Nundra v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: March 21, 2023
S23A0043. NUNDRA v. THE STATE.
PETERSON, Presiding Justice.
Thaddas Nundra was convicted of murder and many other
serious charges related to the shooting death of Herbert Moore.1 On
1 Three people were charged with the October 26, 2017, murder and
robbery of Herbert Moore — Nundra, Ronnie McFadden, and Louis Ousley.
McFadden was acquitted of all charges, except conspiracy to commit burglary.
Ousley accepted a plea deal in exchange for testimony against Nundra. He
pleaded guilty to conspiracy to commit armed robbery and conspiracy to
commit burglary in exchange for a 20 year sentence.
On August 14, 2018, a Decatur County grand jury indicted Nundra for
malice murder (Count 1), aggravated assault (Count 2), felony murder (Counts
3, 6, 8, 10, and 12), possession of a firearm during the commission of a felony
(Count 4), conspiracy to commit burglary (Count 5), conspiracy to commit
armed robbery (Count 7), criminal attempt to commit burglary (Count 9),
criminal attempt to commit armed robbery (Count 11), and possession of a
firearm by a convicted felon (Count 13).
Nundra was found guilty on February 14, 2019, of Counts 1, 2, 3, 4, 8,
11, and 12, as well as a lesser included offense on Count 5. He was acquitted
on counts 6, 7, 9, and 10. The State entered a nolle prosequi on Count 13,
charging possession of a firearm by a convicted felon.
The trial court pronounced Nundra’s sentence on February 14, 2019, and
he filed a motion for new trial on February 26, 2019. Nundra’s premature
motion for new trial ripened when the trial court entered its sentence on
appeal, he asserts the trial court made four key errors, and he
contends that the cumulative effect of those errors requires reversal.
We assume without deciding that the trial court made two
errors. First, we assume that the trial court abused its discretion in
admitting evidence of Nundra’s 1997 convictions for armed robbery
and hijacking a motor vehicle. And second, we assume that the trial
court erred in admitting certain evidence of the victim’s good
character. We conclude, however, that these errors were harmless,
both individually and cumulatively.
And we reject Nundra’s remaining claims. The trial court did
not abuse its discretion in allowing the State to compare Nundra to
February 27, 2019. See Seals v. State, 311 Ga. 739, 739 n.1 (860 SE2d 419)
(2021); Southall v. State, 300 Ga. 462, 463-464 (1) (796 SE2d 261) (2017).
The trial court sentenced Nundra to life in prison without the possibility
of parole for Count 1, a consecutive five-year term of imprisonment for Count
4, and a consecutive two-and-a-half year term of imprisonment for Count 5.
The remaining counts merged or were vacated by operation of law.
Nundra amended his motion for new trial in December 2020, and the
trial court denied it on February 28, 2022 following a hearing. Because he did
not receive notice of the ruling, Nundra failed to file a timely notice of appeal.
On Nundra’s motion raising the lack of notice, the trial court vacated and re-
entered the order on April 28, 2022. Nundra timely appealed. The case was
docketed to this Court’s term beginning in December 2022 and submitted for
consideration on the briefs.
2
serial killers. Lawyers have wide latitude in closing arguments. And
while these comments were certainly inflammatory, they were based
on permissible inferences from evidence in the record. Nor has
Nundra shown that it was plain error to allow the State to introduce
“TrueAllele” DNA evidence without a baseline of how likely a sample
was to match a random person. Nundra did not preserve this
particular issue below, so our review is only for plain error (and not
abuse of discretion). And he fails to show that admitting the
evidence without his preferred explanatory baseline was plain error.
We therefore affirm Nundra’s convictions.
1. (a) The Crime 2
On the night of October 25, 2017, Nundra, Ronnie McFadden,
and Louis Ousley were spending time at Na’Gina Hightower’s
apartment. Hightower was dating McFadden at the time, even
though McFadden was married to someone else. They were there to
2 “Because this case requires an assessment of the harmful effect of
alleged trial court errors, we lay out the evidence in detail and not only in the
light most favorable to the verdicts.” Allen v. State, 310 Ga. 411, 412 n.2 (851
SE2d 541) (2020).
3
smoke “molly” with a large group of people. Around 4:00 a.m.,
Nundra, McFadden, and Ousley left.
The three men walked towards a pawn shop, planning to break
into it. As they tried to figure out a way over the fence around the
pawn shop, Nundra noticed a man in a truck in a parking lot across
the street.
Watching the driver, Herbert Moore, park his vehicle, Nundra
asked Ousley to hand over the gun he had brought. Nundra told
McFadden and Ousley he was going to rob Moore, and he went and
hid in the bushes behind the truck.
He then ran up to Moore and demanded he “[g]ive it up.” Moore
attempted to fight back, and Nundra fired eight shots, hitting Moore
twice. Nundra, McFadden, and Ousley fled the scene.
(b) The Aftermath
Around 6:00 a.m., Hightower heard the shots ring out from her
nearby apartment. Roughly 20 minutes later, McFadden and Ousley
came running back into her apartment. They were in a near panic;
McFadden collapsed on the floor, struggled for breath, and threw up.
4
Ousley stood nearby, crying and trying to catch his breath. Some 15
minutes after that, Nundra returned. He was not wearing the hat
that he had worn during the shooting. Nundra asked for a change of
clothing, borrowing a pair of jean shorts from Ousley. He also asked
for bleach and a towel to clean his hands.
Nundra cleaned himself and cooked breakfast. He talked about
the murder, and warned McFadden and Ousley he would kill them
if they talked to the police. As Nundra prepared to leave Hightower’s
apartment, he said he was going to burn his clothes.
After dropping Hightower’s son off at school, Nundra and
McFadden went back to McFadden’s home. There, they burned their
clothing, and Nundra changed clothes a second time. McFadden’s
wife saw them burning something, and said that Nundra needed to
leave.
(c) The Investigation
When police arrived on the scene of the shooting, they found
six cartridge casings by the back left tire of the truck. There were
5
bullet holes in the windshield, the door, the seat, the victim’s body,
and the roof of the truck.
The investigators then canvassed the nearby streets. They
initially learned of two suspects: Nundra and McFadden. They also
learned that Nundra was driving a white Dodge truck. Nundra later
gave police consent to search his truck. There was nothing in the
truck specifically implicating Nundra in the shooting, though he did
appear to have packed the vehicle as though he were leaving town.
Sometime later, a city employee contacted investigators about
a black puffy jacket discovered in the wooded area of a nearby park.3
They then went to search the park, where they found a gun wrapped
in a stocking hat — partially buried near the place where the black
jacket had been found.
After that, the police detained McFadden and Ousley, and
arrested Nundra in connection with the murder. Nundra admitted
that he was in the area with McFadden and Ousley, but he claimed
3 The jacket was sent to the GBI crime lab, but apparently never
submitted for testing.
6
that he was at the post office and did not know anything about the
murder.
Later on, the gun and the stocking hat were sent for forensic
testing. The GBI determined that the bullets and casings collected
at the crime scene all came from the gun. And a DNA specialist
found a match of DNA profiles between Nundra and a sample taken
from the hat.
(d) The Trial
Four aspects of the trial are relevant to this appeal.
i) First, the State introduced, over Nundra’s objection, evidence
of Nundra’s 1997 convictions for armed robbery and hijacking a
motor vehicle. That evidence showed the following. On a Sunday
night in December 1996, a man named Rufus Walker was driving
his car, and he made contact with Nundra. Nundra pulled a gun and
shot him multiple times — including once in the left eye, which
Walker lost. Nundra also beat Walker with the pistol, robbed him,
and stole his car.
Before this evidence was presented to the jury, the trial court
7
instructed the jury that there were limited purposes for which the
evidence could be considered under OCGA § 24-4-404 (b) (“Rule
404 (b)”). The court did not adequately specify for which of the Rule
404 (b) purposes the jury could consider the evidence, instead
stating generally that
in order to prove its case as alleged in the indictment, the
State must [show] knowledge, intent, participation —
conspiracy, plan, preparation, and it may show motive or
opportunity. To do so the State intends to offer evidence of
other acts allegedly committed by an accused. You’re
permitted to consider that evidence only insofar as it may
relate to those issues and not for any other purpose. You
may not infer from such evidence that the accused is of a
character that would commit such crimes.
The trial court repeated essentially the same admonition in its
final jury instructions. This time, the court added
[a]gain, such evidence . . . may not be considered by you for
any other purpose. The accused is on trial for the offenses
charged in the bill of indictment only and not for any other
acts[,] even though such acts may incidentally be criminal
and may have resulted in conviction. Before you may
consider any [such] acts for the limited purposes stated
earlier, you must first determine whether it’s more likely
than not that the accused committed the other alleged acts.
If so, you then must determine whether the acts shed any
light on the elements of the offense for which the act has
been admitted in the crimes charged in the indictment . . . .
Remember to keep in mind the limited use and prohibited
8
use of this evidence about . . . other acts of the accused.
The State talked about these convictions during closing
arguments: “Mr. Nundra intimidates people based on fear. He likes
to bully people. Likes to pick on people when they’re vulnerable. In
the ’90s when Mr. Rufus Walker is in a vehicle, he goes up to him,
Mr. Walker can’t see him, shoots him in the eye. When Mr. Moore is
trying to get in his work truck, sneaks up behind him from the
bushes with a gun and shoots him. Because he’s a bully.”
ii) Second, various pieces of evidence came in tending to show
the good character of the victim and evoke sympathy for him, his
widow, and the community. Donald Grubbs, who heard the gunshots
from his home and had his wife call the police, discussed his
relationship with Moore and described him as the “nicest fellow.”
Along the same lines, a police captain who responded to the scene
said that he had known Moore for “20-something years” and was sad
while he gave the victim chest compressions. And, most importantly,
the State elicited more of this sort of evidence from Moore’s widow.
In response to a question about why Moore had not retired, she
9
testified that Moore had been planning on retiring but wanted to
take care of her, and make sure she was eligible for Medicare before
he stopped working. The State also introduced a picture of the two
of them together (to which Nundra objected under Rule 403). And,
asked about cows shown in that photo, Moore’s widow testified that
she had been forced to sell their cows because she couldn’t take care
of them by herself. The State also referred back to all of this evidence
in closing arguments.
iii) Third, and again during closing arguments, the State
compared Nundra to serial killers Jeffrey Dahmer, Charles Manson,
and Ted Bundy, calling Nundra a “sociopath.”
iv) Finally, Nundra objected to the introduction of DNA
evidence analyzed through TrueAllele software. The stocking hat
contained the DNA profiles of at least four individuals, testified
Emily Mathis, a forensic biologist for the GBI, and so the GBI used
TrueAllele to analyze those samples. Explaining the scientific value
of the TrueAllele software, Mathis testified that it “uses very high
level mathematics and algorithms in order to interpret [the] data
10
and do so without any bias.” In essence, she testified, the software
compares “reference samples from [known] individuals to . . .
evidence samples.” The software then assigns statistical weight to
the likelihood of a match between the reference sample and the
evidence sample. Mathis testified that the results here showed “it
was approximately two billion times more probable that the
evidence matched Thaddas Nundra” than “a random individual in
the population.” Thus, Mathis concluded that Nundra’s DNA was,
indeed, on the hat.
2. Nundra first argues that the trial court abused its discretion
in admitting evidence of Nundra’s 1997 convictions under Rule
404 (b). We need not decide whether he is correct, because even if
this was error, it was harmless given the strength of the other
evidence against Nundra, the trial court’s instruction that the jury
could not use the evidence to conclude Nundra had a propensity to
commit these sort of crimes, and the fact that the jury was told
Nundra had been charged and pleaded guilty for the crimes.
A trial court’s evidentiary error “requires reversal of [the
11
a]ppellant’s convictions unless it can be deemed harmless, meaning
that ‘it is highly probable that the error did not contribute to the
verdict.’” Heard v. State, 309 Ga. 76, 90 (3) (g) (844 SE2d 791) (2020)
(quoting Brown v. State, 303 Ga. 158, 164 (2) (810 SE2d 145) (2018)).
“In determining whether the error was harmless, we review the
record de novo and weigh the evidence as we would expect
reasonable jurors to have done[.]” Jackson v. State, 306 Ga. 69, 80
(2) (c) (829 SE2d 142) (2019) (citation and punctuation omitted).
Generally, we have found Rule 404 (b) errors harmless “where
the properly admitted evidence . . . was so strong that the prejudicial
effect of the other-acts evidence had no significant influence on the
guilty verdicts.” Heard, 309 Ga. at 91 (3) (g) (collecting cases); see
also Thompson v. State, 302 Ga. 533, 542 (III) (A) (807 SE2d 899)
(2017) (“Where evidentiary error is deemed harmless, it is often true
that the evidence was only ‘marginal’ to the prosecution’s case.”)
(quoting Johnson v. State, 301 Ga. 277, 280 (2) (800 SE2d 545)
(2017)).
And so it is here. Evidence of previous violent crimes like the
12
1997 convictions certainly could have a substantial prejudicial
effect. See Strong v. State, 309 Ga. 295, 316 (4) (845 SE2d 653) (2020)
(noting “the severity of the prior acts and their resulting injuries”);
Kirby v. State, 304 Ga. 472, 486 (4) (a) (ii) (819 SE2d 468) (2018)
(other-acts evidence “had some prejudicial force, because it
suggested that Appellant was not only an armed robber, but a serial
armed robber — and indeed a violent criminal who kept committing
dangerous crimes[.]”) But given the other evidence against Nundra,
the fact that the jury was told that Nundra had pleaded guilty to
criminal charges arising from the other acts (meaning it could infer
he had been punished for those crimes), and the trial court’s limiting
instruction, we conclude that it is highly probable that any such
prejudice did not contribute to the jury’s verdict.
First and foremost, the evidence of Nundra’s guilt was very
strong. Ousley testified that Nundra participated in planning a
burglary, and then used Ousley’s gun to attempt to rob Moore — but
ended up killing him instead. Ousley also testified that a jacket
recovered in a nearby park was the same one Nundra had been
13
wearing on the morning of the murder. Consistent with Ousley’s
account, substantial physical evidence implicated Nundra, including
the murder weapon, found wrapped in a stocking cap in the same
area of the park as the jacket, and containing Nundra’s DNA. And
Nundra’s behavior after the fact suggested a consciousness of guilt.
Hightower testified that Ousley and McFadden came “running
through the back door” 15 to 20 minutes after she heard the
gunshots, with McFadden crying and throwing up; Nundra arrived
a few minutes after them, at which point, according to Ousley,
Nundra was no longer wearing his hat. The jury could easily have
inferred from this testimony that Nundra had discarded the hat and
jacket he had been wearing — which accounted for why he arrived
at Hightower’s apartment later than McFadden and Ousley. Once
there, he asked Hightower for bleach, he told Ousley he planned to
burn the remaining clothes he had been wearing, and he was later
seen by McFadden’s wife burning something with McFadden behind
their house. Finally, Nundra told McFadden and Ousley he planned
to leave the state, and he threatened to kill them if they talked to
14
the police. In short, the properly admitted evidence of Nundra’s guilt
was very strong — which significantly reduces the likelihood that
the jury convicted him for his past conduct rather than the conduct
charged in this case. See Jackson, 306 Ga. at 81 (2) (c).
Second, the evidence also made clear that Nundra had
committed the prior crime a long time ago, and that he had pleaded
guilty. And although it does not appear the jury was ever told what
sentence Nundra received for his crimes, the knowledge of his guilty
plea nonetheless reduces the risk that the jury convicted Nundra to
punish him for his other crimes, because the jury could infer that
Nundra had already been punished for those crimes. 4 Compare
4 During the pretrial hearing on Nundra’s motion to suppress, the State
represented that Nundra had served 20 years in prison following the 1997
convictions and was released in November of 2016. That information was not
presented to the jury at trial or included in the court record that was
introduced into evidence. But the jury was told that the crimes occurred in
1996, and that Nundra pleaded guilty in 1997, so the prior crimes and the ones
charged here were not so close in time that time alone would lead the jury to
infer that Nundra received little or no punishment. Cf. Thomas v. State, 314
Ga. 681, 685 (1) (a) n.2 (878 SE2d 493) (2022) (when previous crime was
committed only four years and four months before crime at issue, “the jury
necessarily knew that [defendant] could not have spent much more than four
years in custody for the shooting of [prior victim], a sentence the jury may have
viewed as inadequate for such a violent offense”).
15
Strong, 309 Ga. at 316 (4) (viewing the prejudice of admitting prior
crimes especially high because of “the absence of evidence that [the
defendant] was ever punished in any way for [his] many serious
crimes”), and United States v. Beechum, 582 F2d 898, 914 (5th Cir.
1978) (noting that the danger that the jury may convict the
defendant due to an uncharged offense “is particularly great where
. . . the extrinsic activity was not the subject of a conviction; the jury
may feel that the defendant should be punished for that activity
even if he is not guilty of the offense charged”), with Jones v. State,
311 Ga. 455, 465 (3) (b) (ii) (858 SE2d 462) (2021) (weighing
probative value versus prejudice under Rule 404 (b), and concluding
that “the jury learned that [the defendant] had already admitted his
guilt and was convicted and sentenced to eight years in prison for
attacking [the victim], making it less likely that the jury would want
to punish him for the other-acts rather than for the charged crimes”),
and Kirby, 304 Ga. at 485 (4) (a) (i) (noting that “the jury learned
that [the defendant] had already admitted his guilt and been
convicted and served a prison sentence for his 1990 conduct, making
16
it less likely that the jury would want to punish [him] for this past
conduct rather than the charged crimes”).
Third, although the trial court’s limiting instructions did not
meaningfully explain for which permissible purpose the evidence
was relevant, they did, at least, tell the jury what it could not do:
“You may not infer from such evidence that the accused is of a
character that would commit such crimes.” And we have held that
this sort of admonition can lower the risk that the jury will convict
for the wrong reasons. See Morrell v. State, 313 Ga. 247, 262 (2) (c)
(869 SE2d 447) (2022); see also Jackson, 306 Ga. at 82 (3) (although
the trial court’s initial limiting instruction about a prior crime was
“obviously incomplete,” “this Court considers the instructions as a
whole” (citation and punctuation omitted)). To be clear: because
these instructions did not sufficiently specify the permissible
purposes for which the evidence could be considered, they do not
have the same mitigating effect that we have found in other cases
where the trial judge specifically instructed the jury on which Rule
404 (b) purposes could be considered. Even so, the trial court’s
17
admonition that the jury “may not infer from such evidence that the
accused is of a character that would commit such crimes” reduces
the likelihood that the evidence of Nundra’s past crimes influenced
the verdict.
Thus, because the evidence of Nundra’s guilt was very strong,
because Nundra’s guilty plea allowed the jury to infer that he had
been punished for his prior crimes, and because the trial court
instructed the jury not to consider the evidence as proof of Nundra’s
propensity to commit these sort of crimes, we conclude it was highly
probable that admitting the 1997 convictions did not contribute to
the verdict.
3. Nundra next argues that the trial court should not have
allowed the State to introduce evidence of the victim’s good
character and talk about it during closing arguments. We assume
without deciding that the evidence should not have been admitted.
But we conclude, because the evidence of Nundra’s guilt was very
strong, that this was harmless.
(a) “Generally, apart from evidence of a ‘pertinent trait,’
18
character of the victim is irrelevant because it is just as unlawful to
commit a crime against a person of bad character as it is to commit
a crime against a person of good character.” Agnor’s Georgia
Evidence § 6:10 (November 2022 Update) (citing Walker v. State, 312
Ga. 232, 238 (3) (862 SE2d 285) (2021); Maynor v. State, 241 Ga. 315,
316 (245 SE2d 268) (1978)); see also OCGA § 24-4-404 (a), OCGA §
24-4-405 (a)-(b); Timmons v. State, 302 Ga. 464, 468 (2) (a) (807 SE2d
363) (2017). Thus, “evidence about a crime victim’s personal
characteristics and the emotional impact of the crime on the victim,
the victim’s family, and the victim’s community generally is not
admissible in the guilt[ or] innocence phase of a criminal trial.”
Lofton v. State, 309 Ga. 349, 363 (6) (b) (ii) (846 SE2d 57) (2020).
Nundra points to three instances of supposed good-character
evidence. First, he complains that Grubbs was allowed to discuss his
relationship with Moore and describe him as the “nicest fellow.”
Second, he objects that the first officer on the scene was permitted
to say that he had known Moore for “20-something years” and was
sad while he gave the victim chest compressions. And third, and
19
perhaps most importantly, he points out that the State elicited more
of this sort of evidence from Moore’s widow. In response to a question
about why Moore had not retired, for example, she testified that
Moore had been planning on retiring but wanted to take care of her
and make sure she was eligible for Medicare before he stopped
working. The State also introduced a picture of the two of them
together, and, asked about cows shown in that photo, Moore’s widow
testified that she had been forced to sell their cows because she
couldn’t take care of them by herself.
And, as discussed, the State referred back to all this in closing
arguments, apparently in an effort to evoke sympathy for Moore and
his widow. Speaking of the impact on the community, the State told
the jury that Grubbs and his son “knew Mr. Moore. Nice guy. Played
with their dogs. Talked to everybody around here.” Plus, the State
told the jury, the officer who testified about knowing Moore “is not
the most flowery, smiley guy that we have on our police force. And
the fact that he was [choked] up, almost crying, about Mr. Moore
tells you a lot about how this has impacted [the] community.” On the
20
impact to Moore’s wife, the State reminded the jury that she “had to
sell the cows that he kept,” and emphasized that the couple had been
“married almost 26 years . . . . He would go to work, come home, have
lunch with his wife, [and] play with his dog. Had a simple life. Raised
cows. Loved each other.” Referencing the fact that his closing
argument was given on Valentine’s Day, the State noted that
Moore’s widow would not receive flowers from him anymore. And on
Moore’s own good character, the State pointed out that “[h]e kept
working for 32 years so that his wife could get Medicare.”
(b) Assuming that Nundra preserved this issue for ordinary
appellate review, and that admitting the evidence was error, the
State would still have the opportunity to show that it is “highly
probable that the error did not contribute to the verdict.” Smith v.
State, 299 Ga. 424, 432 (2) (d) (788 SE2d 433) (2016) (citation and
punctuation omitted).
And once again we conclude that that this evidence did not
affect the outcome of the trial. For the reasons already discussed,
the evidence of Nundra’s guilt was very strong, so the risk that
21
evidence of the victim’s good character would lead the jury to convict
Nundra for some reason other than guilt was fairly low. See Lucas
v. State, 274 Ga. 640, 642-644 (2) (555 SE2d 440) (2001) (concluding
that “certain comments . . . and testimony” that “improperly raised
the worth of the victims and the impact wrought by their deaths”
were harmless in the light of the defendant’s confessions of guilt to
a friend and law enforcement officers, as well as corroborating
evidence of the crime). Thus, this claim fails as well.
4. Next, and relatedly, Nundra contends that the trial court
abused its discretion in allowing the State to compare him to
“sociopaths” and serial killers like Jeffrey Dahmer, Charles Manson,
and Ted Bundy. On this point, we disagree. The State’s comments
here were inflammatory, but attorneys are allowed wide latitude in
their arguments to the jury. And these arguments drew on
permissible inferences from the evidence, and did not (as Nundra
suggests) rely on facts or diagnoses not in evidence. That is enough
to reject Nundra’s claim.
(a) During closing arguments, the State told the jury that “Mr.
22
Nundra is very similar to Jeffrey Dahmer, Charles Manson, and Ted
Bundy. All four of them are sociopaths.” Nundra objected that this
was “wholly inappropriate”; that “no doctor [ ] came in and said that
Mr. Nundra has sociopathic qualities,” so the characterization was
“not in evidence.” But the trial court overruled the objection, and the
State doubled down, insisting that “Mr. Nundra is a sociopath.
Anyone [who,] after they kill a man acts like it’s no big deal, anyone
that goes to someone’s house and makes eggs and grits after they
shot a man . . . is a sociopath . . . . He is sick.”
Nundra argues on appeal that allowing the State to refer to
him as a sociopath was “inflammatory, not supported by the
evidence, irrelevant, and an improper appeal to passion or
prejudice” — and had “no relevant purpose for argument beyond
inflaming the passion of the jury to convict regardless of whether the
evidence proved Nundra was guilty beyond a reasonable doubt.”
(b) OCGA § 17-8-75 addresses precisely this point:
Where counsel in the hearing of the jury make statements
of prejudicial matters which are not in evidence, it is the
duty of the court to interpose and prevent the same. On
23
objection made, the court shall also rebuke the counsel
and by all needful and proper instructions to the jury
endeavor to remove the improper impression from their
minds; or, in his discretion, he may order a mistrial if the
prosecuting attorney is the offender.
Referencing famous crimes or criminals to make a point is not
prohibited, but the remarks must be based on a “permissible
inference from the evidence.” Robinson v. State, 257 Ga. 194, 196 (4)
(357 SE2d 74) (1987). We have said that “[c]ounsel may bring to his
use in the discussion of the case well-established historical facts,”
and “may forcibly or even extravagantly attempt to impress upon
the jury the enormity of the offense and the solemnity of their
duty[.]” Conner v. State, 251 Ga. 113, 122-123 (6) (303 SE2d 266)
(1983) (citations and punctuation omitted). And, just as importantly,
“[a] closing argument is to be judged in the context in which it is
made.” Booth v. State, 301 Ga. 678, 686 (4) (804 SE2d 104) (2017).
So, for example, in Robinson, we held that the trial court was
not required to declare a mistrial or give a curative instruction
when, in closing arguments, “the prosecutor said that the
[defendant] lied and” compared him to Charles Manson and Jim
24
Jones in terms of “their powers of persuasion and ability to control
others.” 257 Ga. at 196 (4). The accusation that the defendant lied
was a “permissible inference from the evidence”; the defendant had
filed a missing report on the victim, despite “evidence that he knew
where she was.” Id.; see also Martin v. State, 223 Ga. 649, 650-651
(2) (157 SE2d 458) (1967) (the prosecutor’s comment that “the
possibility of [the defendant] someday returning to society would be
a greater damage than the threat of world communism and the Viet
Cong . . . was a permissible inference from the evidence” because the
evidence in the case involved “a brutal slaying”). And the
comparisons to cultists like Manson and Jones were argumentative
illustrations “of the ability of some people to exert control over
others,” and thus “within the wide latitude which we allow in closing
arguments.” Robinson, 257 Ga. at 196 (4); see also Hudson v. State,
273 Ga. 124, 127 (5) (538 SE2d 751) (2000) (identifying no error
where “[t]he prosecutor compared [the defendant] to well-known
murderers Charles Manson, David Berkowitz, and Jeffrey Dahmer,
noting that they too contended they were not guilty by reason of
25
insanity and were delusional, but were nonetheless held accountable
for their actions and found guilty of their crimes” because “[i]t is
permissible to use well known cases to illustrate a legal principle”);
Pace v. State, 271 Ga. 829, 843 (32) (b) (524 SE2d 490) (1999) (“The
prosecutor compared Pace to serial killers like Bundy and Dahmer
when arguing that the families of these serial killers would have also
said nice things about them when they were children. Under these
circumstances, this is not an improper argument.”).
Conversely, we have held that it is error to allow these sort of
arguments where the State’s comments “inject[ ] into the argument
[ ] extrinsic and prejudicial matters which have no basis in the
evidence.” Bell v. State, 263 Ga. 776, 777 (439 SE2d 480) (1994)
(quoting Conner, 251 Ga. at 123 (6)). In Bell, for example, the
defendant was merely charged with selling drugs — “there was no
evidence of drug-related murder or serial rape,” to which the State
had compared Bell’s actions, “[n]or evidence from which serial rape
and murder would have been a reasonable inference.” Id. Thus, we
said, “[b]y referring to such extraneous and prejudicially
26
inflammatory material in her closing argument, the prosecutor
exceeded the wide latitude of closing argument,” and the trial court
should have granted a mistrial. Id. at 778; see also Conner, 251 Ga.
at 123 (6) (“The portion of the prosecutor’s argument referring to his
prior criminal experience and the frequency with which he had
sought the death penalty was not supported by any evidence and,
moreover, was not relevant to any issue in the case. The argument
was therefore improper”).
(c) Here, the State’s arguments were inflammatory, but the
trial court did not abuse its discretion in declining to take any
corrective action. In context, the state’s remarks about Nundra did
not invoke medical facts or diagnoses not in evidence. To the
contrary, the State’s commentary illustrated the severity of the
crime, the culpability of the conduct, and the stakes of the case —
based on facts that were in evidence. The trial court was therefore
not required to reprimand the State or give a curative instruction,
let alone declare a mistrial. See Robinson, 257 Ga. at 196 (4).
5. Moving into evidence of the crime itself, Nundra asserts that
27
the trial court erred in allowing the State to introduce incriminating
DNA evidence using TrueAllele software, insisting that there was
not enough evidence to show that the software is sufficiently
reliable. In particular, Nundra argues, the State’s expert testified
only that it was “two billion times more likely” that DNA on the cap
recovered near the crime scene matched Nundra than a random
individual — without explaining the probability that the sample
would match a random person. The State responds that Nundra
never objected to the expert’s probability testimony, “nor did he
object to the TrueAllele program or its results on the basis he now
contests[.]” Thus, the State says, the issue can be reviewed only for
plain error, and Nundra cannot show error because the likelihood a
sample would match any random person goes to the weight of the
evidence, not its admissibility. We agree.
(a) We begin by rejecting Nundra’s assertion that he preserved
this issue for ordinary appellate review. True, Nundra “objected to
the TrueAllele evidence in a brief to the trial court following the
pretrial hearing,” but he did not so much as mention the
28
admissibility issue he advances here. Instead, he argued only that
the State had failed to show “the tester substantially performed the
[relevant] scientific procedures in an acceptable manner,” on three
fronts: (1) that “[the expert] admitted that the positive control test
failed on the first DNA sample so a second sample was retrieved
from the test tube and re-amplified”; (2) that, despite the State’s
“contention that TrueAllele is a better computing system [for
analyzing DNA evidence] because it is unbiased and not subject to
human error as it can eliminate choice,” the software’s creator and
the expert witness both “admitted that humans do in fact play . . .
an important role . . . in determining the number of contributors in
a given DNA sample”; and (3) that “duplicate, concordant results
were never achieved in this case.” At trial, he reiterated that
objection: “Judge, I don’t have any objection to [the GBI forensic
biologist] being tendered as an expert. However, at this time I would
renew my previous objection that I had made about the admissibility
of the evidence for the record.”
That is not the same issue Nundra raises here. Nundra’s
29
arguments below asserted a failure to show that the tester
performed the procedures in an acceptable manner. His argument
here, by contrast, is not that the test was not shown to have been
performed correctly — but that the State or the expert should have
been required to provide another piece of foundational information
to the jury. Those are two different issues. Thus, because Nundra
“did not raise these specific objections in the trial court below, his
claim may be reviewed only for plain error.” Morton v. State, 306 Ga.
492, 497 (3) (831 SE2d 740) (2019) (citing Gates v. State, 298 Ga.
324, 326-327 (3) (781 SE2d 772) (2016)).
(b) Nundra has not shown plain error. Under plain error
review, we can reverse only if the trial court made a clear or obvious
error that was not affirmatively waived, likely affected the outcome
of the proceedings, and seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Gates, 298 Ga. at 327 (3);
State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (“As
summarized even more succinctly in the context of OCGA § 17-8-58
(b), the proper inquiry is whether the instruction was erroneous,
30
whether it was obviously so, and whether it likely affected the
outcome of the proceedings.” (citation and punctuation omitted)).
“Satisfying all four prongs of this standard is difficult, as it should
be.” Kelly, 290 Ga. at 33 (2) (a) (cleaned up). Nundra’s argument is
essentially that, because the State did not establish how likely it is
that TrueAllele would identify a match between the DNA sample
from the hat and DNA from a random member of the public, the
testimony showing that the sample was two billion times more likely
to be Nundra’s DNA “[was] incomplete.” “[T]wo billion times more
likely than what number?” Nundra asks. Lacking that, he concludes,
“[t]he statistics here were misleading and did not provide the jury
with any context with which to evaluate the information.” But
whatever the merits of the argument, it fails to show that admitting
the evidence was a “clear or obvious” error.
At the time Nundra was tried, former OCGA § 24-7-707 (2013),
governing expert testimony, was still in effect. Under that rule, “the
opinions of experts on any question of science, skill, trade, or like
questions [were] always [ ] admissible” in criminal cases, “and such
31
opinions [could] be given on the facts as proved by other witnesses.”
Id. “But trial courts still were empowered to exclude expert
testimony based on a particular ‘procedure or technique’ on the
ground that it had not ‘reached a scientific stage of verifiable
certainty.’” Smith v. State, 315 Ga. 287, 300 (2) (a) n.6 (882 SE2d
300) (2022) (quoting Harper v. State, 249 Ga. 519, 525 (1) (292 SE2d
389) (1982). “The trial court [could] make this determination from
evidence presented to it at trial by the parties,” or else “base its
determination on exhibits, treatises[,] or the rationale of cases in
other jurisdictions.” Harper, 249 Ga. at 525 (1); see also Walsh v.
State, 303 Ga. 276, 279 (811 SE2d 353) (2018) (“[t]he foundation for
evidence based on a scientific principle or technique requires two
findings regarding the evidence’s reliability: . . . (1) the general
scientific principles and techniques involved are valid and capable
of producing reliable results, and (2) the person performing the test
substantially performed the scientific procedures in an acceptable
manner.” (citation and punctuation omitted)). And, of course,
whether to admit or exclude evidence was a matter within the trial
32
court’s discretion. See Kilpatrick v. State, 308 Ga. 194, 196-197 (2)
(839 SE2d 551) (2020). 5
Nundra cites no authority — and we are aware of none —
suggesting that expert testimony about a random-bystander
benchmark is necessary for a trial court to admit TrueAllele
evidence. The cases he cites to that end are inapposite. 6 Indeed, we
5 We note for the bench and bar that “[t]he General Assembly recently
has amended the Evidence Code . . . to extend to criminal cases the federal
standard of admissibility of expert testimony articulated in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (113 SCt 2786, 125 LE2d 469) (1993),
and its progeny. See 2022 Ga. Laws, p. 201, § 1 (amending OCGA § 24-7-702).
Under that standard, a trial court must evaluate the reliability of the expert’s
proffered testimony; proper considerations include ‘whether a theory or
technique can be tested, whether it has been subjected to peer review and
publication, the known or potential rate of error for the theory or technique,
the general degree of acceptance in the relevant scientific or professional
community, and the expert’s range of experience and training.’” Smith v. State,
315 Ga. 287, 300 (2) (a) n.6 (882 SE2d 300) (2022) (quoting HNTB Georgia, Inc.
v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010)). Thus, the
Harper standard does not apply to cases tried after July 1, 2022. See 2022 Ga.
Laws, p. 201, 202 § 3.
6 Nundra cites to one case involving field sobriety tests and another
generally involving statistics. See Duncan v. State, 305 Ga. App. 268, 272 (2)
(a) (699 SE2d 341) (2010) (cited for the proposition that courts have considered
whether a witness was sufficiently trained and experienced to give the
Horizontal Gaze Nystagmus test and interpret its results); Caldwell v. State,
260 Ga. 278, 289-290 (1) (e) (393 SE2d 436) (1990) (cited because it “discuss[ed]
problems with determination the relevant population and its importance to
statistics.”)
33
have discussed TrueAllele in detail just once, in Gates v. State, 308
Ga. 238 (840 SE2d 437) (2020). 7 And all we said there was that (1)
the defendant had shown reasonable diligence in filing his
extraordinary motion for a new trial based on TrueAllele analysis,
and (2) the DNA evidence offered in that case was material and may
well affect the outcome of the case. Id. at 250 (3). We had no reason
to consider any challenge to the admissibility of the evidence,
because “[t]he State did not contest the accuracy of the TrueAllele
results . . . and its witnesses testified that TrueAllele is ‘scientifically
valid[.]’” Id. at 251 (3).Thus, it is not clear or obvious that the
baseline Nundra suggests is required, and so he has failed to show
that the decision to admit the TrueAllele analysis was plain error.
6. Finally, we reject Nundra’s argument that the cumulative
effect of errors below requires reversal.
When this Court has identified or presumed more than one
error, although the effect of each on its own might have been
7We also discussed Gates and TrueAllele in Smith, but only to say that
expert opinion is evidence — not for any issues related to the admissibility of
TrueAllele analysis itself. See Smith, 315 Ga. at 296-297 (2) (a).
34
harmless to the defendant’s trial, we have looked to whether the
combined effect of the errors harmed the defendant. See State v.
Lane, 308 Ga. 10, 13-14 (1) (838 SE2d 808) (2020). We “consider
collectively,” rather than individually, “the prejudicial effect, if any,
of trial court errors[.]” Id. at 17 (1).
It is “highly probable that the error” in admitting Nundra’s
1997 convictions and the good character evidence of the victim “did
not contribute to the verdict.” Allen v. State, 310 Ga. 411, 418 (4) n.6
(851 SE2d 541) (2020) (citations and punctuation omitted). Although
the 1997 convictions for a violent crime held the potential for
prejudice, and the good character evidence invited sympathy for the
victim and his widow, the jury was charged that it was not permitted
to be influenced by sympathy for either party. We typically presume
juries follow the instructions that they are given by the trial court,
absent evidence to the contrary. See Ash v. State, 312 Ga. 771, 781
(2) (865 SE2d 150) (2021); see also Lofton v. State, 309 Ga. 349, 367
(7) (846 SE2d 57) (2020) (relying on jury instruction not to show
sympathy in concluding that the combined prejudicial effect of
35
various actual and assumed errors and deficiencies by counsel,
including counsel’s failure to object to the State’s improper victim
impact arguments, was not sufficient to outweigh the strength of the
properly admitted evidence of the appellant’s guilt). And, on the
other side of the ledger, there was very strong, independent evidence
of Nundra’s guilt. See Payne v. State, 314 Ga. 322, 334 (4) (877 SE2d
202) (2022) (concluding prejudice from presumed error and
presumed deficiencies of counsel was insufficient to reverse where
“[t]he jury heard a significant amount of incriminating testimony”
unrelated to the presumed errors). “Given this strong evidence,”
which Nundra “fails to undermine on appeal, it is highly unlikely
that the jury here was swayed by other acts evidence” and the good
character of the victim. Allen, 310 Ga. at 418 (4). We therefore
conclude that “[i]t is not at all probable that the collective effect of
the assumed errors” harmed Nundra. Id.
Judgment affirmed. All the Justices concur.
36