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: June 21, 2023
S23A0135. LEONARD v. THE STATE.
BETHEL, Justice.
Following a jury trial, Appellant Joshua Leonard was convicted
of malice murder and related crimes arising from the August 2010
shooting of Calvin Grimes, which resulted in Grimes’ death
approximately ten months later from complications related to
gunshot wounds. 1 On appeal, Leonard argues that the trial court
1In January 2014, a Muscogee County grand jury indicted Leonard and co-defendant Jarvis Alexander for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), two counts of aggravated assault (Counts 3 and 4), aggravated battery (Count 5), and possession of a firearm during the commission of a felony (Count 6). Leonard was charged individually with possession of marijuana with intent to distribute (Count 7). Leonard and Alexander were tried jointly before a jury from October 27 to November 3, 2014. Leonard was found guilty of all counts. Alexander was found guilty of the counts with which he was charged, but his case is not part of this appeal. The trial court sentenced Leonard to serve life in prison for malice murder (Count 1), five years in prison consecutive for possession of a firearm during the commission of a felony (Count 6), and ten years in prison concurrent for possession of marijuana with intent to distribute (Count 7). The trial court erred in five respects and that he was prejudiced by the cumulative
effect of those errors. As discussed below, Leonard’s claims fail, so
we affirm.
1. Viewed in the light most favorable to the verdicts, see
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979), the evidence adduced at trial showed as follows.
Around 10:00 p.m. on August 19, 2010, Columbus Police
Department officers were dispatched to the parking lot of an
apartment complex on a report of gunshots. Upon arrival, the
officers observed a parked vehicle with its engine running; Grimes,
who was bleeding profusely, was in the driver’s seat making
“gurgling” noises but did not speak. Grimes was transported to a
hospital with multiple gunshot wounds.
purported to merge the felony murder count into Count 1, but the felony murder count was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993). The trial court also merged the aggravated assault counts and the aggravated battery count. Leonard filed a timely motion for new trial on November 20, 2014, which he amended through new counsel on January 28, 2020. After a hearing, the trial court denied Leonard’s motion for new trial as amended. Leonard filed a timely notice of appeal, and his appeal was docketed in this Court to the term beginning in December 2022 and submitted for a decision on the briefs. 2 Officers recovered eleven spent shell casings around Grimes’s
vehicle; the casings were of two calibers—.22-caliber and .40-caliber.
Bullet holes indicated that shots were fired from outside the vehicle,
and based on the locations where the shell casings were found, it
appeared that a shooter exited the vehicle while rapidly firing shots.
Officers were unable to locate any witnesses.
As a result of a gunshot wound to his neck, Grimes “sustained
a very high spinal cord injury,” rendering him a quadriplegic, and
he required a ventilator to breathe, among other life-sustaining
treatments. After the shooting, Grimes was sedated for several
weeks, regaining consciousness in early October. Though Grimes
remained dependent upon a ventilator, he ultimately regained the
ability to speak after a valve was installed in his trachea.
After regaining consciousness in October 2010 and on several
occasions preceding his death, Grimes communicated to family
members, friends, and an investigating detective that Leonard and
Alexander were responsible for shooting him. As discussed in
Division 2 below, the trial court admitted testimony at trial
3 regarding these statements as dying declarations. Grimes’s
girlfriend testified that the first thing Grimes communicated to her
upon waking was that “Doo-Doo” and “Josh” shot him. Grimes’s
girlfriend was familiar with both men, and, at trial, she identified
Alexander as Doo-Doo and Leonard as Josh. According to Grimes’s
mother and girlfriend, Grimes and Alexander were good friends.
On October 11, days after Grimes regained consciousness,
Detective Wayne Fairbairn visited him in the hospital. According to
Fairbairn, Grimes, who remained on the ventilator, “couldn’t talk”
and “could only mouth words,” 2 but he “could suck his cheek and
make a clicking noise.” When asked if he knew who shot him, Grimes
responded affirmatively. Fairbairn then devised a means by which
Grimes could spell out the name of the shooter; Fairbairn wrote the
alphabet on a piece of paper3 then pointed to each letter in turn, and
Grimes made “the clicking noise” to spell out the shooter’s name.
2 This interview preceded the introduction of the valve to the tracheotomy tube which allowed Grimes to speak. 3 The piece of paper was introduced as an exhibit at trial.
4 Through that process, Grimes spelled out the first and last names of
two shooters: Leonard and Alexander. Grimes was able to
communicate the shooters’ race and age, as well as the fact that they
were from Phenix City, Alabama. Fairbairn located mugshots of
Leonard and Alexander and created two six-photograph arrays. Two
days later, Fairbairn returned to the hospital to show the arrays to
Grimes. Grimes identified Leonard’s photograph in the first array
and Alexander’s photograph in the second array and indicated that
they were responsible for his injuries.
Grimes died on June 26, 2011, as a result of “delayed
complications of gunshot wounds.” The morning of his death,
Grimes’s mother visited him in the hospital, and she testified at trial
that, during that last visit, Grimes told her that he was “right with
God” and that he wanted her “to forgive” him “if [he did] anything to
disrespect [her] or [she] had a hard time with [him].” Grimes
implored his mother “to forgive Josh and Doo-Doo,” indicating that
he would “never know why they did this but [she had] to forgive
them.” On the same day, at Grimes’s insistence, his mother
5 summoned a family friend, Cathy Morgan, to the hospital; when
Morgan arrived, Grimes pleaded with her to take care of his mother.
Grimes died minutes after speaking with Morgan.
Leonard and Alexander were apprehended in July 2011, and at
that time, Leonard had in his possession a plastic bag containing
approximately 13.8 grams of marijuana. The marijuana was divided
and individually wrapped in 17 different packs known as “dime
bags,” indicating it was intended for distribution. While detained
before trial in the Muscogee County jail, Leonard shared a
dormitory-style room with several other men. A bunkmate who
shared space with Leonard for nine months testified that he
overheard Leonard gloating to other inmates about the shooting.
The bunkmate testified that, when Leonard received the State’s
discovery packet, he hung a photograph of Grimes taken during the
autopsy on the wall and bragged about both killing Grimes and
preferring a .40-caliber pistol. Leonard also showed other autopsy
photographs to his fellow inmates and told them “this is what a
snitch look[s] like . . . this [is] what happened to him.”
6 2. Leonard first contends that the trial court erred by admitting
as dying declarations Grimes’s statements identifying Leonard as
the shooter. As explained below, we conclude that the trial court
properly admitted the statements Grimes made soon after regaining
consciousness and on the day he died. With respect to the
intervening statements, even assuming that the trial court erred by
admitting the statements as dying declarations, we conclude that
any such error was harmless.
Before trial, Leonard moved to exclude Grimes’s statements,
and a hearing was held on Leonard’s motion. At that hearing, two of
Grimes’ treating physicians, Dr. Vincent Nicolais and Dr. Richard
Hannay, testified about Grimes’s injuries, his dependency on a
ventilator, and his status as a quadriplegic. Dr. Nicolais, who
treated Grimes in October and November 2010, noted that Grimes’s
prognosis was “dismal.” Dr. Hannay testified that Grimes “was
aware of what was going on” and that Grimes was “critically ill,”
which, he explained, meant that “death could occur at any time
without notice and be very sudden . . . even under the best of care[.]”
7 In Dr. Hannay’s opinion, Grimes’s long-term prognosis was “very
poor,” he was at high risk for life-threatening infections, and his
“medium-term probability of death was at a hundred percent.”
Following the hearing, the trial court denied Leonard’s motion,
concluding that Grimes was aware that he was within the “article of
death” when he made the challenged statements and that the fact
that Grimes “died about ten months from the day he was shot is
more a testament to modern science.” In reaching this conclusion,
the trial court credited the testimony of Grimes’s treating
physicians, including Dr. Hannay’s testimony that Grimes was
aware of his condition. The trial court also pointed to Grimes’s
statements to his mother about forgiving his assailants, noting that
such statements “are of the kind that shows awareness of the
nearness of one’s own death.”
We review a trial court’s ruling admitting or excluding
evidence for an abuse of discretion. See Bolling v. State, 300 Ga. 694,
698 (2) (797 SE2d 972) (2017). Code section 24-8-804 (b) (2) (“Rule
804 (b) (2)”), an exception to the rule excluding hearsay, provides
8 that an out-of-court statement “made by a declarant while believing
that his or her death was imminent, concerning the cause or
circumstances of what the declarant believed to be impending death”
may be admitted in a homicide prosecution where the declarant is
unavailable to testify. Georgia Rule 804 (b) (2) is materially identical
to Federal Rule of Evidence 804 (b) (2). When we consider the
meaning of such a provision, “we look to decisions of the federal
appellate courts construing and applying the federal Rules,
especially the decisions of the United States Supreme Court and the
Eleventh Circuit for guidance.” (Citations and punctuation omitted.)
State v. Hamilton, 308 Ga. 116, 121 (3) (a) (839 SE2d 560) (2020).
See also Bolling, 300 Ga. at 698 (2) (“[W]hen we consider [the]
meaning [of OCGA § 24-8-804], we may consider the decisions of
federal appellate courts . . . construing and applying our rule’s
federal counterpart.”). “Moreover, although Advisory Committee
Notes are not binding precedent and cannot change the plain
meaning of the law or rules, they are highly persuasive.” (Citation
and punctuation omitted.) Martinez-Arias v. State, 313 Ga. 276, 286
9 (3) n.8 (869 SE2d 501) (2022).
Under Federal Rule 804 (b) (2), “[a] dying declaration is
admissible as an exception to hearsay if the declarant makes the
statement while conscious of impending death and under the belief
that there is no chance of recovery.” (Citation and punctuation
omitted.) United States v. Peppers, 302 F3d 120, 137 (III) (C) (2) (3d
Cir. 2002). See also United States v. Lawrence, 349 F3d 109, 116 (II)
(B) (1) (3d Cir. 2003) (for statement to be admissible as dying
declaration, “the declarant must have spoken with the
consciousness of a swift and certain doom” (citation and punctuation
omitted)). As the United States Supreme Court has explained,
[t]here must be a “settled hopeless expectation” that death is near at hand, and what is said must have been spoken in the hush of its impending presence. Despair of recovery may indeed be gathered from the circumstances if the facts support the inference. There is no unyielding ritual of words to be spoken by the dying. Despair may even be gathered though the period of survival outruns the bounds of expectation. What is decisive is the state of mind. Even so, the state of mind must be exhibited in the evidence, and not left to conjecture.
(Citations and punctuation omitted.) Shepard v. United States, 290
10 U. S. 96, 100 (1) (1933).4 See also Peppers, 302 F3d at 137 (III) (C)
(2) (“A court may infer knowledge of the seriousness of a declarant’s
condition from the nature and extent of the wounds inflicted.”
(citation and punctuation omitted)). And while a general fear for
one’s life is insufficient to demonstrate an impending sense of death,
it is well established that a declarant need not die shortly after
making a statement in order for that statement to be admissible as
a dying declaration. See Mattox v. United States, 146 U. S. 140, 151
(1892) (“[I]t is the impression of almost immediate dissolution, and
4 Federal Rule 804 (b) (2) codifies and broadens the common law’s long- standing hearsay exception for dying declarations, but while the Rule is “considerably more liberal than the common-law exception,” its applicability “still depends,” as it did at common law, “on the declarant’s belief that death was imminent at the time of the statement.” United States v. Williams, 837 F2d 1009, 1012 (II) (A) n.5 (11th Cir. 1988). See also Advisory Committee Note on Federal Rule 804 (b) (2) (explaining that “[t]he exception is the familiar dying declaration of the common law, expanded somewhat beyond its traditionally narrow limits”); McCormick on Evidence, § 310 (“Evidence that would satisfy the common law would clearly satisfy [Federal Rule 804 (b) (2)], and a growing number of courts have recognized that a lesser showing will suffice.”). Thus, in assessing whether a declarant’s statement was made while the declarant believed death to be imminent, federal courts frequently look to decisions that pre-date the 1975 codification of Federal Rule 804 (b) (2) and apply the common-law exception. See, e.g., Lawrence, 349 F3d at 116 (II) B) (1) (relying on Shepard, 290 U. S. at 100-103, decided in 1933).
11 not the rapid succession of death, in point of fact, that renders the
testimony admissible.” (citation and punctuation omitted)).
Turning first to the statements Grimes made to his mother, his
girlfriend, and Detective Fairbairn shortly after regaining
consciousness, Leonard asserts that the statements were improperly
admitted because, he says, Grimes’s death was not imminent at the
time he made the statements and, even if it were, Grimes was not
aware of it.5 As an initial matter, Leonard misapprehends the
pertinent inquiry. Indeed, as the plain language of Rule 804 (b) (2)
makes clear, the issue is not whether the declarant’s death was in
fact imminent at the time of the declaration but whether the
declarant believed it to be so. And here, the State presented
significant evidence to support the inference that Grimes believed
his death to be imminent, including testimony that Grimes
remained in the intensive care unit when he made the statements,
5 Leonard does not dispute that Grimes was unavailable for trial or that the statements at issue concerned the cause or circumstances of Grimes’s death. 12 that the severity of his injuries resulted in Grimes’s complete
paralysis beyond his ability to slightly move his head and facial
features, that he was entirely dependent on a ventilator, that he was
at a high risk of death due to his injuries, and that he was aware of
his grievous condition. Indeed, the physicians’ testimony
underscored the severity of Grimes’s condition, with Dr. Hannay
testifying that Grimes’s chance of death from complications of his
injuries was one-hundred percent in the “medium term,” that “death
could occur at any time without notice and be very sudden,” and that
Grimes was aware of his condition. Based on this evidence, “[i]t is
reasonable to infer that [Grimes] knew about the seriousness of his
condition” and was contemplating his impending death when he
initially identified Leonard and Alexander as the shooters. Webb v.
Lane, 922 F2d 390, 396 (II) (A) (2) (7th Cir. 1991) (facts supporting
inference that declarant, who had suffered multiple gunshot
wounds, believed death was imminent included his attachment to a
life-support machine and officer’s informing declarant that doctors
believed his chances for survival were “not especially good”). See also
13 Mobley v. United States, 421 F2d 345, 347-348 (5th Cir. 1970)
(declarant’s sense of impending death was properly inferred from
the “gravity and extent” of his wounds, as evidenced by treating
physician’s testimony, despite fact that declarant was not told that
death was imminent). Compare United States v. Two Shields, 497
F3d 789, 793 (8th Cir. 2007) (despite severity of injuries and
declarant’s quick death, statements not admissible as dying
declarations because no doctor had diagnosed injuries as life-
threatening and declarant never indicated a belief of impending
death). We thus cannot say that the trial court abused its discretion
by admitting these statements as dying declarations.
Turning next to the statements Grimes made to his mother on
the day of his death imploring her to forgive Leonard and Alexander,
Leonard maintains that these statements were improperly admitted
because Grimes’s death was not imminent and because Grimes did
not believe it to be so. In support of this contention, Leonard points
to the fact that, shortly before his death, Grimes had been
readmitted to the hospital for a “routine procedure.” But, as we
14 noted above, whether Grimes’s death was actually imminent is
beside the point; the question is whether Grimes believed it to be so.
In answering that question affirmatively, the trial court looked to
the content of Grimes’s statements—namely, the expressions of
forgiveness toward his assailants and his exhortations to his mother
encouraging her likewise to forgive his assailants—to find that, at
the time of the statements, Grimes maintained “a settled hopeless
expectation that death [was] near at hand.” Shepard, 290 U. S. at
100 (1) (a declarant speaks with consciousness of impending death
where she “announc[es] to the survivors a definitive conviction, a
legacy of knowledge on which the world might act when she had
gone”). In addition to the statements’ content, the context of
Grimes’s statements, which were made while he was hospitalized
and nearly contemporaneously with his insistence that Cathy
Morgan be urgently summoned so that he could implore her to take
care of his mother, supports a finding that Grimes was
contemplating his imminent death. We therefore cannot say that the
trial court here abused its discretion by admitting Grimes’s
15 statements made on the day of his death.
The trial court also admitted as dying declarations several
statements Grimes made to various friends and family members in
the months after he was discharged from the hospital. Leonard
challenges the admission of these statements as well. Pretermitting
whether the trial court erred by admitting these statements, the
substance of the statements—that Leonard and Alexander were
responsible for Grimes’s shooting—is essentially cumulative of other
evidence, including nearly identical statements that Grimes made
to his mother and others and the testimony of Leonard’s bunkmate
that Leonard bragged to his fellow inmates about shooting and
killing Grimes. See Davis v. State, 302 Ga. 576, 583-584 (4) (805
SE2d 859) (2017) (even if statement fell outside hearsay exception,
it was merely cumulative of other evidence, and its admission was
therefore harmless); Anglin v. State, 302 Ga. 333, 336 (2) (806 SE2d
573) (2017) (“[T]he erroneous admission of hearsay is harmless
where substantial, cumulative, legally admissible evidence of the
same fact is introduced.”). In light of the evidence discussed above,
16 we conclude that it is highly probable that the admission of these
functionally identical statements did not contribute to the verdict.
See Glispie v. State, 300 Ga. 128, 132 (1) (2016) (“The test for
determining nonconstitutional harmless error is whether it is highly
probable that the error did not contribute to the verdict.” (citation
and punctuation omitted)).
3. Next, Leonard asserts that Grimes’s statements to Detective
Fairbairn were testimonial and that their admission was in violation
of Leonard’s right to confrontation under the Sixth Amendment to
the United States Constitution. See Crawford v. Washington, 541
U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004). With respect to this
claim, the record reflects that, following a hearing on Leonard’s
motion to exclude Grimes’s statements, Leonard filed a
supplemental brief concerning “dying declarations and necessity
exceptions to testimonial hearsay in light of Crawford v.
Washington.” In that brief, Leonard expressly stated that “[a] dying
declaration is an exception to he[ar]say as well as the rule of
Crawford.” The trial court subsequently ruled that Grimes’s
17 statements were admissible as dying declarations. Leonard did not
object to the statements on the particular grounds that he now
asserts—that the admission of Grimes’s statements as dying
declarations ran afoul of Crawford—and the trial court made no
ruling on that claim. Thus, we review this claim only for plain error.
See Goins v. State, 310 Ga. 199, 204 (4) (850 SE2d 68) (2020); OCGA
§ 24-1-103 (d). To demonstrate plain error, Leonard
must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.
(Citation and punctuation omitted.) Carter v. State, 315 Ga. 214, 222
(3) (b) (881 SE2d 678) (2022). “The failure to meet one element of
this test dooms a plain error claim, and so it is here.” (Citation
omitted.) Denson v. State, 307 Ga. 545, 548 (2) (837 SE2d 261)
(2019).
In Crawford, the United States Supreme Court held that “the
admission of out-of-court statements that are testimonial in nature
18 violates the Confrontation Clause unless the declarant is
unavailable and the defendant had a prior opportunity for cross-
examination.” (Citation and punctuation omitted.) State v. Gilmore,
312 Ga. 289, 290 (862 SE2d 499) (2021). See also Crawford, 541 U. S.
at 68 (V) (B). The Crawford Court also suggested, but did not decide,
that dying declarations, even if testimonial, may present an
exception to the Confrontation Clause. Id. at 56 (III) (B) n.6
(“Although many dying declarations may not be testimonial, there
is authority for admitting even those that clearly are. We need not
decide in this case whether the Sixth Amendment incorporates an
exception for testimonial dying declarations.” (citations omitted)).
And as Leonard acknowledges, neither the United States Supreme
Court nor the United States Court of Appeals for the Eleventh
Circuit has yet made a definitive ruling on the issue. 6 Nevertheless,
6 Some of our own case law seems to suggest in dicta that this question has been resolved in Georgia. See Durham v. State, 296 Ga. 376, 380 (2) n.4 (768 SE2d 512) (2015); Walton v. State, 278 Ga. 432, 434 (1) (603 SE2d 263) (2004). But those cases suggest that Crawford definitively held that dying declarations do not implicate the Confrontation Clause. As we note above, however, Crawford expressly left that question open. We thus disapprove
19 Leonard asserts that, assuming such an exception is recognized by
this Court, 7 the exception is limited to statements satisfying “the
common law exception [for dying declarations] contemporaneous to
the Sixth Amendment’s ratification,” and, he says, Grimes’s
statements do not meet that standard. But Leonard points to no
controlling authority, and we have found none, to support this claim.
Leonard thus has failed to show clear and obvious error, as “the
absence of clear authority to support the proposition that [Leonard]
advances prevents the establishment of plain error[.]” Simmons v.
State, 299 Ga. 370, 375 (2) (788 SE2d 494) (2016). See also Wilson v.
State, 291 Ga. 458, 460 (729 SE2d 364) (2012) (“An error is plain if
it is clear or obvious under current law. An error cannot be plain
where there is no controlling authority on point and where the most
Durham and Walton to the extent they suggest that the Confrontation Clause question related to dying declarations that was reserved in Crawford is anything but an open question of federal constitutional law. And we are unaware of any of our own precedent that independently analyzes that question either. 7 Leonard advances no argument as to whether this Court should or
should not recognize such an exception. 20 closely analogous precedent leads to conflicting results.” (citation
and punctuation omitted)). Accordingly, this claim fails.
4. Leonard next challenges the trial court’s denial of his motion
to sever Count 7 (possession of marijuana with intent to distribute)
from the remaining charges. It does not appear from the record,
however, that Leonard obtained a ruling on his motion to sever.
Leonard filed in the trial court a “motion in limine to exclude any
reference to the circumstances of [Leonard’s] arrest or the charge of
possession of marijuana with intent or motion for severance of
indictment.” Leonard’s motion focused on the admissibility of
evidence surrounding the circumstances of his arrest and only
obliquely referenced severance, stating in passing that “the State
would have recourse to pursue the drug charge in a later trial in the
same manner as when a case is bifurcated in order to prevent
prejudice when a defendant is a convicted felon.” And the trial
court’s oral ruling, which was not reduced to writing, addresses only
the admissibility of evidence of the circumstances of Leonard’s
21 arrest, not severance. 8 Because Leonard “failed to obtain a ruling on
the issue, [he] cannot raise it for the first time in this Court.”
Johnson v. State, 301 Ga. 205, 208 (III) (800 SE2d 296) (2017). See
also Guffie v. State, 304 Ga. 352, 355-356 (3) (818 SE2d 608) (2018)
(argument waived for purposes of appeal where appellant
challenged denial of motion to sever but “never presented [the]
argument to the trial court either in his motion to sever or during
the hearing on same”). We therefore conclude that Leonard has
waived this argument for purposes of appeal.9
5. During closing argument, Leonard sought to cast doubt on
the veracity of Grimes’s family members and friends who testified
about Grimes’s statements identifying Leonard and Alexander as
the shooters, insinuating that Grimes did not make the statements
about which they testified. In response, the prosecutor argued:
8 Nor did the trial court address the issue in denying Leonard’s motion for new trial. 9 We note that this claim may not be reviewed for plain error. See Brooks
v. State, 309 Ga. 630, 638 (3) (847 SE2d 555) (2020) (identifying claims that are subject to plain error review and noting that “[t]his Court has declined to extend plain error analysis to other claims of error in the absence of a specific provision by the General Assembly”). 22 Who [Grimes] said did it is who they went after. And who [Grimes] said did it is the same person they said over, and over, and over. And who would [Grimes] have said this to? To his family members, to those who come, to those who are there next to him. Why would [Grimes] say this to everybody who c[a]me his way? You know why he would say it. I thought about it for a while. I was taken to the 55th number of Psalms, verses 12, King David is saying: Now it is any enemy who insulted me—
Leonard’s counsel objected to the prosecutor’s use of scripture, which
the trial court overruled. The prosecutor continued:
This is what happened again, Psalm 55 verse 12 said: Now, it is not an enemy who insulted me. Otherwise I could bear it. It is not a foe who rise up against me. Otherwise I could hide from him. But it is you, who is my peer, my companion and good friend, we used to fellowship, close fellowship. We would walk with the crowd into the house of God.
That’s why he’s telling everybody. He can’t believe that it was his friend. He can’t believe that it was Doo-Doo who would do something like this. That’s why everybody he finds he turns and he says: Josh, Doo-Doo. He can’t believe it. If it had been an enemy, he could have protected his self, but it was you. You, the one who slept at my house, who ate at my table.
On appeal, Leonard contends that this ruling was erroneous and
that a curative instruction was warranted. We disagree.
Counsel is afforded wide latitude during closing argument, the
23 scope of which is a matter for the trial court’s discretion. Arnold v.
State, 309 Ga. 573, 577 (2) (a) (847 SE2d 358) (2020). We judge
closing arguments “in the context in which they are made.” Blaine
v. State, 305 Ga. 513, 519 (2) (826 SE2d 82) (2019). A prosecutor may
“discuss and draw inferences from factual matters in evidence . . .
[and] respond to points made in—and issues omitted from—the
defendant’s closing argument.” Id. Likewise, a prosecutor “is allowed
to make illustrations that may be as various as are the resources of
his genius,” (Citation and punctuation omitted.) Arnold, 309 Ga. at
577 (2) (a), and “may allude to such principles of divine law relating
to transactions of men as may be appropriate to the case,” (Citations
and punctuation omitted.) Greene v. State, 266 Ga. 439, 450 (26) (469
SE2d 129) (1996), reversed on other grounds by Greene v. Georgia,
519 U. S. 145 (117 SCt 578, 136 LE2d 507) (1996).
Reading closing arguments as a whole, we cannot say that the
trial court abused its discretion when allowing the prosecutor’s
reference to scripture, which was permissible rebuttal. Indeed, the
prosecutor attempted to defuse Leonard’s argument and offer an
24 explanation as to why Grimes repeatedly identified Leonard and
Alexander, resorting to Biblical references for a more expressive
description of the idea of betrayal. And this theme was supported by
the evidence; Grimes’s mother and others testified that Alexander
was one of Grimes’s best friends and that Grimes was shocked that
Alexander would hurt him. See Greene, 266 Ga. at 450 (26); Lewis v.
State, 287 Ga. 210, 213 (5) (2010) (695 SE2d 224) (2010) (“Counsel
may make use of well-established historical facts in his argument
and make full use of illustrations as long as he does not introduce
extrinsic and prejudicial matters which have no basis in the
evidence.” (punctuation omitted)). Under these circumstances, we
cannot say that the trial court abused its broad discretion by
overruling Leonard’s objection and not giving a curative instruction.
See Blaine, 305 Ga. at 519 (2).
6. Leonard next challenges the trial court’s denial of his motion
to dismiss the indictment for want of a speedy trial. This claim is
unavailing.
“When an accused claims that a delay in bringing him to trial
25 has worked a denial of his constitutional right to a speedy trial, a
court first must consider whether the delay is long enough to raise
a presumption of prejudice and to warrant a more searching judicial
inquiry into the delay.” State v. Johnson, 291 Ga. 863, 865 (1) (734
SE2d 12) (2012). Here, Leonard was arrested in July 2011. In
February 2013, Leonard, who had yet to be indicted, filed a
constitutional and statutory demand for a speedy trial, and in March
2013, he moved to dismiss the case against him for want of a speedy
trial. The trial court denied his motion in February 2014, only weeks
after the grand jury returned an indictment against Leonard. In
light of the 30-month delay between Leonard’s arrest and the denial
of his speedy trial motion,10 the presumptive prejudice “threshold
was crossed,” and the inquiry “proceeds to the second part of the
10The State properly conceded the issue of presumptive prejudice below. See Redding v. State, 313 Ga. 730, 732 (2) (873 SE2d 158) (2022) (“A delay of one year or more is typically presumed to be prejudicial.”); State v. Porter, 288 Ga. 524, 526 (2) (b) (705 SE2d 636) (2011) (“Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied[.]”).
26 [Barker 11] framework, applying a context-focused, four-factor
balancing test to determine whether the defendant was denied the
right to a speedy trial.” Redding v. State, 313 Ga. 730, 732 (2) (873
SE2d 158) (2022). Specifically, a court must consider and balance
“(1) the length of the delay; (2) the reasons for it; (3) the defendant’s
assertion of his right to a speedy trial; and (4) prejudice to the
defendant.” Id.
This analysis requires courts to “engage in a difficult and
sensitive balancing process,” while bearing in mind that “[t]hese
four factors have no talismanic qualities” and “must be considered
together with such other circumstances as may be relevant.”
(Citation and punctuation omitted.) State v. Pickett, 288 Ga. 675 (2)
(a) (706 SE2d 561) (2011). “[T]he application of these principles to
the circumstances of a particular case is a task committed
principally to the discretion of the trial courts, and it is settled law
that our role as a court of review is a limited one.” State v. Buckner,
11 Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972). See also Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992). 27 292 Ga. 390, 391 (738 SE2d 65) (2013).
(a) Length of the delay
“As the trial court found and the State concedes, th[e] delay”—
here, 30 months—“was ‘presumptively prejudicial,’ and the trial
court was correct to weigh the length of the delay against the State.”
Henderson v. State, 310 Ga. 231, 236 (2) (a) (850 SE2d 152) (2020).12
(b) Reasons for the delay
The trial court attributed responsibility for the delay to the
State but found “no evidence that the delay was the result of any
intentional or deliberate action by the State to hamper the defense.”
Three reasons were proffered for the delay: that the State first
sought to proceed with the prosecution of Alexander for an unrelated
murder charge; that Grimes’s girlfriend had been indicted for an
additional unrelated murder and the State sought to determine her
availability as a witness; and that the State sought additional DNA
testing on evidence recovered from the crime scene. Finding that the
12Contrary to Leonard’s assertion, the trial court, in fact, did find that the delay in this case was uncommonly long, and its order reflects that it properly weighed this factor against the State. 28 State was entitled to collect additional evidence and that the delay
was “the result of the circumstances surrounding [Alexander],
[Grimes’s girlfriend] and testimonial evidence,” the trial court
concluded that this factor was “relatively benign” and “weighed only
lightly against the State.” On appeal, Leonard asserts that the trial
court “misapplied the law” in assigning only “relatively benign”
weight to this factor because, he says, the State delayed the trial for
the purpose of gaining a “tactical advantage,” such that this factor
should have been weighed heavily against the State. We agree that
this factor deserved more than the “relatively benign” weight
assigned by the trial court, though not to the extent Leonard urges.
“In assessing the reasons for the delay, the trial court must
consider which party was responsible for the delay, whether the
delay was intentional, and, if it was intentional, what the motive
was for seeking or causing the delay.” Davis v. State, 315 Ga. 252,
256 (2) (d) (ii) (882 SE2d 210) (2022). As to the amount of weight
assigned to this factor, “different weights should be assigned to
different reasons.” (Citation and punctuation omitted.) Johnson, 291
29 Ga. at 865 (2) (b). “A deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily against the
government,” and “an unintentional delay, such as that caused by
the prosecuting attorney’s mere negligence or the trial court’s
overcrowded docket, should be weighted less heavily.” (Citation and
punctuation omitted.) State v. Alexander, 295 Ga. 154, 160 (2) (b)
(758 SE2d 289) (2014).
As to the first and second reasons for the delay—that Grimes’s
girlfriend and Alexander each had been indicted on unrelated
charges—Leonard contends that the State chose to proceed first
with the prosecutions against Grimes’s girlfriend and Alexander in
the hope of securing their testimony against Leonard and thereby
gaining a tactical advantage, which, he argues, should weigh heavily
against the government. The facts of this case are analogous to
Jackson v. State, 272 Ga. 782, 784 (534 SE2d 796) (2000). In
Jackson, the prosecution delayed the appellant’s trial in order to try
the appellant and his co-defendants together, and in opposing the
appellant’s speedy trial claim, the State argued that “because th[e]
30 delay was not intentional, it is of no consequence.” Id. We rejected
that argument, reasoning that “[w]hile there is no evidence that this
was a deliberate attempt to ‘hamper the defense,’ neither is it
negligence which is ‘relatively benign.’ [The reason for the delay] is
therefore weighted against the [S]tate.” (Footnote omitted.) Id. That
rationale applies here. Though there is no evidence that the delay
was designed to hamper Leonard’s case, the delay cannot be chalked
up to negligence and must be afforded more than “relatively benign”
weight. See id. See also Johnson, 291 Ga. at 865 (2) (b) (“The
unavailability of State witnesses weighs against the State.” (citation
Turning to the third reason—that the State sought to analyze
DNA evidence recovered at the crime scene—Leonard complains
about the State’s failure to do so in a timely manner, noting that the
State did not obtain a DNA sample from him until November 2013,
more than two years after his arrest. Leonard does not, however,
contend that the State’s delay in collecting a DNA sample resulted
from anything other than “negligent inaction,” which is properly
31 weighed “benignly” against the State. See Buckner, 292 Ga. at 396
(3) (b).
(c) Assertion of the right
The trial court weighed the third factor heavily against
Leonard, finding that Leonard waited more than nineteen months
before asserting his right to a speedy trial despite being represented
by counsel within one month of his arrest. The record supports that
finding, and the trial court did not abuse its discretion by weighing
this delay heavily against Leonard. 13 See Brown v. State, 287 Ga.
892, 896 (2) (c) (700 SE2d 407) (2010) (appellant’s two-year delay in
asserting right to speedy trial was properly weighed heavily against
him); Buckner, 292 Ga. at 396 (2) (c) (“Once the right to a speedy
trial attaches, the accused must assert it with reasonable
promptness, and delay in doing so normally will be weighed against
13To the extent Leonard argues that his failure to invoke his speedy trial right sooner was attributable to the State’s failure to indict him, such a contention is without merit. See Ruffin v. State, 284 Ga. 52, 63 (2) (b) (iii) (663 SE2d 189) (2008) (“[I]nvocation of the speedy trial right need not await indictment, information, or other formal charge; the accused can begin demanding that the right to a speedy trial be honored as soon as he or she is arrested.” (citation and punctuation omitted)). 32 him.” (punctuation omitted)).
(d) Prejudice
The trial court did not abuse its discretion by determining that
Leonard failed to establish that he was prejudiced by the delay in
bringing his case to trial. “The prejudice associated with
unreasonable delay before trial includes oppressive pretrial
incarceration, anxiety and concern of the accused, and the
possibility that the (accused’s) defense will be impaired by dimming
memories and loss of exculpatory evidence.” Henderson, 310 Ga. at
239 (2) (d). “Of these forms of prejudice, the most serious is the
last[.]” Id.
With respect to the prejudice factor, the trial court found that
“no evidence [had been] presented to show actual prejudice or
impairment of [Leonard’s] defense.” Leonard now argues that
recordings of a 911 call and a tipster call were destroyed by the time
of trial and that his defense was thereby prejudiced. In support of
this contention, Leonard points to trial counsel’s testimony that this
evidence could have been helpful in identifying witnesses to the
33 shooting. But this testimony was presented at the hearing on
Leonard’s motion to supplement the appellate record, and it does not
appear from the record—nor does Leonard argue—that he raised
this claim in the trial court. Indeed, the record supports the trial
court’s finding that Leonard failed to present any evidence that his
defense was impaired; thus, the trial court properly weighed this
factor against Leonard. 14 See Ruffin v. State, 284 Ga. 52, 63 (2) (b)
(iv) (663 SE2d 189) (2008).
(e) Balancing the four factors
In light of the trial court’s error with respect to the weight
afforded to the second factor, our deference to the trial court’s denial
of Leonard’s motion is somewhat diminished. Nevertheless, we
conclude that “had the trial court used the correct facts and legal
analysis, it would have had no discretion to reach a different
14 Contrary to Leonard’s assertion, the trial court’s conclusion as to prejudice was not based solely on its finding that Leonard was incarcerated for a probation violation. See Redding v. State, 313 Ga. 730, 736 (2) (873 SE2d 158) (2022) (trial court erred by “ruling that [a]ppellant’s probation hold precluded the need to assess prejudice associated with oppressive pretrial incarceration”). 34 judgment.” Pickett, 288 Ga. at 679 (2) (d). To be sure, “[g]iven
[Leonard’s] failure to present any persuasive evidence of ‘prejudice’
as that term is used in the Barker-Doggett analysis,” as well as “the
fact that [Leonard] asserted the speedy trial right relatively late in
the process,” we cannot say that the trial court abused its discretion
by denying Leonard’s motion to dismiss. Ruffin, 284 Ga. at 65-66 (3).
7. Finally, Leonard summarily asserts that the cumulative
effect of the trial court’s errors was harmful and entitles him to a
new trial. But as set forth above, we have identified no error that
would require cumulative consideration. See Pritchett v. State, 314
Ga. 767, 787 (4) (879 SE2d 436) (2022) (To establish cumulative
error, an appellant “must show that at last two errors were
committed in the course of the trial, and when considered together
along with the entire record, the multiple errors so infected the
jury’s deliberation that they denied him a fundamentally fair trial.”
(citation and punctuation omitted)). Indeed, we did not identify any
error and have pretermitted error only with respect to the admission
of Grimes’s statements identifying the shooters that were made
35 between his initial conscious moments in the hospital and the day of
his death. And we held the admission of that evidence to be
harmless. In the absence of any other error or pretermitted error,
there is nothing for us to consider with respect to this enumeration.
Judgment affirmed. All the Justices concur.