Kinlaw 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: October 11, 2023
S23A0547. KINLAW v. THE STATE.
BETHEL, Justice.
A Glynn County jury found Harold Dean Kinlaw guilty of the
malice murder of Felipe Herrera, the aggravated stalking and
kidnapping of Kinlaw’s former wife Damaris Kinlaw, and other
related crimes.1 Kinlaw appeals, arguing that the evidence was
1 The crimes occurred on January 18, 2004. On May 19, 2004, a Glynn
County grand jury indicted Kinlaw and Jamie Teresa Morris for malice murder
of Herrera (Count 1), felony murder of Herrera (Count 2), and kidnapping of
Damaris (Count 3). Kinlaw was separately indicted for the aggravated assault
of Damaris (Count 4), aggravated stalking (Count 5), possession of a firearm
during the commission of a crime (Counts 6 and 7), and possession of a firearm
by a convicted felon (Count 8). The State subsequently filed notice of its intent
to seek the death penalty against Kinlaw. Morris pleaded guilty to conspiracy
to commit kidnapping and testified against Kinlaw at trial.
At the guilt-innocence phase of Kinlaw’s trial, which was conducted from
November 7 to November 18, 2008, the jury found Kinlaw guilty of Counts 1
and 3 through 8. The sentencing phase was conducted from November 18 to
November 22, 2008; the jury found the existence of two statutory aggravating
circumstances and fixed a sentence of life without parole for malice murder.
The trial court sentenced Kinlaw to serve life in prison without parole on Count
1, twenty years in prison each on Counts 3 and 4, ten years in prison on Count
insufficient to support his conviction for aggravated stalking and
that the trial court erred by refusing to provide an interpreter for a
witness at trial, by excluding evidence that Herrera had threatened
Kinlaw, by failing to charge the jury on voluntary manslaughter and
self-defense, and by employing an improper remedy after finding
that the State had violated Batson v. Kentucky, 476 U. S. 79 (106
5, five years in prison each on Counts 6 and 7, and five years in prison on Count
8, with Counts 3 through 8 to be served consecutively to Count 1 and to each
other. Count 2 was nolle prossed.
On December 10, 2008, Kinlaw’s trial counsel timely filed a boilerplate
motion for new trial. On December 11, 2008, Kinlaw filed a pro se motion for
appointment of appellate counsel. New attorneys filed entries of appearance in
November 2009 and May 2014, but it does not appear from the record that
those attorneys took any action on Kinlaw’s appeal. In November 2019, current
appellate counsel, the third post-trial counsel to enter an appearance in this
case, was appointed by the Georgia Public Defender Council to represent
Kinlaw. Current appellate counsel filed amended motions for new trial on
October 23, 2020, and February 17, 2021. Following a hearing, the trial court
denied Kinlaw’s motion for new trial, as amended. Kinlaw filed a timely notice
of appeal, and his appeal was docketed in this Court to the April 2023 term
and submitted for a decision on the briefs.
We are troubled by the inordinate and unexplained delay between the
filing of Kinlaw’s motion for new trial in December 2008 and the filing of an
amended motion for new trial nearly 12 years later. So, yet again, we remind
the bench and bar that long post-conviction delays “put at risk the rights of
defendants and crime victims and the validity of convictions obtained after a
full trial,” and we “reiterate that it is the duty of all those involved in the
criminal justice system . . . to ensure that the appropriate post-conviction
motions are filed, litigated, and decided without unnecessary delay.” (Citation
and punctuation omitted.) Owens v. State, 303 Ga. 254, 258 (811 SE2d 420)
(2018).
2
SCt 1712, 90 LE2d 69) (1986). For the reasons explained below, we
affirm.
1. The evidence at trial showed as follows. On January 18,
2004, Kinlaw shot and killed Herrera, who was engaged in a
romantic relationship with Damaris. Kinlaw and Damaris were
divorced in December 2003; the final judgment and decree of divorce
incorporated a permanent restraining order, which prohibited
Kinlaw from contacting Damaris.2 On the morning of the crimes, co-
indictee Jamie Morris, who was Kinlaw’s girlfriend, dropped off
Kinlaw near Damaris’s home. Armed with a handgun, Kinlaw hid
in Damaris’s carport underneath a cloth-covered picnic table.
Herrera arrived later, and he and Damaris sat in the carport
drinking coffee, unaware that Kinlaw was hiding nearby.
Eventually, a gust of wind disturbed the tablecloth and
revealed Kinlaw, who emerged from beneath the table with his gun
pointed at Damaris and Herrera. Damaris jumped in front of
2 The final judgment converted a previously entered temporary
restraining order to a permanent restraining order and indicated that Kinlaw
was “bound by that [o]rder on penalty of felony aggravated stalking.”
3
Herrera, screaming, “Please don’t, Harold, please don’t.” Herrera
moved toward Kinlaw, reaching for the arm with which Kinlaw was
holding the gun. Kinlaw fired the gun three times, striking and
killing Herrera. Kinlaw then forced Damaris into her truck, drove to
a nearby parking lot where Morris was waiting, and transferred
Damaris to Morris’s vehicle. Morris drove the trio to a hotel in North
Carolina where Kinlaw was arrested two days later.
2. Kinlaw challenges the sufficiency of the evidence supporting
his conviction for aggravated stalking, which was predicated on his
violation of the permanent restraining order incorporated into the
divorce decree. When we evaluate the sufficiency of the evidence to
sustain a conviction,
we view the evidence in the light most favorable to the
verdict, draw every reasonable inference from the
evidence that is favorable to the verdict, ignore any
conflicts or inconsistencies in the evidence, [and] assume
that the jury reasonably believed every word of testimony
favorable to the verdict and reasonably disbelieved every
word unfavorable to it.
(Punctuation omitted.) State v. Thomas, 311 Ga. 407, 420 (4) (858
SE2d 52) (2021).
4
Kinlaw first asserts that, because the judge presiding over his
divorce action orally indicated prior to the entry of the final divorce
decree that he would dismiss the case,3 the underlying protective
order was void and could not support the aggravated stalking
conviction. But the divorce action, in fact, was not dismissed because
the judge’s “oral pronouncement” was not reduced to writing and, so,
was of no legal effect. See Williams v. Williams, 295 Ga. 113, 114 (1)
(757 SE2d 859) (2014) (“[A]n oral pronouncement by a trial court
during a hearing is not a judgment until it is reduced to writing and
entered as a judgment.”); Tyree v. Jackson, 226 Ga. 690, 694 (2) (177
SE2d 160) (1970) (“[W]hat the judge orally declares is no judgment
until the same has been reduced to writing and entered as such.”).
And, in fact, the case proceeded to the entry of the final divorce
decree, which incorporated the permanent restraining order.
3 At a hearing held after Damaris obtained a temporary restraining order
against Kinlaw in connection with her petition for divorce, Kinlaw’s counsel
represented that the parties had engaged in sexual relations after the divorce
was initiated. On that basis, the judge orally indicated that he would dismiss
the divorce case, but a written order memorializing the oral dismissal was not
entered.
5
Accordingly, this argument fails.
Next, pointing to a notation in the written divorce decree that
he did not appear for the final hearing, Kinlaw asserts that the State
failed to prove an element of aggravated stalking because, he says,
there was no evidence that he knew he was subject to a permanent
restraining order. In that regard, this Court has held that, to prove
the crime of aggravated stalking,4 the State must show only that the
defendant was “aware that a court order was in effect that
prohibited” contact with the victim. State v. Carlisle, 280 Ga. 770,
772 (2) (631 SE2d 347) (2006).
Viewed in the light most favorable to the verdict, the evidence
shows that, despite his absence from the final hearing, Kinlaw was
aware of the divorce decree and its contents. Damaris testified that
on January 1, 2004 — several weeks after the entry of the divorce
decree but before the crimes at issue here — Kinlaw kidnapped her
4 See OCGA § 16-5-91 (a) (“A person commits the offense of aggravated
stalking when such person, in violation of a . . . permanent restraining
order . . . follows, places under surveillance, or contacts another person at or
about a place or places without the consent of the other person for the purpose
of harassing and intimidating the other person.”).
6
at knifepoint, held her for about a week, then released her.
According to Damaris, Kinlaw knew that his business had been
awarded to Damaris in the divorce decree and that she was in the
process of selling it, and he let her go because “he wanted money”
from the sale. An investigating officer testified that, after being
arrested, Kinlaw acknowledged that he and Damaris were divorced
and claimed that, on the day of the crimes, he went to see Damaris
about money obtained from the sale of his business. These facts
tended to show that Kinlaw knew at least some specific provisions of
the divorce decree, making it less likely that he did not know about
the included restraining order. And Morris, Kinlaw’s co-indictee,
testified that, days before the crimes, Kinlaw attempted to visit
Damaris at home under cover of night while dressed all in black but
was “spooked because of a dog barking and seeing a cop car and the
lights come on at that house.” From this evidence, the jury could
reasonably infer that Kinlaw was aware of the contents of the
divorce decree, including the permanent restraining order, and
therefore knew that he was prohibited by court order from
7
contacting Damaris. See Worthen v. State, 304 Ga. 862, 868 (3) (c)
n.3 (823 SE2d 291) (2019) (“[J]urors are authorized to make such
reasonable inferences and reasonable deductions as ordinarily
prudent persons would make in light of their everyday experience
and knowledge of human conduct and behavior.” (punctuation
omitted)). We thus conclude that the evidence was sufficient to
support Kinlaw’s conviction for aggravated stalking.
3. Kinlaw next challenges the trial court’s refusal to provide an
interpreter to facilitate Damaris’s trial testimony. This claim fails.
The record shows that Damaris is a native Spanish speaker for
whom English is a second language. At trial, early in the State’s
direct examination, Damaris indicated that she did not understand
several questions, prompting the prosecutor to rephrase.
Eventually,5 Kinlaw’s counsel interjected, and the following
exchange took place during a bench conference:
KINLAW’S COUNSEL: Your Honor, this is, by my count,
the fourth time—this is, by my count, the fourth time that
5 The record reflects that, at this point in the State’s direct examination,
the prosecutor had posed approximately one hundred questions to Damaris
and that Damaris expressed difficulty understanding five of those questions.
8
the witness has indicated difficulty understanding the
questions that were asked by the prosecuting attorney.
This morning when we interviewed her at the District
Attorney’s Office she had two members of her family
interpreting for her. And I believe the January 7, January
9, and January 20 interviews, at least the January 7 and
January 9 interviews, she also had an interpreter. If she
needs an interpreter, then we need to get the interpreter
now and not in the middle of the examination. And if she
is having trouble following the direct, she is never going
to follow the cross.
THE STATE: Is that an objection?
KINLAW’S COUNSEL: I—I would ask that the Court
qualify her understanding of the English language
outside the presence of the jury, or just let’s go ahead and
get the interpreters.
THE STATE: I’ve talked to her for the last week, Judge.
She understands me.
THE COURT: I don’t see any need to do anything at this
point. You’ve made your observation. I’m going to let the
examination continue.
Before resuming questioning, the prosecutor asked Damaris to
indicate if she could not understand a question, and Damaris agreed
to do so.
Later, during cross examination, Damaris sought clarification
as to whether “fearful” meant “afraid.” Another bench conference
ensued during which Kinlaw’s counsel again opined on the need for
an interpreter, stating, “I’m going to renew the point we previously
9
raised which is she is going to hide behind the language barrier
every time she has an uncomfortable question, and that’s why she
needs to have the interpreters here like she did all the times she was
interviewed.” The trial court again disagreed, explaining that
“[t]here is no problem of any substance with her communication” but
that “[t]here may be a problem of substance with the way you ask
the questions when you use words like ‘characterization’ and stuff
like that.” Twice more during cross examination when Damaris
expressed confusion, the court summoned the parties to the bench
and directed Kinlaw’s counsel to use “plain English” and “the
simplest of language” in questioning her.
On appeal, Kinlaw maintains that the trial court erred by
refusing to provide an interpreter for Damaris.6 We question
6 Kinlaw further asserts that the absence of an interpreter during
Damaris’s testimony violated his right to confrontation under the Sixth
Amendment to the United States Constitution, and he also appears to
challenge Damaris’s competency as a witness. But Kinlaw did not object to
Damaris’s testimony on either basis in the trial court, so those claims are not
preserved for appellate review. See Blackshear v. State, 285 Ga. 619, 621 (4)
(680 SE2d 850) (2009). Because this case was tried in 2008 under Georgia’s
former Evidence Code, plain-error review of these evidentiary matters is not
available. See Lane v. State, 312 Ga. 619, 622 (1) (864 SE2d 34) (2021).
10
whether trial counsel’s requests for an interpreter constitute
objections and whether the trial court’s responses constitute rulings
such that this claim is preserved for appellate review. See Ellis v.
State, 287 Ga. 170, 172 (2) (695 SE2d 35) (2010) (“It is the rule in
Georgia that objections should be made with sufficient specificity for
the trial court to identify the precise basis. It is not important in
what format the allegation is cast so long as it is clear to the court
the specific error alleged that the court may have the opportunity to
correct [it].”). Assuming without deciding that this claim is
preserved for our review, we conclude that it presents no cause for
reversal.
“Interpreters are required to ensure meaningful access to our
legal system by non-English speakers.” Gomez v. State, 301 Ga. 445,
462 (11) (801 SE2d 847) (2017). See also Georgia Supreme Court
Rules for the Use of Interpreters for Non-English Speaking and
Hearing Impaired Persons. We have recognized that the absence of
a qualified interpreter for a criminal defendant who cannot
effectively communicate in English may implicate constitutional
11
concerns. See Cisneros v. State, 299 Ga. 841, 849-850 (3) (a) (792
SE2d 326) (2016); Ling v. State, 288 Ga. 299, 300-301 (1) (702 SE2d
881) (2010) (“[F]ailure to provide adequate interpretation services to
a defendant in criminal proceedings implicates due process
concerns.”). Here, Kinlaw’s claim arises not from the trial court’s
refusal to provide an interpreter for Kinlaw himself, however, but
from its refusal to provide an interpreter for Damaris, a witness for
the State. In this context, we “review a [trial] court’s determination
as to the use of an interpreter for an abuse of discretion,
which . . . amounts to an inquiry on whether the failure to provide
an interpreter made the trial fundamentally unfair.” (Citations and
punctuation omitted.) See United States v. Belfast, 611 F3d 783, 822
(VI) (F) (11th Cir. 2010) (addressing claim arising from trial court’s
refusal to provide an interpreter to facilitate witness testimony). Cf.
Ling, 288 Ga. at 300 (1). And in order to prevail on a claim arising
from the lack of an interpreter, an appellant must demonstrate that
he was actually harmed by the interpreter’s absence. See Gomez,
301 Ga. at 463 (11) (a).
12
In rejecting this claim below, the trial court, after “thoroughly
review[ing] the trial transcripts,” found that, “[o]f the instances cited
by Kinlaw, very few definitively signal that Damaris did not
understand the words used.” The trial court further found that
“Damaris never requested an interpreter herself”; that, “when
clarification was needed, she asked for it”; and that her “answers, on
balance, were ultimately responsive to the questions asked.” Finally,
the trial court noted that Kinlaw “presented no evidence that
Damaris’s testimony was hampered by the lack of an interpreter or
that she would have given different answers had one been secured.”
These factual determinations are supported by the record, and, as
in the trial court, Kinlaw has neither identified any testimony he
was unable to elicit from Damaris nor argued that his questioning
of Damaris was limited in any respect due to the absence of an
interpreter. Thus, on the record before us, we cannot say that the
absence of an interpreter rendered Kinlaw’s trial fundamentally
unfair in violation of due process. See Belfast, 611 F3d at 822 (VI)
(F) (no fundamental unfairness arising from absence of interpreter
13
for witnesses who spoke “heavily accented English” where record
showed that, when testimony was difficult to understand, the trial
court interrupted the witness to ask for clarification and the witness
in fact clarified his testimony). Cf. Gomez, 301 Ga. at 463 (11) (a) (no
reversible error arising from trial court’s failure to appoint separate
interpreters for appellant and his co-defendant where appellant
failed to show “that he was actually harmed by sharing an
interpreter”); Cisneros, 299 Ga. at 850-851 (3) (a) (appellant failed
to demonstrate that his trial was rendered fundamentally unfair by
the flawed interpretation of Spanish-speaking witnesses’ testimony
where “none of the alleged errors prevented appellant from
effectively presenting his defense” and there was “no instance where
the meaning of a witness’ testimony was altered in a legally
significant manner”). See also Davis v. State, 292 Ga. 90, 92 (734
SE2d 401) (2012) (“‘In order to declare a denial of [due process,] a
court must find that the absence of that fairness fatally infected the
trial; the acts complained of must be of such quality as necessarily
prevents a fair trial.’” (quoting United States v. Valenzuela-Bernal,
14
458 U. S. 858, 872 (III) (B) (102 SCt 3440, 73 LE2d 1193) (1982)).
Accordingly, this claim fails.
4. Kinlaw next argues that the trial court erred by excluding
evidence that Damaris told Kinlaw’s mother that Hererra would
“take care of” Kinlaw and that Kinlaw’s mother conveyed this
purported threat to Kinlaw. According to Kinlaw, this evidence was
admissible to support his claims of voluntary manslaughter and self-
defense. Kinlaw’s trial, which occurred in 2008, is governed by our
former Evidence Code. Under the former Evidence Code, “a murder
victim’s reputation for violence is irrelevant and inadmissible in
criminal proceedings” but “may be offered as evidence by the accused
upon the accused making a prima facie showing that the victim was
the aggressor and was assaulting the accused, who was acting to
defend himself.” Morris v. State, 303 Ga. 192, 194 (II) (811 SE2d 321)
(2018). The trial court found that Kinlaw failed to make such a
prima facie showing, a decision we review for abuse of discretion.
See Tarpley v. State, 298 Ga. 442, 444 (2) 782 SE2d 642) (2016).
There was no abuse of discretion here. The evidence recounted
15
above clearly shows that Kinlaw, not Herrera, was the aggressor —
Kinlaw, in violation of a permanent restraining order, went to
Damaris’s home while armed with a handgun, secreted himself
under a table, and, when his presence was revealed, aimed his
weapon at Damaris and Herrera before ultimately shooting the
unarmed Herrera, who was merely reaching toward Kinlaw’s arm.
See Wainwright v. State, 305 Ga. 63, 72 (5) (b) (828 SE2d 749) (2019)
(a victim is not the aggressor when he is unarmed and is merely
trying to disarm his assailant). The evidence thus supports the trial
court’s finding that Kinlaw failed to make a prima facie showing
that Herrera was the aggressor. Accordingly, the trial court did not
abuse its discretion by excluding evidence of Herrera’s alleged
threats. See Tarpley, 298 Ga. at 444 (2).
5. Kinlaw further complains that the trial court erred by
refusing his requests to charge the jury on the defense of
16
justification7 and on voluntary manslaughter8 because, he says,
there was slight evidence to support these charges.9 To that end,
Kinlaw points to evidence that Herrera attempted to disarm Kinlaw,
which he argues authorized both jury charges. He also asserts that
a voluntary manslaughter instruction was supported by evidence
that Damaris was dating Herrera, which Kinlaw’s trial counsel
speculated could have incited Kinlaw’s jealousy. The trial court was
right to deny Kinlaw’s requests.
As evidence that he was justified in shooting Herrera, Kinlaw
cites testimony that Herrera reached toward the arm with which
Kinlaw was holding the handgun just before Kinlaw shot Herrera.
But as we have already discussed, the evidence shows that Kinlaw
7 See OCGA § 16-3-21 (a) (“A person is justified in threatening or using
force against another when and to the extent that he or she reasonably believes
that such threat or force is necessary to defend himself or herself or a third
person against such other’s imminent use of unlawful force[.]”).
8 See OCGA § 16-5-2 (a) (“A person commits the offense of voluntary
manslaughter when he causes the death of another human being under
circumstances which would otherwise be murder and if he acts solely as the
result of a sudden, violent, and irresistible passion resulting from serious
provocation sufficient to excite such passion in a reasonable person.”).
9 See, e.g., Swanson v. State, 306 Ga. 153, 155 (2) (829 SE2d 312) (2019)
(“To authorize a jury instruction, there need only be slight evidence at trial
supporting the theory of the charge.”).
17
initiated the confrontation by pointing a handgun at Herrera and
Damaris and that Herrera reached toward Kinlaw’s gun only
because Kinlaw was threatening him and Damaris. And there was
no evidence that Herrera was armed or that he threatened Kinlaw
in any way. Under these circumstances, the trial court correctly
found that a justification defense was not supported by even slight
evidence. See Wainwright, 305 Ga. at 72 (5) (b) (evidence that
appellant shot victim when victim began to overpower appellant’s
accomplice did not support justification instruction because victim
initiated physical struggle with accomplice only after appellant
pointed a gun in victim’s face while demanding that second victim
empty his pockets); Brunson v. State, 293 Ga. 226, 227-228 (744
SE2d 695) (2013) (no justification charge warranted where evidence
showed that unarmed victim initiated struggle with appellant only
after appellant threatened victim with a gun). See also OCGA § 16-
3-21 (b) (1), (2) (“A person is not justified in using force . . . if
he . . . [i]nitially provokes the use of force against himself with the
intent to use such force as an excuse to inflict bodily harm upon the
18
assailant” or if he “[i]s attempting to commit, committing, or fleeing
after the commission or attempted commission of a felony[.]”).
“Indeed, it would turn the law on its head to allow an armed
aggressor, who confronts an unarmed nonthreatening victim, to
claim self-defense when the victim is shot during the victim’s
struggle to disarm the aggressor.” (Punctuation omitted.)
Wainwright, 305 Ga. at 72 (5) (b).
A voluntary manslaughter instruction also was unwarranted.
The fact that Herrera reached for Kinlaw’s arm in an effort to
disarm him in response to Kinlaw’s pointing a gun at Herrera and
Damaris shows, at most, that Herrera “physically resisted” Kinlaw’s
unlawful act, “which is not the type of provocation which demands a
voluntary manslaughter charge.” (Punctuation omitted.) Johnson v.
State, 313 Ga. 698, 700 (873 SE2d 123) (2022). Nor was Kinlaw
entitled to a voluntary manslaughter instruction on the basis of
adultery10 or sexual jealousy. “[N]one of the parties were married,”
10 In his brief, Kinlaw mischaracterizes Damaris as his wife and argues
that a “fresh disclosure” of her “infidelities” could warrant a conviction on the
killing only for voluntary manslaughter.
19
so “no instruction regarding adultery as a provocation for voluntary
manslaughter was warranted.” Tepanca v. State, 297 Ga. 47, 49 (4)
(771 SE2d 879) (2015). Likewise, the mere fact that Damaris,
Kinlaw’s former wife, was dating Herrera was not alone “sufficient
to excite sudden, violent, and irresistible passion in a reasonable
person.” (Punctuation omitted.) Id. at 50 (4). The trial court,
therefore, did not err by refusing to charge the jury on either
justification or voluntary manslaughter.
6. During jury selection, the trial court found that the State’s
peremptory strikes of two potential jurors, J. W. and I. B., who are
both black, violated Batson, 476 U. S. at 89 (II) (B) (“[T]he Equal
Protection Clause forbids the prosecutor to challenge potential
jurors solely on account of their race.”). The trial court indicated
that, to remedy the Batson violations, it would seat J. W., the first
of the two potential jurors stricken by the State, and that the parties
would redo the strike process beginning with the first potential juror
after J. W. As to I. B., the trial court explained that “the reason
offered for [striking] her is not a sufficient race neutral reason” and
20
indicated it would “let the State determine how . . . to proceed from
there.” Kinlaw did not object to this course of action. The trial court
thereafter sat J. W. as a juror and the parties proceeded to restrike
the jury as directed by the trial court. The State again struck I. B.
After the jury was selected, defense counsel announced his
satisfaction with its composition but then asserted that the State’s
restriking of I. B. “re-raises the Batson issue.” The trial court
inquired, “I thought you said you did not want to challenge it at this
point. . . . I thought you just announced that.” Counsel responded,
“[W]e will stand by that announcement,” and, when the trial court
asked again if Kinlaw was satisfied with the jury’s composition,
counsel responded affirmatively.
Kinlaw now argues that the trial court erred both by
implementing what he characterizes as an improper remedy and by
permitting the State to restrike I. B. But Kinlaw failed to object to
the trial court’s remedial action and he acquiesced to the jury’s
composition before the jury was sworn. Thus, these issues are not
21
preserved for appellate review.11 See Howard v. State, 288 Ga. 741,
746 (5) (707 SE2d 80) (2011); Holmes v. State, 273 Ga. 644, 645 (2)
(543 SE2d 688) (2001).
Judgment affirmed. All the Justices concur.
11 We express no opinion regarding the propriety of the remedial action
employed by the trial court.
22