NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: October 11, 2023
S23A0678. KIMBRO v. THE STATE.
WARREN, Justice.
Appellant Torrey Kimbro was convicted of malice murder and
rape in connection with the strangling death of Diamond Shepherd.1
In this appeal, Kimbro contends that the evidence presented at his
trial was legally insufficient to support his convictions. He also
claims that the trial court erred in the following ways: by denying
his motion for new trial on the “general grounds” set forth in OCGA
1 Shepherd was killed on November 3, 2009. In April 2021, a Fulton
County grand jury indicted Kimbro for malice murder, two counts of felony
murder, and rape. At a trial from November 30 to December 6, 2021, a jury
found him guilty of all counts. The trial court sentenced him as a recidivist to
serve life in prison without the possibility of parole for murder and a
concurrent life sentence (to serve 25 years in prison and the remainder on
probation) for rape. The felony murder counts were vacated by operation of
law. Kimbro filed a timely motion for new trial, which he amended three times
through new counsel. After an evidentiary hearing, the trial court denied the
motion in January 2023. Kimbro then filed a timely notice of appeal, which he
later amended, and the case was docketed to the April 2023 term of this Court
and submitted for a decision on the briefs.
§§ 5-5-20 and 5-5-21; by denying his motion for a continuance; by
denying his motion to dismiss his indictment; by denying his motion
for a mistrial; and by overruling his objections to certain statements
that the prosecutor made during her closing argument. In addition,
he claims that his trial counsel provided constitutionally ineffective
assistance in several respects. As explained below, we affirm.
1. The evidence presented at Kimbro’s trial showed the
following. On November 3, 2009, Shepherd, who was 17 years old,
was staying in a motel room near Fulton Industrial Boulevard in
Atlanta with her boyfriend Edwin Perkins, Perkins’s cousin, and the
cousin’s girlfriend. Around 3:00 p.m., investigators responded to a
911 call from a maintenance worker at the motel, who found
Shepherd lying on her back on the floor of her room near the door,
dead. A towel was covering her face; her shirt and bra were pushed
up, exposing her breasts; her shorts were pulled down around her
right ankle, exposing her vagina; and her legs were spread apart.
Her purse was across her body, with the strap around her neck.
Unopened condoms were strewn nearby. The bed had been moved,
2
as if there had been a struggle. Investigators also observed “fluid
leaking” from Shepherd’s vagina.
Shepherd’s boyfriend, Perkins, testified that Shepherd often
had sex with men in exchange for money. He said that on the day
Shepherd was killed, he and his cousin left the motel around 7:00
a.m. to run errands. Shepherd called him from the motel room
phone around 12:00 or 12:30 p.m.2 When he arrived back at the
motel room with his cousin and the cousin’s girlfriend, they saw
investigators in the room and learned that Shepherd had been
killed. The maintenance worker who discovered Shepherd’s body
testified that around 12:00 or 12:30 p.m., he was working on the
breezeway near Shepherd’s room when she passed by with a man
who was “shorter than 6’2”” and “about 200 pounds” and had
dreadlocks. The maintenance worker thought that the man was
planning to pay Shepherd for sex. Shepherd asked the maintenance
worker to let her and the man into her room because her key was
2 During his interview with investigators on the day of the murder,
Perkins said that Shepherd called him around 11:25 a.m.
3
not working; the maintenance worker let her in; and the man
followed her. The maintenance worker saw the man leave about 45
minutes later, but he did not know if Shepherd left the room after
that or if anyone else came to the room.3
The medical examiner who performed Shepherd’s autopsy
found abrasions on her neck and an “impression” on the front and
side of her neck that was likely created by her purse strap being
tightened against her neck. The examiner ultimately concluded that
Shepherd died from asphyxia due to neck compression. The medical
examiner collected vaginal, cervical, and rectal swabs from
Shepherd.4 Investigators later determined that the swabs contained
3 The State did not argue that the man the maintenance worker saw was
Kimbro, whose appearance differed from the description that the maintenance
worker gave. Indeed, a booking report and photos from Kimbro’s arrest on
unrelated charges on December 21, 2009 (less than two months after
Shepherd’s murder), which were admitted into evidence, showed that he was
5’6” tall and weighed 145 pounds and that he was bald. The State asserted
that the man the maintenance worker saw may have been Shepherd’s brother,
who Shepherd’s mother testified was about 6’2” tall, weighed 195 to 215
pounds, and had dreadlocks. As discussed more below, the defense argued that
this man was likely Shepherd’s assailant.
4 The medical examiner testified that there were no acute injuries to
Shepherd’s genitals and that a sexual assault does not always result in such
injuries.
4
male DNA; they then generated a profile from the male DNA and
uploaded the DNA profile to the Combined DNA Index System
(“CODIS”) in April 2010.
In September 2010, the GBI was notified that the DNA profile
that was uploaded to CODIS matched Kimbro. A GBI forensic
biologist then performed a comparison of the DNA profile and
Kimbro’s reference sample in CODIS and confirmed the match. The
GBI notified the lead detective for the case, who determined that
Kimbro was in prison for unrelated crimes. The detective testified
that although he believed he had probable cause to arrest Kimbro,
he never obtained an arrest warrant and did not continue to work
on the case, because Kimbro was already in prison and the detective
wanted to focus on “the other cases [he] had.” The case was
eventually classified as a “cold case.” In May 2017, an investigator
who was assigned to the “cold case” unit reviewed the case file and
obtained an arrest warrant for Kimbro; he was arrested in March
2020. Investigators then obtained a buccal swab from Kimbro and
performed additional DNA testing, which confirmed that the DNA
5
profile generated from the swabs matched Kimbro.
At trial, the State also presented evidence that on December
21, 2009 (less than two months after Shepherd’s murder), Kimbro
choked then 22-year-old Robertenette Gordon-Deaver in another
motel room in the same motel near Fulton Industrial Boulevard.
Gordon-Deaver testified that sometime between 8:00 and 10:00
p.m., she encountered Kimbro, whom she did not know, near the
motel, where she was staying, and he agreed to pay her for sex.
When they went inside her motel room, he sprayed mace in her face,
grabbed her neck with his hands, and choked her. She screamed for
help, and a security guard at the motel and a man who was staying
in a nearby room ran into Gordon-Deaver’s room, scuffled with
Kimbro, and eventually handcuffed him and called the police, who
arrested him.
Kimbro elected not to testify at trial, but he presented
testimony from a detective who reviewed the case in 2014 and
determined that there was not probable cause to arrest Kimbro,
despite the DNA evidence, because the maintenance worker’s
6
description of the man who was with Shepherd about two hours
before her body was discovered did not match Kimbro’s appearance.
Kimbro’s primary theory of defense was that although Kimbro had
sex with Shepherd at some point before her death, the man with
dreadlocks whom the maintenance worker saw killed Shepherd. To
rebut that theory, the prosecutor argued that the maintenance
worker said the man with dreadlocks left Shepherd’s room around
12:45 or 1:15 p.m.—about two hours before Shepherd’s body was
found—and that there was ample time for Kimbro to encounter,
rape, and kill Shepherd during that timeframe.
2. Kimbro contends that the evidence presented at his trial
was insufficient—as a matter of constitutional due process and as a
matter of Georgia statutory law—to support his convictions for rape
and malice murder.5 This claim fails.
When properly viewed in the light most favorable to the jury’s
5 To the extent Kimbro also challenges the sufficiency of the evidence
supporting the felony murder counts, those counts were vacated by operation
of law, so his challenge is moot. See Ellington v. State, 314 Ga. 335, 340 (877
SE2d 221) (2022).
7
verdicts, the evidence at trial showed that when investigators
discovered Shepherd’s dead body on the floor of her motel room, the
strap of her purse was around her neck; unopened condoms were
strewn around her body; her shirt and bra were pushed up, exposing
her breasts; her shorts were pulled down, exposing her vagina; her
legs were spread apart; and fluid containing Kimbro’s DNA was still
“leaking” from her vagina. The medical examiner concluded that
Shepherd was likely strangled with her purse strap, which caused
her death. And although, as Kimbro points out in his appellate brief,
the medical examiner determined that there were no acute injuries
to Shepherd’s genitals, the examiner also testified that a sexual
assault does not always result in such injuries.
The evidence presented at trial and summarized above
authorized the jury to reasonably infer that Kimbro had sex with
Shepherd “forcibly and against her will,” see OCGA § 16-6-1 (a)
(defining rape), just before he strangled and killed her, see OCGA §
15-5-1 (a) (defining malice murder), and that he was therefore guilty
beyond a reasonable doubt of rape and malice murder. Thus, the
8
evidence was constitutionally sufficient to support his convictions
for those crimes. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt
2781, 61 LE2d 560) (1979). See also Martinez v. State, 302 Ga. 86,
86-89 (805 SE2d 44) (2017) (holding that evidence that the victim’s
dead body was found partially undressed with a phone cord around
her neck and that the DNA profile generated from spermatozoa
collected from the victim’s vagina matched the defendant, who
claimed that he did not remember meeting the victim, was
constitutionally sufficient to support his convictions for rape and
malice murder, even though the victim had no physical injury to her
genitalia, and explaining that “‘[v]aginal trauma and physical injury
are not necessarily a constituent element of the criminal offense of
rape’”) (citation omitted).
The evidence, though circumstantial, was also sufficient as a
matter of Georgia statutory law. See OCGA § 24-14-6 (“To warrant
a conviction on circumstantial evidence, the proved facts shall not
only be consistent with the hypothesis of guilt, but shall exclude
every other reasonable hypothesis save that of the guilt of the
9
accused.”). Kimbro argues that the evidence failed to exclude the
reasonable hypothesis that sometime after he had unprotected,
“consensual sex” with Shepherd, the unknown man with dreadlocks
raped and killed her, leaving behind an insufficient amount of DNA
to generate a DNA profile. But the state in which Shepherd’s body
was discovered—on the floor and partially undressed with fluid
leaking from her vagina, which yielded only Kimbro’s DNA profile—
authorized the jury to reject that hypothesis as unreasonable and to
instead find him guilty of rape and malice murder. See Daniels v.
State, 298 Ga. 120, 121-123 (779 SE2d 640) (2015) (holding that
evidence that the dead body of the victim, a prostitute, was partially
undressed with her legs spread and that the defendant’s DNA profile
was generated from spermatozoa found in the victim’s vagina was
sufficient under OCGA § 24-4-6 (the predecessor to OCGA § 24-14-6) to authorize the jury to reject as unreasonable the defendant’s
hypothesis that he had consensual sex with the victim shortly before
someone else strangled her to death, and to instead find him guilty
10
of rape and malice murder).6
3. Kimbro next contends, in two related enumerations of error,
that the trial court abused its discretion by denying his motion for
new trial on the “general grounds” under OCGA §§ 5-5-20 and 5-5-21. See Drennon v. State, 314 Ga. 854, 860 (880 SE2d 139) (2022)
(“Even when the evidence is legally sufficient to sustain a conviction,
a trial judge may grant a new trial if the verdict of the jury is
‘contrary to . . . the principles of justice and equity,’ OCGA § 5-5-20,
or if the verdict is ‘decidedly and strongly against the weight of the
evidence.’ OCGA § 5-5-21.”) (citation and punctuation omitted). But
this claim presents nothing for our review. See King v. State, 316
Ga. 611, 616 (889 SE2d 851) (2023) (“‘[T]he merits of the trial court’s
decision on the general grounds are not subject to our review,’ and
the decision to grant a new trial on the general grounds ‘is vested
6 OCGA § 24-4-6, which was part of the old Evidence Code, was carried
into the current Evidence Code in identical form in OCGA § 24-14-6, and there
is no materially identical federal rule of evidence, so our case law interpreting
the former provision is still applicable. See Jackson v. State, 305 Ga. 614, 619-620 (825 SE2d 188) (2019).
11
solely in the trial court.’”) (citation omitted).7
4. Kimbro argues that the trial court abused its discretion by
denying his motion for a continuance. He asserts that a continuance
was necessary to allow his trial counsel additional time to prepare
for trial, because 10 days before the trial began, the prosecutor filed
an updated witness list, and eight days before trial, the prosecutor
filed additional discovery.8 But a trial court has broad discretion in
7 On appeal, the Attorney General argues that Kimbro cites no legal
authority to support this claim and that it should therefore be deemed
abandoned under this Court’s Rule 22, which says, in pertinent part, “[a]ny
enumerated error not supported by argument or citation of authority in the
brief shall be deemed abandoned.” But we need not decide that issue, because
the claim does not warrant our review in any event.
We note that we need not determine in this case the propriety of our past
practice of reviewing a general-grounds claim under the sufficiency-of-theevidence standard set forth in Jackson v. Virginia, because as we concluded in
Division 2 above, the evidence was constitutionally sufficient to support
Kimbro’s convictions. See King, 316 Ga. at 616 n.8. See also Muse v. State,
316 Ga. 639, 653 n.6 (889 SE2d 885) (2023). In addition, to the extent Kimbro
claims that the trial court incorrectly applied the standard in Jackson v.
Virginia instead of properly exercising its broad discretion in reviewing the
evidence under the general grounds, the trial court’s order denying the motion
for new trial clearly shows that the court understood the nature of its discretion and exercised it.
8 Kimbro also argues that the trial court should have granted his motion
for a continuance on the ground that his trial counsel was unable to prepare
for the case due to the COVID-19 pandemic, on the ground that the case was a
“cold case,” and on the ground that the trial court should have conducted an
evidentiary hearing on the admissibility of the evidence that Kimbro
12
ruling on a motion for a continuance, see OCGA § 17-8-22, and we
will not disturb such a ruling without a clear showing that the court
abused its discretion, see Reed v. State, 314 Ga. 534, 549 (878 SE2d
217) (2022). Kimbro has failed to make that showing here.
At the hearing on the continuance motion, which was held on
the first day of jury selection, Kimbro’s trial counsel argued that the
updated witness list provided contact information for six witnesses
and that she would not have time to interview those witnesses before
the prosecutor called them to testify. Counsel also noted that most
of the additional discovery that the prosecutor had filed contained
nothing new, with the exception of two recordings of investigators’
interviews with Perkins and the maintenance worker on the day of
the murder. The prosecutor responded that she had been asking
officers with the police department for the recordings and that she
had found them at the department with the physical evidence for
the case (rather than in the case file, where she had expected them
previously attacked Gordon-Deaver. But trial counsel did not request a
continuance on these bases, so Kimbro has not preserved these claims for
appellate review. See Harris v. State, 304 Ga. 276, 279 (818 SE2d 530) (2018).
13
to be) the day before she notified Kimbro’s trial counsel. Kimbro’s
counsel then said that due to technical issues, she had not been able
to play the recordings. The trial court said that it would give
Kimbro’s counsel time during the trial to interview witnesses and
that the court’s Information Technology (“IT”) staff would be
available to help counsel with any technical issues. The court then
denied the motion for a continuance.
We see no abuse of discretion in the trial court’s decision to
deny Kimbro’s motion. As discussed above, the court fashioned
appropriate, alternative remedies by allowing trial counsel time to
interview witnesses and by offering the services of the court’s IT
staff. The record shows that during the trial, the court paused the
proceedings to provide trial counsel time to interview Perkins before
he testified, and counsel testified at the motion for new trial hearing
that she interviewed Gordon-Deaver in the hallway outside the
courtroom (but that after a few minutes, Gordon-Deaver refused to
talk with her). The record also shows that trial counsel did not
mention any further technical issues with the recordings. Given
14
these circumstances, Kimbro’s claim fails. See, e.g., Brittian v.
State, 299 Ga. 706, 707-708 (791 SE2d 810) (2016) (concluding that
the trial court did not abuse its discretion by denying the defendant’s
motion for a continuance on the ground that the State added 16
witnesses to its list 10 days before trial, because “the trial court
ensured that, during the course of the trial, [the defendant] would
be provided with an opportunity to interview the State’s additional
witnesses prior to their testimony being given”); Collum v. State, 281
Ga. 719, 723-724 (642 SE2d 640) (2007) (holding that there was “no
error” in the trial court’s denial of the defendant’s continuance
motion on the grounds that he received “amended witness lists and
additional documentation from the State shortly before trial”).9
9 Kimbro also asserts that the trial court abused its discretion by denying
his trial counsel’s request that at the end of each trial day, the prosecutor
provide a list of the witnesses she planned to call the next day, but this claim
fails. The court acted within the bounds of its considerable discretion to control the trial proceedings, see Jackson v. State, 315 Ga. 543, 554 (883 SE2d 815)
(2023), and as discussed above, the trial court’s remedy of allowing Kimbro
time to interview witnesses before they testified was adequate.
It is unclear whether Kimbro contends in his brief on appeal that the
prosecutor violated certain discovery statutes. See OCGA §§ 17-16-8 (a)
(requiring the prosecutor in a felony case to provide to the defense certain
information regarding witnesses “not later than ten days before trial” or “as
15
5. Kimbro claims that the trial court erred by denying his
motion to dismiss the indictment in this case on the ground that the
more than 11-year delay between Shepherd’s rape and murder in
November 2009 and Kimbro’s arrest in March 2020 violated his
right to due process under the Fifth and Fourteenth Amendments to
the United States Constitution. See United States v. Marion, 404
U.S. 307, 324 (92 SCt 455, 30 LE2d 468) (1971) (explaining that an
inordinate delay between the time a crime is committed and the time
a defendant is arrested or indicted may violate due-process
guarantees). See also United States v. Lovasco, 431 U.S. 783, 784-797 (97 SCt 2044, 52 LE2d 752 (1977) (reversing the district court’s
otherwise ordered by the court”) & 17-16-4 (a) (3) (A) (requiring the prosecutor
in a felony case to permit the defendant to inspect and copy recordings that the
prosecution intends to use in its case-in-chief or rebuttal “no later than ten
days prior to trial” or “as otherwise ordered by the court”) & (c) (providing that if a party in a felony case discovers additional evidence that is subject to
discovery, he “shall promptly notify the other party of the existence of the
additional evidence” and make the evidence available). In any event, the trial
court did not abuse its discretion by employing the remedies discussed above.
See OCGA §§ 17-16-8 (a) (stating that if a trial court, for good cause, allows the State to file required witness information late, the court shall permit the
defense an opportunity to interview witnesses before they testify) & 17-16-6
(providing several remedies for late-filed discovery, including allowing the
defendant to inspect the discovery).
16
dismissal of the defendant’s indictment on the ground that the delay
between the alleged crimes and the indictment violated his right to
due process and explaining that “to prosecute a defendant following
investigative delay does not deprive him of due process, even if his
defense might have been somewhat prejudiced by the lapse of
time”).10 To prevail on this claim, Kimbro must “‘prove (1) that the
delay caused actual prejudice to his defense, and (2) that the delay
was the result of deliberate prosecutorial action to give the State a
tactical advantage.’” Curry v. State, 291 Ga. 446, 449 (729 SE2d 370)
(2012) (citation omitted). After a hearing, the trial court issued an
10 We can assume without deciding that Kimbro preserved his
Fourteenth-Amendment claim for appellate review, because as discussed
below, it fails in any event.
We also note that Kimbro does not contend that his right to a speedy
trial under the Sixth Amendment to the United States Constitution was
violated. See Wooten v. State, 262 Ga. 876, 878 (426 SE2d 852) (1993)
(explaining that “[a] pre-trial delay which follows an arrest or indictment may
violate the right to a speedy trial guaranteed by the Sixth Amendment” but
that “[t]he Sixth Amendment does not guarantee a right to a speedy arrest”;
instead, “an inordinate delay between the time a crime is committed and the
time a defendant is arrested or indicted may violate due process guarantees
under the Fifth and Fourteenth Amendments”) (emphasis in original). See also
Marion, 404 U.S. at 320-321 (explaining that “it is either a formal indictment
or information or else the actual restraints imposed by arrest and holding to
answer a criminal charge that engage the particular protections of the speedy
trial provision of the Sixth Amendment” and expressly “declin[ing] to extend
that reach of the amendment to the period prior to arrest”).
17
order denying the motion to dismiss, concluding that Kimbro had
not established either part of the test. Pretermitting whether
Kimbro has shown actual prejudice, we agree that he has not
demonstrated that the State engaged in deliberate delay to gain a
tactical advantage. See Jackson v. State, 279 Ga. 449, 451 (614
SE2d 781) (2005) (explaining that an appellant’s failure to satisfy
one part of the test “obviates any need to consider” the other).
Kimbro does not allege in his appellate brief that the delay was
an intentional attempt by the State to gain a tactical advantage, and
our review of the record supports the trial court’s finding that the
State had no such intent. Instead, the record shows that the delay
from 2010—when investigators learned that Kimbro’s DNA
matched the DNA profile generated from the swabs taken from
Shepherd’s body—until 2014 was caused by the lead detective’s
inaction in failing to obtain an arrest warrant (even though he
believed he had probable cause to support a warrant). The delay
from 2014—when another detective reviewed the “cold case”—to
2017 was the result of that detective’s determination that there was
18
not probable cause to arrest Kimbro, because his appearance did not
match the maintenance worker’s description of the man who was
with Shepherd about two hours before her body was discovered. The
record does not indicate the cause of the delay from 2017—when the
investigator who was assigned to the “cold case” unit reviewed the
case file and obtained an arrest warrant for Kimbro—until March
2020, when he was arrested. In sum, the record supports a finding
that part of the delay was the result of the State’s inaction, part of
the delay was the result of the State’s belief that it did not have
probable cause to proceed, and part of the delay was caused by
unknown reasons. The record does not indicate, however, that the
delay was deliberate and designed to give the State a tactical
advantage. Thus, Kimbro cannot prevail on this claim. See, e.g.,
Hilton v. State, 288 Ga. 201, 207 (702 SE2d 188) (2010) (holding that
the defendant had not shown that the 30-year delay between the
crimes and his indictment was the result of deliberate prosecutorial
action to give the State a tactical advantage, and therefore had not
shown that the delay violated his due-process right, because part of
19
the delay was due to the State’s belief that the evidence against the
defendant was insufficient to proceed, and part of the delay was due
to “an extended period of inaction on the case by the State,” and
there was “no evidence showing that this delay was deliberate and
designed to gain an advantage”); Wooten v. State, 262 Ga. 876, 880
(426 SE2d 852) (1993) (holding that the defendant failed to establish
that the 13-year delay between the crimes and his indictment was
the result of deliberate prosecutorial action to give the State a
tactical advantage, because he argued only that the State was
negligent in investigating his case, and nothing in the record
indicated that the State had acted in bad faith). See also United
States v. Butler, 792 F2d 1528, 1534 (11th Cir. 1986) (explaining
that “[t]he government’s inaction in bringing the case is insufficient,
standing alone, to establish that the government’s actions were
motivated by an attempt to gain a tactical advantage,” and rejecting
the defendants’ claim that a pre-indictment delay violated their
Fifth Amendment due-process right).
6. Kimbro argues that the trial court abused its discretion by
20
denying his motion for a mistrial. We disagree.
During the prosecutor’s direct examination of the investigator
who reviewed the “cold case” file and obtained an arrest warrant for
Kimbro, the prosecutor asked about the investigator’s training, and
he responded that he had “received training from the Federal
Bureau of Investigation’s Behavioral Science Unit.” The prosecutor
asked what that training involved, and the investigator said, “That
training involved basically the serial killers -- .” Trial counsel then
interrupted and asked to approach the bench, where she moved for
a mistrial based on the reference to “serial killers.” The trial court
denied the motion and offered to give a curative instruction. Trial
counsel agreed, and the court then instructed the jury that the court
was “strik[ing] from [its] consideration the last testimony from the
witness that training involved basically serial killers”; that the
testimony “ha[d] nothing to do with this case”; that “[t]he [S]tate’s
question was not pointed to that type of training”; and that it “was
an inadvertent comment.”
Assuming without deciding that Kimbro preserved this claim
21
for appellate review, it fails.11 “‘[T]he decision to grant a mistrial is
within the discretion of the trial court and will not be disturbed on
appeal unless there is a showing that a mistrial is essential to the
preservation of the right to a fair trial.’” Perkins v. State, 313 Ga.
885, 896 (873 SE2d 185) (2022) (citation omitted). Here, the
investigator’s brief reference to “serial killers” was during his
explanation of his general training with the FBI; the investigator
did not mention Kimbro or the circumstances of this case in
connection with that reference. Moreover, the trial court
immediately and thoroughly instructed the jury to disregard the
reference, and we presume that the jury followed those instructions.
See, e.g., id. at 897 (holding that the trial court did not abuse its
discretion by denying the defendant’s motion for a mistrial when a
11 The State argues that Kimbro failed to preserve this issue for appeal
by failing to renew his motion for a mistrial immediately after the trial court’s
curative instruction and by failing to object to the instruction. But we need not
address that issue, because as discussed below, we conclude in any event that
the trial court did not abuse its discretion by denying the motion. See Horton
v. State, 310 Ga. 310, 317 n.8 (849 SE2d 382) (2020) (declining to address
whether the appellant failed to preserve a mistrial claim by not renewing “his
motion for mistrial after the trial court’s curative instruction or object[ing] to the instruction as inadequate,” and concluding that the trial court did not
abuse its discretion by denying the motion).
22
testifying witness mentioned the word “gang” only once, without
mentioning the defendant’s name in connection with the reference,
and the trial court immediately instructed the jury to disregard the
reference, and noting that “[i]t is well established that a trial court
‘can negate the potentially harmful effect of improperly introduced
evidence by prompt curative instructions rather than by granting a
mistrial’” and that “juries ‘are presumed to follow curative
instructions in the absence of proof to the contrary’”) (citations
omitted). Kimbro’s claim therefore fails.
7. Kimbro contends that the trial court abused its discretion
by overruling several of his objections to certain statements that the
prosecutor made during her closing argument. As explained below,
we see no reversible error in this respect.
First, Kimbro points to three comments the prosecutor made to
the effect that if the jurors believed Kimbro was guilty, they had a
“duty” or “obligation” to convict him. Kimbro objected to each of the
comments when they were made, asserting that they were a
misstatement of the law, and the trial court overruled the objections.
23
However, when the prosecutor made a fourth comment along those
lines, arguing that the jury had “an obligation to convict [Kimbro] of
each and every crime in this indictment,” the trial court interrupted,
saying that it “need[ed] to correct some of the arguments.” The court
then instructed the jury on the presumption of innocence, the State’s
burden of proof, and reasonable doubt, explaining, among other
things, that the jurors would be “authorized to convict” Kimbro if
they found him guilty beyond a reasonable doubt, but that “it would
be [their] duty to acquit” Kimbro if the State failed to prove guilt
beyond a reasonable doubt. The court repeated these instructions
during the final jury charge.
Applying the harmless-error standard, even assuming that the
trial court abused its discretion by overruling Kimbro’s objections, it
is highly probable that any such error did not contribute to the
verdicts. See Allen v. State, ___ Ga. ___, ___ (890 SE2d 700, 708)
(2023) (“‘A nonconstitutional error is harmless if the State shows
that it is highly probable that the error did not contribute to the
verdict.’”) (citation omitted). As discussed above, after the trial court
24
overruled Kimbro’s objections, the court interrupted the prosecutor’s
argument in order to “correct” it, and then thoroughly and
accurately instructed the jury on the presumption of innocence, the
State’s burden of proof, and reasonable doubt. The trial court
provided these same instructions during its preliminary charge, and
during the final charge, the court repeated the instructions and
reiterated that it was the court’s duty to instruct on the law that
applied to the case. Under these circumstances, any error in the
trial court’s overruling Kimbro’s objections was harmless. See, e.g.,
Williams v. State, 297 Ga. 460, 463 (773 SE2d 213) (2015) (holding
that the trial court abused its discretion by overruling the
appellant’s objection to the prosecutor’s misstatement of the law
regarding justification during his closing argument, but that the
error was harmless because the trial court fully instructed the jury
on that point and made it clear that the instruction on the law would
come from the court).
Second, just after the trial court provided the instructions
discussed above, the prosecutor said, “[T]here is no defense raised
25
by this evidence. The evidence is that this defendant left.” Kimbro
objected on the ground that the prosecutor’s argument improperly
shifted the burden of proof to the defense, and the trial court
overruled the objection. Kimbro argues that the trial court abused
its discretion, but as we have explained, “[a] prosecutor has ‘wide
latitude in the conduct of closing argument, the bounds of which are
in the trial court’s discretion.’” Ridley v. State, 315 Ga. 452, 458 (883
SE2d 357) (2023) (citation omitted). Viewed properly in context, the
prosecutor’s comment merely emphasized to the jury that Kimbro
had not successfully rebutted or explained the State’s evidence.
Thus, the trial court did not abuse its discretion by determining that
the statement fell within the permissible bounds of closing
argument. See id. (concluding that it was not improper for the
prosecutor to point out during closing argument that the defendant
had failed to rebut or explain the State’s evidence, and explaining
that such comments did not amount to an improper burden-shifting
argument).
Third, Kimbro alleges that the trial court abused its discretion
26
by overruling his objection to the prosecutor’s statement near the
end of her closing argument, “I submit to you that there should be
no jury nullification.” We cannot say that the trial court abused its
discretion by concluding that this statement, which essentially
encouraged the jurors to decide the case based on the evidence
presented, was not improper. Cf. Menefee v. State, 301 Ga. 505, 515
(801 SE2d 782) (2017) (explaining that a prosecutor’s statements
during closing argument urging jurors to draw reasonable
conclusions from the evidence are not improper).12
8. Kimbro contends that his trial counsel provided
constitutionally ineffective assistance in several ways. To prevail on
these claims, Kimbro must show that his lawyer’s performance was
constitutionally deficient and that he suffered prejudice as a result.
See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80
12 Kimbro also points to additional statements made by the prosecutor
during closing argument, but the trial court sustained Kimbro’s objections to
those statements, so his claims regarding them present nothing for our review.
See Lupoe v. State, 300 Ga. 233, 251 (794 SE2d 67) (2016). Furthermore, to
the extent Kimbro argues that the trial court should have granted a mistrial
based on the prosecutor’s comments, that claim is not preserved for appellate
review, because Kimbro did not move for a mistrial on that ground. See Kessler
v. State, 311 Ga. 607, 613 (858 SE2d 1) (2021).
27
LE2d 674) (1984). To prove deficient performance, Kimbro must
establish that his trial counsel “performed at trial in an objectively
unreasonable way considering all the circumstances and in the light
of prevailing professional norms.” Clark v. State, 315 Ga. 423, 442
(883 SE2d 317) (2023) (citation and punctuation omitted). See also
Strickland, 466 U.S. at 688-689. To prove prejudice, Kimbro “must
show a reasonable probability that, but for counsel’s deficient
performance, the result of the trial would have been different.”
Clark, 315 Ga. at 442. See also Strickland, 466 U.S. at 694. We
need not address both components of the Strickland test if Kimbro
makes an insufficient showing on one. See Strickland, 466 U.S. at
697; Clark, 315 Ga. at 442. And in reviewing a claim of ineffective
assistance of counsel, we accept the trial court’s factual findings and
credibility determinations unless clearly erroneous, but we review
the court’s legal conclusions de novo. See Davis v. State, 306 Ga.
430, 432 (831 SE2d 804) (2019).
(a) Kimbro first argues that his trial counsel provided
ineffective assistance by failing to fully investigate certain
28
witnesses. But Kimbro did not raise this claim in his motion for new
trial or in any of his amended motions, and the trial court did not
rule on it. Thus, he has not preserved this claim for our review. See
Allen, 890 SE2d at 711 (explaining that “‘[i]neffectiveness claims
must be raised and pursued at the earliest practicable moment,
which for a claim of ineffective assistance of trial counsel is at the
motion for new trial stage if the defendant is no longer represented
by the attorney who represented him at trial,’” and holding that the
appellant forfeited his claim of ineffective assistance of counsel
where he did not raise it in his motion for new trial or in the
amended motions and the trial court did not rule on it) (citation
omitted).
(b) Kimbro next claims that his trial counsel was ineffective
for failing to cross-examine Gordon-Deaver. In particular, Kimbro
asserts that he attacked Gordon-Deaver because she had robbed his
wife, who died before trial, and that counsel should have elicited
testimony to that effect from Gordon-Deaver. As the trial court
correctly determined in its order denying Kimbro’s motion for new
29
trial, Kimbro has not shown that counsel performed deficiently, so
he cannot succeed on this claim.
At the motion for new trial hearing, trial counsel testified that
she briefly interviewed Gordon-Deaver before she testified, but
shortly after the interview began, Gordon-Deaver refused to talk to
her. Counsel also testified that she decided not to cross-examine
Gordon-Deaver because she did not think it would have been
“helpful to . . . Kimbro”; counsel doubted Gordon-Deaver would have
admitted robbing, or even knowing, Kimbro’s wife, so counsel could
not have elicited information about Kimbro attacking GordonDeaver to seek revenge; and Gordon-Deaver was “a victim,” so “going
after her would not necessarily make . . . Kimbro look good in the
jury’s eyes.” Counsel then testified that she believed the better
strategy was “to disregard [Gordon-Deaver] as a witness” and to
“play up the idea” that the State used her testimony to show
Kimbro’s propensity to commit the charged crimes, because it had
“little evidence” of his guilt. In its order denying Kimbro’s motion
for new trial, the trial court expressly credited trial counsel’s
30
testimony on this point.
In light of trial counsel’s assessment of Gordon-Deaver’s
potential testimony, we cannot say that no competent attorney
would have decided not to cross-examine her. The record supports
counsel’s testimony that her strategy was to downplay the
importance of Gordon-Deaver’s testimony about the attack and to
instead assert, as she did in closing argument, that the State
introduced the evidence to bolster its otherwise weak case against
Kimbro. Kimbro has failed to show that this strategy was
objectively unreasonable, so he has not proven that his trial counsel
was deficient in this respect. See, e.g., Gaston v. State, 307 Ga. 634,
642-643 (837 SE2d 808) (2020) (explaining that “‘[t]he scope of crossexamination is grounded in trial tactics and strategy, and will rarely
constitute ineffective assistance of counsel,’” and holding that trial
counsel’s decision not to cross-examine a witness and to instead
focus his closing argument on the inconsistencies in the witness’s
testimony was not objectively unreasonable and thus did not
amount to deficient performance) (citation omitted); Lawrence v.
31
State, 286 Ga. 533, 534 (690 SE2d 801) (2010) (concluding that trial
counsel’s decision not to cross-examine several of the State’s
witnesses was “reasonable trial strategy” and that he therefore did
not perform deficiently, as counsel “testified at the motion for new
trial hearing that he felt that cross-examining the witnesses in
question would not have added anything beneficial to [the] defense,
because it merely would have given the witnesses a chance to
further implicate [the defendant] with their emphasized
testimony”).
(c) Kimbro argues that his trial counsel provided ineffective
assistance by failing to object to testimony from a forensic
toxicologist on the ground that it was not relevant under OCGA §§
24-4-401 (“Rule 401”) & 24-4-402 (“Rule 402”). Specifically, Kimbro
points to the toxicologist’s testimony that his testing showed that
Shepherd’s blood and urine were negative for gamma
hydroxybutyric acid (“GHB”).13 Kimbro has failed to show that his
13 The toxicologist described GHB as having a “sedating” effect and
testified that it is sometimes used in “sexual assault situations.”
32
trial counsel performed deficiently in this regard.
Rule 401 defines “‘relevant evidence’” as “evidence having any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than
it would be without the evidence.” Under Rule 402, “[a]ll relevant
evidence shall be admissible, except as limited by constitutional
requirements or as otherwise provided by law or by other rules . . . .
Evidence which is not relevant shall not be admissible.” “The test
for relevance is generally a liberal one, and relevance is a binary
concept—evidence is relevant or it is not.” Harris v. State, 314 Ga.
238, 262 (875 SE2d 659) (2022) (cleaned up). Here, the forensic
toxicologist’s testimony that Shepherd’s blood and urine were
negative for GHB tended to show that the person who raped and
killed her did not drug her with GHB. Thus, the testimony was
relevant, and an objection on that ground would have been
meritless. Accordingly, trial counsel did not perform deficiently by
failing to make such an objection, and this claim of ineffective
assistance fails. See, e.g., Walker v. State, 311 Ga. 719, 726-727 (859
33
SE2d 25) (2021) (holding that trial counsel did not perform
deficiently by failing to raise a meritless objection to relevant
evidence).
(d) Kimbro claims that his trial counsel was ineffective for
failing to object to the trial court’s refusal to instruct the jury on
mere presence and mere association. But the trial court thoroughly
and properly instructed the jury on the presumption of innocence
and the State’s burden to prove beyond a reasonable doubt each
essential element of the charged crimes during its preliminary
instructions, during the prosecutor’s closing argument, and again
during the final jury charge. The court also accurately instructed
the jury on circumstantial evidence, criminal intent, and the
elements of malice murder and rape. Considering the charge as a
whole, the jury was adequately informed that it was not authorized
to convict Kimbro if he was merely present at the scene of the crimes
or if he was merely associated with some other perpetrator. Thus,
Kimbro cannot establish that his trial counsel performed deficiently
by failing to object to the trial court’s refusal to give those
34
instructions. See Downey v. State, 298 Ga. 568, 574-575 (783 SE2d
622) (2016) (holding that trial counsel did not perform deficiently by
failing to object to the omission of jury instructions on knowledge
and shared intent, because the charges as a whole “were sufficient
to cover the knowledge and shared intent required” for the
defendant to be convicted); Simmons v. State, 282 Ga. 183, 188 (646
SE2d 55) (2007) (holding that the trial court did not err by failing to
instruct the jury on mere presence and guilt by association, because
“mere presence is only a corollary to the requirement that the State
prove each element of the crime charged, and . . . the trial court’s
instructions clearly informed the jury of this requirement”).
(e) Finally, Kimbro contends that his trial counsel provided
ineffective assistance by failing to request DNA testing of a condom
that was found in the toilet in Shepherd’s motel room, hairs and
fibers taken from Shepherd’s purse, and fingernail clippings taken
from Shepherd. As the trial court correctly concluded in its order
denying Kimbro’s motion for new trial, trial counsel did not perform
deficiently in this respect, because her decision not to pursue DNA
35
testing was reasonably strategic. Trial counsel testified at the
hearing on Kimbro’s motion for new trial that she made a strategic
choice not to request DNA testing of the condom, hairs, fibers, and
fingernail clippings because the results of the testing may have been
“inculpatory rather than exculpatory.” And the record shows that
trial counsel used the lack of DNA testing to advance the defense
theory that the case had not been adequately investigated, as
counsel emphasized the fact that the State had not tested the
condom, purse, or fingernail clippings during her opening
statement, during her cross-examination of the “cold-case”
investigator, and during her closing argument. Because trial
counsel’s decision not to request DNA testing on the items Kimbro
claims should have been tested was not objectively unreasonable
such that no competent attorney would have made such a decision,
Kimbro has not proven that counsel performed deficiently. This
claim, like Kimbro’s other claims of ineffective assistance, is
meritless. See Horton v. State, 310 Ga. 310, 328 (849 SE2d 382)
(2020) (explaining that “‘decisions as to what witnesses and other
36
evidence to present are matters of trial strategy and are ineffective
only if unreasonable ones that no competent attorney would make,’”
and holding that trial counsel did not perform deficiently and thus
did not render ineffective assistance by failing to request DNA
testing of hairs found on the murder victim’s clothing, because
“[c]ompetent counsel could reasonably have concluded that further
testing might have revealed that the hair indeed was [the
defendant’s], and that evidence would have been damaging to [the
defendant’s] defense”) (citation omitted); Green v. State, 291 Ga. 287,
297 (728 SE2d 668) (2012) (concluding that trial counsel did not
perform deficiently and was therefore not constitutionally
ineffective by failing to request DNA testing of fecal matter found on
the murder victim, because counsel reasonably determined that the
testing “would not be helpful or exculpatory”).
Judgment affirmed. All the Justices concur, except Peterson,
P.J., not participating.
37