Palmer v. State

899 S.E.2d 192, 318 Ga. 511

• Court: Supreme Court of Georgia
• Decided: March 5, 2024
• Docket: S23A1091
• Status: Published

Opinion

318 Ga. 511 FINAL COPY

S23A1091. PALMER v. THE STATE.

BOGGS, Chief Justice.

Appellant Willie Williams Palmer challenges his 2023

convictions for malice murder and other crimes in connection with

the shooting deaths of his estranged wife, Brenda Jenkins Palmer,

and his 15-year-old stepdaughter, Christine Jenkins. He contends

that his Sixth Amendment right to a speedy trial was violated; that

the State’s loss or destruction of potential biological evidence from

the crime scene required dismissal for prosecutorial misconduct or

an instruction allowing the jury to draw an inference adverse to the

State; that the trial court violated his constitutional right to present

a defense by excluding evidence of “historical bias against him on

the part of local law enforcement and prosecutors”; that the court

erred in prohibiting him from questioning the lead GBI investigator

about a shooting two months after the murders to support his theory

of an alternative suspect and his argument that the investigators unfairly focused on him as the shooter to the exclusion of other

possible suspects; and that the cumulative effect of the court’s errors

deprived him of a fundamentally fair trial. For the reasons that

follow, we affirm.1

1 The crimes occurred on the night of September 10, 1995. On April 17,

1996, a Burke County grand jury indicted Appellant on two counts of malice murder, two counts of felony murder, and one count each of burglary, kidnapping, child cruelty, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Appellant’s first trial in April 1997 ended in a mistrial. At Appellant’s second trial in late October and early November 1997, the jury found him guilty of all charges, and he was sentenced to death. He appealed, and this Court affirmed. See Palmer v. State, 271 Ga. 234 (517 SE2d 502) (1999). Appellant then filed a petition for habeas corpus, which the habeas court granted, and this Court affirmed the grant of habeas relief. See Schofield v. Palmer, 279 Ga. 848 (621 SE2d 726) (2005). At Appellant’s third trial in August 2007, he was again found guilty of all charges and sentenced to death. Appellant filed a motion for new trial, which he amended in 2014, 2015, and 2016. In November 2019, the trial court denied the motion. The trial court granted Appellant’s request for a 30-day extension of time to file a notice of appeal, and in January 2020, Appellant filed a timely notice of appeal. In August 2020, this Court granted the parties’ Joint Motion to Vacate the Denial of Motion for New Trial and Remand to Enter Consent Judgment Granting a New Trial. On December 14, 2020, the remittitur from this Court was filed in the trial court. On July 7, 2021, the trial court entered a Consent Order Granting Defendant’s Motion for New Trial. At Appellant’s fourth trial from February 2 to 15, 2023, the jury found him guilty of all charges and determined that he is not a person with intellectual disability. On February 15, 2023, the trial court sentenced Appellant to serve consecutive terms of life in prison without the possibility of parole for the malice murders, concurrent terms of 20 years each for burglary, kidnapping, and child cruelty, a concurrent term of five years for possession of

2 1. The evidence at Appellant’s fourth trial showed as follows.

Appellant married Brenda Jenkins Palmer in May 1993, and they

had a daughter, Willshala, in 1994. In May 1995, Brenda Palmer

separated from Appellant and filed for divorce, and the following

day, Appellant was served with a restraining order to stay away

from her. Meanwhile, Brenda Palmer stayed with family and at

some point moved with her daughters, 15-year-old Christine and

one-year-old Willshala, into a two-room house in Vidette. Appellant

owned five acres of land and told numerous people that he would kill

Brenda Palmer if she tried to take it from him.

On July 31, 1995, Appellant was arrested for violating the

restraining order and put in jail. At the end of August 1995, Brenda

Palmer met with the manager of a small loan company to catch up

on her payments and update her address. She was very nervous and

a firearm by a convicted felon, and a consecutive term of five years for possession of a firearm during the commission of a crime; the felony murder counts were vacated by operation of law. On the same day, Appellant filed a timely notice of appeal. The case was docketed in this Court to the August 2023 term and was orally argued on October 26, 2023. 3 upset during the meeting, and the manager promised not to give out

her address to anyone.

On September 1, 1995, Appellant was released from jail, and

he immediately went to the same small loan company to borrow

money to pay a lawyer. He asked the manager if she had seen

Brenda Palmer, and the manager did not reply. He then asked the

manager if she knew where Brenda Palmer was living, and again

the manager did not reply. Appellant told the manager twice that

she did not have to tell him where Brenda Palmer was, because “I

will find her. And, when I do, I’ll kill that b**ch.” Appellant’s

demeanor was “cold” and “hard,” and he looked different than the

manager had ever seen him before.

Appellant also was angry with Brenda Smith. Appellant and

Brenda Smith had been in a relationship for 12 to 14 years before

Appellant married Brenda Palmer, and Appellant and Brenda

Smith had three children together. When Brenda Palmer moved out

and filed for divorce, Brenda Smith moved back in with Appellant.

On September 7, 1995, Appellant told Emma Ruth Brown that he

4 was going to “kill all the Brendas,” that he was going to do it

“execution style,” and that she would “see it on TV.”

On the afternoon of Sunday, September 10, 1995, Brenda

Smith’s niece, Letrichia Smith, overheard Appellant ask his

nephew, Frederico Palmer, and his son, Wilbur Palmer, where his

gun was. Appellant said that he was “going to kill . . . the two

Brendas.” Appellant then went and spoke with Brenda Smith, who

seemed afraid afterward. Not long after that, Appellant got into his

car and chased Brenda Smith, who was a passenger in her sister’s

car, and Appellant ran into the back of the car. Brenda Smith fled

her sister’s car on foot, and Appellant angrily approached her sister

and told her that she “didn’t know who the f**k [she] was messing

with.”

That night, Appellant met up with Frederico at a club in Gough

called Soul City and asked Frederico to ride with him to Augusta.

Frederico agreed and got into Appellant’s blue Chevy Caprice, but

Appellant drove toward Vidette instead of Augusta. Appellant asked

5 Frederico, “Do you think I should kill Brenda and Christine?”

Frederico did not answer.

When they got to Vidette, Appellant parked his car on the side

of the road near the Vidette Country Store, which was close to

Brenda Palmer’s house. Appellant put on gloves, pulled out his .22-

caliber rifle, and exited the car. At Appellant’s direction, Frederico

parked the car near some dumpsters and caught up to Appellant on

foot outside Brenda Palmer’s house. At Appellant’s request,

Frederico disconnected the telephone line on the side of the house,

making the telephone inside the house inoperable.

Appellant then went to the front door, knocked twice, and when

there was no answer, he kicked in the door and turned on the light.

Christine, whose nickname was “Bootie,” was sleeping on a bed in

the living room, and Appellant called out, “Bootie, I told y’all I was

coming back.” Appellant shot Christine once in the face with the

rifle, killing her. Appellant then went into the back room, where the

telephone receiver was off the hook and Brenda Palmer was holding

Willshala. Appellant directed Frederico to take the baby, and

6 Frederico complied, knocking Brenda Palmer to the floor. Frederico

took the baby outside, and Appellant shot Brenda Palmer twice in

the head, killing her. Frederico came back inside and, at Appellant’s

direction, put the baby down and checked to see if Brenda Palmer

had a pulse; she did not. Appellant and Frederico turned out the

light and left, leaving Willshala in the house.

Frederico went and got the car and picked up Appellant.

Appellant concocted an alibi, telling Frederico to say that they had

driven straight from Gough to Augusta, where they spent the

evening visiting Belle Walker. Appellant and Frederico drove to

Appellant’s house, where Appellant changed clothes, before driving

on toward Augusta. Along the way, they stopped at Brushy Creek

Bridge, where Appellant got out and threw his rifle and the gloves

and shoes that he was wearing at the time of the murders over the

side of the bridge. Later, they stopped at a gas station for cigarettes

before going to Walker’s apartment, where they knocked on the door,

but no one answered. Appellant and Frederico then drove back to

Gough. That night, Frederico told Kelvin Jenkins what had

7 happened and said that he was scared that Appellant was going to

kill him.

At around 7:00 a.m. on Monday, September 11, 1995, Brenda

Palmer’s sister, Jellen Jenkins, discovered the bodies of her sister

and Christine and took Willshala out of the house. Within an hour

or so, GBI Special Agent David Leonard began processing the crime

scene. He noticed a small amount of a milky white liquid between

Christine’s legs, but by the time he went to collect it, the substance

had dissipated. Agent Leonard wiped the skin in the area with two

sterile gauze pads, one dry and one moistened with a saline solution,

in an attempt to collect any remnants of the liquid for testing for the

presence of seminal fluid. The gauze pads later tested negative for

seminal fluid.

At noon on the day the bodies were discovered, the lead GBI

investigator, Special Agent Anthony Williamson, interviewed

Appellant at the Burke County Sheriff’s Office. Appellant said that

the night before, he met up with Frederico a little after 9:00 p.m.

According to Appellant, Frederico then rode with him to Augusta in

8 Appellant’s blue Chevy Caprice to see a woman, who was not home,

so they drove back to Gough, arriving around 12:55 a.m. At 3:30 p.m.

on September 11, 1995, Agent Williamson interviewed Frederico,

who related essentially the same story as Appellant about riding to

Augusta the prior evening.

On September 13, 1995, Agent Williamson interviewed

Frederico again. Frederico confessed his involvement with

Appellant in the murders and then led law enforcement officers to

Brushy Creek Bridge, where they recovered a rifle from the creek

below. Two days later, Frederico told Agent Williamson that

Appellant threw the gloves and shoes that he was wearing at the

time of the murders over the side of the bridge along with the rifle,

and the gloves and shoes were then recovered. The shoes from the

creek matched Appellant’s shoe size.

Ballistics testing showed that two shell casings found at the

crime scene were fired from the rifle recovered from the creek and

that the bullet removed from Christine’s skull during an autopsy,

half of which was missing, “was probably fired from that gun.” The

9 same rifle had been temporarily confiscated from Appellant during

a traffic stop in 1992.

Randy Waltower, a paid confidential informant for the GBI in

drug operations, identified Appellant’s car as having been in the

area near Brenda Palmer’s house on the night of the murders.

Appellant’s car was easily recognizable, because it was missing part

of its front grille. Thomas Parrish was with Waltower and also saw

Appellant’s car. Pamela Parker, who worked at the Vidette Country

Store, confirmed that Waltower and Parrish were in the area that

night. Frederico saw Waltower as well. The GBI later paid Waltower

$500 for the information he provided about Appellant and for his

assistance in two other matters.

On September 19, 1995, GBI Special Agent Robert Ingram,

Agent Williamson’s supervisor, interviewed Appellant, who denied

any involvement in the murders. Near the end of the interview,

Agent Ingram asked Appellant if he had “spoken to the Lord about

what he had done,” and Appellant said that he had. Agent Ingram

asked Appellant, “[D]id you tell the Lord the truth when you talked

10 to him?” Appellant said that he did. Agent Ingram then asked if that

was different from what Appellant had told the investigators,

including Agent Ingram, and Appellant said, “Yeah, it was

different.” At that point, Appellant said that he wanted to go back

to his jail cell, and Agent Ingram ended the interview.

The following month, on October 26, 1995, Frederico pled

guilty to two counts of felony murder and was sentenced to serve two

consecutive terms of life in prison. In exchange for his plea,

Frederico agreed to cooperate fully and testify truthfully against

Appellant.

2. Appellant contends that the trial court erred in rejecting his

claim that the State violated his Sixth Amendment right to a speedy

trial. We disagree.

The Sixth Amendment to the United States Constitution

provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right to a speedy . . . trial.” Sixth Amendment speedy trial claims

are analyzed under the two-part framework set out in Barker v.

Wingo, 407 U.S. 514 (92 SCt 2182, 33 LE2d 101) (1972), and Doggett

11 v. United States, 505 U.S. 647 (112 SCt 2686, 120 LE2d 520) (1992).

First, the trial court must determine whether the delay at issue was

sufficiently long to be considered presumptively prejudicial. See

Barker, 407 U.S. at 530-531; Doggett, 505 U.S. at 651-652 & n.1. If

not, the claim fails at the threshold. See Ruffin v. State, 284 Ga. 52,

55 (663 SE2d 189) (2008) (citing Barker, 407 U.S. at 530; Doggett,

505 U.S. at 652 n.1). But if the delay has passed the point of

presumptive prejudice, the trial court must proceed to the second

step of the Barker-Doggett analysis. See id.

The second step of the Barker-Doggett analysis requires the

application of a context-sensitive balancing test to determine

whether the defendant has been deprived of his right to a speedy

trial. See Ruffin, 284 Ga. at 55. The four factors that form the core

of this balancing test are: (1) the length of the delay; (2) the reason

for the delay; (3) the defendant’s assertion of the right; and (4)

prejudice to the defendant from the delay. See Barker, 407 U.S. at

530; Ruffin, 284 Ga. at 56. See also Doggett, 505 U.S. at 651

(describing the four core factors as “whether [the] delay before trial

12 was uncommonly long, whether the government or the criminal

defendant is more to blame for that delay, whether, in due course,

the defendant asserted his right to a speedy trial, and whether [the

defendant] suffered prejudice as the delay’s result”).

Application of the Barker-Doggett balancing test to particular

cases is committed to the sound discretion of the trial courts. See

Heard v. State, 295 Ga. 559, 563 (761 SE2d 314) (2014). Thus, on

appeal from a ruling on a speedy trial claim, we accept the trial

court’s factual findings unless they are clearly erroneous, and we

review the trial court’s evaluation of each factor and its “balancing

of [the] factors — its ultimate judgment” — “only for abuse of

discretion.” Williams v. State, 314 Ga. 671, 678 (878 SE2d 553)

(2022).

(a) Length of the Delay and Presumptive Prejudice.

(i) The Sixth Amendment speedy trial right “does not attach

until . . . a defendant is arrested or formally accused.” Betterman v.

Montana, 578 U.S. 437, 441 (136 SCt 1609, 194 LE2d 723) (2016)

(citing United States v. Marion, 404 U.S. 307, 320-321 (92 SCt 455,

13 30 LE2d 468) (1971)). Thus, the length of the delay ordinarily is

measured from the earlier of the date of the defendant’s arrest or

indictment (or other formal accusation) to the date that his trial

started. See Ruffin, 284 Ga. at 55. See also 5 Wayne R. LaFave et

al., Criminal Procedure § 18.2 (b) (4th ed. Dec. 2023 update) (“In the

usual case, [determining the length of the delay] is simply a matter

of calculating the time which has elapsed from when the Sixth

Amendment right attached until trial (or, until the pretrial motion

to dismiss on this ground is determined).” (footnotes omitted)).

However, the Sixth Amendment speedy trial right “detaches upon

conviction.” Betterman, 578 U.S. at 441. See also id. at 442 (“As a

measure protecting the presumptively innocent, the speedy trial

right . . . loses force upon conviction.”). Like delay prior to arrest or

indictment, the “adverse consequences of postconviction delay,

though subject to other checks [such as due process], are . . . outside

the purview of the Speedy Trial Clause.” Id. at 444 (cleaned up). See

also id. at 448-449 (“The Sixth Amendment speedy trial right . . .

does not extend beyond conviction, which terminates the

14 presumption of innocence.”). Cf. Chatman v. Mancill, 280 Ga. 253,

256 (626 SE2d 102) (2006) (“Substantial delays experienced during

the criminal appellate process implicate due process rights.”

(cleaned up)).

The United States Supreme Court has expressly reserved

decision on whether the Sixth Amendment speedy trial right

“reattaches upon renewed prosecution following a defendant’s

successful appeal, when he again enjoys the presumption of

innocence.” Betterman, 578 U.S. at 441 n.2. We have never directly

addressed whether the speedy trial right reattaches after a

conviction is set aside by the grant of a new trial or reversal on

appeal, but we have assumed without deciding that it does reattach.

See generally Jakupovic v. State, 287 Ga. 205 (695 SE2d 247) (2010)

(new trial); State v. Carr, 278 Ga. 124 (598 SE2d 468) (2004)

(reversal on appeal). When a speedy trial claim is raised following a

retrial, the length of the delay is measured from the date of the order

granting a new trial or the return of the case from the appellate

court to the date that the retrial started. See Jakupovic, 287 Ga. at

15 206 (new trial); Carr, 278 Ga. at 126 (reversal on appeal). See also 5

Wayne R. LaFave et al., Criminal Procedure § 18.1 (c) (4th ed. Dec.

2023 update) (stating that “[i]f, following conviction, defendant’s

motion for a new trial is granted, the length of delay in retrying the

defendant is measured from the date that the trial court ruled on

defendant’s motion,” and that “[u]pon appellate reversal of a

conviction, the speedy trial clock regarding retrial generally starts

as of the time of remand” (internal quotation marks omitted)); 23

CJS Criminal Procedure and Rights of Accused § 798 (Nov. 2023

update) (“The time for speedily bringing a defendant to trial,

pursuant to an order granting a new trial, begins to run anew after

the order is entered.”).

(ii) At Appellant’s third trial in 2007, he was found guilty of two

counts of malice murder and other crimes and sentenced to death.

He filed a motion for new trial, which he amended in 2014, 2015,

and 2016. In November 2019, the trial court denied the motion, and

he appealed to this Court. On August 7, 2020, the parties filed in

this Court a Joint Motion to Vacate the Denial of Motion for New

16 Trial and Remand to Enter Consent Judgment Granting a New

Trial. On August 24, 2020, this Court granted the motion, vacated

the trial court’s order denying Appellant’s motion for new trial, and

remanded the case to the trial court for further proceedings. On

December 14, 2020, the remittitur from this Court was filed in the

trial court. On July 7, 2021, the trial court entered a Consent Order

Granting Defendant’s Motion for New Trial.

The trial court measured the length of the delay from the filing

of the remittitur on December 14, 2020, to the start of Appellant’s

fourth trial on February 2, 2023, a period of approximately two years

and two months, and ruled that this delay was presumptively

prejudicial. However, this Court did not set aside Appellant’s

convictions on appeal following his third trial. Instead, we granted

the parties’ joint motion, vacated the trial court’s order denying

Appellant’s motion for new trial, and remanded the case to the trial

court for further proceedings. On July 7, 2021, the trial court entered

the parties’ consent order granting Appellant a new trial. Only then

did Appellant again enjoy the presumption of innocence. Moreover,

17 until his convictions were set aside by the grant of a new trial,

double jeopardy barred him from being retried. See Currier v.

Virginia, 585 U.S. 493, 501 (138 SCt 2144, 201 LE2d 650) (2018)

(“As a general rule, the Double Jeopardy Clause protects against a

second prosecution for the same offense after conviction as well as

against a second prosecution for the same offense after acquittal.”

(cleaned up)). The Speedy Trial Clause of the Sixth Amendment did

not require the State to attempt to retry Appellant at a time when

the Double Jeopardy Clause of the Fifth Amendment barred his

retrial. The trial court therefore should have measured the length of

the delay from the entry of the order granting him a new trial on

July 7, 2021, to the start of his fourth trial on February 2, 2023, a

period of approximately one year and seven months.

“One year generally marks the point at which expected

deliberateness in the prosecution of a criminal matter turns into

presumptively prejudicial delay.” Ruffin, 284 Ga. at 55 (cleaned up).

Thus, the trial court did not err in ruling that the delay at issue was

sufficiently long to be considered presumptively prejudicial. And

18 because the trial court’s legal error in measuring the length of the

delay favored Appellant, the error does not undermine the

reasonableness of the trial court’s ultimate judgment denying his

speedy trial claim.

(iii) Appellant agrees that the trial court erred in measuring

the length of the delay but claims that the error was in the opposite

direction. Appellant argues that the trial court should have

measured the length of the delay from his arrest on July 31, 1995,

to the start of his fourth trial on February 2, 2023, a period of more

than 27 years. He notes that his first trial in April 1997 ended in a

mistrial when it was discovered that the State had failed to disclose

a statement by Frederico that contradicted his trial testimony and

that his convictions from his second trial in October and November

1997 were vacated on habeas due to the State’s failure to disclose

the GBI’s $500 payment to Waltower. See Brady v. Maryland, 373

U.S. 83, 87 (83 SCt 1194, 10 LE2d 215) (1963) (holding that due

process requires the prosecution to disclose to the defense material,

exculpatory evidence that is within its possession or control).

19 Appellant also asserts that there was reversible error in his third

trial in August 2007 due to the State’s failure to disclose that an

expert witness who had previously testified that Appellant was not

intellectually disabled had since revised his opinion and concluded

that Appellant was, in fact, mildly intellectually disabled. Appellant

contends that because his first three trials were tainted by

prosecutorial misconduct in the form of Brady violations, the length

of the delay for purposes of his speedy trial claim should include the

entire period from his arrest in 1995 to the start of his fourth trial

in 2023.

Appellant’s argument appears to conflict with precedent from

the United States Supreme Court and this Court. See Betterman,

578 U.S. at 439 (“We hold that the [Sixth Amendment speedy trial]

guarantee protects the accused from arrest or indictment through

trial, but does not apply once a defendant has been found guilty at

trial or has pleaded guilty to criminal charges.”); Jenkins v. State,

294 Ga. 506, 510 (755 SE2d 138) (2014) (rejecting argument that

because of Brady violations at the defendant’s first trial, the length

20 of the delay should be measured from the date of the defendant’s

arrest instead of the date of the remittitur from this Court following

affirmance of the habeas court’s judgment setting aside the

defendant’s convictions); Carr, 278 Ga. at 126 (measuring the length

of the delay “from the return of this case to the trial court after this

Court’s 1997 reversal of [the defendant’s] convictions” where this

Court had concluded in the defendant’s direct appeal that the record

supported several of his allegations of prosecutorial misconduct, see

Carr v. State, 267 Ga. 701, 711-712 (482 SE2d 314) (1997), overruled

on other grounds by Clark v. State, 271 Ga. 6, 10 (515 SE2d 155)

(1999)). See also Betterman, 578 U.S. at 444 (“Adverse consequences

of postconviction delay, though subject to other checks, are . . .

outside the purview of the Speedy Trial Clause.” (citation omitted)).

However, we need not decide here whether a series of Brady

violations resulting in retrials ever justifies consideration of periods

of time prior to the grant of a new trial or the setting aside of a

defendant’s convictions on appeal in evaluating a speedy trial claim.

See Pelletier v. Warden, 627 A2d 1363, 1372 (Conn. App. Ct. 1993)

21 (suggesting, before Betterman, that where the prosecutorial

misconduct that resulted in the reversal of the defendant’s

convictions was “motivated by a desire to cause additional delay or

otherwise impair the [defendant’s] speedy trial rights,” the time

prior to the reversal may be included in the length of the delay).

As explained above, after Appellant’s third trial, where the jury

found him guilty of two counts of malice murder and other crimes

and he was again sentenced to death, he appealed to this Court.

While his appeal was pending, the parties filed in this Court a Joint

Motion to Vacate the Denial of Motion for New Trial and Remand to

Enter Consent Judgment Granting a New Trial, which we granted.

The remittitur from this Court was filed in the trial court, and on

July 7, 2021, the trial court entered a consent order granting

Appellant a new trial. Thus, rather than running the risk that at the

end of his appeal, this Court might reject his claims and affirm his

convictions and death sentence, Appellant decided to enter into an

agreement with the State in which the State agreed to the grant of

a new trial and not to seek the death penalty at Appellant’s fourth

22 trial, and Appellant agreed to be retried and to be eligible for a

sentence of life in prison without the possibility of parole. The

parties explicitly agreed to further proceedings “to entail a jury trial

as to the question of criminal responsibility and a sentencing

determination to be made by the trial court.” The proposed consent

order attached to the parties’ joint motion, which was later entered

by the trial court, explained in the first sentence that the order was

“[b]ased upon agreement and consent of the parties that reversible

error in the trial proceedings of this matter warrant a new trial”

(emphasis added); specifically referred to “trial proceedings to

follow” and a “re-trial”; and referenced a “new trial” three times.

Under these unique circumstances, we conclude that Appellant has

waived any argument that periods prior to the entry of the consent

order should be included in the length of the delay in evaluating his

speedy trial claim raised in connection with his fourth trial,

regardless of the violations of his Brady rights in his previous trials.

See Currier, 585 U.S. at 501-502 (“Retrial is generally allowed when

23 the defendant consents to a disposition that contemplates

reprosecution.” (cleaned up)).

(b) Barker-Doggett Balancing Test.

(i) Length of the Delay Beyond the Point of Presumptive

Prejudice. Appellant argues that the trial court erred in weighing

the length-of-the-delay factor “only slightly against the State.” In

applying the Barker-Doggett balancing test, the trial court was

required to consider, as one factor among several, “the extent to

which the delay stretche[d] beyond the bare minimum needed to

trigger judicial examination of [Appellant’s Sixth Amendment

speedy trial] claim.” Doggett, 505 U.S. at 652. As explained above,

the trial court should have measured the length of the delay from

the entry of the order granting him a new trial on July 7, 2021, to

the start of his fourth trial on February 2, 2023, a period of

approximately one year and seven months.

The trial court made no express finding regarding the extent to

which this one-year-and-seven-month delay stretched beyond the

point of presumptive prejudice. However,

24 a delay approaching one year is sufficient in most cases to raise a presumption of prejudice and to warrant a more searching inquiry, keeping in mind that the delay that can be tolerated in a particular case depends to some extent on the complexity and seriousness of the charges.

Heard, 295 Ga. at 564-565 (cleaned up). Thus, at most, the length of

the delay extended beyond the point of presumptive prejudice by a

span of only seven months. We see no abuse of discretion in the trial

court’s decision to weigh the length-of-the-delay factor only slightly

against the State in the balancing test. See Doggett, 505 U.S. at 655-

656 (“While . . . presumptive prejudice cannot alone carry a Sixth

Amendment [speedy trial] claim without regard to the other Barker

criteria, it is part of the mix of relevant facts, and its importance

increases with the length of delay.” (citation omitted)); United States

v. Otero, No. 23-1266, 2023 WL 8947133, at *1 (8th Cir. Dec. 28,

2023) (weighing a delay of approximately one year and six months

“only slightly” in the defendant’s favor after noting that the delay,

while presumptively prejudicial, “did not stretch far beyond” the

point of presumptive prejudice).

25 (ii) Reason for the Delay. The trial court weighed the reason-

for-the-delay factor in the State’s favor. Appellant contends that the

trial court erred in doing so, but most of his arguments relate to

periods that preceded the delay at issue. With respect to the relevant

delay — the approximately one year and seven months from the

entry of the order granting him a new trial on July 7, 2021, to the

start of his fourth trial on February 2, 2023 — he does not allege,

and the record does not suggest, any “deliberate delay to hamper the

defense,” which would be weighed heavily against the State.

Vermont v. Brillon, 556 U.S. 81, 90 (129 SCt 1283, 173 LE2d 231)

(2009) (cleaned up). To the contrary, the trial court expressly found

that the prosecutors worked diligently to bring the case to trial

during the relevant period, and the record fully supports that

finding. Instead, Appellant argues merely that the trial court abused

its discretion in failing to weigh the reason-for-the-delay factor

“marginally” against the State. We see no abuse of discretion.

The trial court pointed to two reasons for the delay from July

7, 2021, to February 2, 2023: (1) the filing of “numerous Defense

26 motions” by Appellant; and (2) the recusal of two judges to whom the

case was assigned.2 The trial court found the periods of judicial

reassignment to be “neutral,” essentially concluding that neither

Appellant nor the State was more to blame for them. The trial court

then found that, on balance, the delay was beyond the State’s control

and exercised its discretion to weigh the reason-for-the-delay factor

in the State’s favor.

The record supports the trial court’s finding that, as between

Appellant and the State, Appellant was more to blame for the

relevant delay. Appellant does not contend that the trial court erred

in weighing the periods of judicial reassignment neutrally. As for the

“numerous Defense motions,” Appellant filed more than three dozen

pretrial motions between July 7, 2021, and February 2, 2023, which

took multiple hearings and months to resolve. See Brillon, 556 U.S.

at 90 (“Delay caused by the defense weighs against the defendant

2 The first of the two judges voluntarily recused himself in response to a

motion to recuse filed by Appellant. The second judge explained that she recused herself in order to avoid any appearance of impropriety after Appellant subpoenaed the chief judge of her judicial circuit to testify at a hearing. 27 . . . .” (cleaned up)); Doggett, 505 U.S. at 656 (explaining that

“pretrial delay is often both inevitable and wholly justifiable,” that

“the government may need time to,” among other things, “oppose

[the defendant’s] pretrial motions,” and that “we attach great weight

to such considerations” (cleaned up)). See also Jenkins, 294 Ga. at

512 (“While defense counsel felt the responsibility to file and pursue

the motions and pleas, it did not alter the fact that the case would

have been brought to trial but for the need to hear and rule on them.”

(cleaned up)). In light of the numerous pretrial motions filed by

Appellant, as well as the trial court’s express finding of prosecutorial

diligence in bringing the case to trial following the grant of a new

trial, we hold that the trial court did not abuse its discretion in

weighing the reason-for-the-delay factor in the State’s favor (and

thus against Appellant).

(iii) Assertion of the Right. Appellant filed a Demand for Speedy

Trial on July 15, 2021, eight days after the entry of the order

granting him a new trial. The trial court found that since that time,

Appellant “consistently asserted his right to a speedy trial.” The

28 trial court therefore exercised its discretion to weigh the assertion-

of-the-right factor in Appellant’s favor (and thus against the State).

Appellant does not argue that the trial court abused its discretion in

weighing this factor in his favor, and we see no abuse of discretion.

(iv) Prejudice to the Defendant from the Delay. In the speedy

trial context, the United States Supreme Court has identified three

types of prejudice that are relevant: (1) oppressive pretrial

incarceration; (2) anxiety and concern resulting from public

accusation; and (3) impairment of the accused’s ability to defend

against the charges due to dimming memories and loss of

exculpatory evidence. See Betterman, 578 U.S. at 442; Doggett, 505

U.S. at 654. The trial court found that Appellant failed to show that

he suffered any such prejudice in the approximately one year and

seven months from the entry of the order granting him a new trial

on July 7, 2021, to the start of his fourth trial on February 2, 2023,

and therefore exercised its discretion to weigh the prejudice-to-the-

defendant factor against Appellant.

29 Appellant contends that the trial court erred in finding that he

failed to show prejudice, but again, most of his arguments relate to

periods of time that preceded the relevant delay. For example, he

points to his years on death row living under the threat of execution

in an attempt to show that he suffered oppressive pretrial

incarceration, circumstances that no longer existed after he was

granted a new trial on July 7, 2021. And as evidence of his anxiety

and concern resulting from public accusation, he points to his pro se

filings during periods of time that preceded the grant of a new trial.

Appellant’s claims of impairment to his defense likewise relate

primarily to periods of time before July 7, 2021. For example, he

argues that the delay deprived him of the opportunity to elicit

testimony from his niece, Theresa Wilson, about statements that

Brenda Smith allegedly made in 1995, because Wilson had died by

the time of his fourth trial. But Wilson died on August 10, 2020,

approximately 11 months before the grant of a new trial on July 7,

2021, so any prejudice to the defense from her unavailability cannot

properly be attributed to the relevant delay. See Higgenbottom v.

30 State, 290 Ga. 198, 203 (719 SE2d 482) (2011) (holding that the

death of a witness did not constitute prejudice to the defendant

where the witness died “prior to the attachment of his constitutional

rights to a speedy trial”).

Appellant also points to memory loss by a number of witnesses

due to the passage of time between the murders in 1995 and his

fourth trial in 2023. However, the trial court found that Appellant

failed to show prejudice from the dimming of memories, because the

witnesses had testified under oath and been subject to cross-

examination at Appellant’s first three trials, and the transcripts

from the prior trials had crystallized their memories and provided a

source of testimony from witnesses who were no longer available.

The trial court did not abuse its discretion in finding that Appellant

failed to show prejudice in this regard. See Jakupovic, 287 Ga. at

207-208 (holding, in the context of a retrial, that the trial court did

not abuse its discretion in finding that the defendant failed to show

prejudice from the unavailability of two witnesses where transcripts

of their testimony from his first trial were available).

31 Appellant argues as well that his defense was impaired by the

inability of Pam Wilson and Alvin Brown to remember certain

events from 1995 by the time of his fourth trial in 2023. At a hearing

on April 22, 2022, Wilson denied having told Agent Williamson in

1995 that she saw Brenda Smith and her sister take something out

of Appellant’s car on the day of the murders. But the jury at

Appellant’s fourth trial was aware of Wilson’s alleged statement,

because Appellant asked Agent Williamson about it on cross-

examination. Thus, Appellant has not shown prejudice to his

defense from Wilson’s lack of memory.

As for Brown, according to a Burke County Sheriff’s Office

incident report dated July 18, 1995, Frederico beat Alvin Brown

with a board at a club in Gough, leaving Brown with cuts and

scrapes around his right shoulder. At a hearing on November 17,

2022, Brown testified that he had no recollection of the incident,

although he did not deny that it happened. Appellant argues that

his defense was impaired, because Brown’s memory loss left him

unable to establish acts of violence by Frederico in the same year as

32 the murders. But the jury at Appellant’s fourth trial knew that

Frederico had pled guilty to two counts of felony murder in

connection with the deaths of Brenda Palmer and Christine.

Appellant therefore failed to show prejudice from Brown’s lack of

memory.

Finally, Appellant argues that at some point after his third

trial in 2007, the State lost or destroyed potential biological evidence

from the crime scene, which impaired his defense at his fourth trial.

Specifically, he claims that his defense was impaired by his inability

to perform independent testing on the two gauze pads that Agent

Leonard used to wipe the skin between Christine’s legs where a

milky white liquid had pooled and then dissipated. However, the

trial court expressly found that the gauze pads were not exculpatory,

because the GBI performed serological testing on them in 1995, and

the results were negative for the presence of semen. The trial court

also noted that Appellant did not seek to independently test the

gauze pads during his first three trials, when they were still

available for testing. Appellant has not shown that the trial court’s

33 finding that the potential biological evidence lacked exculpatory

value is clearly erroneous.

In sum, the record supports the trial court’s finding that

Appellant failed to show that he suffered any relevant prejudice

from this delay at issue. The trial court therefore did not abuse its

discretion in weighing this factor against Appellant.

(v) Conclusion. The trial court weighed the assertion-of-the-

right factor against the State and the length-of-the-delay factor

slightly against the State but weighed the reason-for-the-delay

factor and the prejudice-to-the-defendant factor against Appellant.

The trial court did not abuse its discretion in the weights it assigned

to these factors or in concluding, on balance, that the scales tipped

against Appellant. Accordingly, the trial court did not err in

rejecting Appellant’s speedy trial claim.

3. Appellant claims that the trial court erred in denying his

motion to dismiss the indictment on the ground that his due process

rights were violated by the State’s loss or destruction of the potential

biological evidence discussed above. Alternatively, he claims that

34 the trial court erred in denying his request to instruct the jury that

it could draw an adverse inference against the State from the loss or

destruction of the evidence. Both claims fail.

“When the State suppresses or fails to disclose material

exculpatory evidence, the good or bad faith of the prosecution is

irrelevant: a due process violation occurs whenever such evidence is

withheld.” Illinois v. Fisher, 540 U.S. 544, 547 (124 SCt 1200, 157

LE2d 1060) (2004) (cleaned up). However, due process “‘requires a

different result when we deal with the failure of the State to

preserve evidentiary material of which no more can be said than

that it could have been subjected to tests, the results of which might

have exonerated the defendant.’” Id. (quoting Arizona v.

Youngblood, 488 U.S. 51, 57 (109 SCt 333, 102 LE2d 281) (1988)).

The State’s “failure to preserve potentially useful evidence does not

constitute a denial of due process of law” unless the defendant can

show “bad faith” on the part of the State in the failure to preserve

the evidence. Youngblood, 488 U.S. at 58. The applicability of the

bad-faith requirement does not depend on “the centrality of the

35 contested evidence to the prosecution’s case or the defendant’s

defense.” Fisher, 540 U.S. at 549.

The trial court determined that the potential biological

evidence in this case had no apparent exculpatory value at the time

that it was lost or destroyed. To the contrary, serological testing of

the gauze pads was negative for the presence of semen. At best, the

gauze pads were “potentially useful evidence” for the defense.

Youngblood, 488 U.S. at 58. See also Fisher, 540 U.S. at 547-549

(distinguishing “material exculpatory evidence” from mere

“potentially useful evidence” (cleaned up)). The trial court found that

“nothing in the record indicates that the State acted in bad faith in

failing to preserve” the potential biological evidence, and our review

of the record confirms the trial court’s finding in this regard. Thus,

Appellant’s due process rights were not violated, and the trial court

did not err in denying his motion to dismiss the indictment based on

an alleged due process violation.

Appellant also claims that the trial court erred in denying his

oral request to instruct the jury that it could infer from the fact that

36 the State lost or destroyed the potential biological evidence that the

results of laboratory analysis would have been favorable to the

defense. However, there is no legal basis in Georgia law for giving a

spoliation, or adverse inference, jury instruction in a criminal case.

To the contrary, we have held that it is inappropriate to give a

spoliation instruction in a criminal case, see Howard v. State, 307

Ga. 12, 18-19 & n.9 (834 SE2d 11) (2019), disapproved on other

grounds by Johnson v. State, 315 Ga. 876, 889 n.11 (885 SE2d 725)

(2023), even when the instruction is requested by the defendant, see

Radford v. State, 251 Ga. 50, 53 (302 SE2d 555) (1983). Accordingly,

the trial court did not err in refusing to give Appellant’s requested

jury instruction.3

4. Appellant asserts that the trial court violated his

constitutional right to present a defense by excluding evidence of

3 Howard and Radford relied on former OCGA § 24-4-22. However, that

provision was carried forward substantially unchanged into Georgia’s current Evidence Code as OCGA § 24-14-22, and it has no counterpart in the Federal Rules of Evidence. Accordingly, “our case law interpreting that former provision applies.” State v. Almanza, 304 Ga. 553, 557 (820 SE2d 1) (2018). 37 “historical bias against him on the part of local law enforcement and

prosecutors.” This claim fails.

Appellant’s claim is based on the trial court’s pretrial rulings

precluding him from introducing three categories of evidence:

(1) evidence that the State violated his Brady rights at his first three

trials by failing to disclose evidence favorable to the defense;

(2) evidence that he filed a federal civil rights complaint against a

deputy in the Burke County Sheriff’s Office in 1978; and (3) evidence

that the accusations against him in 1995 were used in a successful

campaign to keep a superior court judge who was appointed shortly

before the murders from being elected to a full term the following

year.4 Appellant does not contend that the trial court abused its

discretion in excluding this evidence under the Georgia Evidence

Code. See OCGA §§ 24-4-402 (relevant evidence generally is

admissible; irrelevant evidence is inadmissible); 24-4-403 (relevant

4 Appellant also refers in passing to the trial court’s denial of his request

to instruct the jury that it could draw an adverse inference against the State from the loss or destruction of the potential biological evidence. Appellant’s jury instruction request is discussed in Division 3 above. 38 evidence may be excluded if its probative value is substantially

outweighed by, among other things, the danger of unfair prejudice,

confusion of the issues, or misleading the jury or considerations of

undue delay or waste of time). Instead, he contends that the

exclusion of the evidence pursuant to the Georgia Evidence Code

violated his federal constitutional right to present a defense, citing

State v. Burns, 306 Ga. 117, 121 (829 SE2d 367) (2019) (“The Due

Process Clause in the Fourteenth Amendment . . . guarantees

criminal defendants a meaningful opportunity to present a complete

defense.” (cleaned up)).

The United States Constitution guarantees criminal

defendants the “right to present a defense.” United States v.

Scheffer, 523 U.S. 303, 315 (118 SCt 1261, 140 LE2d 413) (1998)

(cleaned up). However, “state and federal rulemakers have broad

latitude under the Constitution to establish rules excluding evidence

from criminal trials.” Nevada v. Jackson, 569 U.S. 505, 509 (133 SCt

1990, 186 LE2d 62) (2013) (cleaned up). The routine application of

well-established rules of evidence like OCGA §§ 24-4-402 and 24-4-

39 403 to exclude irrelevant evidence, or relevant evidence whose

probative value is substantially outweighed by factors such as the

danger of unfair prejudice, confusion of the issues, or the potential

to mislead the jury, does not violate a defendant’s constitutional

right to present a defense. See Holmes v. South Carolina, 547 U.S.

319, 326-327 (126 SCt 1727, 164 LE2d 503) (2006) (noting that such

rules are “familiar and unquestionably constitutional,” and stating

that “the Constitution permits judges to exclude evidence that is

repetitive, only marginally relevant[,] or poses an undue risk of

harassment, prejudice, or confusion of the issues” (cleaned up)). The

constitutional right to present a defense is abridged only “by

evidence rules that infringe upon a weighty interest of the accused

and are arbitrary or disproportionate to the purposes they are

designed to serve.” Id. at 324 (cleaned up). See also id. at 326

(explaining that “the Constitution . . . prohibits the exclusion of

defense evidence under rules that serve no legitimate purpose or

that are disproportionate to the ends that they are asserted to

promote”). “Only rarely” has the United States Supreme Court held

40 that the “right to present a complete defense was violated by the

exclusion of defense evidence under a state rule of evidence.”

Jackson, 569 U.S. at 509.

Appellant does not argue that OCGA §§ 24-4-402 and 24-4-403

are “arbitrary” or “disproportionate to the purposes they are

designed to serve,” and he has made no such showing here.

Moreover, this case bears no resemblance to cases in which the

United States Supreme Court has held that the exclusion of

evidence pursuant to state evidentiary rules violated a defendant’s

constitutional right to present a defense. Cf., e.g., Rock v. Arkansas,

483 U.S. 44, 57-62 (107 SCt 2704, 97 LE2d 37) (1987) (holding that

an evidentiary rule excluding all hypnotically refreshed testimony

violated the defendant’s constitutional right to present a defense

where it prevented the defendant, who was accused of a killing to

which she was the sole eyewitness, from testifying in her own

defense); Chambers v. Mississippi, 410 U.S. 284, 294-302 (93 SCt

1038, 35 LE2d 297) (1973) (holding that the denial of a murder

defendant’s motion to treat as an adverse witness a man who had

41 confessed to the charged murder but later retracted the confession,

combined with the exclusion of the testimony of three witnesses to

whom the man had confessed on hearsay grounds, violated the

defendant’s constitutional right to present a defense); Washington v.

Texas, 388 U.S. 14, 19-23 (87 SCt 1920, 18 LE2d 1019) (1967)

(holding that a murder defendant’s constitutional right to present a

defense was violated when he was prevented from calling as a

witness a man who had been convicted of the same murder based on

two evidentiary statutes preventing persons charged or convicted as

participants in committing the same crime from testifying for one

another). Furthermore, Appellant does not cite, and we have not

found, a case from any court holding that the exclusion of evidence

alleged to show “historical bias” against a defendant “on the part of

local law enforcement and prosecutors” under standard rules of

evidence violates the defendant’s constitutional right to present a

defense.

Evidence relating to the State’s prior Brady violations,

Appellant’s civil rights complaint from the late 1970s, and a 1996

42 judicial election was at best tangential to the issues at Appellant’s

fourth trial. Accordingly, the trial court did not abuse its discretion

in excluding this evidence, much less violate Appellant’s

constitutional right to present a defense.

5. Appellant contends that the trial court erred in prohibiting

him from questioning Agent Williamson about a drug-related

shooting two months after the murders in which a man named

Ricardo Chandler shot and killed Appellant’s teenage son Wilbur.

Wilbur was arguing with a woman who said that since he was selling

drugs in her front yard, he should be sharing the profits with her.

When Chandler intervened in the argument, Wilbur pulled out a

gun and started shooting at him, and Chandler then shot and killed

Wilbur in self-defense. According to Appellant, the prohibited

questioning would have allowed him to show that Wilbur was the

person who committed the murders with Frederico, not Appellant,

and that the investigators unfairly focused on Appellant to the

exclusion of other possible suspects.

43 Certainly a defendant is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried. However, the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature.

Klinect v. State, 269 Ga. 570, 573 (501 SE2d 810) (1998) (citation

omitted). See also OCGA § 24-4-403 (permitting trial courts to

exclude even relevant evidence “if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury”); Holmes, 547 U.S. at

327 & n.*, 330 (citing Klinect and explaining that rules like the one

adopted in Klinect “are widely accepted” and are “designed . . . to

focus the trial on the central issues by excluding evidence that has

only a very weak logical connection to the central issues”); Moss v.

State, 298 Ga. 613, 616-617 & n.4 (783 SE2d 652) (2016) (applying

Klinect’s rule regarding the admissibility of third-party guilt

evidence in a case decided under Georgia’s current Evidence Code

based on OCGA § 24-4-403). Third-party guilt evidence “that merely

44 casts a bare suspicion on another or raises a conjectural inference as

to the commission of the crime by another is not admissible.” Roberts

v. State, 305 Ga. 257, 261 (824 SE2d 326) (2019) (cleaned up). See

also Moss, 298 Ga. at 616 (holding that the trial court did not abuse

its discretion in preventing the defendant from questioning two

witnesses about a prior shooting of the victim to show that there

were other potential suspects in the victim’s murder, because the

court was not required to allow the defendant to introduce evidence

“based purely on rumor, speculation, and conjecture” (cleaned up)).

The testimony that Appellant sought to elicit from Agent

Williamson would not have raised a reasonable inference of

Appellant’s innocence. At most, it would have cast “bare suspicion”

on Wilbur or raised a “conjectural inference” that he was somehow

involved in the murders with Appellant and Frederico. Roberts, 305

Ga. at 261 (cleaned up). It also would not have shown that Agent

Williamson unfairly focused on Appellant to the exclusion of a viable

alternate suspect, as there was no evidence of animus on the part of

Wilbur toward Brenda Palmer or Christine and no evidence that

45 Wilbur had the opportunity to commit the murders, either alone or

with Appellant and Frederico. Nothing linked Wilbur to the

murders. See Roberts, 305 Ga. at 261 (“Even if opportunity could be

inferred, nothing linked this third party to the murder.” (cleaned

up)). To the extent that Appellant was attempting to show Wilbur’s

participation in the murders based solely on the fact that he had

“recently committed a crime of the same or similar nature,” Klinect,

269 Ga. at 573, the testimony that he sought to elicit was

inadmissible character evidence. See OCGA § 24-4-404 (b)

(“Evidence of other crimes, wrongs, or acts shall not be admissible

to prove the character of a person in order to show action in

conformity therewith. . . .”). Accordingly, the trial court did not

abuse its discretion in precluding Appellant from questioning Agent

Williamson about the drug-related shooting with no apparent

connection to this case that resulted in Wilbur’s death two months

after the murders.

6. Finally, Appellant claims that the cumulative effect of the

trial court’s errors deprived him of a fundamentally fair trial. See

46 State v. Lane, 308 Ga. 10, 17-18 (838 SE2d 808) (2020). However, as

explained above, Appellant has not shown any error by the trial

court. Accordingly, cumulative error analysis is inapplicable. See

Wynn v. State, 313 Ga. 827, 840 (874 SE2d 42) (2022) (“Cumulative

error analysis . . . requires an appellant to show that at least two

errors were committed in the course of the trial.” (cleaned up)).

Judgment affirmed. All the Justices concur.

Decided March 5, 2024.

Murder. Burke Superior Court. Before Judge Palmer, Senior

Judge.

Josh D. Moore, Thea A. Delage, for appellant.

Jared T. Williams, District Attorney, Joshua B. Smith, John M.

Kraft, Assistant District Attorneys; Christopher M. Carr, Attorney

General, Beth A. Burton, Deputy Attorney General, Clint C. Malcolm,

Meghan H. Hill, Senior Assistant Attorneys General, Stephany J.

Luttrell, Assistant Attorney General, for appellee.