Moody v. State

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
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official text of the opinion.
In the Supreme Court of Georgia
Decided: May 16, 2023
S23P0046. MOODY v. THE STATE.
PETERSON, Presiding Justice.
In 2007, Jeremy Moody was charged with the April 5, 2007,
rape and murder of 13-year-old Chrisondra Kimble and the murder
of Kimble’s 15-year-old cousin, Delarlonva Mattox, Jr., 1 and other
related offenses. Shortly after Moody’s jury trial began in April 2013,
Moody pleaded guilty to two counts each of malice murder, felony
murder predicated on aggravated assault, aggravated assault,
aggravated assault with intent to rob, and kidnapping with bodily
injury, as well as to one count of rape. At the conclusion of the
sentencing phase, a jury found the existence of multiple statutory
1Mattox’s first name appears in the record as both “Delarlonva” and
“Delarlalonva.” Because his father testified at the sentencing trial that the
correct spelling is “Delarlonva,” we use that spelling in this opinion.
aggravating circumstances as to each murder and recommended a
sentence of death for each murder, and the trial court sentenced
Moody accordingly. See OCGA §§ 17-10-30 (b); 17-10-31 (a).2
On appeal, Moody raises thirteen claims of error, which we
reject, concluding as follows. The trial court did not abuse its
2 The crimes occurred on April 5, 2007. Moody was indicted by a Fulton
County grand jury on April 20, 2007, and the State filed written notice of its
intent to seek the death penalty on May 1, 2007. Jury selection took place from
March 7 through April 8, 2013, and Moody’s trial began on April 10, 2013.
After the State’s opening statement, however, Moody pleaded guilty to all
charges of the indictment. Moody’s sentencing trial began on April 15, 2013.
On April 24, 2013, the jury recommended death sentences for each of the
murders. In an order filed on the same day, the trial court sentenced Moody to
death for each of the malice murder counts in accordance with the jury’s
verdicts and to consecutive terms of imprisonment of twenty years for each of
the two counts of aggravated assault with intent to rob, life for each of the two
counts of kidnapping with bodily injury, and life for the count of rape. For
purposes of sentencing, the trial court merged the two aggravated assault
counts with the malice murder counts. See Johnson v. State, 300 Ga. 665, 667
(2) (797 SE2d 903) (2017) (holding that aggravated assault merged into malice
murder where “there [wa]s no evidence of an interval separating the infliction
of the victim’s non-fatal wounds from the infliction of the wounds that killed
her”). Although the trial court purported to merge the felony murder counts
into the malice murder counts, those counts were actually vacated by operation
of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993).
On May 17, 2013, Moody filed a motion for new trial, which he amended
on February 18, 2015, on April 28, 2015, and on June 15, 2020. The trial court
denied the amended motion in an order filed on August 3, 2020. After the trial
court granted Moody’s motion for an extension of time, see OCGA § 5-6-39,
Moody filed a timely notice of appeal on October 2, 2020. The appeal was
docketed to this Court’s term beginning in December 2022 and was orally
argued on December 6, 2022.
2
discretion in denying Moody’s request to withdraw his guilty plea,
because his plea was knowingly, intelligently, and voluntarily
entered and therefore its withdrawal was not required to prevent a
manifest injustice. By pleading guilty to all charges in the
indictment against him, Moody waived his constitutional rights to
represent himself at the trial he forewent and to decide the objective
of his defense at such a trial. The trial court did not err in denying
Moody’s challenge to the composition of the master jury list, because
he failed to show any violations of “essential and substantial”
provisions of a jury selection statute that would warrant automatic
reversal or would establish a prima facie case of a Sixth Amendment
fair cross-section violation. The trial court did not abuse its
discretion in denying Moody’s motion for a mistrial based on juror
misconduct, because the juror at issue did not share the information
that he had learned from his misconduct with the remaining jurors
and because the trial court promptly removed him. There was no
plain error resulting from the admission of the challenged victim
impact testimony because there is no reasonable probability that the
3
testimony contributed to the jury’s decision to impose Moody’s death
sentences. The trial court did not err in charging the jury that its
verdict as to sentencing must be unanimous. The record does not
support Moody’s prosecutorial misconduct claims or that the State
pursued inconsistent theories in this trial and in that of his co-
defendant.3 The State’s expert witness’s testimony about his
trainees’ testing and evaluation of Moody did not violate the
Confrontation Clause. And we reject Moody’s other constitutional
challenges — the execution of persons with mental illness not rising
to the level of intellectual disability violates neither the federal nor
the state constitutions, Georgia’s death penalty statutes are not
unconstitutional, and qualifying jurors according to their death
penalty views is not unconstitutional.
Finally, as statutorily required in death penalty appeals, we
3 The State also sought the death penalty against Moody’s co-defendant,
William Felts, in a separate trial held in 2016. See Felts v. State, 311 Ga. 547,
547 n.1 (858 SE2d 708) (2021). The jury found Felts guilty on all counts except
the count of rape and following the sentencing phase, fixed the sentence for
each of the murders at life imprisonment without the possibility of parole. See
id. This Court affirmed Felts’s convictions and sentences in May 2021. See id.
at 547.
4
also review three additional matters regarding Moody’s sentence.
See OCGA § 17-10-35 (c). We determine that the sentence of death
in this case was not imposed under the influence of passion,
prejudice, or any other arbitrary factor. We determine that the
evidence was sufficient to support the jury’s finding beyond a
reasonable doubt the existence of each of the statutory aggravating
circumstances that it found. And we determine that the sentence of
death is not excessive or disproportionate to the penalty imposed in
similar cases, considering both the crimes and the defendant. We
therefore affirm Moody’s convictions and sentences.
1. Because Moody pled guilty at the very beginning of the
guilt/innocence phase of his trial, the only trial at which evidence
was presented was his sentencing trial; the evidence presented at
that sentencing trial showed the following. On April 5, 2007, Kimble
and Mattox were spending their spring break from school at
Mattox’s father’s home. Kimble’s mother, who is the sister of
Mattox’s father, lived in the same home, and the cousins’
grandmother was staying there temporarily to help care for her
5
grandchildren. Between 4:00 p.m. and 4:30 p.m., Kimble and Mattox
told their grandmother that they were going to walk to the store to
buy some snacks. When the teens had not returned by
approximately 7:00 p.m., their grandmother and parents became
concerned. After checking with the teens’ friends with no success,
the teens’ parents contacted law enforcement and then, joined by
other family members, searched for the missing teens late into the
night. Early the next day, friends and neighbors joined family
members in the search.
During the search, the families learned that Kimble and
Mattox had been seen in the area of nearby Bethune Elementary
School. Based on this information, on the afternoon of April 6, 2007,
Kimble’s mother and a young man from the neighborhood searched
an area behind the school. While doing so, Kimble’s mother noticed
an open area in the fence and walked through it and into the wooded
area behind it. There, she first saw some clothing, then the body of
her nephew Mattox, and lastly the body of her daughter.
When they were found, they were both naked except for socks
6
on their feet and a leather belt tied around Mattox’s ankles. Piles of
clothing were located near Mattox’s body, and law enforcement
officials also discovered a store receipt from Dollar Tree at the crime
scene. The medical examiner testified that both victims suffered
numerous stab wounds that were consistent with the use of a flat-
headed screwdriver. Blood spatter was located on a tree trunk near
the ground, indicating that the victims were stabbed while lying on
the ground.
According to the medical examiner, Kimble’s primary cause of
death was multiple stab wounds to her neck, with secondary causes
being blunt trauma to the neck and stab wounds to the head. The
medical examiner testified that Kimble received thirteen stab
wounds to her neck and three stab wounds to her head, including
what would have been a “very severe[ly]” painful wound to the ear.
The medical examiner further testified that Kimble suffered blunt
trauma to her neck and petechial hemorrhages in her eyes, injuries
consistent with manual strangulation, and that she had vaginal
injuries and abrasions on her face and thighs that were consistent
7
with her being face down in a wooded area and having her face and
the front of her body repeatedly thrust against vegetation. The
medical examiner opined that the stab wounds and the injuries to
the vaginal area most likely occurred before Kimble’s death and that
Kimble could have survived for “minutes” or for “hours” after the
stab wounds, although she would not have survived “very long
following the strangulation.” Subsequent forensic testing of the
vaginal smears from Kimble revealed the presence of Moody’s DNA.
The medical examiner testified that Mattox’s cause of death
was stab wounds to the head, neck, and chest and that he had
approximately 41 stab wounds in total, including approximately 14
stab wounds to his neck alone. The medical examiner testified that
the injuries to his neck would have been “quite painful” and would
have resulted in “significant bleeding,” as his left carotid artery and
both of his jugular veins were pierced. She also opined that the
multiple stab wounds to the top of Mattox’s head would have
required a significant amount of force to inflict, as they went
through the skull and penetrated his brain, and that they would
8
have been “very painful.” According to her testimony, some of the
stabs to Mattox’s chest entered his chest cavity and damaged the
cephalic brachial vein, resulting in the collection of approximately
half a liter of blood in his chest, and it would have taken “several
minutes to an hour or so” for Mattox to bleed to death. She also
testified that an abrasion on Mattox’s back was consistent with his
lying face-up in a wooded area with someone on top of him inflicting
stab wounds.
The next day, on April 7, 2007, law enforcement officials
received a telephone call from Moody’s ex-girlfriend, Tameka
Wright, who identified Moody as a suspect. Wright said that Moody
might be attempting to leave town and that they should look for him
at the bus station, and she provided a description of what Moody
was wearing. Moody was arrested at the bus station with paperwork
in his possession regarding trips to Orlando and Houston. On the
way to the police station, Moody asked why he was being arrested.
When his question was not answered, Moody suggested that he had
watched the news and then stated, “You’re not going to do this to
9
me. You’re not going to put those kids on me.”
Wright testified for the State regarding a statement that she
had given to law enforcement officials on the day of Moody’s arrest.
According to Wright, Moody called her at 5:21 p.m. on the day of the
murders and said that he was going to commit a robbery. Moody
called her again about two hours later, saying that he had money.
Later that night, he met her at her job and told her “that he didn’t
have the money, that it didn’t go right, things didn’t go as planned.”
Moody said that he had killed two drug dealers and that “they didn’t
really mean nothing . . . [t]o nobody.” Moody said that the victims
had believed that he had a gun, and that he had walked them “at
gunpoint” into the woods near his mother’s house, killed them, and
left their bodies in the woods. Moody described the victims as
“young” and “scared.” He also said that he undressed the victims
because he did not want any evidence, such as hairs or fibers, to be
found on them. Moody told Wright that he wanted to return to the
crime scene in order to move the bodies to prevent anyone from
finding them, but Wright told Moody not to. Wright testified that
10
Moody acted like himself and that she did not believe him. She also
testified that she previously had seen Moody both under the
influence of drugs, as well as alcohol, and that he did not appear to
be under the influence of either when she saw him on the night of
the crimes.
Wright further testified that, on the night of April 6, 2007,
Moody called her to inform her that, according to news reports, the
victims’ bodies had been discovered. After Wright watched the news
for herself and heard the ages of the victims, she confronted Moody
about his telling her that the victims were “drug dealers” when they
were actually “two children.” Moody responded that the victims
meant nothing to him and that they appeared to him to be adults.
Wright also testified that Moody told her that, because he had
removed the victims’ clothes, people were going to make it out to be
worse than it was, and he specifically used the word “rape.” Wright
then asked him multiple times if he raped either one of the victims,
and Moody denied doing so. According to Wright’s testimony, Moody
never expressed remorse for murdering the victims. Moody elicited
11
Wright’s promise not to call the police, but she did anyway.
In addition to the above evidence, presented in part in support
of statutory aggravating circumstances that the State had given
notice of, the State presented extensive non-statutory aggravating
evidence regarding Moody’s violent behavior both prior to the
murders and during his pretrial detention, including the following.
The State introduced evidence of Moody’s certified convictions for
simple battery, for simple battery involving family violence, and for
obstruction of an officer that resulted from an incident in which
Moody attacked his girlfriend at the time and a person who came to
her defense. The State also presented testimony that Moody
harassed this same former girlfriend by threatening to kill her and
her family beginning with her infant granddaughter and by
repeatedly calling the daycare center where she worked looking for
her and threatening to kill her co-workers, the children at the
daycare center, and anyone else who got in his way. He also
repeatedly violated the restraining order that the former girlfriend
obtained against him. There was testimony that Moody beat
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Wright’s five-to-six-year-old daughter with a belt. And one of
Moody’s female acquaintances testified that Moody tried to strangle
her when she thwarted his plans to have sex with her approximately
two to three weeks before the murders, that he later threatened to
kill her, and that he subsequently tried to break into the house
where she was staying through a window near her bedroom.
The evidence concerning Moody’s pretrial detention while
awaiting trial showed the following. He had been violent with jail
personnel many times, including attacking a guard with a shank; he
had made numerous verbal and written threats to kill specific jail
personnel, including a law librarian and a detention officer; he had
been found in possession of contraband, including a shank, pills, and
cellphones, both in his cell and on his person; he had been involved
in numerous incidents in which the jail’s special team for dealing
with dangerous inmates had to intervene, and he had tried to
intimidate new officers on this team by throwing water or feces on
them and spitting at them; and he had abused the nurses at the jail
in numerous ways, including making derogatory sexual comments
13
to them, throwing various liquids such as a mixture of urine and
sour milk at them, spitting at and kicking one of them, and exposing
himself to one of them.
Moody’s guilty plea renders a review of the evidence for its
constitutional sufficiency moot as to his guilt. 4 See Thomason v.
Caldwell, 229 Ga. 637, 644 (194 SE2d 112) (1972). Nevertheless, we
have reviewed the evidence from his sentencing trial and conclude
that, when viewed in the light most favorable to the sentencing
verdicts, the evidence presented was sufficient to enable a rational
trier of fact to find beyond a reasonable doubt each of the statutory
aggravating circumstances found by the jury, which are discussed
further in Division 16 below. See Ring v. Arizona, 536 U.S. 584 (122
SCt 2428, 153 LE2d 556) (2002) (holding that statutory aggravating
circumstances must be proven to a jury beyond a reasonable doubt);
4 To the extent that OCGA § 17-10-35 (f) could be understood to require
us nevertheless to review the factual substantiation of guilt as a statutory
matter (a point on which we offer no opinion), this record is plainly sufficient.
In addition to all of the facts supporting guilt recited above, as detailed below
in Division (2) (a), Moody admitted as part of his guilty plea colloquy that he
was pleading guilty to the crimes with which he was charged because he had,
in fact, committed those crimes.
14
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); OCGA § 17-10-35 (c) (2)
(requiring a review of the sufficiency of the evidence supporting
statutory aggravating circumstances); UAP IV (B) (2) (providing
that, in all death penalty cases, this Court will determine whether
the verdicts are supported by the evidence).
Guilty Plea
2. Because Moody’s guilty plea — if valid — would waive
several of his claims, we first address his challenges to that plea. In
conducting that review, we note that the “[e]ntry of a plea is not
some empty ceremony, and statements made to a [trial] judge in
open court are not trifles that defendants may elect to disregard.”
United States v. Stewart, 198 F3d 984, 987 (7th Cir. 1999). We
conclude that Moody’s guilty plea was constitutionally valid and
that he did not establish a “manifest injustice” requiring its
withdrawal.
At trial, during a brief recess between the State’s opening
15
statement and the defense’s, defense counsel announced that Moody
had decided to plead guilty to all 11 counts of the indictment. After
an extended colloquy, the trial court found Moody’s plea of guilty to
be entered knowingly, freely, and voluntarily, and the court accepted
the plea. The sentencing phase of Moody’s trial began on April 15,
2013. During jury deliberations nine days later, Moody made a
motion to withdraw his guilty plea.
Ordinarily, a defendant has the absolute right to withdraw a
guilty plea until his sentence is pronounced. See OCGA § 17-7-93
(b). But in cases where the State seeks the death penalty, a
defendant has no such right; instead, he can seek to withdraw it only
“to prevent a manifest injustice.” Browner v. State, 257 Ga. 321, 321-
322 (1), 323 (3) (357 SE2d 559) (1987). What constitutes a manifest
injustice
by necessity var[ies] from case to case, but it has been said
that withdrawal is necessary to correct a manifest
injustice if, for instance, a defendant is denied effective
assistance of counsel, or the guilty plea was entered
involuntarily or without an understanding of the nature
of the charges.
16
State v. Evans, 265 Ga. 332, 336 (3) (454 SE2d 468) (1995).
Moody argues that his plea was involuntary and thus that
withdrawal was necessary to correct a manifest injustice. He
contends that he was coerced into pleading guilty by the trial court’s
ruling two days before his plea denying his request to represent
himself and by its ruling on the morning of the plea that defense
counsel rather than Moody could decide what strategy to pursue at
trial. The State has the burden on direct appeal of establishing that
the plea was entered knowingly and voluntarily. See King v. State,
270 Ga. 367, 369 (1) (509 SE2d 32) (1998). The State may meet this
burden “by showing on the record of the guilty plea hearing that the
defendant was cognizant of all the rights he was waiving and the
possible consequences of his plea, or by use of extrinsic evidence that
affirmatively shows that the guilty plea was knowing and
voluntary.” Loyd v. State, 288 Ga. 481, 485 (2) (b) (705 SE2d 616)
(2011) (citation and punctuation omitted). A trial court’s decision on
a motion to withdraw a guilty plea will not be disturbed absent an
abuse of discretion. See McGuyton v. State, 298 Ga. 351, 353 (1) (a)
17
(782 SE2d 21) (2016). Here, the record supports the trial court’s
finding that Moody’s plea was not coerced but instead was
knowingly, intelligently, and voluntarily entered.
(a) Guilty Plea Hearing. Moody testified under oath at the plea
hearing that he was 35 years old, had completed his G.E.D., and was
not then under the influence of alcohol, drugs, or medication. 5 The
prosecutor listed the charges brought against Moody, and Moody
indicated that he understood those charges. Moody also confirmed
that he understood that by pleading not guilty or remaining silent
and not entering a plea, he would obtain a jury trial, and that by
entering a plea of guilty, he was waiving the right to a jury trial.
Moody also acknowledged his initials and signature on the guilty-
plea form, a five-page document that explained the rights that he
was waiving by pleading guilty, and which Moody confirmed that he
5 Moody did inform the trial court that he was taking antidepressants,
mood stabilizers, antibiotics, pain medication, and post-traumatic stress
medication. When asked whether those medications “in any way affect[ed his]
ability to understand this proceeding,” Moody responded, “No; not that I know
of.” On the guilty plea form, Moody affirmed that he was not under the
influence of any medication that would affect his ability to understand what
he was doing at the time.
18
had discussed with both of his attorneys. This form set out the
charges that Moody faced and the maximum sentence that could be
imposed for each charge, including a sentence of death for each of
the murders.
Both on the guilty-plea form and during the hearing, Moody
affirmed that he had had sufficient time to speak with his attorneys
regarding the charges in the indictment, including any potential
defenses, and that he did not need any more time to speak with
counsel regarding the guilty plea and the guilt/innocence phase of
his case.
When the prosecutor asked Moody whether he was satisfied
with the services of counsel, Moody stated that he “wasn’t,” referring
to conflicts with counsel that led to his request to proceed pro se. The
trial court pointed out that it had previously “ruled about the
representation issue” and stated that “that question . . . is not part
of the plea colloquy under . . . superior court rules.” See Uniform
Superior Court Rule 33.8. Moreover, Moody affirmed on the guilty-
plea form that he was satisfied with his counsel’s services. Moody
19
testified that he understood that he was pleading guilty to all of the
charges in the indictment. He was again informed of the maximum
possible sentence for each charge, and he again confirmed his
understanding of those possible sentences, along with the fact that
a jury would determine his sentence following a separate sentencing
trial, choosing between a sentence of death, a sentence of life without
the possibility of parole, and a sentence of life with the possibility of
parole.
Moody was advised about the trial rights that he would be
waiving by pleading guilty, and he answered affirmatively that he
understood. Both on the guilty plea form and during the hearing,
Moody confirmed that no one had in any way “threatened,” “forced,”
or “coerced” him to plead guilty and that no one had “promised [him]
anything to get [him] to enter this guilty plea.” He also affirmed that
it was his decision to waive his rights and enter a guilty plea to all
charges in the indictment because he was, in fact, guilty of all of
those charges. After pleading guilty, Moody affirmed that his guilty
plea was freely and voluntarily given with full knowledge of the
20
charges against him and that he understood that he might have only
a limited right to appeal his guilty-plea convictions.
After the prosecutor set out the factual basis for the guilty plea,
the trial court conducted its own inquiry. Moody affirmed that, “just
before [lead defense counsel] was about to get up to deliver the
opening statement in th[e guilt/innocence] part of [his] case,” he had
indicated that he wanted to speak with counsel and had
subsequently spoken “for some time” with his attorneys regarding
his decision to plead guilty rather than to proceed with the
guilt/innocence phase of trial. Then the trial court conducted the
following colloquy with Moody regarding his reasons for pleading
guilty:
THE COURT: Okay. Are you pleading guilty now rather
than going through with a trial as to the guilt[/]innocence
phase because that’s what you want to do?
THE DEFENDANT: Yes, your honor. I just feel it would
be more appropriate for the families involved in this not to
go through trial procedure, and it’s just, you know, just a
decision I made, sir.
THE COURT: Okay. So as far as the reason why you’re
doing it, you believe it’s in your best interest to go that way
as opposed to putting the State and the families and other
people through the trial of the facts as to the guilt and
21
innocence. Is that what you’re saying?
THE DEFENDANT: Yes, your honor. Just to try to
resolve this issue as quickly as possible, your honor.
THE COURT: Okay. And the important part for me –
because remember my job is to make sure that what
you’re doing is freely and voluntarily done. And is that
true? Are you doing that freely and voluntarily?
THE DEFENDANT: Yes, your honor.
(Emphasis added.) Thus, Moody did not merely affirm that he
believed that it was in his own best interest to plead guilty, but he
also clearly articulated a reasonable basis for his decision to plead
guilty totally unrelated to the trial court’s recent rulings against
him, namely, his desire to “resolve this issue [of his guilt] as quickly
as possible” to avoid the necessity of a trial for “the families
involved,” apparently referring to both his family and the families of
the victims. See Loyd, 288 Ga. at 485 (2) (b) (affirming the trial
court’s denial of a death-sentenced defendant’s request to withdraw
his guilty plea and noting that defense counsel had stated to the trial
court that the defendant “had expressed to him ‘logical and thought-
out reasons’ for his decision” to enter a non-negotiated plea,
including that the defendant “wanted ‘to admit to what he did’ and
22
move on to ‘the issues of what the punishments are’” (punctuation
omitted)); McKiernan v. State, 288 Ga. 140, 143 (2) (702 SE2d 170)
(2010) (noting that one of the motivating factors for the defendant’s
decision to enter a guilty plea was to avoid putting his family
through a trial in concluding that he voluntarily and knowingly
entered his guilty plea).
Then the trial court questioned Moody about his medications
and asked him, “Do you feel like you understand what you are doing
here today, what your choice is, and why you’re doing it?” Moody
responded that he did. Moody also testified that he understood that
there would still be a sentencing phase of trial. The trial court then
returned to the issue of the voluntariness of Moody’s decision, and
the following colloquy ensued, in which Moody once again affirmed
that he was pleading guilty because he believed that it was in his
best interest to do so:
THE COURT: Okay. And, again, are you [pleading guilty
and foregoing a jury trial as to guilt/innocence] because
you want to do it?
THE DEFENDANT: Yes, your honor.
THE COURT: As I understood what you said before,
23
you’re doing it because you believe that’s the best thing for
you?
THE DEFENDANT: Yes, your honor.
(Emphasis added.)
Later, returning one final time to the issue of the voluntariness
of Moody’s decision to plead guilty, the trial court engaged in the
following colloquy with Moody:
THE COURT: . . . We have had a discussion otherwise in
this case recently about your rights as they pertain to
going forward with this case. The important question I
have for you is, despite the fact that I have made a ruling
about your representation, are you still pleading guilty
understanding where we go from here because that’s
what you want to do and not because of that ruling that I
made? In other words, am I forcing – do you feel like I’m
forcing you into pleading guilty because of the ruling I
made or are you pleading guilty because you think it’s the
best thing for you to do?
THE DEFENDANT: I feel it is the best thing to do at this
time.
(Emphasis added.)
The trial court then heard from Moody’s lead counsel that he
believed that Moody was entering his guilty plea because he believed
that it was “the best thing for him to do,” that Moody understood his
decision to plead guilty, and that his decision was knowing and
24
voluntary, and both of Moody’s attorneys told the trial court that
they had no reservations about having the court accept the plea. The
trial court then ruled that “Moody’s plea of guilty [wa]s freely,
voluntarily, and knowingly made” and “accept[ed] his plea as
tendered” based on “the colloquy that ha[d] occurred before [the trial
court] as well as the information contained in [the plea agreement
form initialed and signed by Moody],” which the trial court entered
into evidence.
(b) Moody’s Request to Withdraw His Plea. While the jury was
deliberating at the conclusion of the sentencing trial, the defense
moved to withdraw Moody’s guilty plea. When the trial court asked
for the basis for the motion, Moody’s lead counsel responded:
Your honor, . . . he hasn’t said to me exactly what his basis
is, but I would contend that his basis is just general
disagreement with the strategy of the defense and the
way the case was worked up. . . .
After an off-the-record discussion with Moody, lead counsel
“incorporate[d] every concern that [Moody] ha[d] expressed to the
court, whether in ex parte session or in open court concerning the
25
manner in which his defense ha[d] been conducted.” Counsel stated
that “all of [those concerns] f[e]ll under the general rubric of he
wanted to represent himself,” and counsel listed the preparation and
presentation of the case, issues with Moody’s access to the law
library, and issues regarding Moody’s medication. Counsel also
stated that Moody “believe[d that] he was pressured into a Faretta[ 6]
hearing” that he felt that he was unprepared for.
The trial court made detailed findings regarding Moody’s
medications and his issues with the law library that are amply
supported in the record, and Moody has not raised those issues on
appeal. With regard to Moody’s claim that he had been “pressured”
into a Faretta hearing, the trial court noted that it had “regularly
spoke[n] with Mr. Moody in the presence of opposing counsel” and
also in ex parte proceedings in order for the trial court to be able to
have “full free-ranging discussions” with him regarding his “feelings
about his attorneys.” The trial court found that, “consistent with the
findings that [the court had] made at the Faretta hearing,” Moody’s
6 Faretta v. California, 422 U.S. 806 (95 SCt, 2525, 45 LE2d 562) (1975).
26
“feelings” had “vacillated dramatically” over the course of those
hearings and had often focused on issues regarding the jail. The trial
court pointed out that “the Faretta hearing was lengthy,” that “it
[occurred] after a number of conversations about that issue,” and
that “it was clear to the court that the decision that [the court] made
was what was commanded by the evidence.” Moreover, the trial
court pointed out that, “intervening between the Faretta hearing
and Mr. Moody’s decision to plead guilty was the start of this case
at trial for the guilt[/]innocence phase, which notably included the
State’s opening statement” that “appropriate[ly] chronicl[ed] the
evidence that would have come out in this case in the
guilt[/]innocence phase had that gone forward.” The trial court found
that “[i]t was in the face of that very promise of that evidence coming
out that Mr. Moody made his decision to plead guilty,” and the trial
court noted that it was not unusual “in the court’s experience as a
lawyer or a judge that[,] when faced with the reality of what the
evidence against him was going to be[,] a defendant pled guilty.”
Regarding the voluntariness of Moody’s guilty plea, the trial
27
court found the following:
To say that [Moody] was pressured into [pleading guilty]
. . . would . . . fly in the face of the very questions he was
asked during the plea colloquy. I asked him are you doing
this because you’re angry at me or disappointed in the
way I ruled? No was the answer. I can draw no conclusion
from that except that those two things are not related to
each other because he told me they aren’t related to each
other. . . .
The trial court further found that the “Faretta hearing ha[d] nothing
to do with the plea,” that Moody made a “clear, unequivocal,
voluntary decision in the face of what he knew would be the evidence
against him to plead guilty and accept responsibility,” and that
Moody “was questioned as thoroughly and carefully as any
defendant [the trial court had] ever seen who entered a plea of
guilty, by the State, by the court, via a colloquy [t]here in court, as
well as a written plea sheet.” Then, finding that his plea was “freely
and voluntarily entered” and that “there [wa]s no reason whatsoever
to set it aside,” the trial court denied Moody’s request to withdraw
his guilty plea.
Moody now argues that his response to the trial court that he
28
felt that pleading guilty was “the best thing to do at this time”
indicates that he believed that pleading guilty was “the best thing”
for him to do given that, at that time, “the [trial] court [had] told
[him] that if he went to trial, his lawyers would admit his guilt[.]”
But that is not what Moody said at the plea colloquy. At no time did
Moody state that his decision to plead guilty was the result of feeling
coerced to do so by the trial court’s rulings denying his request to
represent himself and permitting trial counsel to pursue a strategy
that he expressed opposition to, even when the trial court explicitly
asked him whether he felt that its “ruling about [his]
representation]” had “forc[ed him] into pleading guilty.”
Accordingly, the record supports the trial court’s factual findings
that the trial court’s adverse rulings and Moody’s decision to plead
guilty were unrelated to each other. The record also supports the
trial court’s conclusion that Moody knowingly and voluntarily
entered his guilty plea. See Jackson v. State, 285 Ga. 840, 840-841
(1) (684 SE2d 594) (2009) (affirming the denial of the appellant’s
motion to withdraw his guilty plea where he had told the trial court
29
at the plea hearing that he was not under the influence of alcohol,
drugs, or any intoxicants but later claimed that his plea was
involuntary because he had been under the influence of drugs).
Nonetheless, Moody contends that, in applying the test for
manifest injustice, this Court in other cases has invalidated pleas as
involuntary based on an antecedent constitutional violation, and he
urges us to do the same here. But the cases that Moody cites in
support do not apply.
Several of the cases that he cites involved judicial participation
in a defendant’s plea negotiations “so great as to render a guilty plea
involuntary.” Pride v. Kemp, 289 Ga. 353, 354 (711 SE2d 653) (2011)
(citations and punctuation omitted); see also Winfrey v. State, 304
Ga. 94, 97-102 (II) (816 SE2d 613) (2018); McDaniel v. State, 271 Ga.
552, 553-554 (2) (522 SE2d 648) (1999). But here, Moody relies on
an unfavorable ruling on a separate issue, not improper judicial
participation in the plea negotiations, so these cases do not apply.
Moody also cites in support Alexander v. State, 297 Ga. 59 (772
SE2d 655) (2015), and Wharton v. Jones, 248 Ga. 265 (282 SE2d 310)
30
(1981). But those cases are irrelevant here, because the defendant
in each of them contended that he received the ineffective assistance
of counsel with respect to the guilty plea, and Moody makes no such
claim. See Alexander, 297 Ga. at 61-64 (distinguishing between a
Sixth Amendment ineffective assistance of counsel claim in relation
to a guilty plea and a Fifth Amendment due process claim that a
plea was not knowingly and voluntarily made).
Finally, Moody relies on Browner, in which this Court
concluded that the trial court erred in not allowing the defendant,
who had entered a non-negotiated plea to a murder count for which
the State was seeking the death penalty, to withdraw his guilty plea
to prevent a manifest injustice. See 257 Ga. at 323 (3). There, the
defendant “was not present at two conferences discussing the
complexities of his guilty plea – in particular, whether the judge or
a jury would impose sentence, a matter of substantial importance to
him.” Id. As discussed above, what constitutes “manifest injustice”
is case-dependent, and the problematic circumstances in Browner
involved the plea itself and are not present here.
31
In sum, the transcript of the guilty plea hearing and the guilty
plea form signed by Moody amply support the trial court’s findings
that the plea was not coerced by the trial court’s rulings denying
Moody’s request to represent himself and allowing trial counsel to
determine the objective of the defense, and it supports the trial
court’s ruling that Moody’s guilty plea was knowing and voluntary.
We also conclude that the withdrawal of the guilty plea was not
necessary to correct a manifest injustice.
Pretrial Issues
3. Moody argues that the trial court erred in denying his
request for self-representation at the guilt/innocence phase
following a Faretta hearing. 7 As we just held, Moody’s guilty plea
7 The record shows that approximately five months before jury selection
in his case was scheduled to begin, Moody began to express to the trial court
that he was dissatisfied with his counsel and that he wanted to represent
himself. The trial court held several ex parte hearings on the matter, and
during those hearings, Moody vacillated as to whether his frustrations were
with his attorneys or with the conditions of his incarceration and as to whether
he truly desired to represent himself at trial. Later, trial counsel requested a
Faretta hearing because Moody had announced that he wanted to represent
himself. At the conclusion of that hearing, the trial court denied Moody’s
request, concluding that Moody’s desire to represent himself was “not based on
a belief about the outcome of this case” and that his “self-destructive behavior
32
was valid. Consequently, Moody waived any argument regarding his
right to self-representation at the guilt/innocence phase.
Under both this Court’s precedent and that of the United
States Supreme Court, a valid guilty plea generally operates as a
waiver of independent claims of constitutional error that occurred
before the plea. See Tollett v. Henderson, 411 U.S. 258, 267 (93 SCt
1602, 36 LE2d 235) (1973) (holding that a defendant who pleads
guilty waives all “independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty
plea”); Addison v. State, 239 Ga. 622, 624 (238 SE2d 411) (1977)
(stating that this Court has recognized and repeatedly applied the
principle in Tollett and listing this Court’s decisions holding that a
guilty plea waives a speedy indictment claim, a claim of invalid jury
selection and grand jury composition, and an illegal search claim).
As the Supreme Court explained in Tollett:
[A] guilty plea represents a break in the chain of events
which has preceded it in the criminal process. When a
as well as some desire of benefit, i.e., better treatment at the jail, . . . was
preventing him from making a knowing and intelligent waiver of . . . the right
to discharge his attorneys.”
33
criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea.
411 U.S. at 267. “An exception will only be made if the error goes to
the very power of the State to bring the defendant into court.” Moore
v. State, 285 Ga. 855, 858 (2) (684 SE2d 605) (2009) (citation and
punctuation omitted). Cf. Kennedy v. Carlton, 294 Ga. 576, 577 (1)
(757 SE2d 46) (2014) (“A plea of guilty does not waive the defense
that an indictment charges no crime.”). Thus, a guilty plea generally
waives non-jurisdictional defects in pretrial proceedings. See
Harris v. Hopper, 236 Ga. 389, 391 (224 SE2d 1) (1976), overruled
on other grounds by Griffin v. State, 282 Ga. 215, 221-222 (5) (647
SE2d 36) (2007).
Whether this principle means that a defendant allegedly
denied his right to self-representation at the guilt/innocence phase
has, by virtue of his guilty plea, waived a Faretta challenge on
appeal is a question of first impression in this Court, and the United
States Supreme Court has not spoken directly on the issue. The
34
federal appellate courts to decide this question of federal
constitutional law are split, although only the Ninth Circuit has held
that a defendant who pleads guilty may still maintain his Faretta
challenge on appeal. See United States v. Hernandez, 203 F3d 614
(9th Cir. 2000), overruled on other grounds by Indiana v. Edwards,
554 U.S. 164 (128 SCt 2379, 171 LE2d 345) (2008), as recognized in
Jarrett v. Shinn, 836 Fed. Appx. 538, 540 (9th Cir. 2020).8 In
Hernandez, the Ninth Circuit held that a guilty plea by a defendant
wrongfully deprived of his right to self-representation was
automatically involuntary, because a “court’s refusal to allow [a
defendant] to exercise the right of self-representation forced him to
8 We note that, relying in part on Hernandez, the Court of Appeals of
Michigan has come to the same conclusion in an unpublished opinion. See
People v. Hoffman, No. 266560, 2007 Mich. App. LEXIS 260, at *7 (Mich. Ct.
App. Feb. 6, 2007) (citing Hernandez, 203 F3d at 626-627), leave to appeal
denied, 737 NW2d 767 (Mich. 2007). California’s appellate courts have reached
the same result, but based on state statute instead of federal constitutional
law. See, e.g., People v. Marlow, 96 P3d 126, 146-147 (II) (B) (Cal. 2004)
(concluding that “the claim of erroneous denial of a Faretta motion . . . is
cognizable on appeal” based on a determination that a Faretta challenge is a
challenge to the “‘legality of the proceedings’” as set forth in Cal. Penal Code §
1237.5 (a), which provides under what circumstances a defendant is allowed to
appeal from a judgment of conviction upon a plea of guilty (citing People v.
Robinson, 65 Cal. Rptr. 2d 406 (1997))).
35
choose between pleading guilty and submitting to a trial the very
structure of which would be unconstitutional.” 203 F3d at 626
(emphasis in original). The Ninth Circuit reasoned that a choice
between two such alternatives deprived the defendant “of the choice
between the only two constitutional alternatives — a plea and a fair
trial” — and that, therefore, a court’s improper Faretta ruling
“‘imposed unreasonable constraints’” on the defendant’s decision to
plead guilty. Id. at 627. In sum, according to the Ninth Circuit,
“[w]hen a defendant is offered a choice between pleading guilty and
receiving a trial that will be conducted in a manner that violates his
fundamental Sixth Amendment rights, his decision to plead guilty
is not voluntary,” because the defendant “has not been offered the
lawful alternatives — the free choice — the Constitution requires.”
Id.Although Moody does not cite Hernandez, he urges this Court
to adopt essentially the same reasoning that the Ninth Circuit
employed there. Specifically, Moody’s arguments here would require
us to hold that his guilty plea was rendered involuntary based on
36
the trial court’s earlier denial of his right to represent himself, as he
argues that, by wrongfully denying Moody’s request to represent
himself, “the trial court effectively forced [him] to forego any
meaningful exercise of his constitutional rights at trial.” 9
But no other circuit has found the rationale in Hernandez
persuasive, and at least four other federal courts of appeal have
adopted the opposite view, holding that a guilty plea waives a
Faretta challenge. See United States v. Dewberry, 936 F3d 803, 805-
807 (II) (8th Cir. 2019); United States v. Moussaoui, 591 F3d 263,
279-280 (II) (A) (4th Cir. 2010); Gomez v. Berge, 434 F3d 940, 942-
943 (II) (7th Cir. 2006); and United States v. Montgomery, 529 F2d
9 We note that our discussion here concerns Moody’s right to self-
representation during the guilt/innocence phase of trial and not during the
penalty phase. Moody’s pretrial concerns about self-representation were
clearly focused on issues of guilt and innocence. Likewise, his arguments on
appeal about self-representation go to the voluntariness of his guilty plea.
Moody’s brief states regarding the scope of his denied request regarding self-
representation: “Mr. Moody repeatedly made clear that he wanted to contest
his guilt. If he could not decide that objective while represented by counsel, he
was willing to forgo counsel altogether in furtherance of his desire to contest
guilt.” We discern no argument that Moody should have been allowed to
represent himself at the penalty phase. Accordingly, our holding is limited to
the waiver of claims regarding self-representation at the guilt/innocence phase.
37
1404, 1406-1407 (10th Cir. 1976); see also United States v. Williams,
29 F4th 1306, 1314-1315 (II) (11th Cir. 2022) (noting majority view
“that an improper denial of the right to self-representation does not
render a subsequent guilty plea involuntary, so the subsequent
guilty plea waives the right to appeal the improper denial.”).10
In explicitly rejecting the reasoning of the Ninth Circuit, both
the Fourth and Eighth Circuits pointed out that Hernandez’s
rationale “is based on the false premise that the defendant who is
denied his right to represent himself is forced to either plead guilty
or submit to an unconstitutional trial.” Dewberry, 936 F3d at 806
(emphasis added); see also Moussaoui, 591 F3d at 280 (“The
Hernandez court’s conclusion that the defendant’s guilty plea was
involuntary was based on a faulty premise, namely, that his only
alternative was to submit to an unconstitutional trial.”). As both the
10 We note that some state intermediate appellate courts have reached
the same conclusion as the Fourth, Seventh, Eighth, and Tenth Circuits. See,
e.g., State v. Szemple, 753 A2d 732, 736 (N.J. Super. Ct. App. Div. 2000); People
v. Shields, 613 N.Y.S.2d 281, 282 (N.Y. App. Div. 1994); State v. Claiborne, No.
61343-0-I, 2009 Wash. App. LEXIS 1002, at *6-7 (Wash. Ct. App. Apr. 27,
2009); State v. Jens, No. 03-3153-CR, 2005 Wisc. App. LEXIS 62, at *10-12
(Wis. Ct. App. Jan. 25, 2005).
38
Fourth and Eighth Circuits reasoned, this premise is flawed because
it “fails to account for the fact that if the defendant proceeded to trial
and was convicted, he could seek an appellate remedy for the
constitutional violations he alleged.” Moussaoui, 591 F3d at 280; see
also Dewberry, 936 F3d at 806 (same).
Furthermore, as the Eighth Circuit observed, “the approach
used in Hernandez is inconsistent with [long-standing] Supreme
Court precedent” holding that a “guilty plea represents a break in
the chain of events which has preceded it in the criminal process.’”
Dewberry, 936 F3d at 807 (quoting Tollett, 411 U.S. at 267).11 As the
11 In Hernandez, the Ninth Circuit cited Tollett and also the trilogy of
cases that the Supreme Court identified there, i.e., Brady v. United States, 397
U.S. 742 (90 SCt 1463, 25 LE2d 747) (1970), McMann v. Richardson, 397 U.S.
759 (90 SCt 1441, 25 LE2d 763) (1970), and Parker v. North Carolina, 397 U.S.
790 (90 SCt 1458, 25 LE2d 785) (1970), as recognizing the principle
“reaffirm[ed]” by the Court in Tollett that “[w]hen a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred prior to the entry of
the guilty plea.” Tollett, 411 U.S. at 267. But the Ninth Circuit cited Tollett,
Brady, McMann, and Parker only for the law regarding the validity of guilty
pleas. See Hernandez, 203 F3d at 618 (citing Tollett, 411 U.S. at 267, Brady,
397 U.S. at 748, and McMann, 397 U.S. at 766); id. at 618 n.5 (citing Brady,
397 U.S. at 749-758, and Parker, 397 U.S. at 794-798); id. at 619 (citing Brady
at 754-755); id. at 619 n.7 (citing McMann, 397 U.S. at 771 and Brady, 397 U.S.
at 756, 760); and id. at 626 (citing Brady, 397 U.S at 754-755, 748 (I) n.6)).
39
Eighth Circuit further noted, Supreme Court precedent also holds
that “‘case-related constitutional defects’ are made ‘irrelevant to the
constitutional validity of the conviction’ by a later guilty plea
‘because the defendant has admitted the charges against him.’” Id.(quoting Class v. United States, ___ U.S. ___ (138 SCt 798, 804-805,
200 LE2d 37) (2018)).
Moreover, in applying Tollett, we have concluded that, with
limited exceptions, “once a defendant has solemnly admitted in open
court that he is in fact guilty of the offense charged, he may not
thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty
plea.” Addison, 239 Ga. at 624 (citing Tollett, 411 U.S. at 267); see
also Moore, 285 Ga. at 858 (2) (holding that the defendant’s claim
that “the affidavits in support of his arrest warrant were insufficient
to establish probable cause” was waived in light of his knowing and
Significantly, the Ninth Circuit failed to acknowledge any United States
Supreme Court precedent holding that a subsequent voluntary guilty plea
generally operates as a waiver of claims of constitutional error that occurred
prior to the plea.
40
voluntary plea). We have applied this principle when the specific
constitutional right being waived as a result of the guilty plea
involved the right to counsel. See Powell v. State, 309 Ga. 523, 528
(3) (847 SE2d 338) (2020) (stating that, even if the defendant had
properly requested new counsel, we need not consider his claim that
the trial court erred by denying his request, because, “[a]s a general
rule, a guilty plea waives all defenses except that based on the
knowing and voluntary nature of the plea”).
The limited exceptions to the general rule of waiver are for
claims that go “to the very power of the State to bring the defendant
into court to answer the charge brought against him.” Blackledge v.
Perry, 417 U.S. 21, 30 (94 SCt 2098, 40 LE2d 628) (1974); see also
Moore, 285 Ga. at 858 (2) (“An exception will only be made if the
error goes to the very power of the State to bring the defendant into
court.” (citation and punctuation omitted)). A Faretta challenge does
not present that situation.
Accordingly, we agree with the Eighth Circuit that
Hernandez’s rationale, which is essentially the rationale that Moody
41
urges us to adopt, “turns . . . on its head” the rule that “‘case-related
constitutional defects’ are made ‘irrelevant to the constitutional
validity of the conviction’ by a later guilty plea . . . by making a
defendant’s admission of guilt irrelevant because of an earlier
purported case-related constitutional defect.” Dewberry, 936 F3d at
807 (quoting Class, 138 SCt at 804-805); see also Montgomery, 529
F2d at 1407 (holding that a “voluntary plea of guilty is the
independent intervening act which renders ineffectual the prior
failure to allow [an] appellant to represent himself at a trial” and
opining that “[t]o hold otherwise would open the door to
manipulations and game[s]manship”).
Moody’s argument that the Faretta issue raises a structural
error does not alter our conclusion. See McKaskle v. Wiggins, 465
U.S. 168, 177 n.8 (104 SCt 944, 79 LE2d 122) (1984) (the improper
denial of the right to self-representation is a structural error and
requires automatic reversal); Oliver v. State, 305 Ga. 678, 680 (2)
(827 SE2d 639) (2019) (same). Although “[t]he consequence of a
‘structural’ error is that it is not subject to harmless error review, . . .
42
such errors can still be waived.” Jackson v. Bartow, 930 F3d 930,
934 (7th Cir. 2019) (citation omitted)) (holding that a defendant can
waive his claim of a prior structural error, specifically a Faretta
claim, by validly pleading guilty).
Indeed, Tollett itself supports this conclusion, as the Supreme
Court there determined that the defendant’s plea in that case
waived any claim that African-Americans had been systematically
excluded from the grand jury that indicted him, see 411 U.S. at 261-
266, an error that the Supreme Court confirmed to be structural in
Vasquez v. Hillery, 474 U.S. 254, 266 (106 SCt 617, 88 LE2d 598)
(1986) (reaffirming “the Court’s long commitment to a rule of
reversal” in the case of racial discrimination in the selection of the
grand jury); see also Williams, 29 F4th at 1314 (reviewing Class, 138
SCt at 804-805, and concluding that it “tells us that that a defendant
may waive a claim of structural error by entering a defendant’s
voluntary guilty plea.”); Moussaoui, 591 F3d at 280 n.12 (“[T]he
notion that a structural error occurring prior to a guilty plea
invalidates the subsequent guilty plea would be at odds with the
43
result in Tollett[.]”). Therefore, we conclude that Moody’s Faretta
claim is based on an independent, non-jurisdictional constitutional
defect and is waived, because in pleading guilty he waived all such
claims arising from alleged errors preceding his guilty plea.
4. In a related claim, Moody argues that, in addition to denying
his right to self-representation, the trial court also prevented him
from determining the objective of his defense in violation of the
federal constitution. Moody relies on McCoy v. Louisiana, ___ U.S.
___ (138 SCt 1500, 200 LE2d 821) (2018), where the United States
Supreme Court held that a defendant has a right under the Sixth
Amendment “to decide . . . the objective of the defense,” including
“insist[ing] on maintaining [his or] her innocence at the guilt phase
of a capital trial,” and that a violation of this right constitutes
structural error. 138 SCt at 1508, 1511. The trial court’s challenged
ruling, however, was issued before Moody’s plea and, as a result, like
his challenge to the court’s Faretta ruling, has been waived by virtue
44
of his guilty plea.12
As discussed above, under both this Court’s precedent and
that of the United States Supreme Court, a voluntary guilty plea
generally operates as a waiver of claims of constitutional error that
occurred prior to the plea, even claims of structural error. See
Tollett, 411 U.S. at 267; Powell, 309 Ga. at 528 (3) (“As a general
rule, a guilty plea waives all defenses except that based on the
12 When Moody first expressed his conflict with counsel during an ex
parte hearing, he said that trial counsel had not “acknowledged” Moody’s
“theory of innocence” and that counsel, instead, “just want[ed] to go with what
they ha[d] said” the strategy was. Trial counsel responded that he would meet
with Moody and “ask him specifically what [wa]s his theory of the defense, and
. . . take it from there.” At a subsequent ex parte hearing held 20 days into jury
selection, Moody’s lead counsel told the trial court that Moody “want[ed] to
contest guilt [and] innocence in this case,” he “perceive[d] that [counsel we]re
not contesting that based on the questions [they we]re asking the jurors”
during voir dire, he was “exactly right in that regard,” and he “just simply
disagree[d]” with counsel’s approach. At the Faretta hearing, trial counsel
asserted that Moody’s desire to represent himself was driven at least in part
by his “disagreements with [counsel’s] trial strategy,” and Moody stated that
counsel told him he had no “say-so” in the direction of his defense. On the first
day of trial, trial counsel told the trial court that “Moody ha[d] expressed to
[counsel] th[at] morning that he would prefer to pursue a not guilty by reason
of insanity defense or a defense of simply not guilty,” whereas “[t]he defense
team believe[d] that the more appropriate strategy [wa]s to pursue a strategy
that basically embrace[d] the notion of guilty but mentally ill[, which wa]s the
strategy that [defense counsel was] prepared to present and that Mr. Moody
disagree[d] with.” In resolving the issue, the trial court concluded that this was
a “strategy decision[] appropriately given to [the] attorneys.” Given our
conclusion of waiver, we express no view on whether the trial court was correct.
45
knowing and voluntary nature of the plea.”). Like his Faretta
challenge, Moody’s McCoy claim is related to the manner in which
he would have conducted his defense at trial, and it focuses on a
ruling on a non-jurisdictional issue unrelated to his guilty plea, and
that occurred prior to the entry of the guilty plea.
Moreover, “a valid guilty plea relinquishes any claim that
would contradict the ‘admissions necessarily made upon entry of a
voluntary plea of guilty.’” Class, 138 SCt at 805 (quoting United
States v. Broce, 488 U.S. 563, 573-574 (109 SCt 757, 102 LE2d 927)
(1989)). A McCoy claim based on a defendant’s alleged “intransigent
objection to th[e] admission” of his guilt to a charged crime, 138 SCt
at 1510, would contradict the admission actually made upon entry
of his guilty plea to that crime. Therefore, we conclude that the trial
court’s ruling that Moody now challenges as violating McCoy did not
render his guilty plea invalid, because in pleading guilty Moody
waived all such non-jurisdictional errors leading up to his
convictions except those affecting the validity of his plea.
5. Moody argues that the method of summoning jurors was
46
unlawful. But here as well, by pleading guilty, Moody “waived any
claim he might have had concerning the jury selection process” with
respect to the discontinued guilt/innocence phase of his trial. Hooks
v. State, 233 Ga. 149, 150 (1) (210 SE2d 668) (1974) (citing Tollett,
411 U.S. at 267), vacated in part on other grounds by 433 U.S. 917(97 SCt 2994, 53 LE2d 1104) (1977)). And for reasons discussed
below, the trial court did not err in denying this claim as it applied
to his sentencing.
(a) Moody challenged the formation of the petit jury, asserting
that the Council of Superior Court Clerks (“Council”) failed to
comply with the Jury Composition Rule (“JCR”), which became
effective on July 1, 2012, in that the Council’s method for removing
duplicate records did not comply with the JCR. He also contended
that Fulton County had substantially altered the master jury list
provided to it by the Council and thereby violated the JCR by
improperly inactivating a substantial number of persons from the
list.
At a hearing, Moody submitted as an exhibit the “Certificate of
47
Compliance for Fulton County” from the Council’s vendor certifying
to this Court that the vendor had complied with the JCR in the
preparation of the 2012 Fulton County master jury list and that the
list met the inclusiveness threshold specified in the JCR with an
inclusiveness of 139 percent. See JCR ¶¶ 3, 4 (2012).13 Moody’s
expert witness testified that Fulton County had inactivated 103,263
records on the list supplied by the Council, which did not “comport
with” the JCR. According to Moody’s expert witness’s calculations,
even after Fulton County’s inactivations, the altered master list
from which Moody’s petit jury list was selected still contained
107,608 duplicate records, involving 53,798 duplicate persons,14 and
the altered master jury list was still 119 percent inclusive of the
13 These citations are to the version of the JCR applicable to Moody’s
case, which became effective July 1, 2012, and which provided that “[e]ach
county master jury list should be no less than 85% inclusive of the number of
persons in the county population age (18) years or older as derived from the
most recent decennial census or county population estimate (Table B01001) as
of the date of this rule) from the United States Census Bureau for the calendar
year when the list is generated.” JCR ¶ 3 (2012). The JCR has been
substantially amended since the time of Moody’s sentencing trial.
14 Moody’s expert witness explained that the reason why the number of
persons with duplicate records was not exactly half of the number of duplicate
records was that a few of the “duplicate” records were actually “triplicates.”
48
county population age 18 years or older based on the 2010 decennial
census. 15 Moody’s expert witness also testified that these duplicate
records disproportionately involved whites. The trial court denied
Moody’s motion, summarily concluding “that the jury pool was
properly constituted” and “properly apportioned” and that it “was
not improperly altered by Fulton County.”
After Moody’s sentencing trial, we issued our decision in Ricks
v. State, 301 Ga. 171 (800 SE2d 307) (2017), an interim appellate
review decision (i.e., an appeal brought before trial) in which we
concluded that Fulton County’s 2013 and 2014 master jury lists had
been altered by the county in violation of the JCR and remanded the
case with direction to the trial court to ensure that the prospective
jurors for the defendant’s trial were drawn from a list that complied
with the JCR and the relevant statutory provisions. See id. at 188-
15 But see Ricks v. State, 301 Ga. 171, 182 (3) (a) n.9 (800 SE2d 307)
(2017) (indicating that the same language in JCR ¶ 3 (a) in effect at the time
that Moody’s master jury list was compiled, which directed that population
figures be “derived from the most recent decennial census or county population
estimate,” meant that the more recent of those two population figures, if
available, should be used).
49
194 (5), (6). Moody included the trial court’s denial of his petit jury
challenge in his motion for new trial, contending that Fulton County
committed the same type of violations committed in Ricks and that
his Sixth Amendment fair cross-section right was violated as a
result. The trial court denied Moody’s motion for new trial, finding
as to this particular claim that “there were no violations of the [JCR]
which would have had the effect of vitiating the array” and that
Moody “did not establish a prima facie case of a Sixth Amendment
fair cross-section claim.”
(b) In his initial brief to this Court, Moody claims that Fulton
County’s violations of the JCR “[c]onstituted an ‘essential and
substantial’ [v]iolation of the [r]ules [g]overning [j]ury [s]election,”
but he does not argue that any specific jury selection statute was
violated. In response to the Attorney General’s brief pointing out
that he had failed to identify a violation of a jury selection statute,
Moody argues for the first time in his reply brief that the altered
master jury list used by Fulton County was not the county master
jury list actually compiled by the Council as required by OCGA §§
50
15-12-120.1 (providing that, “[o]n and after July 1, 2012, trial juries
shall be chosen from a county master jury list”) and 15-12-1 (5)
(defining the term “’[c]ounty master jury list’” as “a list compiled by
the council”). Moody contends that using the altered list to draw the
array for his trial violated those provisions of the jury selection
statutes. Pretermitting whether this additional argument is entitled
to consideration, see City of Atlanta v. Mays, 301 Ga. 367, 372 (3)
(801 SE2d 1) (2017) (“An appellant who raises an argument for the
first time in a reply brief is not entitled to have that argument
considered.”), and also pretermitting whether a jury selection
statute was actually violated, Moody’s contention does not warrant
reversal.
Since Ricks we have explained that “the primary objective of
the JCR — to ensure that each county master jury list is ‘no less
than 85% inclusive’ of the county’s adult population — is a
prophylactic measure that is not tied to any specific constitutional
or statutory mandate.” Sinkfield v. State, 311 Ga. 524, 529 (1) (858
SE2d 703) (2021). When a violation of the JCR is shown before trial,
51
a defendant may be able to obtain pre-trial relief requiring the JCR
to be followed in his trial regardless of any showing of harm. See
Ricks, 301 Ga. at 193 n.22 (5) (f). But the same is not true after trial;
even if a “master jury list violated the JCR,” there must ordinarily
be “some showing of harm — that is, some probability that the error
affected the outcome of the trial proceedings” — in order to warrant
reversal on post-trial appeal. Sinkfield, 311 Ga. at 527 (1). That said,
we have noted that “this Court has suggested — without expressly
using the term ‘structural error’ — that automatic reversal may be
warranted where an ‘essential and substantial’ provision of a jury
selection statute has been violated[.] . . .” Id. at 528 (1). We have long
held as a general matter:
Statutes regulating the selection, drawing, and
summoning of jurors are intended to distribute jury
duties among the citizens of the county, provide for
rotation in jury service, and are merely directory.
Obviously, however, a disregard of the essential and
substantial provisions of the statute will have the effect
of vitiating the array.
Al-Amin v. State, 278 Ga. 74, 80 (7) (597 SE2d 332) (2004) (citation
and punctuation omitted), overruled on other grounds by State v.
52
Lane, 308 Ga. 10, 23 (Appendix) (838 SE2d 808) (2020).
In State v. Towns, we recognized “that this Court never before
ha[d] attempted to articulate a standard that clearly marks the line
between the provisions of jury selection statutes that are ‘essential
and substantial’ and those that are not.” 307 Ga. 351, 355 (3) (834
SE2d 839) (2019). There, we explained that “our examination of the
[applicable] cases le[d] us to conclude that, to the extent that a
violation of the jury selection statutes affects the identity of the
persons selected for the array from the universe of persons eligible
to serve, it is a violation of an ‘essential and substantial’ provision.”
Id. Relying on Towns and on his expert witness’s testimony that the
identities of summoned jurors in his case would have been different
if the master jury list had been properly created and maintained,
Moody argues that Fulton County altered “the identity of the
persons selected for the array from the universe of persons eligible
to serve” by manipulating the master list originally compiled by the
Council using “legacy data” and other means to add and delete
names from that list.
53
Moody’s argument is unavailing. In Towns, we determined
that, “[i]n the absence of an articulated standard to mark the line,
the best way to find the line is an examination of how we have
applied the ‘essential and substantial’ test in prior cases, especially
cases like [Towns’s case] that involve[d] the selection of a juror who
likely would not otherwise have been chosen for the array.” 307 Ga.
at 355 (2) (emphasis added). In Towns, we also noted that, although
“the persons summoned for service as petit jurors were selected at
random from the master jury list,” the clerk relied on her own
personal knowledge about the prospective petit jurors in selecting
two of them to be summoned for a grand jury that had an insufficient
number of jurors, thereby violating the “random[ness]” requirement
of OCGA § 15-12-66.1. Id. at 354 (2).
Moody’s alleged violation is nothing like the problem in Towns.
This case is more like the situations we noted in Towns that involved
circumstances in which no relief was warranted. See Towns, 307 Ga.
at 555 (3) n.9. Indeed, several of those cases that we found
distinguishable in Towns dealt specifically with the statutory
54
procedures for creating master jury lists, just as Moody’s case does.
In those cases, “so long as a jury list meets equal-protection and fair-
cross-section standards respecting the inclusion of cognizable
groups, ‘the statutory procedures for creating the [master jury] list
are merely directory,’ and do not create a basis for sustaining
challenges to the array.” Frazier v. State, 257 Ga. 690, 691 (2) (362
SE2d 351) (1987) (citation and punctuation omitted); see also Foster
v. State, 288 Ga. 98, 101 (2) (b) (701 SE2d 189) (2010) (holding that
the fact that the master jury list was compiled by a board of jury
commissioners that was comprised of only five instead of the six
members required by former OCGA § 15-12-20 “did not rise to ‘such
disregard of the essential and substantial provisions of the statute
as would vitiate the arrays’” (citation omitted)); State v. Parlor, 281
Ga. 820, 820-821 (642 SE2d 54) (2007) (holding that the statutory
instruction to conduct a biennial revision of the grand jury list was
merely directory); Sealey v. State, 277 Ga. 617, 618-619 (2) (593
SE2d 335) (2004) (holding that the statutory instruction to select the
most upright and intelligent citizens for the grand jury was merely
55
directory), disapproved on other grounds by Willis v. State, 304 Ga.
686, 706 (11) (a) n.3 (820 SE2d 640) (2018); Burney v. State, 244 Ga.
33, 38 (3) (257 SE2d 543) (1979) (holding that former Code § 59-106
was directory only and thus evidence showing that the jury list had
not been revised according to that statute’s timetable and did not
contain a number of names equal to 50 percent of the registered
voters of the county as required by an amendment to that statute
“[did] not invalidate the jury list or deprive defendant of any right
to which he [was] entitled”).16 Therefore, even assuming that OCGA
16 To further support this claim, Moody asserts that four white jurors
who were selected to serve at his sentencing trial appeared as duplicate records
on the master jury list used in his case. In the trial court, Moody alleged that
it was as many as six jurors; the trial court never made a factual finding on
this point. Moody states in a footnote of his brief to this Court that counsel
made “[t]hese determinations by comparing the juror numbers associated with
the jurors selected to serve[] with the information provided on the juror
questionnaires” and then “cross-referencing that information against the list
of duplicate records that appeared on the master jury list used in this case,
which was admitted as Defense Exhibit 9 at the March 4, 2013, evidentiary
hearing.” Moody cites generally to two volumes of the record consisting of 4,145
pages and containing the juror questionnaires for approximately 491
prospective jurors in his case and to a defense exhibit admitted at the March
4, 2013, evidentiary hearing that consists of over 1,000 pages.
Pretermitting whether Moody has fully complied with Supreme Court
Rule 22 requiring citations in parties’ briefs to be “full and complete,” we
conclude that whether four white jurors with duplicate records served on
Moody’s jury is irrelevant. Even assuming that, as Moody’s expert witness
56
§ 15-12-120.1 was violated in the manner that Moody alleges, Moody
has not established a fair-cross-section violation, as discussed below,
or that the alleged violation amounted to “such disregard of the
essential and substantial provisions of the statute as would vitiate
the array[]” to warrant automatic reversal. Foster, 288 Ga. at 101
(2) (b) (citation and punctuation omitted).
(c) Moody also argues that the master jury list used to summon
jurors in his case violated the fair cross-section requirement in that
African-Americans were unconstitutionally under-represented. “In
testified, drawing from a master jury list without duplicates would have
resulted in a “different group” of summoned jurors, Moody has not shown that
the four jurors who served on his jury would not have remained on a properly
created and maintained master jury list and thus could not possibly have been
selected for his array, and we deem the relevant unintentional increase in the
probability that certain jurors would have been summoned for jury service to
fall short of an essential and substantial violation of the general legal
requirement of randomness in summoning potential jurors. See Harper v.
State, 283 Ga. 102, 103-104 (1) (657 SE2d 213) (2008) (distinguishing between
a “defect . . . in complying with the statutory directives governing how the jury
commission should select grand jurors” and a defect “[w]here th[e] role of the
jury commission ha[d] been entirely circumvented by the service of a grand
juror it never selected for service, [which was] an ‘essential and substantial’
violation of the law” (citation and punctuation omitted; emphasis in original);
Dawson v. State, 166 Ga. App. 515, 516-517 (2) (304 SE2d 570) (1983) (holding
that a grand juror did not illegally serve where her name appeared on the
master jury list, although it was not on the grand juror list for the term in
which she served).
57
order to show a Sixth Amendment violation, [Moody] must show the
group’s cognizibility, under-representation, and systematic
exclusion.” Humphreys v. State, 287 Ga. 63, 68 (3) (b) (694 SE2d 316)
(2010), disapproved on other grounds by Willis, 304 Ga. at 706 (11)
(a) n.3. Unquestionably, African-Americans are a “cognizable”
group. See, e.g., Williams v. State, 287 Ga. 735, 735-736 (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, 304 Ga. at 706(11) (a) n.3. But Moody has failed to show any under-representation.
According to Moody’s expert, whites age 18 years and over
comprised 46.68 percent of the population of Fulton County and
African-Americans age 18 years and over comprised 42.8 percent,
each based on the 2010 decennial census. According to Moody’s
expert witness’s calculations, non-duplicate whites on the altered
Fulton County master jury list comprised 46.34 percent of the list,
and non-duplicate African-Americans comprised 46.84 percent.
Nevertheless, Moody relies on his expert witness’s testimony
58
that the duplicates on the Fulton County master jury list “had a
higher chance of being selected,” were “disproportionately white[,]
and underrepresent[ed] African[-]Americans.” In particular,
according to Moody’s expert witness’s figures, the duplicates on the
Fulton County master jury list were comprised of 56.81 percent
whites and only 40.88 percent African-Americans. According to
Moody’s expert witness, the Council’s master jury list was missing
race codes for 64.97 percent of the persons on the list, but, as part of
its alteration of the master jury list that it received from the Council,
Fulton County “amend[ed]” the list to add race codes for a significant
number of records on the list.17 Even with the addition of Fulton
County’s race codes, however, Moody’s expert witness testified that
he could not provide the data needed regarding racial disparity in
order to make a constitutional claim, explaining that although the
disproportionality of whites in the duplicates “[wa]s going to cause
a racial skew towards whites,” it was “[r]eally hard to tell” what the
17It is unclear from the record where Fulton County obtained the
information for the race codes that it added.
59
total impact of that skew would be. Moody’s expert witness further
explained that, “for the most part we don’t know what everybody’s
race code is or what everybody’s race that they’ve identified on the
full list, either the [master jury list compiled by the Council] or the
[the master jury list as altered by Fulton County].”
The absence of that data means that Moody failed to make a
prima facie case. And because Moody did not make a prima facie
case, his fair cross-section claim fails. See Shubert v. State, 306 Ga.
490, 492 (2) (831 SE2d 826) (2019) (holding that the defendant failed
to carry his burden to make even a prima facie case for a fair cross-
section claim because he had presented insufficient evidence to
determine the racial composition of the relevant master jury list).
Sentencing Trial
6. Moody contends that the trial court erred in denying his
motion for a mistrial based on juror misconduct. We disagree.
(a) During a recess on the morning of the third day of the
sentencing trial, the trial court announced to the parties that it had
received a note from Juror 142 asking to speak to the court. The trial
60
court then summoned the juror to a conference with the court and
the parties. The juror, a registered nurse, then disclosed that, on
returning home the previous evening, he had conducted an internet
search on “sociopathic disorder” and “antisocial personality
disorder.” When the trial court asked him why he had conducted his
search, the juror responded that, even though he had not heard
those particular terms, the jury “ke[pt] hearing, you know, mental
instability [t]here in the courtroom.” He indicated that, while he had
never been a psychiatric nurse, he had had “a psychiatric rotation
in nursing school” and that he had been “curious as to just refreshing
[his] memory” about diagnoses that he had previously learned about.
He also explained that he told his fellow jurors that he had
conducted his search and that, in response, “they all agreed that [he]
should let [the trial court] know” what he had done. The trial court
then asked him whether he had told the other jurors the substance
of what he had learned from his search or whether he had discussed
that information “at all” with them, and he answered unequivocally
to both inquiries, “No, I did not.”
61
The trial court then gave both parties the opportunity to
question the juror. The State had no further questions, but during
defense counsel’s inquiry, the juror clarified that he had conducted
independent research only on the previous evening and not
throughout the proceedings and that he had informed the other
jurors that he had conducted this research only during the recess
that the trial court had taken shortly before the court had received
his note. Defense counsel asked the juror to describe “the
conversations” that took place regarding the research, and he
responded, “Well, I basically asked them if they thought it was
acceptable that I had looked at these two personality disorders on
the internet.” On further inquiry, the juror stated that he had named
the term “sociopaths” during his conversation with the other jurors
but that he did not believe that he had mentioned the term
“antisocial personality disorder.” Defense counsel then asked him
how the other jurors “express[ed] their concerns to [him] about [his
research],” and he said that “they just said that [he] should not have
done that.” When defense counsel began to ask him whether “any
62
particular juror sa[id] anything to [him] in the presence of the other
jurors about this,” the trial court intervened and said that the court
had “heard what [it] need[ed] to hear.”
After Juror 142 left the courtroom, both parties requested that
he be removed, and the trial court agreed to do so. Then defense
counsel suggested that the trial court inquire as to whether the other
jurors “knew that [Juror 142 wa]s a nurse or [wa]s a medical
professional of some sort.” However, the trial court stated that this
question was irrelevant given that any juror could have conducted
the research regardless of his or her background. The trial court
found that the relevant inquiry instead was whether Juror 142’s
actions and statements to the other jurors would “prevent [a juror]
from making [a] decision based on what[ was t]here in the courtroom
and following the court’s instructions to make [a] decision in that
regard.” Defense counsel stated, “I understand,” and did not argue
further. The trial court then brought in one juror and asked:
I know that Juror 142 asked a question in the presence of
the other jurors about some internet search he had done,
about whether he should bring it to the court’s attention.
63
My question for you, is any of that conversation that you
heard from him or anything about that, do you believe it
would prevent you from doing what you are sworn to do
as a juror, listen to the evidence, listening to my
instruction, and making a decision based on those things?
The juror answered in the negative. After the trial court had
completed its colloquy, defense counsel told the court that it was
difficult to “analyze this issue” without “know[ing] exactly what
[Juror 142] said, and . . . what [the other jurors] said to him.” The
trial court indicated that it was not going to make an inquiry into
those matters, and defense counsel said that he understood.
Defense counsel then requested that the trial court refrain from
“admoni[shing the jurors] to obey [their] oath because . . . that ha[d]
a tendency to direct them.” The trial court stated its belief that it
was acting appropriately and then returned to defense counsel’s
suggestion about making a further inquiry into what was said
among the jurors. The trial court explained that it found Juror 142
credible, pointing out that “the only reason he was out” in the
courtroom was to tell “[the trial court and the parties] what he did”
and that the trial court saw no reason not to believe “what else he
64
told [them] about what he did.” The trial court concluded that it
“kn[e]w what was said based on what [Juror 142] told” the trial court
and the parties in “the same report that brought [the misconduct] to
[their] attention in the first instance.”
The trial court then questioned each of the remaining jurors,
with all the jurors being asked in a substantially similar manner.
Each of the jurors responded that there was nothing in the
conversation that would keep him or her from being fair and
impartial and deciding the case on the evidence and the law. In
addition, one juror volunteered that, “[i]f anything, [the
conversation] ma[de the jurors] much more conscious of [their]
duty.” Another juror volunteered that “it was not a conversation” but
that “[Juror 142] maybe said two sentences at the most.” A different
juror stated “[t]here was nothing specific said,” and yet another
stated that he “didn’t even hear [Juror 142’s] question.” No juror
indicated that the trial court’s description of the circumstances of
Juror 142’s disclosure to his fellow jurors was incorrect.
After the trial court stated its intention to go forward, defense
65
counsel moved for a mistrial based on Juror 142’s misconduct and
the subject matter that he had researched. Defense counsel
expressed particular concern “about the actual subject matter of
[Juror 142’s] inquiry, sociopath and antisocial personality disorder,
given that there ha[d] been absolutely no testimony at th[at] point
concerning that but that [defense counsel] anticipate[d] there, in
fact, w[ould] be substantial testimony concerning those issues.” The
trial court denied the motion, finding that “[t]he jurors ha[d] clearly
indicated that nothing about what happened, to the extent that they
heard it, developed by the questioning, ha[d] affected their ability to
be fair and impartial in the case” and concluding that therefore there
was no basis for a mistrial.
(b) We have recently explained:
We review a trial court’s denial of a motion for
mistrial for abuse of discretion, and the trial court’s
exercise of its discretion will not be disturbed on appeal
unless a mistrial is essential to preserve the defendant’s
right to a fair trial. When reviewing a trial court’s
ultimate decision for an abuse of discretion, we review
factual findings or credibility determinations underlying
the court’s decision only for clear error.
66
To set aside a jury verdict solely because of irregular
jury conduct, a court must conclude that the conduct was
so prejudicial that the verdict is inherently lacking in due
process. Any juror irregularity that has the potential to
injure a defendant’s due process rights triggers a
presumption of prejudice, and the prosecution must then
carry the burden of establishing beyond a reasonable
doubt that no harm occurred. To establish that the juror
irregularity was harmless beyond a reasonable doubt, the
State must show based on the record evidence that there
is no reasonable possibility that the juror irregularity
contributed to the [outcome of the proceeding]. As we
have explained, the State may carry this burden by
establishing that the juror irregularity was an immaterial
irregularity without opportunity for injury.
Charles v. State, 315 Ga. 651, 657-658 (3) (___ SE2d ___) (2023)
(cleaned up).
On appeal, Moody argues that “the substance of [Juror 142]’s
research went directly to a central, disputed, inflammatory, and
likely dispositive issue in the sentencing phase of the trial,” i.e.,
whether he suffers from severe mental illness or instead from
antisocial personality disorder. But that alone does not establish
presumptive prejudice — after all, the trial court promptly excused
Juror 142 after establishing that he did not share the substance of
any of the information gleaned from his research with any of his
67
fellow jurors but instead immediately followed their advice to inform
the trial court about what he had done.
Moody nevertheless argues that Juror 142 “shared [his]
research with other jurors,” who ultimately sentenced him to death,
and that “[t]he trial court’s limited inquiry into the misconduct did
not provide the State with sufficient proof to rebut the presumption
of prejudice that arose from this misconduct.” Although the trial
court did not question the remaining jurors as to what the specific
conversation was that took place when Juror 142 told them that he
had conducted internet research, Juror 142’s testimony and the
responses of the jurors to the trial court’s inquiry, which were
consistent with what Juror 142 described as having taken place,
authorized the trial court to find that Juror 142 did not share what
he had learned with the other jurors. Moreover, the trial court’s
questioning of each of the remaining jurors established that they
could remain fair and impartial. This was sufficient to establish
beyond a reasonable doubt that Juror 142’s misconduct did not harm
Moody. See Jones v. State, 258 Ga. 96, 97 (366 SE2d 144) (1988)
68
(“[W]here the substance of the communication is established
without contradiction, the facts themselves may establish the lack
of prejudice or harm to the defendant.”). Accordingly, the trial court
did not abuse its discretion in denying Moody’s motion for a mistrial.
See Burney v. State, 309 Ga. 273, 292-294 (5) (845 SE2d 625) (2020)
(holding that a juror’s misconduct in conducting an online search for
the terms “malice” and “malice murder” during the jury’s
deliberations in a murder prosecution was harmless beyond a
reasonable doubt where the trial court found that the juror did not
share what she had learned with her fellow jurors and that her
misconduct did not impact any juror’s assessment of the charges
against the defendant, including her own); Hodges v. State, 302 Ga.
564, 568-569 (4) (807 SE2d 856) (2017) (holding that a juror’s
misconduct in looking up some words on a dictionary application
during trial was harmless beyond a reasonable doubt, where the
juror testified that the search had no impact on her as a juror and
there was no evidence that she shared her search results with other
jurors).
69
7. Moody contends that the trial court abused its discretion by
allowing improper victim impact testimony from the grandmother
and the mothers of the victims. For the reasons set forth below, we
discern no reversible error.
(a) Testimony of the Victims’ Grandmother. Over Moody’s
objection that the statements were in the format of poems to the
victims, the trial court allowed the grandmother of Kimble and
Mattox to read her victim impact statements to the jury. 18 In
18 The grandmother stated:
The first one is my moonlight, and that’s what Del was to me.
Okay. It reads my moonlight, you will always be with me. I can
always look out at night and see you glowing through the trees. On
my mind you will always be my handsome grandson who was
smart and very nice to me. One thing I know we all know for sure,
you were --- we were all very proud of you. Nighttime, daytime,
noontime, all the time I think of you. Loved ones can never be
replace no matter what you do. I still miss you, and I wish you were
here. But I know you’re with God. You are happy there. God only
knows what is best for us. When we look ---- when he took you
home, it was a must. Heaven is your home now. Earth is mine, but
we will be soon together when it is time. The time will come, we
will meet again, and we will all see each other in that Great
Promised Land.
Okay. And this is to my sunshine, Sierra Kimble. Sunshine, my
sweet, shining, beautiful sunshine, your love --- your love and your
smile will always be for the --- will be with me for a lifetime.
70
overruling Moody’s objection, the trial court noted that a
grandmother’s testimony about what it meant to her to lose her
grandchildren “[wa]s about as poignant as it can get.” However, the
trial court found that the statements were “not ploys for sympathy”
or “overly prejudicial.” We agree. Both statements were very brief
descriptions of the victims’ unique qualities that endeared them to
their grandmother and her longing to see them again, and they were
proper testimony. See Bryant v. State, 288 Ga. 876, 897 (15) (a) (708
SE2d 362) (2011) (explaining that this Court has deemed victim
impact testimony describing the victim’s life and the impact of his
or her loss on his or her family as being appropriate); Lawler v. State,
Understanding why you had to leave so soon is very hard, but to
be absent from the body is to be present with God. Never will I
forget you. You will always be in my heart. When I think of you, it
is so hard being apart. Sun --- shining sunshine, my sweet
sunshine, shining forever you will always be with me and leave me
never. Heaven is your home. I do understand. You are with God
waiting for me with open hands. I can see you now working and
helping others out. That is what you do. That is what you are
about. Now I know you that you are now resting in peace.
Everlasting life is what we all have to look forward to, also getting
to heaven and meeting up with you.
71
276 Ga. 229, 232 (3) (576 SE2d 841) (2003) (stating that victim
impact testimony is not unconstitutional simply because it is
poignant or sad).
Nevertheless, on appeal Moody now asserts that these
statements were “emotionally-charged” due to their figurative
language and “religious references to ‘[G]od,’ ‘heaven,’ and
‘everlasting life.’” Relying on Livingston v. State, 264 Ga. 402, 404
(1) (b) (444 SE2d 748) (1994), Moody argues that the statements
were improper because they inflamed and unduly prejudiced the
jury. But in Livingston, our point was that “even some [otherwise-]
legitimate victim impact evidence could inflame or unduly prejudice
a jury if admitted in excess.” 264 Ga. at 404 (1) (b) (emphasis added).
That did not happen here, as the statements at issue each comprised
merely a half-page of transcript. The language used by the victims’
grandmother, such as references to her granddaughter as her
“sunshine” and to her grandson as her “moonlight” and to her
religious belief in life after death, is not the type of language that
would unduly inflame or prejudice a jury. See Turner v. State, 268
72
Ga. 213, 215 (2) (b) (486 SE2d 839) (1997) (no error in admitting
victim impact statements that were brief, “covering less than two
pages of transcript each,” that “focused on the witnesses’
relationship with the victim and how the victim’s death had affected
the witness personally,” and that made “extremely brief” references
and did not inflame the “jury based on religion”); Livingston, 264 Ga.
at 404 (1) (b) (noting that this Court has held that “‘the passion’
proscribed by our law does not encompass all emotion, but only that
engendered by prejudice, particularly racial prejudice . . . or
[prejudice towards] religious preference,’ or other arbitrary factors”
(citation omitted)). Therefore, this claim has no merit.
(b) Testimony of the Victims’ Mothers. Moody also claims that
the trial court committed reversible error by admitting the victim
impact testimony of the victims’ mothers to the extent they
contained statements that can be construed only as pleas to the jury
to recommend a death sentence. “It is settled law that testimony by
relatives of a victim concerning the appropriate sentence is not
properly admissible in a death penalty case as victim-impact
73
testimony.” State v. Worsley, 293 Ga. 315, 328 (5) (745 SE2d 617)
(2013).
But because Moody raised no objections to either of these
statements at trial, his claims are not preserved for ordinary
appellate review and can be reviewed only for plain error. See
Williams v. State, 315 Ga. 490, 494 (2) n.7 (883 SE2d 733) (2023)
(holding that an unobjected-to ruling on admitting or excluding
evidence is subject to plain error review under OCGA § 24-1-103 (d)
even if the basis for the ruling is governed by the Constitution or by
a statutory provision outside the Evidence Code). Under plain error
review, we apply the four-pronged analysis articuled in State v.
Kelly:
First, there must be an error or defect — some sort of
deviation from a legal rule — that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and finally,
if the above three prongs are satisfied, the appellate court
has the discretion to remedy the error – discretion which
74
ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.
290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (cleaned up); see also
Martin v. State, 298 Ga. 259, 279 (6) (d) (779 SE2d 342) (2015)
(noting that this Court’s obligation under OCGA § 17-10-35 (c) (1) to
conduct a plenary review in all death penalty cases “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”), disapproved on other grounds by Willis, 304 Ga. at 707(11) (a) n.3. Thus, under both the plain error review of Kelly and the
plenary review of Moody’s death sentences under OCGA § 17-10-35
(c) (1), relief here would be warranted only if there is a reasonable
probability that the improper victim impact testimony in this case
led to the jury’s decision to impose Moody’s death sentences.
The victim impact testimony contained language of the sort
that we previously have deemed improper. In her victim impact
statement, Rhonda Mattox, who was Mattox’s mother and Kimble’s
aunt, stated that “[her] hope [wa]s that the jury w[ould] punish the
75
defendant to the fullest extent.” Zondra Mathis, who was Kimble’s
mother and Mattox’s aunt, said the following:
I just said to myself I don’t want them[ 19] to die because
of what – because of the heart that I have. But I want
them to really pay for what they had done and taken my
baby through. My emotion has changed to someone that I
don’t want to be, and I would have never wanted to think
the way that I’m thinking these days. I’m just asking for
– I’m just asking that they be punished to the fullest. I
know that that won’t bring my sunshine back to me, but
it would give me that knowledge, the knowledge that
justice was served.
Although Mathis’s testimony was somewhat ambiguous —
defense counsel argued in closing that she had asked the jury not to
impose the death penalty — Mathis and Mattox nevertheless made
statements calling for “justice” and a “punish[ment] to the fullest”
extent of the law, which we have ruled are improper. See Martin,
298 Ga. at 285 (9) (victim impact testimony “refer[ring] to the
family’s desire for ‘justice’” was improper), disapproved on other
grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Worsley, 293 Ga. at
328 (5) (statements that the defendant should receive the
19 By using the pronouns “them” and “they,” Mathis was apparently
referring to Moody and his co-defendant, Felts.
76
“maximum” or “ultimate” sentence were “implied requests for the
jury to recommend the death penalty”).
Any errors in allowing this testimony, however, did not affect
Moody’s substantial rights. In the light of the overwhelming
evidence, the nature of Moody’s crimes, the brevity of the improper
testimony, the fact that the improper testimony was not explicit or
especially inflammatory, and the fact that Mathis’s testimony was
ambiguous enough that defense counsel used it in closing argument
as showing that she was against death sentences for Moody, there
is no reasonable probability that the challenged portions of the
testimony led to the jury’s decision to impose death sentences for
Moody. See Martin, 298 Ga. at 285 (9) (affirming the defendant’s two
death sentences after applying plain error review pursuant to OCGA
§ 17-10-35 (c) (1) to improper victim impact testimony “refer[ring] to
the family’s desire for ‘justice,’” along with other improper testimony
not objected to at trial).
8. Moody next argues that the prosecutor engaged in several
acts of misconduct in an effort to undermine his neurological defense
77
that he suffers from organic brain damage. To prevail on a claim of
prosecutorial misconduct, a “defendant must show [both] actual
misconduct and demonstrable prejudice to his right to a fair trial.”
Cushenberry v. State, 300 Ga. 190, 195 (2) (b) (794 SE2d 165) (2016)
(citation and punctuation omitted). We conclude for the various
reasons discussed below that Moody has failed to make such a
showing.
(a) Alleged Misconduct in Attacking the Credibility of Moody’s
Expert Witness. Moody first claims that the prosecutor improperly
attacked the credibility of his out-of-state expert neurologist, Dr.
Thomas Hyde, by suggesting that Dr. Hyde had acted wrongly in
failing to notify the Georgia Composite Medical Board before
working on Moody’s case. Moody claims this constituted improper
impeachment.
Shortly into his cross-examination of Dr. Hyde, the prosecutor
confirmed that Dr. Hyde was not a psychiatrist but instead practiced
medicine in the state of Maryland with “part of [his] expertise” being
neurology. Then the following colloquy took place:
78
PROSECUTOR: So when you came here to work on
Jeremy Moody, did you call the state board here in
Georgia?
DR. HYDE: No. It’s not necessary as an expert to call the
state board.
PROSECUTOR: To testify. But to actually review and
meet with the victim – I mean the defendant in this case,
didn’t you have to get a waiver in order to practice
medicine in the state?
DR. HYDE: I’m not practicing medicine. I’m offering an
expert opinion.
PROSECUTOR: Well, didn’t you have to practice
medicine to do your neurological review?
DR. HYDE: I have never in any state ever been told that
you have to contact the state medical board in order to be
an expert witness, and I’ve been qualified as an expert in
Florida, Virginia, Maryland, Pennsylvania, Georgia in
the past, and North Carolina.
PROSECUTOR: And you actually did medical work in
state prior to testifying?
DR. HYDE: I examined, interviewed, and prepared
reports on patients.
PROSECUTOR: You may want to consult with the state
board because –
DR. HYDE: Is that a threat, sir?
PROSECUTOR: No, it’s not. I’m – you’re telling me,
doctor, that you’re not aware of it, so I’m telling you [that]
you many want to do that.
At that point, defense counsel objected on the basis that the
prosecutor’s line of questioning “[wa]s not a proper line of cross-
examination.” The trial court told the prosecutor that he had “made
79
[his] point,” and the prosecutor moved on.
During subsequent cross-examination about Moody’s past
medical records indicating that he suffers from antisocial
personality disorder, the exchange between the prosecutor and Dr.
Hyde became heated. After sending the jury out of the courtroom,
the trial court admonished the prosecutor to “ask[] questions
without testifying or making . . . out of hand remarks to the witness.”
At that time, Dr. Hyde stated to the trial court that he “ha[d] never
been threatened by a state prosecutor, overtly or covertly,” that he
would be reported to the State Medical Board “for practicing without
a license,” and that he was unaware of a requirement that an out-
of-state expert witness had to be licensed to practice medicine in
Georgia before he or she could perform an evaluation for purposes of
testifying in court. When questioned by the trial court, the
prosecutor could not provide a basis for his questioning of Dr. Hyde
regarding the State Board issue. Defense counsel subsequently
asked the trial court to “tell the jury [that] whether [Dr. Hyde i]s
licensed or not is not an issue that they should be concerned about.”
80
However, the trial court declined to do so and suggested that this
was a matter for defense counsel’s redirect examination. Defense
counsel raised no objection to the trial court’s basis for refusing to
instruct the jury pursuant to his request.
Assuming that Moody preserved this claim for the purposes of
ordinary appellate review, see Jeffers v. State, 290 Ga. 311, 314 (4)
(a) (721 SE2d 86) (2012) (holding that a party must “make and
obtain a ruling on an objection to evidence in the trial court, before
or as the evidence is admitted, in order to preserve the objection for
appeal” and is “allow[ed] to raise on appeal only the same objections
that were properly preserved below” (citation omitted)), we first note
that the fact of whether Dr. Hyde was licensed in Georgia was a
legitimate area of inquiry. See Brooks v. Green, 277 Ga. 722, 723-
724 (2) (594 SE2d 629) (2004) (stating that “the possession of a
license in Georgia does not go to qualification as an expert witness
but may go to the weight and credibility that a factfinder gives to
such expert’s opinion” (cleaned up)).
Although the prosecutor’s line of questioning suggesting that
81
Dr. Hyde was required to contact the State Medical Board before
evaluating Moody as an expert witness was not backed by legal
authority, we need not resolve that because there was no prejudice
resulting from it. The questioning was promptly ended by the trial
court, the prosecutor conceded during closing arguments that he was
not challenging Dr. Hyde’s credentials, and the prosecutor made no
further mention of the State Medical Board issue. Thus, even if the
prosecutor’s questioning was improper, Moody has failed to show
“demonstrable prejudice” resulting from this brief inquiry. See
Brooks v. State, 305 Ga. 600, 606 (3) (826 SE2d 45) (2019).
(b) Alleged Misconduct Regarding a State’s Expert Witness.
Moody also contends that the prosecutor engaged in misconduct
during the State’s rebuttal case by calling Dr. Matthew Norman, a
psychiatrist Moody claims had performed only “a sanity evaluation”
of him, to testify that he disagreed with Dr. Hyde’s neurological
examination of Moody. Moody asserts that calling Dr. Norman as a
rebuttal witness was misconduct for two reasons. Pretermitting
whether Moody preserved this claim, neither reason offered by
82
Moody has merit.
(i) First, Moody contends that it was misconduct to call Dr.
Norman in rebuttal, because Dr. Norman had been retained to
testify only in the event that Dr. Glen Egan, a clinical psychologist,
was unavailable. Moody argues that, because Dr. Egan had already
testified in the State’s rebuttal case, the prosecutor’s use of Dr.
Norman’s testimony constituted an improper attempt (procedurally
and substantively) to discredit Dr. Hyde. But this claim is plainly
contradicted by the record.
The State moved the trial court for an order appointing Dr.
Norman to conduct a psychiatric evaluation of Moody after Dr. Peter
Ash, not Dr. Egan, announced that he would be out of the country
and unavailable during the timeframe in which his testimony might
be required. 20 Moreover, in response to the State’s request, the trial
court ordered that
a qualified medical professional of the State’s choosing,
[namely,] Dr. Matthew Norman, conduct an evaluative
examination of [Moody] and provide to the Court a report
20 Dr. Ash, the psychiatrist who had initially performed a court-ordered
evaluation of Moody, did not testify at Moody’s trial.
83
of diagnosis, prognosis and its findings with respect to:
1. Degree of Criminal Responsibility or Mental
Competence at the Time of the Crime . . . [, and]
2. Any other recommendations for disposition.
The trial court further ordered that, upon completion, Dr.
Norman’s report should be provided only to the trial court, which
would place it under seal, and further ordered the following: if “the
defense determine[d] that it w[ould] present expert [mental health]
testimony at trial, the defense w[ould] disclose to the State the
totality of the information and documentation used by any expert
the defense [wa]s relying on to support its position, including any
report generated by that expert”; “Dr. Norman w[ould] then be
allowed to review said materials and amend his report and/or re-
evaluate [Moody] as he deem[ed] appropriate”; and “all materials
w[ould] then be provided to the State.” Therefore, the record shows
that Dr. Norman was explicitly appointed by the trial court for the
State to present as a rebuttal witness in the event that Moody
presented any expert mental health testimony at trial. See State v.
Johnson, 276 Ga. 78 (576 SE2d 831) (2003) (discussing procedures
84
for a trial court to order the State’s expert’s examination of a
defendant, the sealing of an expert’s report, and the unsealing of it
in order for it to be used for rebuttal purposes if the defense presents
expert mental health testimony at trial).
Moreover, at the sentencing trial, in anticipation of Dr. Hyde’s
testimony, the prosecutor identified Dr. Norman as “an expert
witness that [the State] m[ight] call in rebuttal,” gave notice to the
defense and the trial court that the State “would have him in [the
courtroom] to assist” the State during Dr. Hyde’s testimony, and
requested that “before [Dr. Hyde’s] cross-examination [the State]
have just a five-minute recess so [that the prosecutor] c[ould] consult
with Dr. Norman.” Defense counsel stated that he considered the
State’s request “appropriate” and that he had no objections.
Therefore, given the evidence in the record showing that the parties
clearly understood that Dr. Norman was to testify in rebuttal to any
mental health testimony that Moody might present, this portion of
Moody’s claim of prosecutorial misconduct is meritless.
(ii) Moody also contends that it was beyond the scope of Dr.
85
Norman’s expertise and his evaluation of Moody to attack the
professional opinions of Dr. Hyde that Moody suffers from organic
brain damage or a seizure disorder. 21 This claim also fails.
After conducting an interview of Moody and reviewing
numerous records, including his mental health records and
evaluations, Dr. Norman diagnosed Moody as having antisocial
personality disorder, cocaine dependence “in full sustained
remission in [a] controlled environment,” and borderline personality
traits. Dr. Norman testified that his diagnosis of antisocial
personality disorder was based on his interview with Moody and his
review of Moody’s records showing “that there was a personality
disorder diagnosis . . . that was solidly, in [his] opinion, documented”
at ages 13, 15, and 17 years “and that there was . . . consistency
within that documentation from multiple different clinicians.” Dr.
21 Dr. Hyde testified that he did not make a psychiatric diagnosis of
Moody but he opined that Moody suffers from organic brain dysfunction. With
regard to Dr. Norman’s diagnosis of antisocial personality disorder, Dr. Hyde
testified that “there are other diagnoses that are a better fit than antisocial
personality disorder, although [Moody] has traits that can be assigned within
what are characterized as antisocial traits.” Dr. Hyde opined that, “probably,”
meaning “[m]ore likely than not,” Moody’s psychiatric problems “are caused by
and reflect [his] underlying organic brain damage.”
86
Norman explicitly disagreed with Dr. Hyde’s findings that Moody
had organic brain damage, explaining:
In my review of the records and seeing the consistency
from so many different other clinicians for a nearly 20-
plus year timeframe of having diagnoses of antisocial
personality disorder, borderline personality disorder,
conduct disorder, cocaine dependences, what was replete
through the records that the best fit diagnosis is the
antisocial personality disorder with borderline traits and
the cocaine dependence.
At the time of Moody’s sentencing trial, former OCGA § 24-7-
707 governed the admissibility of expert opinion testimony in
criminal proceedings, and that statute provided:
In criminal proceedings, the opinions of experts on any
question of science, skill, trade, or like questions shall
always be admissible; and such opinions may be given on
the facts as proved by other witnesses.22
Moody has not cited a single case, nor are we are aware of one, in
which we have held that testimony regarding brain damage fell
22 The General Assembly repealed OCGA § 24-7-707, effective July 1,
2022, and the admissibility of expert opinion testimony in both civil and
criminal proceedings commenced on or after that date is now governed by
OCGA § 24-7-702 with a few exceptions not relevant here. See Ga. L. 2022, p.
201, §§ 1-3. Former OCGA § 24-7-707 was carried over from its predecessor,
OCGA § 24-9-67; therefore, when interpreting former OCGA § 24-7-707, it is
appropriate to rely on decisions under OCGA § 24-9-67. See Mosby v. State,
300 Ga. 450, 453 (2) n.2 (796 SE2d 277) (2017).
87
outside the appropriate scope of expert testimony from a
psychiatrist, and, in fact, our cases suggest just the opposite. See
Turpin v. Lipham, 270 Ga. 208, 217 (3) (B) (3) (510 SE2d 32) (1998)
(relying on “affidavits of several psychologists and psychiatrists who
testified [in the habeas proceedings] that test results contained
within the institutional records . . . suggest[ed] organic brain
damage centered in the left hemisphere and post[-]traumatic stress
disorder” to conclude that trial counsel’s investigation of available
mitigation evidence was not reasonable and therefore was deficient
(emphasis added)); Wellons v. State, 266 Ga. 77, 82 (2) (463 SE2d
868) (1995) (relying in part on the testimony of a death penalty
defendant’s expert psychologist “acknowledg[ing] . . . that Wellons
was also evaluated by a court-appointed psychiatrist, who concluded
that Wellons is an intelligent, well-educated man with a significant
personality disorder but no brain damage and no psychosis” to
conclude that “the evidence as a whole demonstrate[d] that his
defenses of insanity and mental illness were simply not viable”
(emphasis added)); Heard v. State, 248 Ga. 348, 349 (283 SE2d 270)
88
(1981) (stating that the defendant offered the testimony of a forensic
psychiatrist, who opined that he was “suffering from some brain
damage” (emphasis added)). Moreover, it was for the jury “to judge
the credibility of the opposing expert witnesses.” Tye v. State, 298
Ga. 474, 477-478 (2) (a) (782 SE2d 10) (2016).
Moody also asserts that Dr. Norman was not qualified to
disagree with Dr. Hyde “about whether there was evidence that [he]
suffered from a seizure disorder.” Dr. Hyde explained that he was
using the term “seizure” as “the neurological term, which is normal
involuntary discharge of electrical activity from a damaged or
abnormal part of the brain that spreads to normal tissue[,]
interrupting the normal function of that part of the normal tissue of
the brain.” He also affirmed that, although since 2003 Moody had
had multiple clinical evaluations for seizures at Grady Memorial
Hospital, he “never saw an EEG report, which is a test that is done
to assay electrical activity in the brain,” and that he “would have
liked to have seen” such a report. Even so, after noting Moody’s
history of seizures, Dr. Hyde opined that a seizure disorder was
89
additional evidence of brain damage. Although Dr. Norman also
acknowledged Moody’s history suggesting a seizure disorder, he did
not diagnose Moody with that disorder. When asked whether he saw
anything in the documents that he had reviewed that “definitively
said that [Moody] had a seizure disorder,” Dr. Norman responded
that he found it significant that, in reviewing those documents,
which included Dr. Hyde’s report,” he had seen no “documentation
of an EEG,” which would show the “electrical activity that Dr. Hyde
[described] that you need to actually have a seizure.” We see no
impropriety in Dr. Norman’s testimony.
(c) Alleged Misconduct Involving the Solicitation of Opinion
Testimony. Moody contends that the prosecutor also engaged in
misconduct by eliciting improper opinion testimony from three of the
State’s lay witnesses and two of its expert witnesses. We reject this
claim.
(i) Lay Witness Testimony. Moody contends that the prosecutor
committed misconduct by eliciting from two Fulton County jail
nurses and a former Fulton County jail officer improper “medical
90
opinion testimony designed to rebut [his] expert testimony.” Under
OCGA § 24-7-701 (a) (“Rule 701 (a)”), a lay witness may testify “in
the form of opinions or inferences that are rationally based on the
witness’s perception, helpful to a clear understanding of the
determination of a fact in issue, and not based on scientific,
technical, or other specialized knowledge.” Bullard v. State, 307 Ga.
482, 491 (4) (837 SE2d 348) (2019) (citation and punctuation
omitted). “[L]ay witnesses may draw on their professional
experiences to guide their opinions without necessarily being
treated as expert witnesses.” Id. at 492 (4) (citation and punctuation
omitted).
Jail Nurse Michelle McClure. First, Moody points to the
testimony of jail nurse Michelle McClure regarding his alleged
mental deficiencies and seizure disorder. Even if this claim of error
was preserved, Moody has not shown that this testimony was
improper, and thus the prosecutor did not commit misconduct by
eliciting it.
During her testimony, McClure affirmed that she had had
91
opportunities during Moody’s years of incarceration to have
conversations with him, that he appeared to know what was going
on when she talked with him, that she had never heard him speak
nonsensically, and that he did not appear to be “mentally deficient
in some way.” She explained that she thought Moody was “very
smart” based on the fact that he “ask[ed] a lot of questions about”
his medications, including asking about their side effects and
requesting “printouts” for them. McClure also testified that she had
never observed Moody actually having a seizure but that she had
been among the medical staff who had responded after he had
reportedly had one and that Moody had appeared “[a]wake and
alert” and that he had “ranted.” She testified that this was not
typical in her experience, which was that “[a] lot of people” were
“confused” and “not really aware of their surroundings when they
c[a]me out of the seizures.”
McClure’s testimony was rationally based on her personal
observations of Moody and her experience with other patients and
did not require scientific, technical, or other specialized knowledge.
92
Her testimony was also relevant to two issues in Moody’s case —
what his mental condition was and whether he suffered from a
seizure disorder. Accordingly, as this testimony was admissible
under Rule 701 (a), the prosecutor plainly did not commit
misconduct by eliciting it.
Jail Nurse Angelica Rosant. Moody also alleges that the
prosecutor elicited improper opinion testimony when he asked
another jail nurse, Angelica Rosant, whether, “based on [her]
training and experience in the jail and having spent time with Mr.
Moody, . . . he appear[ed] to have brain damage or brain injuries”
and she responded in the negative. Defense counsel immediately
objected on the ground that Rosant was “not qualified to testify as
to whether or not [Moody] has brain damage.” The trial court
instructed the prosecutor to rephrase his question, and the
prosecutor’s rephrased questions were asked and answered without
objection.
Although the court asked the prosecutor to rephrase the
question, it never informed the jury as to whether or not Moody’s
93
objection was sustained. Nevertheless, because Moody never
requested a curative instruction for the jury to disregard the
challenged testimony, we review his argument for plain error. See
Wynn v. State, 313 Ga. 827, 838 (4) (874 SE2d 42) (2022). Moody’s
claim fails under such review.
Rosant’s testimony was not obviously improper. She was asked
whether Moody appeared to have brain damage or brain injuries
based on her training, experience, and time spent with Moody, and
she previously testified without objection about her observations
about whether Moody understood everything she told him. See
Bullard, 307 Ga. at 491 (4).
Even if her opinion testimony was improper, Moody has failed
to show prejudice. In response to rephrased questions, Rosant
testified without objection that she had never seen Moody walk with
a limp “[i]n the times” that she had been with him, that she had
personal experience with stroke victims and that he did not appear
like a person who had suffered a stroke, that he communicated
“[v]ery well” with her, and that he was able to provide “paperwork”
94
to her. This subsequent testimony was not improper. It was
rationally based on Rosant’s personal observations of Moody and her
experience with other patients, it did not require specialized
knowledge, and it was relevant to determining what Moody’s mental
condition was, which was a fact at issue at his sentencing trial. See
Bullard, 307 Ga. at 491-492 (4); see also Harris v. State, 309 Ga. 599,
604 (2) (a) (847 SE2d 563) (2020) (holding that a detective’s opinion
that the defendant shot himself in the leg was admissible under Rule
701 (a), as it was rationally based on inferences that the detective
formed from his review of the evidence and his prior observations of
gunshot wounds, which did not require scientific, technical, or other
specialized knowledge). Therefore, given the propriety of this
testimony and the trial court’s response to defense counsel’s prompt
objection to the prosecutor’s initial question, we conclude that there
is no reasonable probability that the prosecutor’s allegedly improper
question and Rosant’s response to it contributed to the jury’s
decision to impose Moody’s death sentences. See Martin, 298 Ga. at
279 (6) (d).
95
Jail Officer Ricardo Rucker. Lastly, Moody contends that the
prosecutor elicited an improper lay opinion from former Fulton
County jail officer Ricardo Rucker that “Moody like[d] to plan his
seizures.” This testimony occurred when the prosecutor asked
Rucker whether he had “ever notice[d] if [Moody] ever had any
seizures,” and Rucker responded:
Yes, sir. Now, I mean, I know it was a time he probably
had a couple around me, but during my time with him I’ve
noticed that Mr. Moody likes to plan his seizures and like
just plan out the day. . . .
Even if Moody preserved this claim for review, the statements
were admissible because they were based on Rucker’s personal
observation. According to Rucker, Moody’s “plan” to have a seizure
began when Rucker was in “the tower” with the microphone on and
heard inmates talking with one another, with one saying, “Hey,
when they get ready to do the round, I’m going to say you [are]
having a seizure, and then you go through the routine.” Then Rucker
testified, “[A]s soon as [I] walk[ed] in the zone, everybody [was]
beating on the door, hey, Moody [is] having a seizure.” He also
96
described seeing “soap . . . squished up and made like it’s throw up
to the side,” and he testified that, when medical personnel came to
render aid to Moody, they reported that he was “good.” He also
testified that he “ha[d] not seen [Moody have] a seizure where it
required any type of medical attention.” Furthermore, according to
Rucker, when Moody realized that jail personnel would not remove
him from his cell to treat his seizures, he started injuring himself in
ways that would necessitate his being taken to the jail’s medical
facility or to the hospital. As an example, Rucker described an
occasion when Moody mentioned getting a “vacation” or “break” and
then, shortly afterward, seriously injured his head, requiring a trip
to the hospital.
To the extent that Rucker provided opinion testimony, it was
rationally based on his personal observations of and experiences
with Moody and did not require scientific, technical, or other
specialized knowledge, and it was relevant to an issue in Moody’s
case — whether he was malingering. See Bullard, 307 Ga. at 491
(4). Because this testimony was admissible under Rule 701 (a), there
97
was no prosecutorial misconduct in eliciting it.
(ii) Expert Witness Testimony. Moody contends that the
prosecutor also committed misconduct by eliciting improper
testimony from the chief medical examiner and from the State’s
expert clinical psychologist. Even if preserved, the claims here are
meritless, as Moody has not shown that any of this testimony was
improper and thus that the prosecutor committed misconduct by
eliciting it.
Chief Medical Examiner. Moody asserts that the prosecutor
committed misconduct by eliciting improper testimony from Dr.
Michele Stauffenberg, the chief medical examiner. First, Moody
contends that the prosecutor elicited improper testimony from Dr.
Stauffenberg in which she “repeatedly speculated” about the pain
that the victims suffered. But this was a subject within a medical
examiner’s area of expertise, and the testimony was highly relevant
to the jury’s determination regarding the existence of the statutory
aggravating circumstances in this case. See Walker v. State, 281 Ga.
157, 157, 159 (1), 166 (14) (635 SE2d 740) (2006) (noting the medical
98
examiner’s testimony that the victim “suffered painful blunt force
injuries to the head . . . and . . . a painful bullet entry through her
wrist” in our review of the evidence supporting the section (b) (7)
statutory aggravating circumstance involving torture); West v.
State, 252 Ga. 156, 160-161 (313 SE2d 67) (1984) (providing a
suggested jury instruction “clarifying the statutory language of the
(b) (7) aggravating circumstance[’s]” component involving torture).
Moody also contends that the prosecutor committed
misconduct by eliciting testimony from Dr. Stauffenberg identifying
a screwdriver that was not the actual murder weapon as being
consistent with what had caused the victims’ injuries. The purpose
of this testimony was to lay the foundation for the admission of the
screwdriver as a “demonstrative exhibit.” Demonstrative evidence
includes replicas or other devices “‘used to aid the trier of fact in
understanding the issues and facts at trial.’” Smith v. State, 299 Ga.
424, 434 (3) (b) (788 SE2d 433) (2016) (citation and punctuation
omitted). We have explained that:
Demonstrative evidence . . . must be relevant, see OCGA
99
§ 24-4-401, and it may be excluded if its probative value
is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence, see OCGA
§ 24-4-403.
Id. at 434-435 (3) (b).
It is generally permissible to admit a weapon for demonstrative
purposes, as long as a proper foundation is laid, and the challenged
statements here were necessary to lay that foundation. Dr.
Stauffenberg testified that the screwdriver was similar to the
implement that caused the victims’ injuries. See Robinson v. State,
308 Ga. 543, 547-548 (2) (a) (842 SE2d 54) (2020) (holding that the
admission of two firearms for demonstrative purposes was not
improper, where the State’s evidence was sufficient to lay a
foundation of similarity between those firearms and the gun that
shot the victim and it was made clear to the jury that the firearms
used at trial were not the actual firearms used in the alleged crimes).
Moody takes issue with the prosecutor having displayed the
screwdriver during closing argument. But the prosecutor made clear
100
that the screwdriver was “solely” an “aid.” See United States v.
Aldaco, 201 F3d 979, 986-987 (III) (B) (2) (7th Cir. 2000) (holding
that prejudice is minimized when the government makes clear to the
jury that the replica is not the actual murder weapon possessed by
the defendant); see also United States v. Garvin, 88 Fed. Appx. 542,
544 (3rd Cir. 2004) (holding that the district court did not abuse its
discretion in allowing the government to use representative
currency as demonstrative evidence during closing argument of a
drug prosecution, where the government clearly informed the jury
that it was not the actual currency seized from the defendant but
was in the same denominations to show what that amount looked
like). 23 Therefore, Moody’s claim here fails.
State Psychologist. Moody also alleges that the prosecutor
elicited improper testimony from Dr. Glen Egan, a psychologist who
worked in the Emory University School of Medicine’s Department of
23 See Rickman v. State, 304 Ga. 61, 64 (2) (816 SE2d 4) (2018) (stating
that, because provisions of the current Evidence Code governing the admission
of demonstrative evidence mirror the Federal Rules of Evidence, the
interpretation of those provisions is guided by the decisions of the federal
appellate courts).
101
Psychiatry. Dr. Egan was qualified to testify as an expert on behalf
of the State in the field of clinical and forensic psychology in rebuttal
to the testimony of Moody’s expert neuropsychologist, Dr. Barry
Crown. Moody contends that it was improper for the prosecutor to
elicit testimony that Moody did not exhibit signs of “brain damage
or brain disorder” despite the fact that Dr. Egan was not a
neurologist and did not conduct neuropsychological testing of
Moody.
When the prosecutor initially asked Dr. Egan whether Moody
“exhibit[ed] signs in any way, shape[,] or form that le[d] him to
believe that [Moody] ha[d] some type of brain injury, brain damage[,]
or any kind of brain disorder,” Dr. Egan stated that he was not a
neurologist and “did not do any kind of neurological evaluation” of
Moody. Then he began to list the records regarding Moody that he
had reviewed for “any indication that [Moody] showed any kind of
signs of brain damage either on CT-scans or anything like that.” At
that point, defense counsel objected on the basis that Dr. Egan was
testifying outside the scope of his qualifications. The trial court
102
offered the prosecutor an opportunity to inquire as to Dr. Egan’s
qualifications specific to this question, but the prosecutor
maintained that his question had been whether Moody “exhibit[ed]
anything consistent [with brain damage], not whether he actually
had [brain damage] or not.” In response, the trial court suggested
that the defense’s objection was aimed “more to the breadth of Dr.
Egan’s testimony” and suggested that the prosecutor direct Dr. Egan
appropriately.
Even if this claim were preserved, it is meritless.
After the trial court’s directions, the following colloquy ensued:
Q: And, Doctor, my question is, based on your
background, training, and education over these many
years, did the defendant exhibit signs consistent with
someone who you believed or that you could say in any
way, shape or form suffered from some type of brain
damage or brain disorder?
A: From the information that I have – and the reality of
the situation is I’m the one who does all of the
neuropsychological evaluations for the Department of
Psychiatry at Emory. And I can tell you from what I’ve
seen, in terms of records – and I have to review records
constantly in terms of looking for this possibility and
alerting people to that fact – is that I could not see any
kind of clear signs from the evidence that I saw.
103
Dr. Egan further testified that his opinion was based on his
own interactions with Moody, a past evaluation of Moody that he
was involved in at Emory, and a review of numerous mental health
records related to Moody. Dr. Egan pointed out in particular his
review of “[t]he psychological testing that [he] saw, in terms of the
data that [he] was given” that included Dr. Crown’s evaluation and
results of his intelligence testing of Moody, which Dr. Crown had
testified about and which was admitted into evidence without
objection.
Although Moody takes issue with the fact that Dr. Egan was
not a neurologist, he has failed to cite a single case in which we have
held that it is an abuse of discretion for a trial court to admit the
testimony of a psychologist about brain damage based on a review
of a defendant’s mental health records. Similar to Moody’s challenge
to Dr. Norman’s testimony on the grounds that he exceeded his area
of expertise, the fact that Dr. Egan was not a neurologist and had
not conducted his own neurological testing of Moody went only to
the weight and not to the admissibility of his testimony. See Adams
104
v. State, 275 Ga. 867, 868 (3) (572 SE2d 545) (2002) (the fact that a
licensed clinical social worker did not hold a medical degree went
only to the weight and not to the admissibility of her testimony
regarding the defendant). Because the testimony elicited by the
prosecutor was not improper, this claim is meritless.
(d) Alleged Misconduct in Closing Arguments. Moody contends
that the prosecutor made several improper arguments at the close
of the sentencing trial that require reversal of his death sentences.
Pretermitting the fact that Moody has waived his right to ordinary
appellate review of those arguments by failing to object at trial, see
Martin, 298 Ga. at 279 (7), disapproved on other grounds by Willis,
304 Ga. at 706 (11) (a) n.3, we conclude that they were not improper.
(i) While arguing to the jurors that they should not accept Dr.
Hyde’s opinion about Moody, the prosecutor remarked, “Of course
Dr. Hyde thinks he’s the only person that can perform a neurological
exam in the United States.” Later, the prosecutor argued that Dr.
Hyde’s conclusions regarding Moody were not consistent with other
testimony and evidence that had been presented. The prosecutor
105
then reminded the jury that Dr. Hyde had testified that, in his
experience, state mental health facilities tend to conduct cursory
neurological examinations but that Dr. Hyde “had no personal
knowledge of any of the Georgia state facilities and ha[d] never . . .
toured them” and that Dr. Hyde’s testimony here had been
contradicted by Dr. Norman’s testimony that Georgia’s state
facilities were “just fine.” The prosecutor concluded this portion of
his argument by telling the jury that “the State’s contention of Dr.
Hyde” is that he claimed, “I’m right” and “[e]veryone else is inferior.”
Moody contends that the prosecutor committed misconduct by
making these remarks regarding Dr. Hyde. But when viewed in
context, the prosecutor’s brief comments came within “the wide
latitude” granted to counsel “in the conduct of closing argument.”
Styles v. State, 309 Ga. 463, 470 (4) (847 SE2d 325) (2020).
(ii) Moody also contends that the prosecutor improperly argued
to the jurors: “[Y]ou are the sole judges of credibility. Whether [the
witness is] an expert witness or not doesn’t matter.” This is not an
improper argument.
106
The “[c]redibility of witnesses and the weight to be given their
testimony is a decision-making power that lies solely with the trier
of fact.” Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994). This
is true even with respect to the testimony of expert witnesses. See
McCoy v. State, 237 Ga. 118, 119 (227 SE2d 18) (1976) (“The jury
can consider the expert’s credentials and then give such weight and
credit to the expert’s testimony as it sees fit.”). Therefore, the
prosecutor’s argument here was not improper.
(iii) The prosecutor argued to the jury that letters that Moody
had written to Wright while incarcerated and that had been
admitted during Wright’s testimony “corroborate[d] the relationship
that [Wright] ha[d] with Jeremy Moody” and showed that she was
“telling [the jury] the truth.” The prosecutor then remarked
somewhat off-handedly, “interestingly [the evidence about these
letters] also show[ed] that apparently [the defense’s mitigation
specialist] isn’t aware of the rules about ferr[y]ing mail out by
inmates that [the defense’s prison expert] told you about.” Moody
contends that this remark about the defense’s mitigation specialist
107
was improper, because it was “without a factual basis.” We disagree.
During its direct examination, the State elicited testimony
from Wright regarding a letter written to her from Moody after his
incarceration. Wright testified that this letter was sent to her
through Moody’s defense team, that it was accompanied with
Moody’s handwritten instructions to “[s]end to Tameka,” and that it
had been mailed to her in an envelope that had the defense’s
mitigation specialist’s address as a return address. The defense did
not object to Wright’s testimony or to the State’s introduction into
evidence of Moody’s letter and the envelope in which it was mailed.
Indeed, on cross-examination, the defense asked Wright to again
confirm that the return address on the envelope containing Moody’s
letter to Wright was that of the defense’s mitigation specialist
“sitting right [t]here” and to confirm that the defense team had
“helped [her] and [Moody] communicate in jail on occasion,” and
Wright did so. Later, Moody’s own witness, James Aiken, who was
qualified to testify as an expert on prisons and the classifications
and security assessments of inmates, testified that, other than
108
letters to the courts or attorneys, a facility’s staff approves whether
an inmate’s letter “goes out.” Aiken testified that in the past he had
completed a security evaluation of the Fulton County jail and that
mail was not supposed to be carried out of that facility outside of
that approval process. The prosecutor asked Aiken, “[I]f [Moody]
wanted to get a letter to his ex-girlfriend, someone working for the
defense team wouldn’t be able to ferry that letter out to her, would
they?” Aiken responded, “According to the rules and regulations that
is correct, sir.” Accordingly, the prosecutor’s argument was “derived
from evidence properly before the jury,” and it was not improper.
Spiller v. State, 282 Ga. 351, 354 (3) (647 SE2d 64) (2007).
(iv) After reminding the jury that defense counsel had
“essentially” asked the medical examiner whether it was “possible
that the death[s of the victims] w[ere] actually pretty quick,” the
prosecutor argued that the purpose of that question was to allow
defense counsel “to stand up in front of [the jury] and say, oh, it
wasn’t torture,” because “[Moody] killed them quickly[, and t]hey
didn’t feel any pain.” The prosecutor then told the jury that any such
109
argument would be “offensive,” which Moody contends was
misconduct.
But the prosecutor’s argument was based on a reasonable
deduction from the evidence, and we conclude that it came within
the wide latitude given to counsel in the conduct of closing
argument. See Walker v. State, 312 Ga. 232, 240 (4) (c) (862 SE2d
285) (2021); see also Ballard v. State, 268 Ga. App. 55, 61 (5) (d) (601
SE2d 434) (2004) (holding that the prosecutor’s argument to the
jurors that certain testimony that the defendant presented “‘should
be offensive to [them]’ . . . came within the wide latitude given to
counsel in closing argument,” which includes the ability to argue
reasonable inferences from the evidence). Therefore, there was no
impropriety, and Moody’s claim here is meritless.
(v) Lastly, Moody contends that the prosecutor argued
improperly by asserting that Moody had acted in compliance with
the book, The Art of War, when there was evidence that the book had
been found in his cell but no evidence that he had actually read it.
This was not an improper argument.
110
In making the statement, the prosecutor reminded the jury of
a Fulton County jail deputy’s testimony that, “when he saw that
[book found in Moody’s cell] and the way Moody was acting, he
actually read The Art of War so he’d be familiar” with it. This deputy
testified that the book described how to attack “the weakest links”
of a group and that Moody had used that tactic by “target[ing]” new
people on the team of specially-trained officers that dealt with high-
risk inmates. After reminding the jury of another officer’s similar
testimony regarding Moody’s behavior, the prosecutor argued that
Moody would “start with the weakest and move his way up,” which
was the “[p]attern” taught in the The Art of War. As this argument
was “derived from evidence properly before the jury,” it was not
improper on the basis Moody argues. Spiller, 282 Ga. at 354 (3).
9. Moody contends that the State violated his state and federal
constitutional rights to due process by presenting a theory of the
crimes at his sentencing trial that was inconsistent with the theory
that it later presented at the trial of his co-defendant, William Felts.
In particular, Moody contends that at his sentencing trial the State
111
argued that he alone committed the crimes but that at Felts’s trial
the State argued that Felts was also responsible. Although this
claim is arguably not preserved, 24 we have reviewed the record as a
part of our mandatory plenary review under OCGA § 17-10-35 (c) (1)
and conclude that it has no merit.25
In the past, we have “assumed that there could be a due process
problem if the State uses ‘inherently factually contradictory
theories,’” while at the same time we have noted that there is
perhaps some “doubt [as to] whether such a due process right exists.”
Battle v. State, 305 Ga. 268, 274 (2) (b) (824 SE2d 335) (2019)
(citations and punctuation omitted); see also 5 Wayne R. LaFave et
al., Criminal Procedure § 17.4 (a) (4th ed. Nov. 2022 update) (“[O]n
the ground ‘that the use of inconsistent, irreconcilable theories to
secure convictions against more than one defendant in prosecutions
24 Moody raised the claim only after the trial court denied his motion for
new trial and never obtained a trial court ruling on it. Ordinarily we would not
review such a claim. See McClendon v. State, 299 Ga. 611, 616 (4) (A) (791
SE2d 69) 2016) (“Because [the defendant] raises an issue on appeal that was
not presented [to] or ruled upon by the trial court, his argument is not
preserved for review by this Court.”).
25 At Moody’s request, the trial court ordered that the appellate record in
Felts’s case be included in Moody’s appellate record.
112
for the same crime violate[s] the due process clause,’ a defendant
may be able to have his conviction overturned because of the
conviction of another defendant on an inconsistent theory, . . .
though the Supreme Court has yet to pass on this theory.” (emphasis
in original, footnotes, and citation omitted)). In our discussion below,
we again assume without deciding that such a due process claim
could be cognizable, but we conclude no such claim arises under the
facts presented here.
Felts’s death penalty trial occurred approximately three years
after Moody’s plea and sentencing trial. The same prosecuting
attorney tried both cases. The State argued at Felts’s trial that
although Moody was the one who inflicted the fatal injuries to both
victims and the one who raped Kimble, Felts was just as guilty as a
party to the crimes, because “Felts aided, assisted, encouraged, and
made this happen” by participating in the robbery of the victims and
then standing by and ensuring that they did not leave the woods.
The State urged Felts’s jury not to worry about Moody and stated
that “Moody [was] for another day, another jury,” arguments we
113
read not as minimizing Moody’s actions but instead as focusing on
determining Felts’s personal guilt in the crimes. See Battle, 305 Ga.
at 274 (2) (b) (stating that “limiting discussion of Appellant’s
culpability to a passing remark that she had also been charged and
would get her day in court made sense at [her co-defendant’s] trial”).
In the same way, the State argued at the sentencing phase of Felts’s
trial, “Let’s talk about Felts. That’s why we’re here. We’re not here
for Moody.”
In comparison, at the beginning of the guilt/innocence phase of
Moody’s trial, the State indicated in its opening statement that Felts
was involved in the crimes with Moody. The prosecutor explained
about the period following Moody’s arrest:
[Law enforcement officials] started canvassing the
neighborhood to find out about Jeremy Moody and if
somebody else had done this with Jeremy Moody because
it seemed like it was something that more than one
person should have been involved, given that one of the
victims may have been able to run or something like that.
And the investigation showed that there was another
defendant involved, William Felts, aka Black Frank. And
the witnesses from the neighborhood will tell you that
Moody and Black Frank were together that week a lot.
114
(Emphasis added.)
As discussed above, Moody pled guilty to all counts of his
indictment following the State’s opening. In presenting a factual
basis for Moody’s pleas to the trial court during the plea colloquy,
the prosecutor began by stating: “[H]ad this case gone to trial the
State would have proven beyond a reasonable doubt that on April
5th, 2007, that Jeremy Moody along with, the State’s contention, Mr.
William Felts confronted the victims in this case, . . . . in the woods
behind Bethune Elementary School.” The prosecutor then proceeded
to describe the factual basis for each of the crimes to which Moody
pled guilty. In the sentencing trial that followed Moody’s plea, the
State no longer had to prove that he had committed the crimes. See
Shepard v. Williams, 299 Ga. 437, 440 (1) (788 SE2d 428) (2016)
(recognizing that a plea of guilty admits the facts set forth in an
indictment). And the State also had no need to mention Felts or
present any evidence regarding his participation in the crimes.
Instead, the State focused on proving the statutory aggravating
circumstances and non-statutory aggravating circumstances. See
115
O’Kelley v. State, 284 Ga. 758, 766-767 (3) (670 SE2d 388) (2008)
(pointing out that the guilt/innocence and sentencing phases of a
death penalty trial have different purposes and that different
evidence is introduced in each phase).
Moody contends that the State represented to the jury in its
closing argument that it had presented “all the facts” surrounding
the crimes, despite the fact that the State had presented no evidence
about Felts’s involvement in the case. But Moody seriously
misrepresents the prosecutor’s argument to that end by lifting his
words out of context, including at one point even cobbling together
phrases from two different sections of the State’s argument that are
over 50 pages apart in the transcript. 26 Our review of the State’s
26 In his brief, Moody argues the following:
More brazenly, the State argued at Mr. Moody’s trial that Mr.
Moody alone, “by his own choice,” Vol. 28, T. 3936, decided to “lay[]
in those woods” for someone to rob, Vol. 28, T. 3879. But at Mr.
Felts’s trial, the State presented evidence that it would be “pretty
unreasonable” to suspect that a single person was involved in the
crime.
The phrases Moody relies on do not support anything resembling Moody’s
characterization. The first lifted phrase about deciding to “lay[] in those
116
closing argument in its entirety shows that, although the State kept
the jury properly focused on Moody’s role in the crimes for the
purposes of determining his appropriate sentences for the murders,
nowhere did the State contend that Moody acted alone in
committing the crimes.
In sum, based on our review of the two sets of trial transcripts,
we conclude that, although the evidence presented and the
prosecutor’s arguments differed somewhat at each trial, those
arguments were consistent with the evidence actually presented at
each trial and with the differing procedural posture of each case.
woods,” was part of the State’s argument about Moody’s motive to commit a
robbery:
Motive [is] not an element, meaning we don’t have to prove that.
But you have it here. You know what the motive was. Remember
he called Tameka. He said I’ve got a plan. I’m going to get some
money. I’m going to rob someone, laying in those woods waiting for
who was going to come along, and unfortunately it was the two
kids.
The second phrase appeared in the State’s argument about Moody’s decision to
murder the victims:
I’ve got these boards up here that show a picture of them . . . in
their lives and then a picture of them . . . from their autopsy. That’s
what he did. He did that to them. He did that by his own choice.
117
More importantly, those differences did not go to the core theory of
the case, and, therefore, this is not a situation where the State
presented separate and irreconcilable theories of guilt. See Haynes
v. Cupp, 827 F2d 435, 439 (9th Cir. 1987) (holding that “variations
in emphasis” were not cause for reversal where “the underlying
theory of the case” that each defendant was culpable was
consistent). Accordingly, Moody’s claim here is meritless.
10. Moody argues that the trial court erred in twice denying his
request to charge concerning the consequences of a jury’s failure to
reach a unanimous sentencing verdict. Even apart from the issue of
waiver surrounding Moody’s initial request for this charge, we see
no error — plain or ordinary — in the trial court’s refusal to give it
either initially or when it was later requested again during jury
deliberations. 27
27 Although we conclude that the jury instructions in Moody’s case were
not erroneous in any fashion, we note that, for plain error review with respect
to allegedly erroneous jury instructions not properly objected to at trial, this
Court applies the four-pronged analysis that we adopted in Kelly, 290 Ga. at
33 (2) (a). And, as we explained in Division 7 (b) above, under both the plain
error review of Kelly and the plenary review of Moody’s death sentences under
118
(a) In his requests to charge, Moody proposed the following
instruction:
A death sentence may only be imposed and carried out if
all twelve jurors vote for a death sentence. In other
words, each juror has the power and authority to give life
by voting for a sentence of life imprisonment without
parole, or life imprisonment.
At the charge conference, the trial court denied the requested
charge, stating that it was “argumentative” and was “covered
adequately elsewhere,” and Moody did not object to the trial court’s
denial of his request. The trial court ultimately charged the jury:
“Your verdict as to penalty must be unanimous, and it must be in
writing, dated, and signed by your foreperson and returned to be
read in open court.” Moody also did not object to the trial court’s
giving of this instruction, which tracks the suggested pattern jury
instruction. See Suggested Pattern Jury Instructions, Vol. II:
Criminal Cases (2020), § 2.15.80. And, more to the point here, Moody
failed to raise an objection regarding the trial court’s failure to give
OCGA § 17-10-35 (c) (1), relief would be warranted only if there were a
reasonable probability that an unobjected-to error, here allegedly erroneous
jury instructions, led to the jury’s decision to impose Moody’s death sentences.
119
the specific charge he had requested at the charge conference. As a
result, his claim is reviewed only for plain error. See OCGA § 17-8-
58 (b); Martin, 298 Ga. at 278-279 (6) (d).
There is no error, much less plain error, in the instruction
given. This Court has repeatedly approved the instruction that was
given. See, e.g., Walker, 281 Ga. at 165 (11) & n.39. And there was
no error in the trial court’s refusal to give the specific charge that
Moody requested at the charge conference. See Humphreys, 287 Ga.
at 81-82 (9) (b) (“We have repeatedly held that a trial court is not
required to instruct the jury in the sentencing phase of a death
penalty trial about the consequences of a deadlock.”), disapproved
on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3. 28
(b) In his closing argument, defense counsel argued:
Ladies and gentlemen, there are no hung juries during
the sentencing phase in a death penalty case. If the
determination is 11 to 1 and one person believes that life
without parole is appropriate, that’s the verdict, life
without parole. . . .
28 See OCGA § 17-10-31 (c) (providing that, if the jury in a death penalty
case “is unable to reach a unanimous verdict as to sentence, the judge shall
dismiss the jury and shall impose a sentence of either life imprisonment or
imprisonment for life without parole”).
120
After deliberating for less than two hours, the jury sent a note
asking the trial court to “clarify” the apparent conflict between the
trial court’s instructions “that the penalty verdict must be
unanimous” and defense counsel’s argument that “there would be no
hung jury” because “if 11 vote[d] for [the] death penalty and one
vote[d] for life without parole, the result [would be] life without
parole.” Moody requested that the trial court provide “some
language” that would inform the jurors regarding what would
happen if they were unable to reach a unanimous verdict. However,
the trial court pointed out to defense counsel that the “[l]aw
applicable to a hung jury, which is what you have described, is not
applicable to [the jury] at this point in time,” and the trial court
refused to give such an instruction. Instead, over Moody’s objection,
the trial court told the jurors that the court had instructed them “as
to the law applicable to this case” and directed them to the
unanimity instruction in their copy of the court’s written
instructions that it had given them.
121
On appeal Moody contends that the trial court erred by
redirecting the jury to its previous instruction rather than
instructing the jury about what would happen if it were unable to
reach a unanimous verdict. But as we noted above, a trial court is
not required to instruct the jury in the sentencing phase of a death
penalty trial about the consequences of a deadlock.
[I]n Georgia a unanimous verdict is required even in the
sentencing phase of a capital case because under our
death penalty law, where a jury is unable to agree on a
verdict, that disagreement is not itself a verdict. The
jury’s deadlock may lead to a sentence of life with or
without parole imposed by the trial court, but it does not
result either in a mistrial subject to retrial (as in other
contexts where a jury deadlocks) or an automatic verdict
(as occurs under the death penalty law of other states).
Moreover, we have repeatedly held that a trial court is not
required to instruct the jury in the sentencing phase of a
death penalty trial about the consequences of a deadlock.
Humphreys, 287 Ga. at 81-82 (9) (b) (footnote, citations, and
punctuation omitted). 29 Accordingly, the unanimity instruction that
29In Humphreys, we explained how modified Allen charges should be
given during the sentencing phases of death penalty trials when such charges
are necessary, see 287 Ga. at 81-82 (9) (b) (citing Allen v. United States, 164
U.S. 492, 501 (9) (17 SCt 154, 41 LE2d 528) (1896)). However, the trial court
never found it necessary to give a modified Allen charge in Moody’s case,
122
the trial court directed the jury to recall was “a correct statement of
the law even in the context of the sentencing phase of a death
penalty trial.” Id.
11. As discussed above, the State’s psychologist, Dr. Egan, was
qualified without objection as an expert witness in the field of
clinical and forensic psychology. Moody contends that his Sixth
Amendment right of confrontation under Crawford v. Washington,
541 U.S. 36 (124 SCt 1354, 158 LE2d 177) (2004), was violated when
Dr. Egan was allowed to testify about the testing and evaluation of
Moody conducted by two resident trainees and was then permitted
to testify that Moody did not exhibit signs of “brain damage or brain
disorder.” Even if this claim were preserved, it has no merit.
Dr. Egan testified that in 2012 Dr. Peter Ash, whom the trial
court had asked to do an evaluation of Moody’s competence to stand
trial and criminal responsibility at the time of the crimes, had “some
because the jury gave no indication in its note that it was deadlocked and
because, shortly before noon on the following day, the jury announced its
verdict without submitting any further questions.
123
questions” that he wanted Dr. Egan to address, specifically, whether
Moody was malingering. Dr. Egan testified that to assist him in his
evaluation he had assigned two of his resident trainees who were
clinical psychologists to conduct some psychological testing of Moody
and that he himself met with Moody later. Dr. Egan also testified
that the purpose of the testing that the trainees conducted was to
detect malingering, that the testing was composed of two parts, and
that Moody “became so uncooperative” that his trainees were unable
to complete the second part of their testing. Dr. Egan relied on his
own interview with Moody and his review of the test results to
testify: “On that day that we evaluated him, yes, his behavior during
that day suggested to us strongly that he was malingering.” Dr.
Egan also testified that his opinions regarding Moody’s mental
condition were based on his education and experience, on his review
of numerous records, including records showing Moody’s extremely
low verbal scores on intelligence tests that were wholly inconsistent
with his personal observations of Moody’s ability to communicate,
and on his own interview of Moody and interactions with him. On
124
cross-examination, Dr. Egan confirmed that he was not present
when the trainees conducted their testing of Moody. The trainees’
evaluation and testing results were not admitted into evidence.
We have previously explained:
In the context of scientific lab reports, the United States
Supreme Court has held that the Sixth Amendment right
to confrontation grants the accused a right “to be
confronted with the analyst who made the certification,
unless that analyst is unavailable at trial, and the
accused had an opportunity, pretrial, to cross-examine
that particular scientist.” Bullcoming v. Mexico, 564 U.S.
647, 652 (131 SCt 2705, 180 LE2d 610) (2011). This Court
has since held that someone with a significant personal
connection to the test could testify in lieu of the scientist
who actually conducted it. See Disharoon v. State, 291
Ga. 45 (727 SE2d 465) (2012); Leger v. State, 291 Ga. 584(5) (732 SE2d 53) (2012).
Taylor v. State, 303 Ga. 225, 230 (4) (811 SE2d 286) (2018).
However, we have also clarified that, “[i]n applying [the Sixth
Amendment right to confront witnesses], there is a critical
distinction between cases where the [test] results were admitted
into evidence and those where the [test] results were merely used in
an expert’s opinion.” Id. In the latter type of situations, “[t]he
decision of Bullcoming . . . is inapplicable. . . .” Naji v. State, 300 Ga.
125659, 663 (2) (797 SE2d 916) (2017) (citation omitted).
Here, the State never sought to admit the trainees’ testing and
evaluation into evidence. Instead, Dr. Egan used the facts contained
therein, including factual data collected by the trainees, to inform
his expert opinion as to whether Moody had malingered on the
State’s tests and to inform his opinions regarding Moody’s mental
condition. Accordingly, “[t]he expert opinion admitted at trial was
not the restatement of the diagnostic opinion of another expert.”
Naji, 300 Ga. at 663 (2) (citation and punctuation omitted).
Therefore, the Confrontation Clause was not violated. See Taylor,
303 Ga. at 230 (4) (holding that the Confrontation Clause was not
violated where the medical examiner testified as to his independent,
expert opinion regarding the facts contained in the report of an
autopsy that he did not conduct and where the State did not seek to
admit the report itself); Naji, 300 Ga. at 662-663 (2) (same, where
the medical examiner used another examiner’s autopsy report,
which was not admitted, to testify about his opinion on the victim’s
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cause of death).30
12. Moody argues that, pursuant to the federal and state
constitutions, he is ineligible for the death penalty by virtue of his
“serious mental illness.” Even apart from the fact that Moody failed
even to seek a jury verdict on his alleged mental illness, this claim
is meritless. See Brookins v. State, 315 Ga. 86, 110 (16) (879 SE2d
466) (2022) (reaffirming “that persons with ‘mental illness’ [do not]
constitute a category of persons that, like intellectual disability,
must be subject to a categorical exemption from death sentences”
30 Although we hold that Bullcoming is inapplicable and thus that Dr.
Egan was not required to have a “substantial personal connection” to the
resident trainees’ testing and evaluation, Disharoon, 291 Ga. at 48, we note
that this requirement was nevertheless met. In Disharoon, we recognized
Bullcoming’s condemnation of “surrogate testimony” but held that Bullcoming
does not require the exclusion of a substitute witness who “is a supervisor,
reviewer, or someone else with a personal, albeit limited, connection to the
scientific test at issue.” Id. (citation and punctuation omitted). In that regard,
our review of the report detailing the results of the resident trainees’ testing
and evaluation shows that, while one of the trainees signed the report as
“Examiner,” Dr. Egan also signed it as “Supervising Licensed Psychologist.”
Furthermore, it was clear from Dr. Egan’s testimony that he requested the
specific testing and evaluation completed by the trainees, that he supervised
the trainees, that they reported back to him, and that he reached his own
independent conclusions regarding whether Moody had malingered. See Leger,
291 Ga. at 593 (5) (holding that it was not improper for a scientist to testify
who had not personally performed certain DNA tests but had selected the
stains for testing, had supervised the worker who did the testing, had
interpreted the worker’s results, and had written the lab report).
127
(citing Lewis v. State, 279 Ga. 756, 764 (12) (620 SE2d 778) (2005)).
13. Moody contends that the practice of qualifying jurors
according to their death penalty views is unconstitutional for
various reasons. Pretermitting whether he has abandoned this
claim by providing no meaningful argument or citation to authority
to support his contentions, see Supreme Court Rule 22, we hold that
the claim is meritless. See, e.g., Walker, 281 Ga. at 162 (8)
(“Qualifying prospective jurors based upon their death penalty
views does not deny capital defendants their right to an impartial
jury drawn from a representative cross-section of the community
and is not otherwise unconstitutional.” (citing Wainwright v. Witt,
469 U.S. 412, 418-426 (105 SCt 844, 83 LE2d 841) (1985)).
Pretermitting whether Moody has standing to challenge death-
qualification on the ground that it violates prospective jurors’
constitutional rights to serve as jurors, we reject his claim to that
effect here. See King v. State, 273 Ga. 258, 267 (20) (539 SE2d 783)
(2000) (rejecting a claim that “the constitutional right to freedom of
religion and conscience [is violated] where a juror is stricken for
128
cause based upon death penalty views that are derived from
religion” without first addressing the question of standing),
disapproved on other grounds by Clark v. State, 315 Ga. 423, 435
n.16 (883 SE2d 317) (2023). The United States Supreme Court has
recognized that only “qualified” jurors are entitled to serve. Smith v.
Texas, 311 U.S. 128, 130 (61 SCt 164, 85 LE2d 84) (1940). A juror is
not qualified if “his or her views on capital punishment . . . would
prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.” Morgan v.
Illinois, 504 U.S. 719, 728 (112 SCt 2222, 119 LE2d 492) (1992)
(citation and punctuation omitted)); see also Humphreys, 287 Ga. at
71-72 (5), disapproved on other grounds by Willis, 304 Ga. at 706(11) (a) n.3.
14. Moody contends that the trial court erred by denying his
motion challenging the constitutionality of Georgia’s death penalty
statutes on several different grounds. For the reasons set forth
below, we discern no error.
(a) Moody contends that Georgia’s death penalty scheme fails
129
sufficiently to narrow the class of persons eligible for the death
penalty. However, this Court has repeatedly rejected similar claims,
and Moody offers no persuasive reason to do otherwise here. See,
e.g., Arrington v. State, 286 Ga. 335, 337 (4) (687 SE2d 438) (2009)
(citing Zant v. Stephens, 462 U.S. 862, 876-879 (103 SCt 2733, 77
LE2d 235) (1983), for the proposition that “Georgia’s statutory
aggravating circumstances constitutionally narrow the class of
death-eligible defendants”).
(b) Moody makes an equal protection claim that Georgia’s
death penalty statutes provide no uniform standard or procedure
guiding the decision to seek the death penalty made by the district
attorneys in the State’s numerous judicial circuits. But we have
previously explained that district attorneys do not have unfettered
discretion under the death penalty statutes, because “[a] district
attorney’s decision to seek the death penalty requires the exercise of
professional judgment as to whether an aggravating circumstance
exists and, thus, as to whether the imposition of the death penalty
should be submitted for a jury’s determination.” Crowe v. State, 265
130
Ga. 582, 595 (24) (458 SE2d 799) (1995). “The [district attorney]’s
discretion is also ‘limited by the jury’s ultimate decision’ and the
‘strength of the evidence’ in any given case.” Wagner v. State, 282
Ga. 149, 152 (5) (646 SE2d 676) (2007) (citation omitted). Moreover,
Moody’s claim fails because “he has not shown any invidious
discrimination in his case.” Ellington, 292 Ga. at 116 (3) (b),
disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3.
(c) Lastly, Moody asserts that Georgia’s death penalty statutes
give unguided discretion to the jury over how to consider mitigating
circumstances, resulting in the arbitrary imposition of the death
penalty. But Moody has not alleged that the trial court failed to
charge his jury properly at his sentencing trial on mitigating
circumstances, and “the Georgia death penalty scheme sufficiently
narrows the application of the death penalty and guides the jury’s
consideration of it as a possible sentence, while also affording jurors
the latitude to consider all mitigating circumstances in their
deliberations.” Ellington, 292 Ga. at 116 (3) (a), disapproved on other
grounds by Willis, 304 Ga. at 706 (11) (a) n.3.
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Sentence Review
15. Upon our review of the entire record, including those
portions relevant to the improper victim impact testimony that we
discuss above and relevant to the improper cross-examination of an
expert witness and the improper examination of a lay witness that
our analysis above assumes to have occurred, 31 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.”).
31 Referring only to the allegedly improper victim impact statements
discussed in Division 7, Moody argues that his death sentences should be
reversed based on a cumulative error analysis. See Lane, 308 Ga. at 14 (1). In
this case, because Moody did not object to the improper victim impact
statements at trial and thus those claims are only subject to review for plain
error, our plenary review here for passion, prejudice, or any other arbitrary
factor applies the same standard as would be applied under Lane, and it
subsumes any such cumulative analysis of the improper victim impact
statements that might otherwise be warranted under Lane.
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16. In its sentencing verdict, the jury found beyond a
reasonable doubt that Kimble’s murder was committed while Moody
was engaged in the capital felonies of the murder of Mattox and the
rape of Kimble, that it was committed for the purpose of receiving
money or any other thing of monetary value, and that it was
outrageously or wantonly vile, horrible, or inhuman in that it
involved torture and an aggravated battery to the victim and the
depravity of mind of the defendant. See OCGA § 17-10-30 (b) (2), (4),
(7). The jury found beyond a reasonable doubt that Mattox’s murder
was committed while Moody was engaged in the capital felonies of
the rape and murder of Kimble, that it was committed for the
purpose of receiving money or any other thing of monetary value,
and that it was outrageously or wantonly vile, horrible, or inhuman
in that it involved torture and an aggravated battery to the victim
and the depravity of mind of the defendant. See OCGA § 17-10-30
(b) (2), (4), (7). As we concluded in our review in Division 1, the
evidence was sufficient to support the jury’s finding beyond a
reasonable doubt the existence of each of these statutory
133
aggravating circumstances. And, “[e]ven applying what this Court
has previously described as a ‘rule’ against ‘mutually supporting
aggravating circumstances,’ both death sentences in this case
remain supported by [at least] one statutory aggravating
circumstance.” Brookins, 315 Ga. at 115 (23).
17. In the direct appeal of a death sentence, this Court is
required 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). In making this determination, we note that Moody’s crimes were
brutal, unprovoked attacks on minor victims that went well beyond
the robbery that served as his initial motive. Moody forced his
victims to strip naked, bound the 15-year-old male victim, raped and
strangled the 13-year-old female victim, viciously stabbed both of
the victims repeatedly with a sharp instrument like a screwdriver,
and then left them in the woods to bleed to death. Upon our review
of all of the evidence presented in the sentencing trial, we conclude
that the death sentences imposed for the murders in this case are
134
not disproportionate punishment within the meaning of Georgia
law. See id.; Gissendaner v, State, 272 Ga. 704, 717 (19) (a) (632
SE2d 677) (2000) (holding that this Court’s statutorily mandated
proportionality review concerns whether “a given sentence is
excessive per se or substantially out of line”). The cases in the
Appendix support this conclusion, as each shows a jury’s willingness
to impose a death sentence for the commission of a murder involving
the section (b) (7) statutory aggravating circumstance or a murder
involving a minor person, a rape, or the deliberate, unprovoked
killing of two or more persons. See Barrett v. State, 292 Ga. 160, 190
(4) (733 SE2d 304) (2012) (stating that this Court is “not required to
find identical cases for comparison in [its] proportionality review.”).
Judgment affirmed. All the Justices concur.
135
APPENDIX
Brookins v. State, 315 Ga. 86 (879 SE2d 466) (2022); Young v. State,
312 Ga. 71 (860 SE2d 746) (2021); Willis v. State, 304 Ga. 686 (820
SE2d 640) (2018); Martin v. State, 298 Ga. 259 (779 SE2d 342)
(2015); Hulett v. State, 296 Ga. 49 (766 SE2d 1) (2014); Edenfield v.
State, 293 Ga. 370 (744 SE2d 738) (2013), disapproved on other
grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Rice v. State, 292 Ga.
191 (733 SE2d 755) (2012), overruled on other grounds by State v.
Lane, 308 Ga. 10, 23 (Appendix) (838 SE2d 808) (2020), and
disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3;
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; Loyd v. State, 288 Ga. 481 (705
SE2d 616) (2011); Tate v. State, 287 Ga. 364 (695 SE2d 591) (2010);
Humphreys v. State, 287 Ga. 63 (694 SE2d 316) (2010), disapproved
on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Stinski v.
State, 286 Ga. 839 (691 SE2d 854) (2010); Arrington v. State, 286
Ga. 335 (687 SE2d 438) (2009); O’Kelley v. State, 284 Ga. 758 (670
SE2d 388) (2008); Rivera v. State, 282 Ga. 355 (647 SE2d 70) (2007);
Lewis v. State, 279 Ga. 756 (620 SE2d 778) (2005); Braley v. State,
276 Ga. 47 (572 SE2d 583) (2002); Terrell v. State, 276 Ga. 34 (572
SE2d 595) (2002); Lucas v. State, 274 Ga. 640 (555 SE2d 440) (2001);
Rhode v. State, 274 Ga. 377 (552 SE2d 855) (2001); Presnell v. State,
274 Ga. 246 (551 SE2d 723) (2001); Pruitt v. State, 270 Ga. 745 (514
SE2d 639) (1999).
136