by a preponderance of the evidence. 
    Id., at 449
    .”). The Supreme Court noted that “[n]o one questions the
    existence of the fundamental right” involved, id. at 354 (II), and we
    conclude that in this regard Cooper is relevant to the issue of
    intellectual disability, because the right of intellectually disabled
    50
    persons not to be executed has also been made a clear constitutional
    right. 12   Likewise, the issue in Cooper and the issue here both
    involve consideration of the risks arising from a potentially
    erroneous finding of fact. See id. at 362-368 (IV and V). 13 However,
    the Supreme Court emphasized in Cooper the historical basis for the
    right to not be tried while incompetent and the historical basis in
    English and American common law for requiring defendants to
    12 We note here Young’s argument that this Court first deemed Leland
    to be more persuasive than Cooper on the issue of a standard of proof for
    intellectual disability prior to the Supreme Court’s announcement of the
    relevant federal constitutional right. However, we point out that this Court
    has already addressed this issue, and we remain mindful of it as we reach our
    conclusions here. See Hill, 
    277 Ga. at 260
     (II) (B) (“Now that the Georgia
    exemption from death sentences for mentally retarded persons is paralleled by
    a new federal exemption, we must determine whether, under the authority of
    federal constitutional law, the beyond a reasonable doubt standard continues
    to be an acceptable standard of proof to apply to mental retardation claims.”
    (emphasis omitted)).
    13  We note here Young’s extensive argument regarding statistics
    concerning claims of intellectual disability in Georgia; however, we agree with
    the Eleventh Circuit in holding that statistics like Young’s are neither
    complete nor constitutionally compelling. See Hill, 662 F3d at 1357 (F)
    (“[E]ven if one were to consider the dissent’s skewed data, the fact remains that
    reported cases in Georgia actually show that judges and juries do find
    defendants guilty but mentally retarded under Georgia’s proof beyond a
    reasonable doubt standard.”). It is important to note in this regard that cases
    in which intellectually disabled persons are never charged with crimes, resolve
    charges without a trial, or obtain a not guilty verdict from a jury would rarely
    if ever result in reported judicial decisions and thus would not be included in
    the statistics that Young offers here.
    51
    prove their incompetence only by a preponderance of the evidence.
    See 
    id. at 354-360
     (II and III). And it was in reference to this
    historical basis for the right at issue that the Supreme Court noted
    the fact that “[o]nly 4 of the 50 States” imposed the higher burden of
    proof at issue. 
    Id. at 360
     (III). See also 
    id. at 362
     (III) (“The near-
    uniform application of a standard that is more protective of the
    defendant’s rights than Oklahoma’s clear and convincing evidence
    rule supports our conclusion that the heightened standard offends a
    principle of justice that is deeply ‘rooted in the traditions and
    conscience of our people.’ Medina v. California, 
    505 U.S. at 445
    (internal quotation marks omitted).”). In contrast, such historical
    support is absent for claims of intellectual disability, as well
    summarized by the Eleventh Circuit:
    In contrast, there is no historical right (in the Eighth
    Amendment or elsewhere) of a mentally retarded person
    not to be executed. And since the constitutional right
    itself is new, there is no historical tradition regarding the
    burden of proof as to that right. As recently as 1989,
    Penry refused to bar the execution of the mentally
    retarded. Atkins was based not on historical tradition or
    the Due Process Clause, but on the contemporary national
    consensus that reflected “the evolving standards of
    52
    decency” that informed the meaning of the Eighth
    Amendment. Atkins, 
    536 U.S. at 311-12
    , 
    122 S. Ct. at 2247
    . Indeed, Georgia’s reasonable doubt standard for
    establishing a mental retardation exception to the death
    penalty, which was enacted twenty-three years ago, is the
    oldest such law in the nation. Although other states
    recently have employed either clear and convincing
    evidence or preponderance of evidence standards, no more
    lenient standard of proof predates Georgia’s.
    Hill, 662 F3d at 1350-1351 (III) (C). See also Raulerson, 928 F3d at
    1002 (III) (B) (2) (“Unlike the right at issue in Cooper, which has its
    deep roots in our common-law heritage, there is no historical right
    of an intellectually disabled person not to be executed.”).14
    We turn next to an examination of our prior decisions insofar
    as they identified limited guidance on the constitutionality of
    Georgia’s standard of proof in Leland. The United States Supreme
    Court began its analysis in Leland by noting that there was at least
    14 We note that, if Cooper’s holding applied in this context with full force,
    the laws of the states where a clear and convincing standard applies would also
    be unconstitutional. See also Hill, 662 F3d at 1355 (III) (E) (“The effective
    result of Hill’s argument, then, is that every state’s death penalty statute or
    case law procedure is unconstitutional because none of them requires the state
    to prove the absence of mental retardation beyond a reasonable doubt. Or, to
    take Hill’s argument to its logical conclusion, beyond all doubt.”).
    53
    some historical precedent supporting Oregon’s beyond a reasonable
    doubt standard for insanity claims, noting the origin of Oregon’s
    statutory rule in 1864, the announcement in 1843 in England of a
    rule requiring such claims to be “clearly proved,” and the
    requirement applied in “most of the nineteenth-century American
    cases” that a defendant “‘clearly’ prove insanity.” Leland, 
    343 U. S. at 796-797
    . The Court also noted that it had previously adopted a
    rule, through its supervisory authority over the federal courts,
    requiring an acquittal in federal prosecutions whenever “‘there is
    reasonable doubt whether [the defendant] was capable in law of
    committing crime,’” 
    id. at 797
     (quoting Davis v. United States, 
    160 U. S. 469
    , 484 (16 SCt 353, 40 LE 499) (1895)); however, the Court
    emphasized that its holding in Davis “obviously establishes no
    constitutional doctrine, but only the rule to be followed in federal
    courts,” 
    id.
    The Supreme Court in Leland noted the central fact at issue,
    which was that “Oregon [wa]s the only state that require[d] the
    accused, on a plea of insanity, to establish that defense beyond a
    54
    reasonable doubt.” Leland, 
    343 U. S. at 798
    . The Court noted that
    “[s]ome twenty states” required defendants “to establish [their]
    insanity by a preponderance of the evidence or some similar
    measure of persuasion.” 
    Id.
     Nevertheless, the Court, in comparing
    Oregon’s   beyond    a reasonable doubt        standard   with these
    preponderance standards, held:
    While there is an evident distinction between these two
    rules as to the quantum of proof required, we see no
    practical difference of such magnitude as to be significant
    in determining the constitutional question we face here.
    
    Id.
     And yet, while not “significant” to the ultimate question, the
    Court stated, in words that warrant attention in Young’s case given
    the number of American jurisdictions that employ standards of proof
    for intellectual disability that are different from Georgia’s:
    The fact that a practice is followed by a large number of
    states is not conclusive in a decision as to whether that
    practice accords with due process, but it is plainly worth
    considering in determining whether the practice “offends
    some principle of justice so rooted in the traditions and
    conscience of our people as to be ranked as fundamental.”
    Snyder v. Massachusetts, 
    291 U.S. 97
    , 105 (1934).
    
    Id.
     (emphasis supplied). See Raulerson, 928 F3d at 1013-1014 (I)
    55
    (B) (Jordan, J., concurring in part and dissenting in part) (discussing
    the various standards of proof applied in different jurisdictions).
    The Court, again noting its own contrary rule for the federal
    courts, held regarding Oregon’s standard of proof:
    But “its procedure does not run afoul of the Fourteenth
    Amendment because another method may seem to our
    thinking to be fairer or wiser or to give a surer promise of
    protection to the prisoner at the bar.” Snyder v.
    Massachusetts, 
    supra, at 105
    .
    Leland, 
    343 U. S. at 799
    . The Court concluded:
    We are therefore reluctant to interfere with Oregon’s
    determination of its policy with respect to the burden of
    proof on the issue of sanity since we cannot say that policy
    violates generally accepted concepts of basic standards of
    justice.
    
    Id.
    We note, in deciding the degree of guidance to be gained in
    Young’s case from Leland, that Leland was not a case involving an
    underlying right that the Supreme Court had specifically “held to be
    secured to defendants in federal courts by the Bill of Rights.”
    Leland, 
    343 U. S. at 798
    . See also Medina v. California, 
    505 U. S. 437
    , 449 (112 SCt 2572, 120 LE2d 353) (1992) (“Moreover, while the
    56
    Due Process Clause affords an incompetent defendant the right not
    to be tried, we have not said that the Constitution requires the
    States to recognize the insanity defense.” (citations omitted)). But
    we also note that the Supreme Court has since clarified that some
    acceptable definition of insanity is constitutionally required. See
    Kahler v. Kansas, __ U. S. __, __ (II) (A) (140 SCt 1021, 1028-1029,
    206 LE2d 312) (2020) (“A State’s ‘insanity rule[ ] is substantially
    open to state choice.’” (quoting Clark v. Arizona, 
    548 U. S. 735
    , 752
    (II) (A) (126 SCt 2709, 165 LE2d 842) (2006))). See also id. at 1039
    (II) (Breyer, J., dissenting) (“The Court contends that the historical
    formulations of the insanity defense were so diverse, so contested,
    as to make it impossible to discern a unified principle that Kansas’
    approach offends. I disagree.”). In the end, while we see reason for
    some circumspection in applying Leland, we also note that some
    form of due process concerns regarding standards of proof were
    clearly at issue in the case. Thus, although both the United States
    Constitution and the Georgia Constitution now clearly protect
    persons with intellectual disabilities from execution, we consider the
    57
    due process analysis in Leland worthy of our consideration here,
    particularly given our conclusion that intellectual disability “is
    comparable to a claim of insanity at the time of the crime in that
    both relieve a guilty person of at least some of the statutory penalty
    to which he would otherwise be subject.” Hill, 
    277 Ga. at 261
     (II)
    (B).
    While identifying some guidance in Leland, we focus most
    directly on the guidance given by the Supreme Court specifically on
    the question at hand. As noted above, the Supreme Court in Atkins,
    quoting Ford v. Wainwright, expressly “‘l[eft] to the States the task
    of     developing   appropriate   ways   to   enforce   the   [federal]
    constitutional restriction”’ on executing intellectually disabled
    persons. Atkins, 
    536 U. S. at 317
     (III) (quoting Ford, 
    477 U. S. at
    416 (V) (A) (plurality portion of opinion)).      See also Jones v.
    Mississippi, No. 18-1259, 
    2021 U.S. LEXIS 2110
    , at *26-27 (II) (B)
    (Apr. 22, 2021) (“[A]s the Court explained in Montgomery, when ‘a
    new substantive rule of constitutional law is established, this Court
    is careful to limit the scope of any attendant procedural requirement
    58
    to avoid intruding more than necessary upon the States’ sovereign
    administration of their criminal justice systems.’” (quoting
    Montgomery v. Louisiana, 
    577 U. S. 190
    , 211 (III) (136 SCt 718, 193
    LE2d 599) (2016) (citing Ford, 
    477 U. S. at
    416-417 (V) (A) (plurality
    portion of opinion)))). The Supreme Court’s choice of Ford as a
    lodestar makes sense, because Ford, like Atkins, addressed the
    possible execution of a person with severe mental deficiencies that
    significantly undermined the penological justifications for the
    person’s execution.        The protection announced in Atkins was
    centered on a defendant’s mental state at the time of his or her crime
    and the time of his or her trial, while Ford was centered on a
    condemned prisoner’s mental state at the time of his or her actual
    execution. But the legal similarities between the two were clearly
    what commended Ford to the Atkins Court. 15
    15 We note that Ford directly addressed the question of whether Ford had
    a right to an evidentiary hearing on federal habeas review; however, both the
    plurality opinion and the concurring opinion in that case clearly indicate that
    the procedural due process necessary to enforce a clear Eighth Amendment
    right was at the core of the analysis. See Ford, 
    477 U. S. at 410
     (III) (plurality
    portion of opinion) (“Once a substantive right or restriction is recognized in the
    59
    Like the Atkins Court did regarding intellectual disability, the
    majority in Ford began with the conclusion that the execution of
    mentally incompetent persons violated the Eighth Amendment. See
    Ford, 
    477 U. S. at 401
     (majority portion of opinion) (“For centuries
    no jurisdiction has countenanced the execution of the insane, yet
    this Court has never decided whether the Constitution forbids the
    practice. Today we keep faith with our common-law heritage in
    holding that it does.”). Thus, the Court’s decision to “leave to the
    States the task of developing appropriate ways to enforce the
    [federal] constitutional restriction” in Ford cannot be distinguished
    from Young’s case based on the nature of the underlying right at
    issue. Ford, 
    477 U. S. at
    416 (V) (A) (plurality portion of opinion).
    Our task in applying Ford here is complicated somewhat by the
    fact that the portion of Ford directly quoted in Atkins was concurred
    Constitution, therefore, its enforcement is in no way confined to the
    rudimentary process deemed inadequate in ages past.”); 
    id. at 424
     (II) (Powell,
    J., concurring in part and concurring in the judgment) (“At least in the context
    of competency determinations prior to execution, this standard is no different
    from the protection afforded by procedural due process. . . . Thus, the question
    in this case is whether Florida’s procedures for determining petitioner’s sanity
    comport with the requirements of due process.”).
    60
    in by only a plurality of the Supreme Court. See Atkins, 
    536 U. S. at 317
     (III) (quoting Ford, 
    477 U. S. at
    416 (V) (A) (plurality portion
    of opinion)).    However, even assuming that the Atkins majority
    meant to embrace the details of the Ford plurality’s reasoning to the
    exclusion of the somewhat more accommodating reasoning in Ford’s
    concurring opinion, we conclude that Ford supports our decision
    here. 16 In concluding that Florida’s procedure was constitutionally
    inadequate, the Ford plurality identified the following faults: “no
    court played any role in the rejection of [Ford]’s claim of insanity”;
    the decision was made “wholly within the executive branch, ex
    16 We note that the concurring opinion noted similar defects in Florida’s
    procedures but differed with the plurality mainly by providing a prescription
    for procedures that was even less restrictive on the states than the plurality’s
    prescription. To that end, the concurring opinion stated:
    We need not determine the precise limits that due process imposes
    in this area.        In general, however, my view is that a
    constitutionally acceptable procedure may be far less formal than
    a trial. The State should provide an impartial officer or board that
    can receive evidence and argument from the prisoner’s counsel,
    including expert psychiatric evidence that may differ from the
    State’s own psychiatric examination.            Beyond these basic
    requirements, the States should have substantial leeway to
    determine what process best balances the various interests at
    stake. As long as basic fairness is observed, I would find due
    process satisfied. . . .
    Ford, 
    477 U. S. at 427
     (III) (Powell, J., concurring in part and concurring in the
    judgment).
    61
    parte”; the Governor had announced a policy of excluding all
    advocacy on prisoners’ behalf; and the Governor refused to inform
    Ford’s counsel whether he had considered the “written materials,
    including the reports of the two other psychiatrists who had
    examined Ford at greater length,” that the attorneys had submitted
    on Ford’s behalf. Ford, 
    477 U. S. at 410
     (III) (A), 412-413 (III) (C)
    (plurality portions of opinion). The Ford plurality concluded: “That
    this most cursory form of procedural review fails to achieve even the
    minimal degree of reliability required for the protection of any
    constitutional interest . . . is self-evident.” 
    Id. at 413
     (III) (plurality
    portion of opinion). But none of these deficiencies identified by the
    Ford plurality are even remotely at issue regarding Georgia’s
    procedure for evaluating intellectual disability claims.
    Yet even though such glaring deficiencies did exist in Ford, the
    Ford plurality nevertheless articulated this measured prescription:
    We do not here suggest that only a full trial on the issue
    of sanity will suffice to protect the federal interests; we
    leave to the State the task of developing appropriate ways
    to enforce the constitutional restriction upon its execution
    of sentences.
    62
    Ford, 
    477 U. S. at
    416-417 (V) (A) (plurality portion of opinion). The
    plurality added this caution:
    [T]he lodestar of any effort to devise a procedure must be
    the overriding dual imperative of providing redress for
    those with substantial claims and of encouraging
    accuracy in the factfinding determination. The stakes are
    high, and the “evidence” will always be imprecise.
    
    Id.
     at 417 (V) (A) (plurality portion of opinion). But its focus in
    making this statement was on the availability of an “adversary
    presentation of relevant information,” the “manner of selecting and
    using the experts,” and the need for “neutral, sound, and
    professional judgments” by those experts. 
    Id.
     (“Fidelity to these
    principles is the solemn obligation of a civilized society.”).
    The Ford plurality specifically disavowed requiring the full
    panoply of procedures typically associated with a trial. See Ford,
    417 U. S. at 416 (V) (A) (plurality portion of opinion) (“We do not
    here suggest that only a full trial on the issue of sanity will
    suffice. . . .”). Nevertheless, Georgia law does provide a right to a
    full jury trial on the question of intellectual disability. Also critically
    63
    absent from the Ford plurality’s discussion is any mention
    whatsoever of a standard of proof to be applied to claims of
    incompetence to be executed.17 And this omission in Ford of any
    reference to a required standard of proof is all the more conspicuous
    in light of the fact that it seems certain, given the facts recited in
    Ford, that the Florida Governor had been completely unrestricted in
    selecting a standard of proof in Ford’s case and that the plurality
    was indeed unaware of what that selected standard of proof might
    17 In noting here the omission of any discussion in Ford of Florida’s
    standard of proof for claims of incompetence to be executed, we acknowledge
    Young’s argument regarding the inherent difficulties in assessing intellectual
    disability. However, we note that the matter was addressed by the concurring
    Justices in Ford but was considered by them as an additional reason to largely
    leave choices regarding procedure to the states. See Ford, 
    477 U. S. at 426
     (III)
    (Powell, J., concurring in part and concurring in the judgment) (“Unlike issues
    of historical fact, the question of petitioner’s sanity calls for a basically
    subjective judgment.” (citing Addington v. Texas, 
    441 U. S. 418
    , 429-430 (III)
    (B) (99 SCt 1804, 60 LE2d 323) (1979))); Hill, 662 F3d at 1354 (III) (D) (noting
    that “Georgia has exercised [the] leeway” provided by Ford “by determining
    that the risk of error due to malingering or other factors is substantial and that
    there is a need for a robust burden of proof”). See also Heller v. Doe, 
    509 U. S. 312
    , 322 (III) (A) (113 SCt 2637, 125 LE2d 257) (1993) (acknowledging
    Addington but crediting Kentucky’s assessment that the “‘risk of error’”
    regarding a standard of proof for claims of intellectual disability was less than
    it would be for claims of mental illness).
    64
    have been.18
    We are not called upon here to make a pronouncement on the
    wisdom of Georgia’s burden of proof from a policy perspective, and
    to do so would be beyond this Court’s constitutional power. Instead,
    we are called upon to apply the Georgia Constitution and the United
    States Constitution. In light of the general discussion of due process
    above, and especially in light of the clear delegation to the states by
    Atkins, by reference to Ford, of much of the responsibility for
    designing appropriate procedures, we hold that the standard of proof
    for intellectual disability claims presently chosen by Georgia’s
    General Assembly is not unconstitutional.
    26. Young argues that, as a matter of Georgia statutory law,
    he should have been permitted to enter a plea of “guilty but mentally
    18We note here that Ford’s omission of any prescription for a particular
    standard of proof was presumably made with the awareness of the fact,
    highlighted by the dissent here in Young’s case in arguing that Georgia law
    creates an “unacceptable risk,” that some risk inheres under any standard of
    proof. See Hill, 662 F3d at 1354 (III) (E) (“A third critical flaw in Hill’s
    argument is that a risk of error exists with any burden of proof.”). See also id.
    at 1354 (III) (D) (noting that the Georgia General Assembly has “determin[ed]
    that the risk of error due to malingering and other factors is substantial and
    that there is a need for a robust burden of proof”).
    65
    retarded” over the objection of the State and that the trial court
    should then have held a hearing to determine if it would accept the
    plea and sentence him to imprisonment for life. The relevant statute
    provides:
    A plea of guilty but mentally ill at the time of the crime
    or a plea of guilty but mentally retarded shall not be
    accepted until the defendant has undergone examination
    by a licensed psychologist or psychiatrist and the court
    has examined the psychological or psychiatric reports,
    held a hearing on the issue of the defendant’s mental
    condition, and is satisfied that there is a factual basis that
    the defendant was mentally ill at the time of the offense
    or mentally retarded to which the plea is entered.
    OCGA § 17-7-131 (b) (2) (prior to an amendment in 2017 adopting
    the term “intellectual disability”).      However, we reaffirm the
    soundness of our reasoning in Stripling, in which we held: “While
    the trial court may allow for the entry of a plea of guilty but mentally
    retarded by the defendant, the case would still go forward absent
    the agreement of the State to a judgment on that plea without a
    trial.” Stripling, 
    289 Ga. at 376
     (3). The provision in the statute at
    issue is analogous to the requirement in the Uniform Superior Court
    Rules that a trial court must find a factual basis for a plea of guilty
    66
    before accepting it, although the factual basis addressed in the
    statute regarding intellectual disability appears designed to protect
    only the interests of justice rather than the interests of the
    defendant as well. See State v. Evans, 
    265 Ga. 332
    , 334 (2) (454
    SE2d 468) (1995) (“The purpose of USCR 33.9 is to protect against
    someone pleading guilty when that person may know what he has
    done but may not know that those acts do not constitute the crime
    with which he is charged.”). This provision does not undermine the
    State’s entitlement “to have its full case adjudicated” where the
    defendant seeks a sentence pursuant to a plea but the State insists
    on seeking a greater sentence through a jury verdict. See Stripling,
    
    289 Ga. at 376
     (3).
    27. Young also argues that trying the questions of guilt and
    intellectual disability together in the guilt/innocence phase violated
    his constitutional rights. He acknowledges that this Court has held
    otherwise. See King, 
    273 Ga. at 272
     (27) (citing Palmer v. State, 
    271 Ga. 234
    , 237 (3) (517 SE2d 502) (1999)). See also Livingston v. State,
    
    264 Ga. 402
    , 406 (3) (444 SE2d 748) (1994) (“While there may be
    67
    advantages to a criminal defendant in having a trial apart from the
    guilt-innocence phase on the issue of mental retardation, such a
    change must come from the General Assembly.”).            However, he
    argues that the creation by the United States Supreme Court of a
    federal constitutional right of intellectually disabled persons not to
    be executed, particularly considering recent decisions from that
    Court applying that right, dictates a different holding now by this
    Court.
    (a)    Much of Young’s argument here focuses on his
    mischaracterization of a holding of the United States Supreme
    Court. That Court held that whether a defendant could formulate
    plans to commit his or her crimes or could conceal facts or lie relative
    to his or her crimes should not be determinative of the question of
    intellectual disability, but the Court did not hold that evidence of
    such things was irrelevant to the question of whether a defendant is
    intellectually disabled under professionally accepted standards. See
    Moore v. Texas, __ U. S. __, __ (III) (139 SCt 666, 671-672, 203 LE2d
    1) (2019) (stating that clinicians might find this type of evidence
    68
    relevant and citing American Association on Intellectual and
    Developmental Disabilities, Intellectual Disability:       Definition,
    Classification, and Systems of Supports 44 (11th ed. 2010).
    Young also cites a psychological manual for the proposition
    that there is insufficient “normative information” about crimes in
    general to extrapolate conclusions regarding a defendant’s
    intellectual disability from the manner in which the defendant has
    carried out his or her crime. However, as with his characterization
    of Supreme Court case law, Young concludes too much here.
    Instead, we conclude that evidence regarding a defendant’s actions
    during and around the time of a crime, although generally not
    conclusive on the question, can be probative regarding whether a
    defendant has deficits in specific adaptive behavior areas, just as his
    or her previously observed actions in non-criminal settings might
    similarly be probative on the question. See id.; Morrison v. State,
    
    276 Ga. 829
    , 831 (2) (583 SE2d 873) (2003). Furthermore, we reach
    this conclusion despite the fact that intellectual disability must have
    an onset prior to the age of 18, because, as Young himself argues,
    69
    intellectual disability is regarded by mental health professionals as
    generally being a lifelong condition.
    (b) We also are not persuaded by Young’s argument that trying
    the questions of guilt and intellectual disability together prevented
    him from being able to “embrace” evidence of his crimes that
    arguably supported a finding of intellectual disability without
    thereby undermining his defense as to his guilt. This argument is
    somewhat surprising in light of Young’s arguments regarding the
    alleged irrelevance of evidence regarding the crimes to a possible
    finding that he lacked deficits in adaptive behaviors. In any case,
    we conclude that defendants are not generally denied a fair
    opportunity to present a defense regarding their alleged guilt by
    having to address the evidence of that guilt alongside other evidence
    that might be relevant to a finding of intellectual disability, and we
    conclude as to Young specifically that he has failed to show that he
    suffered any actual disability in presenting such a defense.
    (c)   Young argues that trying the questions of guilt and
    intellectual disability together also wrongly suggested to the jury
    70
    that a finding of intellectual disability would result in inadequate
    punishment for the murder. As we discuss below in Division 34, the
    trial court properly charged the jury in a manner that made clear
    that, upon a finding of intellectual disability, Young would
    nevertheless be placed in the custody of the Department of
    Corrections.    Accordingly, we conclude that this argument is
    unpersuasive.
    (d) Young also argues that trying the questions of guilt and
    intellectual disability together deprived him of his ability to admit
    his guilt, “contrary to his desire and explicit request to accept the
    allegations of guilt.” However, as we make clear below in Division
    29, it is untrue as a matter of fact that Young ever sought to plead
    guilty to his charges other than as part of a plea bargain as to
    sentencing, which, as we explained above in Division 26, the trial
    court was not empowered to accept over the State’s objection.
    (e) In light of the foregoing discussion, and taking note of our
    discussion above in Division 25 regarding what procedural
    requirements are constitutionally required for intellectual disability
    71
    claims, we conclude that the General Assembly’s chosen procedure
    of trying intellectual disability claims together with the issue of guilt
    is not unconstitutional. See Atkins, 
    536 U. S. at 317
     (III) (“As was
    our approach in Ford v. Wainwright, with regard to insanity, ‘we
    leave to the States the task of developing appropriate ways to
    enforce the constitutional restriction upon its execution of
    sentences.’” (quoting Ford, 
    477 U. S. at
    416 (V) (A) (plurality portion
    of opinion))). Accordingly, we reaffirm this Court’s prior case law on
    this issue. See King, 
    273 Ga. at 272
     (27).
    28. Young argues that his constitutional rights were denied by
    his being forced to speak to an expert witness designated by the trial
    court as a precondition to presenting his own expert testimony in
    support of his claim of intellectual disability. As discussed in detail
    below, we conclude that the trial court had discretion in this matter,
    but we further conclude that, because this claim was waived, we
    need not determine whether that discretion was abused.
    (a) The circumstances concerning this claim began on June 2,
    2011, when Young filed a notice regarding his intent to raise a
    72
    mental health defense at trial. The notice stated: “[T]he defense
    intends to raise the issue that the defendant or accused was insane,
    mentally ill or mentally retarded at the time of the act or acts
    charged against the accused.”
    On June 29, 2011, in response to this notice, the trial court
    ordered an evaluation of Young regarding his competence to stand
    trial and regarding his criminal responsibility as it related to the
    “mental capacity to distinguish right from wrong” and any possible
    “presence of a delusional compulsion.” On January 17, 2012, the
    trial court conducted a hearing regarding the matter, and defense
    counsel explained that Young had refused to speak to the expert
    during the court-ordered evaluation, explaining that defense
    counsel intended to argue at trial only intellectual disability and not
    any other mental health claim and asserting that the facts of the
    crimes were irrelevant to the question of intellectual disability. The
    State countered that “the methods and manners and questions and
    evaluations that are used” to evaluate possible intellectual disability
    should be determined by the expert, that such an evaluation might
    73
    need to include the circumstances of the crimes, that the trial court
    had asked the expert to evaluate the general question of criminal
    responsibility, and that any diagnosis of intellectual disability would
    likely require the expert to consider and rule out other diagnoses.
    The trial court indicated that it would issue another order for an
    evaluation “for purposes of criminal responsibility and competency
    to stand trial, with retardation as being the primary focus of that
    evaluation.” The trial court then indicated its initial opinion that
    any refusal of Young to answer questions put to him by the expert
    would prevent his use of his own expert at trial, but it left the matter
    somewhat in flux by stating: “So if we run up on that again, I’ll be
    prepared to rule on it. We’ll have to just hear what is and is not
    being answered by the defendant.” Young then asserted that the
    statute    governing      intellectual    disability    claims     was
    unconstitutional.   The trial court instructed defense counsel to
    notify it if they had any concerns once the court issued its new
    written order for an evaluation, and the court indicated that, if there
    were concerns, it would conduct a hearing and “cross that bridge
    74
    when we get there.”
    On January 17 and 23, 2012, Young filed motions claiming that
    OCGA § 17-7-131 and Uniform Superior Court Rule 31.5 were
    unconstitutional to the extent that they might require him to speak
    to a mental health expert regarding the facts of the crimes. On
    January 24, 2012, the trial court conducted another hearing on this
    matter. The trial court maintained at the hearing that intellectual
    disability was a continuing mental condition despite the fact that its
    onset must be before the age of 18 for it to be given as a diagnosis,
    that evidence of that condition throughout all of one’s life was
    relevant to the question of whether one is intellectually disabled,
    and that the facts of the crime therefore were also relevant to that
    question. The trial court then issued an order for Young to be
    evaluated by a mental health expert regarding his criminal
    responsibility and his competence to stand trial. 19 On January 26
    19  With regard to this second order, which was issued after Young had
    committed to the trial court that he would claim at trial only intellectual
    disability and not insanity or incompetence, we query whether the order should
    have omitted any reference to criminal responsibility and competence. While
    75
    and 30, 2012, the trial court filed written orders denying Young’s
    motions challenging OCGA § 17-7-131 and Uniform Superior Court
    Rule 31.5. On January 30, 2012, Young filed a notice indicating that
    he was withdrawing his previous notice of an intent to present
    “testimony of an evaluating expert” at trial.
    (b) As the trial court correctly noted, and as we noted above in
    Division 27 (a), this Court has held that
    evidence of a defendant’s crimes in a mental retardation
    trial may be admissible as probative evidence of the
    defendant’s intelligence if that evidence demonstrates his
    mental ability and adaptive skills, or is otherwise
    relevant to the question of whether he is mentally
    retarded.
    Morrison, 
    276 Ga. at 831
     (2). Cf. Moore, 139 SCt at 671-672 (III)
    (stating that clinicians might find this type of evidence relevant).
    We note, however, that in Morrison we relied on Zant v. Foster, in
    which this Court held that, in determining the proper role of
    evidence of a crime in a jury’s consideration of a claim of intellectual
    we need not address this concern at length here, we recommend a
    reexamination of Uniform Superior Court Rule 31.5 and the model order
    provided in it, upon which the trial court’s order appears to have been based.
    76
    disability, a trial court must exercise its discretion in weighing the
    probative value of such evidence against “unfair prejudice.” Zant v.
    Foster, 
    261 Ga. 450
    , 451-452 (4) (406 SE2d 74) (1991), overruled on
    other grounds by State v. Patillo, 
    262 Ga. 259
    , 261 n.1 (417 SE2d
    139) (1992).
    This Court has also held that a death penalty defendant who
    wishes to support his or her claims at trial through expert mental
    health testimony must submit to an examination by a mental health
    expert selected by the State because of “‘the State’s overwhelming
    difficulty in responding to the defense psychiatric testimony without
    its own psychiatric examination of the accused.’” Jenkins v. State,
    
    265 Ga. 539
    , 540-541 (3) (458 SE2d 477) (1995) (quoting Lynd v.
    State, 
    262 Ga. 58
    , 64 (11) (414 SE2d 5) (1992) (citation and
    punctuation omitted)). See also Nance v. State, 
    272 Ga. 217
    , 219-
    220 (2) (526 SE2d 560) (2000) (citing Buchanan v. Kentucky, 
    483 U. S. 402
    , 422 (III) (A) (107 SCt 2906, 97 LEd2d 336) (1987), and Estelle
    v. Smith, 
    451 U. S. 454
    , 465 (II) (A) (2) (101 SCt 1866, 68 LE2d 359)
    (1981), and holding that, “when a defendant must submit to a court-
    77
    ordered mental health examination because he wishes to present
    expert mental health testimony at his trial, the State expert may
    only testify in rebuttal to the testimony of the defense expert or to
    rebut the testimony of the defendant himself”). However, this Court
    has also stated:
    In formulating the rule that a defendant in a case in
    which the State is seeking the death penalty must either
    cooperate in an evaluation by a mental health expert
    whose report will be given to the State or forfeit the right
    to present expert mental health testimony at trial, we
    have balanced the truth-seeking function of the courts,
    the defendant’s constitutionally-protected privilege
    against self-incrimination, and the State’s interest in
    having the ability to respond to the defendant’s expert
    mental health testimony with [its own] expert testimony.
    ...
    We have taken pains to ensure that the extent to which a
    defendant must waive his constitutionally-protected right
    to remain silent is no greater than is necessary to serve
    the purpose mandating the waiver: “to permit the State
    to formulate a response or a rebuttal to the testimony of
    the defendant’s mental health expert.”
    State v. Johnson, 
    276 Ga. 78
    , 79 (2) (576 SE2d 831) (2003) (quoting
    Nance, 
    272 Ga. at 219-220
     (2)).
    In view of these prior holdings, we caution that a trial court
    must exercise discretion in responding to a defense objection
    78
    regarding the scope of questions to be asked in a court-ordered
    mental health evaluation of alleged intellectual disability or in
    responding to an objection to the scope of expert testimony based on
    such an evaluation. We stress that an inquiry regarding the facts of
    a defendant’s alleged crimes is not necessarily irrelevant in such an
    evaluation by the State’s expert or the Court’s expert simply because
    the defense and its own expert might think so. However, we also
    note that the facts of the crime that would be relevant to alleged
    intellectual disability often can be made known to a mental health
    expert through sources other than the defendant’s own statements
    and that a defendant often can be asked questions by an expert
    regarding the defendant’s personal abilities as they relate to the
    facts of the crimes without asking the defendant whether he or she
    admits committing those crimes. 20            Nevertheless, we need not
    20 For example, the State argues that Young’s use of a GPS device to
    navigate to the crime scene is evidence undermining his claim of intellectual
    disability; however, we see no reason why Young could not have been asked by
    the State’s expert generally about his ability to use a GPS device without being
    asked to make a direct admission of guilt.
    79
    consider whether the trial court properly exercised such discretion
    in Young’s case, because, as we discuss below, we conclude that the
    issue was waived.
    (c) On February 6, 2012, as jury selection was about to begin,
    the District Attorney stated:
    [T]he state will agree not to use any of the statements that
    the defendant makes pertaining to what happened at the
    time of the crime in terms of proving his guilt or
    innocence, despite the fact that that handcuffs the state
    in using that evidence to prove whether or not he’s
    mentally retarded, we will put the defendant in a position
    now where the state will agree not to introduce any of that
    testimony and then let them still make the strategic
    choice that they want to make in terms of an expert.
    The District Attorney further agreed that the trial court could order
    its designated expert, who had already conducted an evaluation
    without the benefit of any statements from Young about the crimes
    and who had already submitted a report under seal, “not to ask any
    questions about what Mr. Young did at the time of the offense.”21
    21 We note from our own review of the record that the expert’s sealed
    report indicated that Young had refused to speak about the crimes at the
    direction of his counsel, but we note that the expert was nevertheless able to
    conduct psychological tests and to render an opinion, which was that Young
    was not intellectually disabled.
    80
    Young rejected the State’s offer based solely on the fact that it would
    “prejudice[] the defense in [its] strategic decision making” to accept
    the offer at that stage of the case; however, we note that Young made
    no complaint regarding the availability of his own expert to testify
    and made no motion for a continuance.               The State argued
    persuasively in response that Young’s true motivation was the fact
    that his own expert had tested his IQ as being 77, a fact that would
    have been difficult to explain at trial. See Hall, 572 U. S. at 722 (III)
    (D) (stating that “an individual with an IQ test score ‘between 70
    and 75 or lower’ may show intellectual disability by presenting
    additional evidence regarding difficulties in adaptive functioning”
    (quoting Atkins, 
    536 U. S. at
    309 n.5)); Raulerson, 928 F3d at 1008
    (III) (C) (noting that “the Flynn effect adjusts for the empirical
    observation that IQ scores are rising over time” but that “there is no
    consensus about the Flynn effect among experts or among the
    courts”). In any case, the trial court implicitly accepted the State’s
    offer and explicitly noted Young’s rejection of that offer by stating:
    “All right. We will note, of course, the state’s position as stated on
    81
    the record. . . . [A]nd I will note the decision of the defense as to
    how the mental retardation defense is to be asserted.” Accordingly,
    we conclude that Young’s claim here has been waived for the
    purposes of ordinary appellate review. See Martin, 298 Ga. at 278-
    279 (6) (d).
    29. Young argues that he was forced to plead not guilty as a
    condition of seeking a verdict of guilty but mentally retarded and
    that such a requirement was unconstitutional and “prejudiced [him]
    by creating a false impression for the jury, judicially-sanctioned,
    that he did not accept responsibility and therefore felt no remorse.”
    To the extent that Young is arguing that he was forced to plead not
    guilty as a precondition of seeking a decision by a jury of whether he
    was intellectually disabled, his claim is not supported factually by
    the record.
    To support such a claim, Young relies on the transcript of a
    pretrial hearing held on whether he was required to speak to the
    State’s expert about the facts of the crime as a precondition to
    presenting his own expert testimony on his alleged intellectual
    82
    disability. However, a review of the full transcript reveals that
    Young was not willing to plead guilty as part of a jury trial. Defense
    counsel made comments indicating his hope that the jury would find
    Young guilty but mentally retarded, but those comments never
    communicated a desire to enter a non-negotiated guilty plea.
    Instead, defense counsel stated: “I mean, essentially we would be
    happy to do so [plead guilty] in exchange for a sentence that we could
    agree upon.” We also note that Young never moved the trial court
    to allow him to change the not guilty plea that he had entered and
    signed on the indictment.      Indeed, even now on appeal, Young
    admits that his goal at this hearing was not to enter a guilty plea in
    advance of a jury trial, as he states: “In this case, defense counsel
    urged the court to allow Young to enter a plea of Guilty But Mentally
    Retarded in exchange for an agreed upon sentence.” Accordingly,
    we conclude that Young never actually requested that he be allowed
    to enter a non-negotiated plea of guilty, with or without an
    associated claim of intellectual disability.
    83
    30.   Young argues that the trial court erred by excluding
    testimony from three witnesses on the subject of his alleged
    intellectual disability. We see no error.
    (a) During defense counsel’s direct examination of a social
    worker from Young’s high school who had known Young and his
    family since Young was a young child, defense counsel asked the
    witness whether and how he had “ever come into the[] lives” of
    Young’s brothers and sisters. The State objected that the testimony
    sought was not relevant, and a bench conference was held and then
    explained later in detail on the record by the trial court and the
    parties.   Defense counsel explained that he had been seeking
    testimony showing that Young’s siblings had been in special
    education. Defense counsel conceded that it was “not universally
    accepted” in the mental health profession that there was a genetic
    component to intellectual disability, and it was not disputed that the
    witness was not qualified to testify on the matter as an expert;
    however, defense counsel argued that, “in the general community,
    people are aware that certain diseases such as mental retardation,
    84
    such as all different kinds of diseases, are genetic in nature.”
    Nevertheless, defense counsel also stated immediately after the trial
    court announced its ruling:      “I am certainly not making any
    assertion that anyone in Mr. Young’s family is mentally retarded.”
    Under these circumstances, we see no abuse of discretion in the trial
    court’s sustaining the State’s objection. See Watson v. State, 
    278 Ga. 763
    , 771 (10) (604 SE2d 804) (2004) (holding that the question of
    relevance is entrusted to a trial court’s discretion and holding: “The
    proffered evidence in this case was too threadbare to be
    admissible.”); cf. Wilson v. State, 
    233 Ga. 479
    , 481 (3) (211 SE2d 757)
    (1975) (holding that it was not improper for a non-expert to testify
    to a relevant factual matter within his personal knowledge).
    (b)   Pretermitting Young’s likely waiver of the issue, we
    conclude that the trial court did not abuse its discretion by refusing
    to allow one of Young’s former high school coaches to provide
    speculative testimony about what Young’s team members thought
    of him or about whether the team members wished that they could
    be present at Young’s trial. Instead, the trial court properly focused
    85
    the witness’s attention on his personal observations regarding
    Young’s interactions with his teammates. Cf. Mathis v. State, 
    291 Ga. 268
    , 270 (2) (728 SE2d 661) (2010) (addressing improper
    testimony that “was based not on [the witness’s] personal knowledge
    but rather on hearsay”).
    (c) Another of Young’s former high school coaches testified that
    Norfolk State College had regularly given “the opportunity to
    potential athletes to be admitted on a probationary status,” that
    Young had “only lasted a short while” at the college, that “the idea
    wasn’t so much for [Young] to be a four-year college graduate” but
    instead “was to hopefully improve his situation and to get him out
    of dodge,” that “Norfolk State was giving him an opportunity to try
    to make it in school, to try to better himself,” but that “[f]ootball was
    the whole idea.” However, when the witness began to explain in
    more detail about what happened regarding the college when “they
    br[ought] you in,” the State objected to “any sort of speculation about
    this” but conceded that the witness “c[ould] testify to personal
    knowledge about this situation.” Defense counsel replied, “Sure.”
    86
    The trial court then stated that it was sustaining the objection and
    directed defense counsel to “focus in a little more.” The witness then
    testified:   “[Young] got in because we had a contact there who
    recognized his football ability.” The State objected, stating that a
    foundation should be shown for any personal knowledge of the
    witness on the subject, and the trial court instructed defense counsel
    to “go a little more foundational with that” and to “[a]llow the
    witness to explain his knowledge and how he gained it and so forth.”
    Defense counsel again replied, “Sure.” Pretermitting the possible
    waiver of the issue by Young, we conclude that the trial court did
    not abuse its discretion in the manner in which it handled the
    State’s objections regarding this witness. Cf. Mathis, 291 Ga. at 270
    (2).
    31. Young argues that the State presented testimony from
    three of his co-workers at a food-canning company that the State
    knew from Young’s employment records to be false. See Napue v.
    Illinois, 
    360 U. S. 264
    , 269 (79 SCt 1173, 3 LE2d 1217) (1959). These
    co-workers testified at trial in the State’s rebuttal case in the
    87
    guilt/innocence phase, where Young’s alleged intellectual disability
    was to be decided, that Young was “good at his job,” was one of the
    “best operators” of the can-labeling equipment, was not “a problem
    employee,” was “there every day, pretty much,” “seemed to do fine,”
    “was at work on time and everything,” and was “always on time.”
    From the 184 pages of Young’s employment records spanning ten
    years, Young’s brief points to “three suspensions, one lasting an
    entire week, twenty-nine unexcused absences, twenty-seven
    violations for lateness, and two warnings,” to a notice of “poor job
    performance because of inattention, neglect or other non-deliberate
    actions,” and to a notice regarding Young’s third work suspension
    indicating that he would be terminated if he had an additional
    infraction.
    In his response brief, the Attorney General notes that this
    “averages out to roughly a little less than three unexcused absences
    and three violations for lateness per year.” Attempting to emphasize
    the gravity of the negative notations in his work records, Young cites
    the vague trial testimony of one of his co-workers that, “if you
    88
    accumulate up to, like, eight points, you get your terminated [sic]
    from the job.” But the jury was aware at trial that Young was never
    terminated, and even now Young cites part of his work records
    showing that eight points only warranted a suspension. We also
    note that one of the co-workers testified that the point system “had
    nothing to do with the labeling part of it,” which is borne out in the
    records and suggests that there is no reason to doubt the co-workers’
    testimony regarding Young’s ability to perform his assigned work.
    Upon reviewing the co-workers’ trial testimony and the ten years of
    work records submitted by Young on motion for new trial, the trial
    court found: “The defendant’s personnel records do not establish as
    fact that the testimony of the defendant’s coworkers and supervisors
    was knowingly and willfully false. . . .” We agree, and, therefore,
    Young’s claim here fails.
    32. Young argues that the State made improper arguments
    regarding his alleged intellectual disability. First, we hold that this
    claim has been waived for the purposes of ordinary appellate review,
    because Young did not raise any related objections at trial. See
    
    89 Martin, 298
     Ga. at 278-279 (6) (d). Second, as we discuss below, the
    contested arguments were not improper.
    (a) Young contends that the State’s argument placed “undue
    emphasis on Young’s perceived adaptive strengths, arguing that
    relative strengths could overcome adaptive deficits,” and that the
    State’s argument improperly relied on lay stereotypes. We disagree.
    We note that it was the psychiatrist presented by the State 22
    who set forth the areas of adaptive skills “listed in the DSM-IV-TR,”
    an authoritative text in the field of mental health, and who, using a
    demonstrative exhibit without any objection from Young, explained
    the areas of adaptive skills “utilized by the American Academy of
    Mental Retardation.” 23 On cross-examination by Young, the State’s
    psychiatrist also explained the three areas of adaptive skills used by
    22 The State’s psychiatrist, unlike the expert designated pretrial by the
    trial court whose report remained under seal, testified that he had never
    examined Young and had not reached a diagnosis regarding Young’s alleged
    intellectual disability.
    23Young assails the appropriateness of the diagnostic questions listed on
    this demonstrative exhibit. However, the State’s psychiatrist explained that
    these questions were “some suggest[ed] questions that they have for looking at
    those particular skills area[s].”
    90
    the American Association on Intellectual and Developmental
    Disabilities and the fact that a person would only need to have a
    deficit in one of those three areas to qualify for a diagnosis of mental
    retardation.
    Notably, as the State did later in its closing argument, Young
    attempted in his cross-examination of the State’s psychiatrist to
    emphasize specific things regarding Young’s past behaviors and
    activities and how they might be relevant to the areas of adaptive
    skills.   Even more notably, the State’s psychiatrist answered
    affirmatively when Young asked whether “the DSM says that the
    focus is on the deficits,” when Young asked whether, “if someone had
    particular strengths in any of these [areas of adaptive skills], they
    could still be classified as mentally retarded,” when Young asked if
    it would be “irresponsible” to “ever say that[,] because [a person] can
    do X, one thing, that they are not mentally retarded,” and when
    Young asked whether “what you’re looking for is significant deficits
    in at least two” of the areas of adaptive skills when considering the
    list used by the AAMR. The State’s psychiatrist also described how
    91
    intellectually disabled persons often “try to act normal” and engage
    in “parroting behavior,” that some of them are able to interact
    appropriately, that “they may not look mentally retarded on the
    surface,” that they may appear “street smart,” and that they may be
    able to do some tasks normally. See Moore, 139 SCt at 669 (I) (citing
    Moore, 137 SCt at 1051-1052 (IV) (C) (1)) (holding that the procedure
    for considering alleged intellectual disability must be based on the
    medical community’s diagnostic standards).
    Having itself presented an expert who carefully explained the
    proper analysis of areas of adaptive skills under prevailing
    professional standards, the State gave a closing argument that
    attempted to highlight various parts of the evidence showing
    Young’s lack of deficits in those areas. Upon our review of the State’s
    arguments at issue, we conclude that, although at times somewhat
    impassioned, they were not improper. See Cullen v. Pinholster, 
    563 U. S. 170
    , 200 (III) (D) (1) n.19 (131 SCt 1388, 179 LE2d 557) (2011)
    (noting that the prosecuting attorney cannot be expected to argue
    the evidence in the light most favorable to the defendant); Ellington,
    92
    292 Ga. at 143 (9) (c) (noting the latitude granted to the parties in
    making their closing arguments), disapproved on other grounds by
    Willis, 304 Ga. at 706 (11) (a) n.3.
    (b) As we explained in Division 27 (a), evidence regarding a
    defendant’s actions during and around the time of a crime can be
    probative on the question of whether a defendant lacks deficits in
    specific areas of adaptive behavior. See Morrison, 
    276 Ga. at 831
    (2). See also Moore, 139 SCt at 671-672 (III) (stating that clinicians
    might find this type of evidence relevant). Accordingly, we hold that
    the State did not act improperly by making arguments regarding
    Young’s alleged intellectual disability based on the evidence of how
    he carried out his crimes.
    (c) The State did not argue improperly by emphasizing the fact
    that there were no records showing any specific IQ score for Young,
    that the range of scores presumed by the school employees who
    testified on Young’s behalf did not necessarily indicate intellectual
    disability, and that any additional IQ test that might be given to
    Young would “probably” show that, while not one of “the brightest
    93
    bulbs on the tree,” Young was not intellectually disabled.        See
    Ellington, 
    292 Ga. at 143
     (9) (c) (noting the latitude granted to the
    parties in making their closing arguments).
    33. Young argues that a particular juror tainted the jury with
    extrajudicial evidence and that the jury engaged in premature
    deliberations. As explained below, we reject both arguments.
    Young questioned the juror during voir dire about his
    stepdaughter, and the juror disclosed that his stepdaughter had
    “special needs,” that she was 19 years old but at times was like a 7
    or 8 year old, that he had been her caretaker for 18 years, that her
    need for special education became apparent at the age of 3 or 4 years
    old, that she had been slow to learn to speak, that her disability was
    not apparent from her physical appearance, and that she had been
    diagnosed as brain damaged. Young did not move to have the juror
    excused for cause.
    In support of this claim, which Young also raised in his motion
    for new trial, he relies on the testimony of an alternate juror. See
    Collins v. State, 
    308 Ga. 608
    , 610 (2) (842 SE2d 811) (2020) (noting
    94
    that juror testimony is permitted regarding extraneous prejudicial
    information). But see United States v. Siegelman, 467 FSupp.2d
    1253, 1279 (M.D. Ala. 2006) (expressing doubt that juror testimony
    regarding alleged premature deliberations is admissible).         The
    alternate juror testified that the juror in question entered the jury
    room after some testimony about intellectual disability, that he
    appeared to be “agitated,” and that he stated to several other jurors
    that “he knew what a disabled person was because his
    [step]daughter was disabled and she had to have a lot of care.” The
    alternate juror testified that the juror in question “didn’t actually
    come out and say” that Young was not disabled, but she testified
    that “it was basically like he could tell the difference between
    someone that had a disability and one that didn’t,” and she
    concluded, “I don’t think he felt like [Young] had one.” The alternate
    juror testified that the juror in question was in the same corner of
    the jury room and with the same few other jurors that he had been
    with during other breaks, but she added that the juror was not loud,
    that the other jurors did not gather around him, and that she never
    95
    heard jurors, including those who were with the juror in question,
    deliberating or expressing an opinion about whether or not Young
    was intellectually disabled. In its order on Young’s motion for new
    trial, the trial court found that the juror in question “was making
    statements concerning his life experience that apparently touched
    on the testimony he had just heard,” that doing so was
    “understandable in light of his experience with his step daughter as
    revealed to counsel in voir dire,” and that “[h]e expressed no opinion
    on any trial issues such as guilt or innocence or the mental condition
    of the defendant.” The trial court further found that “these issues
    were not discussed, talked about, or deliberated” and concluded that
    the matter did “not constitute premature deliberation.” The trial
    court also concluded that the statements to several jurors by the
    juror in question “d[id] not constitute extra judicial evidence.”
    (a) In light of the foregoing, we accept the trial court’s findings
    of fact and agree with the trial court’s conclusion that no premature
    deliberations occurred. See Sims v. State, 
    266 Ga. 417
    , 419-420 (3)
    (467 SE2d 574) (1996).
    96
    (b) We also agree with the trial court’s conclusion that the
    statements by the juror in question, which regarded matters that
    were discussed at length by him in his voir dire, did not warrant a
    new trial. See Martin, 298 Ga. at 292-294 (16) (“Having accepted
    Juror Lemmond as a juror, Martin cannot now complain that her
    knowledge drawn from her past employment assisted the other
    jurors in considering the evidence and arguments made by the
    parties at trial.”), disapproved on other grounds by Willis, 304 Ga.
    at 706 (11) (a) n.3.
    34. The trial court charged the jury, in accordance with OCGA
    § 17-7-131 (b) (3) (C), that a verdict of guilty but mentally retarded
    would result in Young’s being “placed in the custody of the
    Department of Corrections,” which would monitor his “mental
    health needs,” and that, “at the discretion of the Department of
    Corrections,” he could be “referr[ed] for temporary hospitalization at
    a facility operated by the Department of Behavioral Health and
    Developmental Disabilities.” The trial court correctly refused to
    include Young’s requested additional charge that, upon such a
    97
    verdict, “the defendant w[ould] be sentenced to imprisonment for
    life.” The charge as given was not misleading, because it clearly
    stated that the DOC would have custody of Young. Furthermore,
    this Court has held that charges prior to a guilty verdict generally
    should not give any instruction regarding possible sentences. See
    Patillo, 
    262 Ga. at 260
    . Although the charge prescribed by the Code
    and given in Young’s case is a limited exception to this general rule
    that is designed to prevent jurors from speculating about a
    defendant’s “immediate release” upon a finding of mental
    retardation, the additional charge requested by Young about a life
    sentence would have simply drawn undue attention to the issue of
    sentencing and would have raised questions such as whether or not
    a life sentence would carry the possibility of parole.
    35. Young argues that the trial court erred by denying five
    requests to charge on the subject of intellectual disability, and he
    highlights in particular his requested charges that the jury could
    find Young intellectually disabled even if it found adequate
    functioning in some or many areas of adaptive functioning, that
    98
    “[i]ndividuals may have capabilities and strengths that are
    independent of their mental retardation,” and that such “abilities do
    not exclude a diagnosis of mental retardation.”       The trial court
    correctly instructed the jury on the statutory definition of “mental
    retardation,” charging as follows:      “The term mentally retarded
    means     having   significantly   subaverage   general    intellectual
    functioning resulting in or associated with impairments in adaptive
    behavior that became clear during the developmental period.” See
    OCGA § 17-7-131 (a) (3) (prior to an amendment in 2017 adopting
    the term “intellectual disability” and renumbering subdivisions);
    OCGA § 17-7-131 (a) (2) (after the amendment in 2017). We agree
    with the trial court that the additional, detailed charges requested
    by Young, which were drawn from two professional texts and a
    federal district court opinion, were not incorrect statements but
    nevertheless were more matters of evidence rather than legal
    principles suitable for jury charges. 24 Accordingly, we conclude that
    24We note that, through questioning both by the State on direct
    examination and by Young on cross-examination, the State’s psychiatrist
    99
    the trial court did not err in refusing to give them. See Massey v.
    State, 
    270 Ga. 76
    , 78 (4) (c) (508 SE2d 149) (1998) (“It is axiomatic
    that a trial court does not err in refusing to give a requested
    instruction in the exact language requested where the charges given
    in their totality substantially and adequately cover the principles
    contained in the requested charge.”).
    36. Young made no objection to the trial court’s charging the
    jury, according to OCGA § 16-2-3, that “[e]very person is presumed
    to be of sound mind.” Therefore, his claim on appeal that the charge
    should not have been given is subject to review only for whether
    there was plain error that affected substantial rights and under our
    Sentence Review below regarding Young’s death sentence.                   See
    OCGA § 17-8-58 (b); Martin, 298 Ga. at 278-279 (6) (d).
    Nevertheless, we conclude that the trial court did not err under even
    the ordinary standard of review, because the charge was entirely
    consistent with the fact that, under Georgia law as we affirm it
    testified about the same diagnostic principles that Young asked the trial court
    to address in the jury charges.
    100
    above, Young bore the burden of proving his alleged intellectual
    disability.   See Medina, 
    505 U. S. at 452
     (II) (“In light of our
    determination that the allocation of the burden of proof to the
    defendant does not offend due process, it is not difficult to dispose of
    petitioner’s challenge to the presumption of competence imposed
    [under California law].”).
    37. Young argues that the pre-printed verdict form used in the
    guilt/innocence phase of his trial, coupled with the trial court’s
    charges to the jury, would have misled the jury regarding its duties
    in considering his alleged intellectual disability. See Rowland v.
    State, 
    306 Ga. 59
    , 67-68 (6) (829 SE2d 81) (2019) (holding that a
    verdict form should be considered in conjunction with the jury
    charges); Rucker v. State, 
    270 Ga. 431
    , 435 (5) (510 SE2d 816) (1999)
    (holding that the use of a verdict form is error if it “would mislead
    jurors of reasonable understanding”). In Young’s case, the verdict
    form and the jury charges made clear that the jury was to select, for
    each of the charges in the indictment, only one of the three verdict
    options: not guilty, guilty, or guilty but mentally retarded. The
    101
    charges, read as a whole, also made clear that no verdict could be
    reached and entered on the verdict form unless it was unanimous.
    Furthermore, despite the trial court’s somewhat confusing
    statement at one point that the jury should determine which of the
    three verdicts applied if it found that Young was “suffering mental
    retardation,” the charges as a whole indicated that the jury should
    reach a unanimous conclusion regarding one option to the exclusion
    of the other two.
    Finally, after first stating that the jury would have the “duty”
    to find Young guilty but mentally retarded if it so found beyond a
    reasonable doubt, the charges, in tracking the language of the
    pattern jury charge, later stated as to each charge that the jury
    would be “authorized” to enter such a verdict upon such a finding.
    See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §
    3.80.50.25 However, in light of the clear charges to the jury that any
    verdict must be unanimous and in light of a charge that individual
    25In identifying no reversible error, we do not suggest that this pattern
    charge could not be improved.
    102
    jurors “should never surrender an honest opinion in order to be
    congenial or to reach a verdict,” we conclude that the jury would not
    have been misled regarding its duties by the use of the word
    “authorized.”26 Cf. Cheddersingh v. State, 
    290 Ga. 680
    , 681-682 (2)
    (724 SE2d 366) (2012) (holding that a preprinted verdict form and
    jury charges should be considered as a whole and concluding that
    the verdict form might have led the jury to believe that it must
    conclude beyond a reasonable doubt that the defendant was not
    guilty in order to acquit).
    Young raised no objection to either the charges at issue or to
    the verdict form. Therefore, the issues here are subject to review
    only for whether there was plain error that affected substantial
    rights and under our Sentence Review below regarding Young’s
    death sentence. See OCGA § 17-8-58 (b); Martin, 298 Ga. at 278-
    26  Young argues that the jury’s notes to the trial court discussed in
    Division 45 show that it struggled with the issue of his alleged intellectual
    disability. Contrary to this argument, even assuming that such a fact is
    relevant at all to evaluating the charges and verdict form, we conclude that
    this fact shows that the jurors did indeed follow the trial court’s charge on not
    surrendering individual opinions simply to reach a verdict.
    103
    279 (6) (d). To show plain error, an appellant must show: (1) there
    was no affirmative waiver; (2) the error was obvious; (3) the
    instruction likely affected the outcome of the proceedings; and (4)
    the error seriously affects the fairness, integrity, or public
    reputation of the judicial proceedings. See Beasley v. State, 
    305 Ga. 231
    , 236 (3) (824 SE2d 311) (2019). In light of the discussion above,
    and pretermitting the questions of whether any error here was
    affirmatively waived or should have been obvious to the trial court,
    we conclude that the outcome in Young’s case was not likely affected
    and that any error did not seriously affect the fairness, integrity, or
    public reputation of his proceedings.
    Issues Related to the Sentencing Phase
    38.     We see no merit to Young’s arguments, including his
    arguments regarding the decline in the frequency of death
    sentences,     that   Georgia’s    death    penalty      statutes   are
    unconstitutional in that they fail to sufficiently narrow the
    categories of murder eligible for the death penalty and thereby
    result in arbitrary and capricious death sentences. See Ellington,
    104
    292 Ga. at 116 (3) (b), disapproved on other grounds by Willis, 304
    Ga. at 706 (11) (a) n.3.
    39. Young argues that the trial court improperly closed the
    courthouse during the sentencing phase and thereby violated his
    constitutional rights. See Waller v. Georgia, 
    467 U. S. 39
    , 46 (II) (A)
    (104 SCt 2210, 81 LE2d 31) (1984) (discussing the right to a public
    trial). The day in question was a furlough day for county employees;
    however, the trial court informed the parties that it would be having
    court on the furlough day and that the courthouse would be open to
    members of the public who wished to attend. On the furlough day,
    the trial court noted on the record that bailiffs had been “instructed
    at the front door that if anyone comes in looking for the, for a closed
    office, to tell them, but the building is open to the public.” Young
    did not object to holding the trial on the furlough day. Testimony
    from officers confirmed that an entrance was open and that no one
    was turned away. We conclude that this issue was waived for the
    purposes of ordinary appellate review by Young’s failure to object in
    the trial court. See Martin, 298 Ga. at 278-279 (6) (d). Furthermore,
    105
    the record supports the trial court’s finding that the courtroom
    remained open with access freely available to the public. Cf. State
    v. Brown, 
    293 Ga. 493
    , 493-496 (1) (748 SE2d 376) (2013)
    (addressing a courthouse that was accessible only to persons with a
    special relationship to court personnel).
    40.   Young argues that the trial court erred by overruling
    certain objections to the State’s victim impact testimony. We have
    held previously that victim impact testimony should not include
    characterizations of the crime or the defendant and that it should
    not include any statements regarding the appropriate sentence. See
    Bryant, 288 Ga. at 895 (15) (a).       We have held that testimony
    regarding the emotional impact on the victim’s family and the
    community must be controlled within the trial court’s discretion but
    is not categorically improper. See Walker v. State, 
    282 Ga. 774
    , 779-
    780 (11) (653 SE2d 439) (2007), disapproved on other grounds by
    Ledford v. State, 
    289 Ga. 70
    , 85 (14) (709 SE2d 239) (2011),
    disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3.
    We have held that victim impact testimony should not encourage the
    106
    jury to base its sentencing decision on factors such as “class or
    wealth.” Livingston, 
    264 Ga. at 404
     (1) (b). We have held that
    “religious   references”   in   victim   impact   testimony   are   not
    categorically prohibited but instead are entrusted to the trial court’s
    discretion. Pickren v. State, 
    269 Ga. 453
    , 454-455 (1) (500 SE2d 566)
    (1998). We have also held that victim impact testimony may include
    evidence such as video recordings or photographs “of the victim
    alive.” Tollette v. State, 
    280 Ga. 100
    , 105 (11) (621 SE2d 742) (2005).
    Finally, we have held that “even some legitimate victim impact
    evidence could inflame or unduly prejudice a jury if admitted in
    excess.” Livingston, 
    264 Ga. at 404
     (1) (b). Applying these various
    principles, and pretermitting the fact that Young waived much of
    this claim by failing to object or by failing to obtain rulings, we
    conclude that the specific portions of the victim impact testimony
    that Young complains about on appeal were not improper. See
    Walker, 282 Ga. at 779 (11).
    41. Young argues that the trial court prevented him from
    asking certain witnesses in the sentencing phase about the impact
    107
    that Young’s execution would have on them. We conclude that, by
    agreeing first to a general set of questions to be asked of witnesses
    and then agreeing to additional questions to be asked of close family
    members, Young waived this claim for the purposes of ordinary
    appellate review.     See Martin, 298 Ga. at 278-279 (6) (d).
    Furthermore, we conclude that the trial court’s approach to this
    matter was not an abuse of discretion, because the court accepted
    the fact that a witness with especially intimate knowledge of a
    defendant can sometimes shed light on the defendant’s character by
    asking for mercy and by testifying about how the loss of the
    defendant would affect the witness personally and thus permitted
    some questions on the matter, while it also set reasonable limits on
    which witnesses were in a suitable position to give such testimony.
    See Bryant, 288 Ga. at 899 (16) (holding that “mitigating evidence
    that does not focus on the character, background, or offense of the
    particular defendant on trial is properly excluded”); Barnes v. State,
    
    269 Ga. 345
    , 359 (27) (496 SE2d 674) (1998) (“In Georgia, mitigation
    evidence that relates to the individual defendant and not to the
    108
    death penalty in general is admissible.”); Childs v. State, 
    257 Ga. 243
    , 256 (19) (b) (357 SE2d 48) (1987) (holding that, “although a
    defendant may present witnesses who know and care for him and
    are willing on that basis to ask for mercy on his behalf, a defendant
    may not present witnesses to testify merely to their religious or
    philosophical attitudes about the death penalty”); Romine v. State,
    
    251 Ga. 208
    , 217 (11) (305 SE2d 93) (1983) (“Ralph’s testimony that
    he did not wish to see his grandson die would have been admissible
    in mitigation. . . .”).
    42. Young argues that it was unconstitutional for his jury to
    consider alleged non-statutory aggravating circumstances without
    being instructed that such circumstances must be found beyond a
    reasonable doubt. First, this specific issue was not raised in the trial
    court and therefore has been waived for the purposes of ordinary
    appellate review.         See Martin, 298 Ga. at 278-279 (6) (d).
    Furthermore, contrary to Young’s argument, “the finding of a non-
    statutory    aggravating     circumstance   does   not   increase   the
    defendant’s maximum potential punishment” and therefore does not
    109
    have to be found beyond a reasonable doubt. Ellington, 
    292 Ga. at 116-117
     (3) (d) (citing Ring v. Arizona, 
    536 U. S. 584
    , 609 (II) (122
    SCt 2428, 153 LE2d 556) (2002)), disapproved on other grounds by
    Willis, 304 Ga. at 706 (11) (a) n.3.
    43. We reject Young’s invitation to overrule our precedent
    holding that this Court’s proportionality review under OCGA § 17-
    10-35 (c) (3) can never “‘increase . . . the maximum punishment’” and
    therefore does not have to be performed by a jury under the beyond
    a reasonable doubt standard. Willis, 304 Ga. at 693 (3) (c) (citation
    omitted).
    44. During sentencing phase deliberations, the jury sent the
    trial court a note asking if there is “an automatic appeal when the
    death penalty is given,” and the trial court responded: “You are to
    decide this case based upon the evidence, the law and the
    instructions given to you. You are not to concern yourselves with
    matters of this nature.” Young’s complaint regarding this response
    was waived for the purposes of ordinary appellate review by Young’s
    failure to object at trial. See Martin, 298 Ga. at 278-279 (6) (d).
    110
    Furthermore, we conclude that the trial court’s response was not
    unconstitutional as Young argues, because it did not suggest that
    “the responsibility for determining the appropriateness of the
    defendant’s death rest[ed] elsewhere.” Caldwell v. Mississippi, 
    472 U. S. 320
    , 329 (III) (105 SCt 2633, 86 LE2d 231) (1985) (reversing
    where the prosecutor argued that any death sentence would be
    reviewed by the appellate court for correctness).
    45. Young argues that the trial court erred regarding two other
    notes from the jury during its sentencing phase deliberations. As
    explained below, we see no error.
    (a)   About an hour and 45 minutes into sentencing phase
    deliberations, a juror sent a note to the trial court stating: “I am
    asking to be dismiss [sic] as a juror. I have lots of questions and due
    to those I cann’t [sic] say yes to death penalty.” The trial court did
    not abuse its discretion by refusing Young’s request to declare a jury
    deadlock and impose a sentence of life without parole, as it was not
    clear at this early stage that additional deliberations would be
    fruitless. The trial court also did not abuse its discretion by refusing
    111
    Young’s request “that the Court instruct the juror that each person’s
    individual, moral assessment is to be respected.” Instead, the trial
    court acted properly in simply letting the jury continue to deliberate
    under the court’s original instructions, when there was no reason for
    the court to believe that the juror had misunderstood them, while
    announcing that it would take further action if the jury later notified
    the court of a deadlock. See Porras v. State, 
    295 Ga. 412
    , 419-420
    (3) (761 SE2d 6) (2014) (holding that a trial court did not err by
    ordering the jury to continue deliberating). Cf. Anderson v. State,
    
    262 Ga. 26
    , 27 (1) (c) (413 SE2d 732) (1992) (“The record in this case
    indicates that the jury was confused about the charge. No remedial
    instruction was given. . . .”).
    (b) Later, the jury sent a note informing the trial court that it
    was deadlocked eleven to one in favor of a death sentence and
    asking, “What is the next step?” At that point, which was after less
    than four hours of deliberations, the trial court properly charged the
    jury consistently with this Court’s suggested modified Allen charge
    for such circumstances, instructing them (1) that each juror must
    112
    agree in order for the jury to return a verdict, (2) that jurors have a
    duty to consult one another, (3) that each juror must decide the case
    for himself or herself, (4) that a juror should not hesitate to
    reexamine his or her views and change an opinion if convinced that
    it is erroneous, and (5) that no juror should surrender his or her
    views solely based on other jurors’ opinions or for the mere purpose
    of returning a verdict. See Romine v. State, 
    256 Ga. 521
    , 527 (1) (d)
    (350 SE2d 446) (1986). See also Allen v. United States, 
    164 U. S. 492
    (17 SCt 154, 41 LE 528) (1896).          We disagree with Young’s
    contention that the charge given was coercive or improperly singled
    out the one juror who had not voted for death, even accounting for
    the fact that the jury had volunteered in its note the nature and
    breakdown of its deadlock. Cf. Smith v. State, 
    302 Ga. 717
    , 721 (2)
    (808 SE2d 661) (2017) (providing guidance on determining if an
    Allen charge was coercive).
    46. We reject Young’s argument that his right to be present
    was denied in the sentencing phase during bench conferences in
    which the juror notes regarding an alleged jury deadlock were
    113
    discussed. We conclude that the trial court did not err in its order
    denying Young’s motion for new trial in concluding that he was
    aware of the subject matter of the bench conferences, that the
    decisions made at them were announced in open court, that Young
    never personally voiced any concerns, and, accordingly, that Young
    personally acquiesced in the waiver of his presence that was made
    by his counsel.    Cf. Champ, 310 Ga. at 834-848 (2) (a, b, and c)
    (remanding where the trial court had not ruled on the defendant’s
    acquiescence in counsel’s waiver).
    Appellate Issues
    47. Young argues that he is entitled to a new trial because a
    photograph of him as an infant or toddler was admitted at trial but
    is not included in the appellate record, despite the best efforts of his
    counsel on remand from this Court to complete the record, including
    a trip to New Jersey. First, Young has failed to show why he could
    not have obtained an adequate description of the photograph, with
    or without an intervening trip to New Jersey, in an order from the
    trial court pursuant to OCGA § 5-6-41 (f). Second, we conclude that
    114
    a photograph of Young as a very young child would not assist our
    appellate review. See West v. State, 
    306 Ga. 783
    , 787 (2) (833 SE2d
    501) (2019); Brockman v. State, 
    292 Ga. 707
    , 716 (5) (b) (739 SE2d
    332) (2013) (denying relief where the defendant failed to show that
    he was harmed or prevented from raising any viable issue on appeal
    by the omission from the record of four exhibits, including three
    mitigation photographs).
    48. Young argues that his convictions and sentences should be
    reversed based on a cumulative error analysis. Pretermitting the
    question of how suitable the various issues are for such a review and
    what rule this Court should adopt in that regard in the future, we
    hold that the cumulative effect of the several instances of
    constitutional violations and trial court error that we have assumed
    to exist above does not warrant relief under any rule that we might
    adopt. See State v. Lane, 
    308 Ga. 10
    , 14 (1), 17-18 (1), 21-22 (4) (838
    SE2d 808) (2020) (holding that “Georgia courts . . . should consider
    collectively the prejudicial effect of trial court errors and any
    deficient performance by counsel — at least where those errors by
    115
    the court and counsel involve evidentiary issues” but declining to
    decide “exactly how multiple standards may interact under
    cumulative review of different types of errors”). 27
    Sentence Review
    49.   Upon our review of the entire record, especially those
    portions relevant to the matters noted above that were waived for
    the purposes of ordinary appellate review, we conclude that the
    sentence of death in this case was not imposed under the influence
    of passion, prejudice, or any other arbitrary factor. See OCGA § 17-
    10-35 (c) (1).    See also Martin, 298 Ga. at 279 (6) (d) (stating
    regarding this Court’s review under OCGA § 17-10-35 (c) (1): “That
    plenary review guards against any obvious impropriety at trial,
    whether objected to or not, that in reasonable probability led to the
    jury’s decision to impose a death sentence.”).
    50.   In its sentencing verdict, the jury found as statutory
    aggravating circumstances that the murder was committed while
    Our analysis here includes the issues addressed in Divisions 5, 16, and
    27
    37. However, we reiterate that we are not announcing here a rule regarding
    what types of error should be considered cumulatively.
    116
    Young was engaged in the commission of burglary and aggravated
    battery and that the murder was outrageously or wantonly vile,
    horrible, or inhuman in that it involved torture and aggravated
    battery to the victim before death and involved the defendant’s
    depravity of mind. See OCGA § 17-10-30 (b) (2), (7). Upon our
    review of the record, we conclude that the evidence presented at trial
    was sufficient to authorize a rational trier of fact to find beyond a
    reasonable doubt the existence of these statutory aggravating
    circumstances. See Ring, 
    536 U. S. 584
    , passim; Jackson, 
    443 U. S. at 319
     (III) (B); OCGA § 17-10-35 (c) (2) (requiring a review of the
    statutory aggravating circumstances found by the jury); UAP IV (B)
    (2) (providing that, in all death penalty cases, this Court will
    determine whether the verdicts are supported by the evidence).
    51. The Georgia Code requires this Court, in the direct appeal
    of a death sentence, to determine “[w]hether the sentence of death
    is excessive or disproportionate to the penalty imposed in similar
    cases, considering both the crime and the defendant.” OCGA § 17-
    10-35 (c) (3). As discussed below, we reject Young’s arguments that
    117
    our proportionality review is unconstitutional or otherwise
    improper, we reject his claim that he is categorically exempt from a
    death sentence based on his claim of intellectual disability, and we
    conclude   that   his   death   sentence   is   not     disproportionate
    punishment.
    (a)    Contrary     to   Young’s   arguments,       “[t]his   Court’s
    proportionality review is not inadequate under statutory or
    constitutional standards,” Ellington, 292 Ga. at 117 (3) (e),
    disapproved on other grounds by Willis, 304 Ga. at 706 n.3, and
    there is no need for this Court to remand this case to the trial court
    for further proceedings regarding this issue.         In support of this
    holding, we set forth our reasoning regarding Young’s specific
    arguments in more detail below.
    (i) As this Court has explained previously, our proportionality
    review
    concerns whether the death penalty ‘is excessive per se’ or
    if the death penalty is ‘only rarely imposed . . . or
    substantially out of line’ for the type of crime involved and
    not whether there ever have been sentences less than
    death imposed for similar crimes.
    118
    Gissendaner, 272 Ga. at 717 (19) (a) (citations omitted).
    Furthermore, as noted previously in a concurrence to the affirmance
    of the soundness of this Court’s proportionality review:
    The Court does not determine whether the death sentence
    under review represents a large or small percentage of
    sentences in factually comparable cases. Rather, the
    Court examines the sentence on appeal to ensure that it
    is not an anomaly or aberration.
    Terrell v. State, 
    276 Ga. 34
    , 46 (572 SE2d 595) (2002) (Fletcher, C.J.,
    concurring).   Thus, an argument like Young’s highlighting the
    infrequency of death sentences in Georgia, particularly regarding
    cases involving crimes that are arguably somewhat similar to his
    and defendants that are arguably somewhat similar to him, “while
    not irrelevant, cannot alone compel a finding of unlawful
    disproportionality.” Gissendaner, 272 Ga. at 717 (19) (a). Instead,
    “[t]his Court views a particular crime against the backdrop of all
    similar cases in Georgia in determining if a given sentence is
    excessive per se or substantially out of line.” Id. (emphasis supplied).
    We reaffirm these aspects of our proportionality review.
    119
    (ii) We reaffirm this Court’s previous holding that, “[b]ecause
    it is a jury’s reaction to the evidence before it that concerns this
    Court in its proportionality review, it is irrelevant if the sentences
    in the cases used for comparison were already at the time, or later
    are, reversed for reasons unrelated to the juries’ reactions to the
    evidence.” Davis v. Turpin, 
    273 Ga. 244
    , 246 (2) (539 SE2d 129)
    (2000).28
    (iii)   We disagree with Young’s assertion that this Court’s
    partial reliance in its proportionality review on some cases that are
    not as recent as others in itself renders this Court’s proportionality
    review inadequate.
    (iv) The Georgia Code provides that this Court
    shall be authorized to employ an appropriate staff and
    such methods to compile such data as are deemed by the
    Chief Justice to be appropriate and relevant to the
    statutory questions concerning the validity of the
    28 Young cites one particular case that he claims this Court cited in its
    proportionality reviews in several other defendants’ direct appeals but was
    later vacated on habeas review on grounds that arguably affect the question of
    proportionality regardless of the correctness of our reasoning in Davis; Young’s
    point is unpersuasive, however, because his proportionality review is being
    conducted here on its own merits. We are also unpersuaded by Young’s
    arguments that are based on a 2007 newspaper article that takes a different
    view than we did in Davis.
    120
    sentence reviewed in accordance with Code Section 17-10-
    35.
    OCGA § 17-10-37 (b) (as amended by Ga. L. 2010, p. 420, § 2). In a
    case where this Court affirms a death sentence, the role of the
    “compil[ation] of] such data,” id., is reflected in this Court’s
    published decision, including in an appendix providing “a reference
    to those similar cases which [this Court] took into consideration,”
    OCGA § 17-10-35 (e). See also OCGA § 17-10-35 (e) (2) (directing
    this Court to provide the trial court, for resentencing purposes, with
    “[t]he records of those similar cases” cited by this Court in its opinion
    and with “the extracts prepared as provided for in subsection (a) of
    Code Section 17-10-37” in any case where this Court sets aside a
    death sentence on proportionality grounds).               This Court’s
    proportionality review complies with statutory requirements
    regarding its consideration of relevant data, and we hold that this
    Court’s practices regarding those data are not unconstitutional. In
    light of this holding, we decline Young’s invitation to remand this
    case for further evidentiary development regarding this issue,
    121
    including his request to probe this Court’s internal deliberative
    processes via an Open Records Act request directed at this Court
    and via subpoenas directed to this Court’s staff. Cf. UAP IV (B) (1)
    (providing for this Court to direct the trial court to conduct whatever
    further proceedings this Court deems necessary to allow a full
    review on appeal).
    (v) Finally, Young complains that it is “unfair” that he will not
    have access to this Court’s reasoning regarding the proportionality
    of his death sentence prior to the issuance of this opinion, after
    which his only remaining remedy in this Court will be a motion for
    reconsideration. In rejecting this argument, we note that a similar
    difficulty presents itself to all unsuccessful appellants in this Court,
    regardless of the issue decided on appeal.
    (b) Young argues that he belongs to a class of persons, namely
    persons with intellectual disability, who are categorically exempt
    from the death penalty under the United States Constitution and
    the Georgia Constitution and that this Court should enforce that
    exemption through this Court’s proportionality review in his case,
    122
    see OCGA § 17-10-35 (c) (3), or through other unspecified authority.
    Although we have previously held that the execution of an
    intellectually   disabled   person      would   violate   the   Georgia
    Constitution, see Fleming, 
    259 Ga. at 690
     (3), we see no
    constitutional infirmity in the General Assembly’s determination
    that the issue of whether a defendant is categorically exempt from
    the death penalty based on intellectual disability should be decided
    by a jury, rather than by this Court, subject only to this Court’s
    review of the sufficiency of the evidence to support the jury’s verdict.
    But cf. Hill, 269 Ga. at 303-304 (3 and 4) (holding that, where alleged
    intellectual disability was not determined by a jury at trial despite
    the statutory provision allowing for such a claim at that stage, a
    habeas court may consider alleged intellectual disability under the
    miscarriage of justice exception to the procedural default rule).
    Nevertheless, we do consider Young’s evidence of alleged intellectual
    disability falling short of the categorical exemption here in our
    proportionality review, because we are directed by law to consider
    “the crime and the defendant.” OCGA § 17-10-35 (c) (3).
    123
    (c) The evidence in this case shows that, after weeks of careful
    planning, Young ruthlessly executed the prolonged attack on and
    brutal murder of his former fiancée’s son for the purpose of
    manipulating his former fiancée into resuming a relationship with
    him and returning to live with him. Considering both the crime and
    the defendant, including the evidence of his intellectual difficulties,
    we conclude that the death sentence imposed for the murder in this
    case is not disproportionate punishment within the meaning of
    Georgia law. See OCGA § 17-10-35 (c) (3); Gissendaner, 272 Ga. at
    716-717 (19) (a) (holding that this Court’s statutorily mandated
    proportionality review concerns whether a particular death sentence
    “is excessive per se” or is “substantially out of line”).   The cases
    cited in the Appendix support our conclusion, because each shows a
    jury’s willingness to impose a death sentence for the deliberate,
    unprovoked commission of a murder during the commission of a
    burglary, see OCGA § 17-10-30 (b) (2), or a murder that was
    “outrageously or wantonly vile, horrible, or inhuman,” see OCGA §
    17-10-30 (b) (7). See OCGA § 17-10-35 (e). See also Barrett v. State,
    124
    
    292 Ga. 160
    , 190 (4) (733 SE2d 304) (2012) (explaining that seldom,
    if ever, will the facts surrounding two death penalty cases be entirely
    alike and that this Court is not required to find identical cases for
    comparison in its proportionality review); Ross v. State, 
    233 Ga. 361
    ,
    366-367 (2) (211 SE2d 356) (1974) (“It is the reaction of the sentencer
    to the evidence before it which concerns this court and which defines
    the limits which sentencers in past cases have tolerated. . . .”).
    Judgment affirmed. All the Justices concur, except Nahmias, P. J., and
    Boggs and Peterson, JJ., who concur specially, Warren, J., who concurs in
    judgment only, and Bethel, J., who dissents.
    APPENDIX
    Spears v. State, 
    296 Ga. 598
     (769 SE2d 337) (2015), disapproved on
    other grounds by Willis v. State, 
    304 Ga. 686
    , 706 (11) (a) n.3 (820
    SE2d 640) (2018); Barrett v. State, 
    292 Ga. 160
     (733 SE2d 304)
    (2012); Ledford v. State, 
    289 Ga. 70
     (709 SE2d 239) (2011),
    disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3;
    Arrington v. State, 
    286 Ga. 335
     (687 SE2d 438) (2009); Walker v.
    State, 
    282 Ga. 774
     (653 SE2d 439) (2007) (relevant to Young’s case
    despite the fact that the convictions and sentences were later
    vacated for reasons unrelated to the jury’s reaction to the evidence
    before it, see Humphrey v. Walker, 
    294 Ga. 855
     (757 SE2d 68) (2014),
    disapproved on other grounds by Ledford, 
    289 Ga. at 85
     (14),
    disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3));
    Lewis v. State, 
    277 Ga. 534
     (592 SE2d 405) (2004) (relevant to
    Young’s case despite the fact that the death sentence was later
    vacated for reasons unrelated to the jury’s reaction to the evidence
    before it, see Hall v. Lewis, 
    286 Ga. 767
    , 767-768, 781 (II) (692 SE2d
    125
    580) (2010)); Sallie v. State, 
    276 Ga. 506
     (578 SE2d 444) (2003);
    Braley v. State, 
    276 Ga. 47
     (572 SE2d 583) (2002); Terrell v. State,
    
    276 Ga. 34
     (572 SE2d 595) (2002); Fults v. State, 
    274 Ga. 82
     (548
    SE2d 315) (2001); McPherson v. State, 
    274 Ga. 444
     (553 SE2d 569)
    (2001) (relevant to Young’s case despite the fact that the death
    sentence was later vacated for reasons unrelated to the jury’s
    reaction to the evidence before it, see Hall v. McPherson, 
    284 Ga. 219
    , 220 (663 SE2d 659) (2008)); King v. State, 
    273 Ga. 258
     (539
    SE2d 783) (2000); Jones v. State, 
    273 Ga. 231
     (539 SE2d 154) (2000),
    overruled on other grounds by State v. Lane, 
    308 Ga. 10
    , 23 (838
    SE2d 808) (2020); Drane v. State, 
    271 Ga. 849
     (523 SE2d 301) (1999),
    
    265 Ga. 255
     (455 SE2d 27) (1995); Jones v. State, 
    267 Ga. 592
     (481
    SE2d 821) (1997).
    126
    S21P0078. YOUNG v. THE STATE.
    NAHMIAS, Presiding Justice, concurring specially.
    With the one exception that I discuss below, I am fairly
    confident that the Court reaches the right result on all of the issues
    presented in this case, so I concur in the judgment upholding
    Young’s convictions and sentences, including his death sentence. I
    am less sure about everything the plurality opinion says, or fails to
    say, about each of the issues presented. I do not fault the author of
    the plurality opinion for that, because the opinion has to try to
    explain its reasoning regarding the 50 enumerations of error (many
    with subparts) raised in Young’s 466-page principal brief (which was
    supplemented by another 76 pages of argument in a reply brief), and
    the Court must decide this case (along with our many other second-
    term cases) by July 2 to comply with our state Constitution’s unique
    “two-term rule.” See Ga. Const. of 1983, Art. VI, Sec. IX, Par. II (“The
    Supreme Court and the Court of Appeals shall dispose of every case
    at the term for which it is entered on the court’s docket for hearing
    127
    or at the next term.”).
    This Court has not (yet) imposed a page limit on briefs in death
    penalty cases. See Supreme Court Rule 20 (3). Compare 
    id.
     (1) and
    (2) (imposing a 50-page limit for principal briefs in other criminal
    cases and a 30-page limit in civil cases). Young presents several
    substantial issues, but it is difficult to identify the wheat among all
    the chaff, and even the chaff must be addressed. Indeed, the
    plurality opinion might be 250 pages long if it dealt with every issue
    in detail (and if this Court had time to do so). Because Young has
    chosen to present his appeal in this way, I join only the result of the
    plurality opinion, without necessarily agreeing with every bit of its
    analysis.
    The issue that is closest, as evidenced by Justice Bethel’s
    dissent, and as to which I have the least confidence in the result, is
    the continued viability, under the Eighth Amendment of the United
    States Constitution, of Georgia’s unique statute placing on the
    defendant the burden of proving his intellectual disability beyond a
    reasonable doubt. See OCGA § 17-7-131 (c) (3). As the plurality
    128
    opinion recounts, in 1988, the people of this State, acting through
    their elected representatives, were the first in the nation to take the
    humane step of prohibiting the execution of intellectually disabled
    criminal defendants. See id. (j) (prohibiting the imposition of the
    death penalty after a finding of intellectual disability). Not long
    thereafter, this Court, and then the United States Supreme Court,
    constitutionalized that prohibition using the doctrine that applies
    the “cruel and unusual punishments” constitutional text based on
    “evolving standards of decency that mark the progress of a maturing
    society.” See Fleming v. Zant, 
    259 Ga. 687
    , 689-690 (386 SE2d 339)
    (1989); Atkins v. Virginia, 
    536 U.S. 304
    , 312, 321 (122 SCt 2242, 153
    LE2d 335) (2002).
    That doctrine, which does not purport to be founded on the
    original public meaning of the constitutional text, allows judges to
    outlaw punishments based on their judicial conceptions of what
    contemporary “decency” requires. See Atkins, 
    536 U.S. at 337
    (Scalia, J., dissenting) (explaining that the rule adopted by the
    majority opinion “find[s] no support in the text or history of the
    129
    Eighth Amendment”); Conley v. Pate, 
    305 Ga. 333
    , 339-341 (825
    SE2d 135) (2019) (Peterson, J., concurring) (explaining that the
    majority opinion in Fleming departed without explanation from “the
    history and context of the Georgia Constitution, as well as over 100
    years of Georgia precedent,” to adopt the “evolving standards of
    decency” doctrine from the United States Supreme Court case law).
    I say “judicial conceptions,” because although judges applying this
    doctrine often purport to be reflecting the views of contemporary
    American (or Georgian) society, the cases often disregard the best
    evidence of those views, which is contemporary legislation enacted
    by the people’s elected representatives. 29
    29 Perhaps the most telling example of this is the United States Supreme
    Court’s 5-4 decision in Kennedy v. Louisiana, 
    554 U.S. 407
     (128 SCt 2641, 171
    LE2d 525) (2008), which prohibited under all circumstances the death penalty
    for rape of a child not resulting in the child’s death. See 
    id. at 421
    . The majority
    then stuck to that position even when the Court was advised in a motion for
    rehearing that only two years before, Congress had enacted (by vote of 374-41
    in the House and 95-0 in the Senate) and the President had signed a law
    authorizing the death penalty for members of the military who rape a child.
    See Kennedy v. Louisiana, 
    554 U.S. 945
    , 946-948 (129 SCt 1, 171 LE2d 932)
    (2008) (statement of Kennedy, J., respecting the denial of rehearing); 
    id.
     at 948-
    950 (statement of Scalia, J., respecting the denial of rehearing). Justice Scalia,
    who had dissented, explained why he was not voting to grant rehearing as
    follows:
    130
    Consequently, when we enter the realm of Eighth Amendment
    “evolving standards of decency,” if there is not a holding from a
    United States Supreme Court case directly on point, a lower court
    trying to understand what validly enacted state laws that Court will
    decide the United States Constitution has morphed to nullify
    requires guessing about what the majority of Justices currently
    serving on that Court will decide when a particular new issue is
    presented to them. The Atkins majority explained that “[n]ot all
    I am voting against the petition for rehearing because the views of
    the American people on the death penalty for child rape were, to
    tell the truth, irrelevant to the majority’s decision in this case. The
    majority opinion, after an unpersuasive attempt to show that a
    consensus against the penalty existed, in the end came down to
    this: “[T]he Constitution contemplates that in the end our own
    judgment will be brought to bear on the question of the
    acceptability of the death penalty under the Eighth Amendment.”
    554 U.S. [at 434]. Of course the Constitution contemplates no such
    thing; the proposed Eighth Amendment would have been laughed
    to scorn if it had read “no criminal penalty shall be imposed which
    the Supreme Court deems unacceptable.” But that is what the
    majority opinion said, and there is no reason to believe that
    absence of a national consensus would provoke second thoughts.
    Id. at 948-949. The dissent in Fleming similarly explained that in holding that
    the death penalty for the intellectually disabled was prohibited by the Georgia
    Constitution based primarily on the enactment of OCGA § 17-7-131, the
    majority disregarded the limitations and prospective-only application of that
    statute enacted by the people’s representatives. See Fleming, 
    259 Ga. at
    691-
    701 (Smith, J., dissenting).
    131
    people who claim to be mentally retarded will be so impaired as to
    fall within the range of mentally retarded offenders about whom
    there is a national consensus,” and asserted that the Court would
    therefore “leave to the State[s] the task of developing appropriate
    ways to enforce the constitutional restriction upon [their] execution
    of sentences.” Atkins, 536 U.S. at 317 (citation and punctuation
    omitted). Taking heed of those statements, this Court held in Head
    v. Hill, 
    277 Ga. 255
    , 260-263 (587 SE2d 613) (2003), and reiterated
    in Stripling v. State, 
    289 Ga. 370
    , 371-374 (711 SE2d 665) (2011),
    that Georgia’s beyond-a-reasonable-doubt standard of proof for
    claims of intellectual disability (in conjunction with other
    procedures protecting the intellectually disabled from death
    sentences) does not violate the Eighth Amendment. And the en banc
    United States Court of Appeals for the Eleventh Circuit held that
    our decisions on this issue were not contrary to clearly established
    federal law. See Hill v. Humphrey, 662 F3d 1335, 1337-1338 (11th
    Cir. 2011) (en banc), cert. denied, 
    566 U.S. 1041
     (132 SCt 2727, 183
    LE2d 80) (2012).
    132
    Thereafter, however, in Hall v. Florida, 
    572 U.S. 701
     (134 SCt
    1986, 188 LE2d 1007) (2014), and Moore v. Texas, 581 U.S. ___ (137
    SCt 1039, 197 LE2d 416) (2017), the majority on the United States
    Supreme Court began to constrain the leeway that the states
    appeared to have been given regarding how intellectual disability
    may be determined. The holdings of those two cases do not address
    what standard of proof may be used to evaluate an intellectual
    disability claim, and thus they plainly do not affect Georgia’s law.
    But as Justice Bethel explains in his dissent, some of the reasoning
    of the cases, particularly their disapproval of state measures that
    “‘creat[e] an unacceptable risk that persons with intellectual
    disability will be executed,’” Moore, 137 SCt at 1044 (quoting Hall,
    572 U.S. at 704), certainly casts doubt on this State’s uniquely high
    standard of proof.
    The reasoning of the United States Supreme Court’s decisions
    does not bind lower courts, however; only the holdings govern. Cf.
    Rodriguez de Quijas v. Shearson/American Express, Inc., 
    490 U.S. 477
    , 484 (109 SCt 1917, 104 LE2d 526) (1989) (explaining that even
    133
    when the holding of a Supreme Court case appears to be
    contradicted by the reasoning of another line of decisions, the
    holding rather than the subsequent reasoning is binding on lower
    courts). And particularly in this area of “evolving standards of
    decency,” in which it all comes down to whether five Justices decide
    to “evolve” the Eighth Amendment a little more, it is risky to rely on
    reasoning alone. Indeed, this Court just experienced that pitfall in
    another area of “evolving” Eighth Amendment jurisprudence – the
    imposition of life without parole sentences on defendants convicted
    of murders committed when they were juveniles.
    Since the death penalty for juveniles was outlawed by the 5-4
    decision in Roper v. Simmons, 
    543 U.S. 551
    , 578 (125 SCt 1183, 161
    LE2d 1) (2005), the clear trend line of the United States Supreme
    Court’s cases in this area (all decided by narrow margins) was to
    restrict the states’ authority to punish juveniles. In particular, the
    reasoning of the Court’s 6-3 majority opinion in Montgomery v.
    Louisiana, 
    577 U.S. 190
     (136 SCt 718, 193 LE2d 599) (2016), seemed
    to make it clear that before a juvenile murderer could be sentenced
    134
    to life without parole, the sentencer must consider more than just
    the defendant’s youth and its attendant characteristics; there must
    be a specific determination that the defendant is one of those “rarest
    of   juvenile   offenders . . . whose   crimes   reflect   permanent
    incorrigibility.” Id. at 208-212. This Court and other lower courts
    relied on that reasoning to require such a determination. See Veal
    v. State, 
    298 Ga. 691
    , 702-703 (784 SE2d 403) (2016). See also, e.g.,
    Malvo v. Mathena, 893 F3d 265, 275 (4th Cir. 2018); Commonwealth
    v. Batts, 163 A3d 410, 459 (Pa. 2017). But then the composition of
    the United States Supreme Court changed, and just a few weeks ago
    that Court held, by a 6-3 margin, that notwithstanding most of what
    the Montgomery majority opinion said, that decision does not require
    a specific finding of permanent incorrigibility. See Jones v.
    Mississippi, 593 U.S. ___ (141 SCt 1307, 1311, 209 LE2d 390) (2021).
    See also Holmes v. State, Case No. S21A0377, slip. op. at 11-17
    (decided June 1, 2021). Both the three dissenters and Justice
    Thomas (who concurred in the judgment based on his view that
    Montgomery was wrongly decided) criticized the majority opinion for
    135
    disregarding Montgomery’s logic and reasoning. See Jones, 141 SCt
    at 1323, 1326-1328 (Thomas, J., concurring in the judgment); id. at
    1330-1337 (Sotomayor, J., dissenting).
    Jones demonstrates that courts like mine should be cautious in
    deciding Eighth Amendment cases based on aspects of the
    reasoning, rather than the square holdings, of the United States
    Supreme Court’s “evolving standards of decency” decisions, and
    should be wary of trying to predict which way those holdings are
    trending. If I had to guess today, I would say that it is likely that if
    the United States Supreme Court, as currently comprised, is called
    on to decide whether Georgia’s beyond-a-reasonable-doubt-standard
    for proof of intellectual disability violates the Eighth Amendment, a
    majority of the Justices would not extend the holdings of Hall and
    Moore to strike down our State’s statute, notwithstanding the
    reasoning of the majority opinions in those two cases.
    Of course I (and the majority of this Court) could be wrong.
    Young is welcome to seek certiorari from the United States Supreme
    Court to have that Court tell us that we are wrong; I would
    136
    obediently accept and forthrightly apply such a decision. Young and
    his advocates are also welcome to try to persuade the people of
    Georgia, through their elected representatives, to revisit OCGA §
    17-7-131 (c) (3) in light of the extensive developments in the science
    of intellectual disability and the law in this area since that statute
    was enacted more than three decades ago; if the General Assembly
    takes a further humane step with regard to criminal defendants who
    are potentially intellectually disabled, I would embrace that change.
    In the meantime, however, I see no compelling reason for this Court
    to overrule our well-established precedent on this issue.
    I am authorized to state that Justice Boggs and Justice
    Peterson join this special concurrence.
    137
    S21P0078. YOUNG v. THE STATE.
    BETHEL, Justice., dissenting
    “[T]he Eighth and Fourteenth Amendments to the [United
    States] Constitution forbid the execution of persons with intellectual
    disability.” Hall v. Florida, 
    572 U. S. 701
    , 704 (I) (134 SCt 1986, 188
    LE2d 1007) (2014) (citing Atkins v. Virginia, 
    536 U. S. 304
    , 321 (IV)
    (122 SCt 2242, 153 LE2d 335) (2002)). However, before a person can
    access this constitutional protection, Georgia requires that the
    person first prove that he or she is intellectually disabled beyond a
    reasonable doubt. See OCGA § 17-7-131 (c) (3), (j). As others have
    before him, Young argues that Georgia’s law is unconstitutional.
    See, e.g., Stripling v. State, 
    289 Ga. 370
    , 371-374 (1) (711 SE2d 665)
    (2011); Head v. Hill, 
    277 Ga. 255
    , 260 (II) (B) (587 SE2d 613) (2003)
    (rejecting habeas court decision that beyond-a-reasonable-doubt
    standard is unconstitutional under Atkins because “nothing in
    Atkins instructs the states to apply any particular standard of proof
    to [intellectual disability] claims”). But Young suggests that
    138
    subsequent decisions of the Supreme Court of the United States cast
    doubt on Stripling and Head and compel a different conclusion. I
    agree.
    In Atkins, the Supreme Court of the United States determined
    that the United States Constitution prohibits the execution of
    intellectually disabled persons. See 536 U. S. at 321 (IV). When this
    constitutional protection was identified, its contours were not
    particularly well-defined, and it appeared that the individual states
    were to be responsible for defining and safeguarding this right. See
    id. at 317 (III) (“[W]e leave to the States the task of developing
    appropriate ways to enforce the constitutional restriction upon their
    execution of sentences.” (citation and punctuation omitted)); see also
    Bobby v. Bies, 
    556 U. S. 825
    , 831 (I) (129 SCt 2145, 173 LE2d 1173)
    (2009) (“Our opinion [in Atkins] did not provide definitive procedural
    or substantive guides for determining when a person who claims
    [intellectual disability] will be so impaired as to fall within Atkins’
    compass. We left to the States the task of developing appropriate
    ways to enforce the constitutional restriction.” (citation and
    139
    punctuation omitted)). Since then, however, we have learned that
    States are not authorized to enforce legislative rules or judicial tests
    that by design or operation create “an unacceptable risk that
    persons with intellectual disability will be executed.” Hall, 572 U. S.
    at 704 (I); see also Moore v. Texas, __ U. S. __ (137 SCt 1039, 1051
    (IV) (C) (1), 197 LE2d 416) (2017).
    In Hall, Florida’s rule precluding a finding of intellectual
    disability for any person scoring over 70 on an IQ test failed
    constitutional review because it created “an unacceptable risk that
    persons with intellectual disability will be executed.” Hall, 572 U. S.
    at 704 (I). The “rigid” statutory rule in Hall was deemed
    unacceptable by the Supreme Court, in part because the strict rule
    failed to consider the margin of error and variability inherent in IQ
    testing, and thus disregarded established medical practice. See id.
    at 713-714 (III) (A).
    Likewise, in Moore, the seven-factor test established by Texas
    courts to evaluate intellectual disability was found to be deficient
    because “by design and in operation,” the Texas test created “‘an
    140
    unacceptable risk that persons with intellectual disability will be
    executed.’” Moore, 137 SCt at 1051 (IV) (C) (1) (citing Hall, 572 U. S.
    at 701). More specifically, the Supreme Court determined that the
    Texas test failed to protect those with mild levels of intellectual
    disability from execution. See id. This was impermissible because
    “the entire category of intellectually disabled offenders” is
    constitutionally protected from execution. (Citation, punctuation,
    and emphasis omitted.) Id.
    The question before us, then, is whether Georgia’s requirement
    that a defendant prove his or her own intellectual disability beyond
    a reasonable doubt creates “an unacceptable risk that an
    intellectually disabled person will be executed.” Hall, 572 U. S. at
    704 (I). Here, the existence of such a risk seems plain.
    Obviously, some portion of persons who are actually
    intellectually disabled would, nevertheless, find it difficult to prove
    that fact in a judicial proceeding under any standard of proof. See
    Raulerson v. Warden, 928 F3d 987, 1015, 1016 (I) (C) (11th Cir.
    2019) (“Intellectual disability is an inherently imprecise and
    141
    partially subjective diagnosis. . . . Given that intellectual disability
    disputes will always involve conflicting expert testimony, there will
    always be a basis for rejecting an intellectual disability claim.”)
    (Jordan, J., concurring in part and dissenting in part); see also Hill
    v. Humphrey, 662 F3d 1335, 1367 (I) (11th Cir. 2011) (Barkett, J.,
    dissenting) (“[M]ental retardation spans a spectrum of intellectual
    impairment[.]”). There is a risk of failure in every effort to divine
    truth through a judicial proceeding. Employing the highest burden
    of proof in our system of justice, however, significantly increases the
    risk of an offender with an actual intellectual disability being
    executed because he or she is unable to meet the high standard of
    proof.30 Under Georgia’s standard, a meaningful portion of
    intellectually disabled offenders are effectively excluded from the
    constitutional protection recognized in Atkins. See Humphrey, 662
    30 Indeed, the beyond-a-reasonable-doubt standard employed in criminal
    proceedings has been described in the legal community as a societal preference
    for acquitting guilty people rather than risking incarceration of the innocent.
    See, e.g., In re Winship, 
    397 U. S. 358
    , 372 (90 SCt 1068, 25 LE2d 368) (1970)
    (Harlan, J., concurring) (“I view the requirement of proof beyond a reasonable
    doubt in a criminal case as bottomed on a fundamental value determination of
    our society that it is far worse to convict an innocent man than to let a guilty
    man go free.”).
    142
    F3d at 1365-1366 (Barkett, J., dissenting) (noting that the State
    does not “have unfettered discretion to establish procedures that
    through their natural operation will deprive the vast majority of
    [intellectually disabled] offenders of their Eighth Amendment right
    not to be executed”). The United States Constitution protects all
    intellectually disabled offenders from execution under Atkins, and
    Georgia’s standard “effectively limits the constitutional right
    protected in Atkins to only those who [suffer from severe or profound
    intellectual disability]” such that their disability is not subject to any
    real dispute or doubt. Id. at 1365-1377. But as the Supreme Court
    has determined, the Eighth and Fourteenth Amendments must
    afford protection to an offender whose disability is less obvious or
    profound. See Moore, 137 SCt at 1051 (IV) (C) (1).
    Further, when the standard of proof is beyond a reasonable
    doubt, an individual juror who merely believes the defendant to be
    probably or even clearly intellectually disabled would still be
    authorized to join a sentence of death if any part of their mind was
    wavering, unsettled, or unsatisfied that the defendant had proven
    143
    intellectual disability. We know that a rigid cutoff for IQ that does
    not account for variability and margin of error in the test is
    unreasonable. See Hall, 572 U. S. at 713-714 (III) (A). Likewise, we
    know that employing a test that exposes those with mild intellectual
    disabilities to a greater risk of execution is unreasonable. See Moore,
    137 SCt at 1051 (IV) (C) (1). With these truths in mind, then, it
    seems plain to me that requiring the highest burden of proof known
    to our judicial system is also unreasonable because it fails to protect
    intellectually disabled persons who are unable to prove that fact
    beyond a reasonable doubt. Accordingly, while I concur in the
    balance of the Chief Justice’s opinion, I respectfully dissent with
    respect to Division 25. Thus, I would vacate the trial court’s
    judgment and remand the case for a new jury trial on the sole
    question of intellectual disability and for resentencing consistent
    with the result of that trial, or for other constitutionally agreeable
    proceedings.
    144