¶1 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.
¶2In the Supreme Court of Georgia
¶3 Decided: March 21, 2023
¶4 S23A0043. NUNDRA v. THE STATE.
¶5 PETERSON, Presiding Justice.
¶6 Thaddas Nundra was convicted of murder and many other
¶7serious charges related to the shooting death of Herbert Moore.1 On
¶8 1 Three people were charged with the October 26, 2017, murder and robbery of Herbert Moore — Nundra, Ronnie McFadden, and Louis Ousley. McFadden was acquitted of all charges, except conspiracy to commit burglary. Ousley accepted a plea deal in exchange for testimony against Nundra. He pleaded guilty to conspiracy to commit armed robbery and conspiracy to commit burglary in exchange for a 20 year sentence. On August 14, 2018, a Decatur County grand jury indicted Nundra for malice murder (Count 1), aggravated assault (Count 2), felony murder (Counts 3, 6, 8, 10, and 12), possession of a firearm during the commission of a felony (Count 4), conspiracy to commit burglary (Count 5), conspiracy to commit armed robbery (Count 7), criminal attempt to commit burglary (Count 9), criminal attempt to commit armed robbery (Count 11), and possession of a firearm by a convicted felon (Count 13). Nundra was found guilty on February 14, 2019, of Counts 1, 2, 3, 4, 8, 11, and 12, as well as a lesser included offense on Count 5. He was acquitted on counts 6, 7, 9, and 10. The State entered a nolle prosequi on Count 13, charging possession of a firearm by a convicted felon. The trial court pronounced Nundra’s sentence on February 14, 2019, and he filed a motion for new trial on February 26, 2019. Nundra’s premature motion for new trial ripened when the trial court entered its sentence on appeal, he asserts the trial court made four key errors, and he
¶9contends that the cumulative effect of those errors requires reversal.
¶10 We assume without deciding that the trial court made two
¶11errors. First, we assume that the trial court abused its discretion in
¶12admitting evidence of Nundra’s 1997 convictions for armed robbery
¶13and hijacking a motor vehicle. And second, we assume that the trial
¶14court erred in admitting certain evidence of the victim’s good
¶15character. We conclude, however, that these errors were harmless,
¶16both individually and cumulatively.
¶17 And we reject Nundra’s remaining claims. The trial court did
¶18not abuse its discretion in allowing the State to compare Nundra to
¶19February 27, 2019. See Seals v. State, 311 Ga. 739, 739 n.1 (860 SE2d 419) (2021); Southall v. State, 300 Ga. 462, 463-464 (1) (796 SE2d 261) (2017). The trial court sentenced Nundra to life in prison without the possibility of parole for Count 1, a consecutive five-year term of imprisonment for Count 4, and a consecutive two-and-a-half year term of imprisonment for Count 5. The remaining counts merged or were vacated by operation of law. Nundra amended his motion for new trial in December 2020, and the trial court denied it on February 28, 2022 following a hearing. Because he did not receive notice of the ruling, Nundra failed to file a timely notice of appeal. On Nundra’s motion raising the lack of notice, the trial court vacated and reentered the order on April 28, 2022. Nundra timely appealed. The case was docketed to this Court’s term beginning in December 2022 and submitted for consideration on the briefs. 2 serial killers. Lawyers have wide latitude in closing arguments. And
¶20while these comments were certainly inflammatory, they were based
¶21on permissible inferences from evidence in the record. Nor has
¶22Nundra shown that it was plain error to allow the State to introduce
¶23“TrueAllele” DNA evidence without a baseline of how likely a sample
¶24was to match a random person. Nundra did not preserve this
¶25particular issue below, so our review is only for plain error (and not
¶26abuse of discretion). And he fails to show that admitting the
¶27evidence without his preferred explanatory baseline was plain error.
¶28 We therefore affirm Nundra’s convictions.
¶29 1. (a) The Crime 2
¶30 On the night of October 25, 2017, Nundra, Ronnie McFadden,
¶31and Louis Ousley were spending time at Na’Gina Hightower’s
¶32apartment. Hightower was dating McFadden at the time, even
¶33though McFadden was married to someone else. They were there to
¶34 2 “Because this case requires an assessment of the harmful effect of alleged trial court errors, we lay out the evidence in detail and not only in the light most favorable to the verdicts.” Allen v. State, 310 Ga. 411, 412 n.2 (851 SE2d 541) (2020). 3 smoke “molly” with a large group of people. Around 4:00 a.m.,
¶35Nundra, McFadden, and Ousley left.
¶36 The three men walked towards a pawn shop, planning to break
¶37into it. As they tried to figure out a way over the fence around the
¶38pawn shop, Nundra noticed a man in a truck in a parking lot across
¶39the street.
¶40 Watching the driver, Herbert Moore, park his vehicle, Nundra
¶41asked Ousley to hand over the gun he had brought. Nundra told
¶42McFadden and Ousley he was going to rob Moore, and he went and
¶43hid in the bushes behind the truck.
¶44 He then ran up to Moore and demanded he “[g]ive it up.” Moore
¶45attempted to fight back, and Nundra fired eight shots, hitting Moore
¶46twice. Nundra, McFadden, and Ousley fled the scene.
¶47 (b) The Aftermath
¶48 Around 6:00 a.m., Hightower heard the shots ring out from her
¶49nearby apartment. Roughly 20 minutes later, McFadden and Ousley
¶50came running back into her apartment. They were in a near panic;
¶51McFadden collapsed on the floor, struggled for breath, and threw up.
¶52 4 Ousley stood nearby, crying and trying to catch his breath. Some 15
¶53minutes after that, Nundra returned. He was not wearing the hat
¶54that he had worn during the shooting. Nundra asked for a change of
¶55clothing, borrowing a pair of jean shorts from Ousley. He also asked
¶56for bleach and a towel to clean his hands.
¶57 Nundra cleaned himself and cooked breakfast. He talked about
¶58the murder, and warned McFadden and Ousley he would kill them
¶59if they talked to the police. As Nundra prepared to leave Hightower’s
¶60apartment, he said he was going to burn his clothes.
¶61 After dropping Hightower’s son off at school, Nundra and
¶62McFadden went back to McFadden’s home. There, they burned their
¶63clothing, and Nundra changed clothes a second time. McFadden’s
¶64wife saw them burning something, and said that Nundra needed to
¶65leave.
¶66 (c) The Investigation
¶67 When police arrived on the scene of the shooting, they found
¶68six cartridge casings by the back left tire of the truck. There were
¶69 5 bullet holes in the windshield, the door, the seat, the victim’s body,
¶70and the roof of the truck.
¶71 The investigators then canvassed the nearby streets. They
¶72initially learned of two suspects: Nundra and McFadden. They also
¶73learned that Nundra was driving a white Dodge truck. Nundra later
¶74gave police consent to search his truck. There was nothing in the
¶75truck specifically implicating Nundra in the shooting, though he did
¶76appear to have packed the vehicle as though he were leaving town.
¶77 Sometime later, a city employee contacted investigators about
¶78a black puffy jacket discovered in the wooded area of a nearby park.3
¶79They then went to search the park, where they found a gun wrapped
¶80in a stocking hat — partially buried near the place where the black
¶81jacket had been found.
¶82 After that, the police detained McFadden and Ousley, and
¶83arrested Nundra in connection with the murder. Nundra admitted
¶84that he was in the area with McFadden and Ousley, but he claimed
¶85 3 The jacket was sent to the GBI crime lab, but apparently never submitted for testing. 6 that he was at the post office and did not know anything about the
¶86murder.
¶87 Later on, the gun and the stocking hat were sent for forensic
¶88testing. The GBI determined that the bullets and casings collected
¶89at the crime scene all came from the gun. And a DNA specialist
¶90found a match of DNA profiles between Nundra and a sample taken
¶91from the hat.
¶92 (d) The Trial
¶93 Four aspects of the trial are relevant to this appeal.
¶94 i) First, the State introduced, over Nundra’s objection, evidence
¶95of Nundra’s 1997 convictions for armed robbery and hijacking a
¶96motor vehicle. That evidence showed the following. On a Sunday
¶97night in December 1996, a man named Rufus Walker was driving
¶98his car, and he made contact with Nundra. Nundra pulled a gun and
¶99shot him multiple times — including once in the left eye, which
¶100Walker lost. Nundra also beat Walker with the pistol, robbed him,
¶101and stole his car.
¶102 Before this evidence was presented to the jury, the trial court
¶103 7 instructed the jury that there were limited purposes for which the
¶104evidence could be considered under OCGA § 24-4-404 (b) (“Rule
¶105404 (b)”). The court did not adequately specify for which of the Rule
¶106404 (b) purposes the jury could consider the evidence, instead
¶107stating generally that
¶108 in order to prove its case as alleged in the indictment, the State must [show] knowledge, intent, participation — conspiracy, plan, preparation, and it may show motive or opportunity. To do so the State intends to offer evidence of other acts allegedly committed by an accused. You’re permitted to consider that evidence only insofar as it may relate to those issues and not for any other purpose. You may not infer from such evidence that the accused is of a character that would commit such crimes.
¶109The trial court repeated essentially the same admonition in its
¶110final jury instructions. This time, the court added
¶111 [a]gain, such evidence . . . may not be considered by you for any other purpose. The accused is on trial for the offenses charged in the bill of indictment only and not for any other acts[,] even though such acts may incidentally be criminal and may have resulted in conviction. Before you may consider any [such] acts for the limited purposes stated earlier, you must first determine whether it’s more likely than not that the accused committed the other alleged acts. If so, you then must determine whether the acts shed any light on the elements of the offense for which the act has been admitted in the crimes charged in the indictment . . . . Remember to keep in mind the limited use and prohibited 8 use of this evidence about . . . other acts of the accused.
¶112 The State talked about these convictions during closing
¶113arguments: “Mr. Nundra intimidates people based on fear. He likes
¶114to bully people. Likes to pick on people when they’re vulnerable. In
¶115the ’90s when Mr. Rufus Walker is in a vehicle, he goes up to him,
¶116Mr. Walker can’t see him, shoots him in the eye. When Mr. Moore is
¶117trying to get in his work truck, sneaks up behind him from the
¶118bushes with a gun and shoots him. Because he’s a bully.”
¶119 ii) Second, various pieces of evidence came in tending to show
¶120the good character of the victim and evoke sympathy for him, his
¶121widow, and the community. Donald Grubbs, who heard the gunshots
¶122from his home and had his wife call the police, discussed his
¶123relationship with Moore and described him as the “nicest fellow.”
¶124Along the same lines, a police captain who responded to the scene
¶125said that he had known Moore for “20-something years” and was sad
¶126while he gave the victim chest compressions. And, most importantly,
¶127the State elicited more of this sort of evidence from Moore’s widow.
¶128In response to a question about why Moore had not retired, she
¶129 9 testified that Moore had been planning on retiring but wanted to
¶130take care of her, and make sure she was eligible for Medicare before
¶131he stopped working. The State also introduced a picture of the two
¶132of them together (to which Nundra objected under Rule 403). And,
¶133asked about cows shown in that photo, Moore’s widow testified that
¶134she had been forced to sell their cows because she couldn’t take care
¶135of them by herself. The State also referred back to all of this evidence
¶136in closing arguments.
¶137 iii) Third, and again during closing arguments, the State
¶138compared Nundra to serial killers Jeffrey Dahmer, Charles Manson,
¶139and Ted Bundy, calling Nundra a “sociopath.”
¶140 iv) Finally, Nundra objected to the introduction of DNA
¶141evidence analyzed through TrueAllele software. The stocking hat
¶142contained the DNA profiles of at least four individuals, testified
¶143Emily Mathis, a forensic biologist for the GBI, and so the GBI used
¶144TrueAllele to analyze those samples. Explaining the scientific value
¶145of the TrueAllele software, Mathis testified that it “uses very high
¶146level mathematics and algorithms in order to interpret [the] data
¶147 10 and do so without any bias.” In essence, she testified, the software
¶148compares “reference samples from [known] individuals to . . .
¶149evidence samples.” The software then assigns statistical weight to
¶150the likelihood of a match between the reference sample and the
¶151evidence sample. Mathis testified that the results here showed “it
¶152was approximately two billion times more probable that the
¶153evidence matched Thaddas Nundra” than “a random individual in
¶154the population.” Thus, Mathis concluded that Nundra’s DNA was,
¶155indeed, on the hat.
¶156 2. Nundra first argues that the trial court abused its discretion
¶157in admitting evidence of Nundra’s 1997 convictions under Rule
¶158404 (b). We need not decide whether he is correct, because even if
¶159this was error, it was harmless given the strength of the other
¶160evidence against Nundra, the trial court’s instruction that the jury
¶161could not use the evidence to conclude Nundra had a propensity to
¶162commit these sort of crimes, and the fact that the jury was told
¶163Nundra had been charged and pleaded guilty for the crimes.
¶164 A trial court’s evidentiary error “requires reversal of [the
¶165 11 a]ppellant’s convictions unless it can be deemed harmless, meaning
¶166that ‘it is highly probable that the error did not contribute to the
¶167verdict.’” Heard v. State, 309 Ga. 76, 90 (3) (g) (844 SE2d 791) (2020)
¶168(quoting Brown v. State, 303 Ga. 158, 164 (2) (810 SE2d 145) (2018)).
¶169“In determining whether the error was harmless, we review the
¶170record de novo and weigh the evidence as we would expect
¶171reasonable jurors to have done[.]” Jackson v. State, 306 Ga. 69, 80
¶172(2) (c) (829 SE2d 142) (2019) (citation and punctuation omitted).
¶173 Generally, we have found Rule 404 (b) errors harmless “where
¶174the properly admitted evidence . . . was so strong that the prejudicial
¶175effect of the other-acts evidence had no significant influence on the
¶176guilty verdicts.” Heard, 309 Ga. at 91 (3) (g) (collecting cases); see
¶177also Thompson v. State, 302 Ga. 533, 542 (III) (A) (807 SE2d 899)
¶178(2017) (“Where evidentiary error is deemed harmless, it is often true
¶179that the evidence was only ‘marginal’ to the prosecution’s case.”)
¶180(quoting Johnson v. State, 301 Ga. 277, 280 (2) (800 SE2d 545)
¶181(2017)).
¶182 And so it is here. Evidence of previous violent crimes like the
¶183 12 1997 convictions certainly could have a substantial prejudicial
¶184effect. See Strong v. State, 309 Ga. 295, 316 (4) (845 SE2d 653) (2020)
¶185(noting “the severity of the prior acts and their resulting injuries”);
¶186Kirby v. State, 304 Ga. 472, 486 (4) (a) (ii) (819 SE2d 468) (2018)
¶187(other-acts evidence “had some prejudicial force, because it
¶188suggested that Appellant was not only an armed robber, but a serial
¶189armed robber — and indeed a violent criminal who kept committing
¶190dangerous crimes[.]”) But given the other evidence against Nundra,
¶191the fact that the jury was told that Nundra had pleaded guilty to
¶192criminal charges arising from the other acts (meaning it could infer
¶193he had been punished for those crimes), and the trial court’s limiting
¶194instruction, we conclude that it is highly probable that any such
¶195prejudice did not contribute to the jury’s verdict.
¶196 First and foremost, the evidence of Nundra’s guilt was very
¶197strong. Ousley testified that Nundra participated in planning a
¶198burglary, and then used Ousley’s gun to attempt to rob Moore — but
¶199ended up killing him instead. Ousley also testified that a jacket
¶200recovered in a nearby park was the same one Nundra had been
¶201 13 wearing on the morning of the murder. Consistent with Ousley’s
¶202account, substantial physical evidence implicated Nundra, including
¶203the murder weapon, found wrapped in a stocking cap in the same
¶204area of the park as the jacket, and containing Nundra’s DNA. And
¶205Nundra’s behavior after the fact suggested a consciousness of guilt.
¶206Hightower testified that Ousley and McFadden came “running
¶207through the back door” 15 to 20 minutes after she heard the
¶208gunshots, with McFadden crying and throwing up; Nundra arrived
¶209a few minutes after them, at which point, according to Ousley,
¶210Nundra was no longer wearing his hat. The jury could easily have
¶211inferred from this testimony that Nundra had discarded the hat and
¶212jacket he had been wearing — which accounted for why he arrived
¶213at Hightower’s apartment later than McFadden and Ousley. Once
¶214there, he asked Hightower for bleach, he told Ousley he planned to
¶215burn the remaining clothes he had been wearing, and he was later
¶216seen by McFadden’s wife burning something with McFadden behind
¶217their house. Finally, Nundra told McFadden and Ousley he planned
¶218to leave the state, and he threatened to kill them if they talked to
¶219 14 the police. In short, the properly admitted evidence of Nundra’s guilt
¶220was very strong — which significantly reduces the likelihood that
¶221the jury convicted him for his past conduct rather than the conduct
¶222charged in this case. See Jackson, 306 Ga. at 81 (2) (c).
¶223 Second, the evidence also made clear that Nundra had
¶224committed the prior crime a long time ago, and that he had pleaded
¶225guilty. And although it does not appear the jury was ever told what
¶226sentence Nundra received for his crimes, the knowledge of his guilty
¶227plea nonetheless reduces the risk that the jury convicted Nundra to
¶228punish him for his other crimes, because the jury could infer that
¶229Nundra had already been punished for those crimes. 4 Compare
¶230 4 During the pretrial hearing on Nundra’s motion to suppress, the State represented that Nundra had served 20 years in prison following the 1997 convictions and was released in November of 2016. That information was not presented to the jury at trial or included in the court record that was introduced into evidence. But the jury was told that the crimes occurred in 1996, and that Nundra pleaded guilty in 1997, so the prior crimes and the ones charged here were not so close in time that time alone would lead the jury to infer that Nundra received little or no punishment. Cf. Thomas v. State, 314 Ga. 681, 685 (1) (a) n.2 (878 SE2d 493) (2022) (when previous crime was committed only four years and four months before crime at issue, “the jury necessarily knew that [defendant] could not have spent much more than four years in custody for the shooting of [prior victim], a sentence the jury may have viewed as inadequate for such a violent offense”). 15 Strong, 309 Ga. at 316 (4) (viewing the prejudice of admitting prior
¶231crimes especially high because of “the absence of evidence that [the
¶232defendant] was ever punished in any way for [his] many serious
¶233crimes”), and United States v. Beechum, 582 F2d 898, 914 (5th Cir.
¶2341978) (noting that the danger that the jury may convict the
¶235defendant due to an uncharged offense “is particularly great where
¶236. . . the extrinsic activity was not the subject of a conviction; the jury
¶237may feel that the defendant should be punished for that activity
¶238even if he is not guilty of the offense charged”), with Jones v. State,
¶239311 Ga. 455, 465 (3) (b) (ii) (858 SE2d 462) (2021) (weighing
¶240probative value versus prejudice under Rule 404 (b), and concluding
¶241that “the jury learned that [the defendant] had already admitted his
¶242guilt and was convicted and sentenced to eight years in prison for
¶243attacking [the victim], making it less likely that the jury would want
¶244to punish him for the other-acts rather than for the charged crimes”),
¶245and Kirby, 304 Ga. at 485 (4) (a) (i) (noting that “the jury learned
¶246that [the defendant] had already admitted his guilt and been
¶247convicted and served a prison sentence for his 1990 conduct, making
¶248 16 it less likely that the jury would want to punish [him] for this past
¶249conduct rather than the charged crimes”).
¶250 Third, although the trial court’s limiting instructions did not
¶251meaningfully explain for which permissible purpose the evidence
¶252was relevant, they did, at least, tell the jury what it could not do:
¶253“You may not infer from such evidence that the accused is of a
¶254character that would commit such crimes.” And we have held that
¶255this sort of admonition can lower the risk that the jury will convict
¶256for the wrong reasons. See Morrell v. State, 313 Ga. 247, 262 (2) (c)
¶257(869 SE2d 447) (2022); see also Jackson, 306 Ga. at 82 (3) (although
¶258the trial court’s initial limiting instruction about a prior crime was
¶259“obviously incomplete,” “this Court considers the instructions as a
¶260whole” (citation and punctuation omitted)). To be clear: because
¶261these instructions did not sufficiently specify the permissible
¶262purposes for which the evidence could be considered, they do not
¶263have the same mitigating effect that we have found in other cases
¶264where the trial judge specifically instructed the jury on which Rule
¶265404 (b) purposes could be considered. Even so, the trial court’s
¶266 17 admonition that the jury “may not infer from such evidence that the
¶267accused is of a character that would commit such crimes” reduces
¶268the likelihood that the evidence of Nundra’s past crimes influenced
¶269the verdict.
¶270 Thus, because the evidence of Nundra’s guilt was very strong,
¶271because Nundra’s guilty plea allowed the jury to infer that he had
¶272been punished for his prior crimes, and because the trial court
¶273instructed the jury not to consider the evidence as proof of Nundra’s
¶274propensity to commit these sort of crimes, we conclude it was highly
¶275probable that admitting the 1997 convictions did not contribute to
¶276the verdict.
¶277 3. Nundra next argues that the trial court should not have
¶278allowed the State to introduce evidence of the victim’s good
¶279character and talk about it during closing arguments. We assume
¶280without deciding that the evidence should not have been admitted.
¶281But we conclude, because the evidence of Nundra’s guilt was very
¶282strong, that this was harmless.
¶283 (a) “Generally, apart from evidence of a ‘pertinent trait,’
¶284 18 character of the victim is irrelevant because it is just as unlawful to
¶285commit a crime against a person of bad character as it is to commit
¶286a crime against a person of good character.” Agnor’s Georgia
¶287Evidence § 6:10 (November 2022 Update) (citing Walker v. State, 312
¶288Ga. 232, 238 (3) (862 SE2d 285) (2021); Maynor v. State, 241 Ga. 315,
¶289316 (245 SE2d 268) (1978)); see also OCGA § 24-4-404 (a), OCGA §
¶29024-4-405 (a)-(b); Timmons v. State, 302 Ga. 464, 468 (2) (a) (807 SE2d
¶291363) (2017). Thus, “evidence about a crime victim’s personal
¶292characteristics and the emotional impact of the crime on the victim,
¶293the victim’s family, and the victim’s community generally is not
¶294admissible in the guilt[ or] innocence phase of a criminal trial.”
¶295Lofton v. State, 309 Ga. 349, 363 (6) (b) (ii) (846 SE2d 57) (2020).
¶296 Nundra points to three instances of supposed good-character
¶297evidence. First, he complains that Grubbs was allowed to discuss his
¶298relationship with Moore and describe him as the “nicest fellow.”
¶299Second, he objects that the first officer on the scene was permitted
¶300to say that he had known Moore for “20-something years” and was
¶301sad while he gave the victim chest compressions. And third, and
¶302 19 perhaps most importantly, he points out that the State elicited more
¶303of this sort of evidence from Moore’s widow. In response to a question
¶304about why Moore had not retired, for example, she testified that
¶305Moore had been planning on retiring but wanted to take care of her
¶306and make sure she was eligible for Medicare before he stopped
¶307working. The State also introduced a picture of the two of them
¶308together, and, asked about cows shown in that photo, Moore’s widow
¶309testified that she had been forced to sell their cows because she
¶310couldn’t take care of them by herself.
¶311 And, as discussed, the State referred back to all this in closing
¶312arguments, apparently in an effort to evoke sympathy for Moore and
¶313his widow. Speaking of the impact on the community, the State told
¶314the jury that Grubbs and his son “knew Mr. Moore. Nice guy. Played
¶315with their dogs. Talked to everybody around here.” Plus, the State
¶316told the jury, the officer who testified about knowing Moore “is not
¶317the most flowery, smiley guy that we have on our police force. And
¶318the fact that he was [choked] up, almost crying, about Mr. Moore
¶319tells you a lot about how this has impacted [the] community.” On the
¶320 20 impact to Moore’s wife, the State reminded the jury that she “had to
¶321sell the cows that he kept,” and emphasized that the couple had been
¶322“married almost 26 years . . . . He would go to work, come home, have
¶323lunch with his wife, [and] play with his dog. Had a simple life. Raised
¶324cows. Loved each other.” Referencing the fact that his closing
¶325argument was given on Valentine’s Day, the State noted that
¶326Moore’s widow would not receive flowers from him anymore. And on
¶327Moore’s own good character, the State pointed out that “[h]e kept
¶328working for 32 years so that his wife could get Medicare.”
¶329 (b) Assuming that Nundra preserved this issue for ordinary
¶330appellate review, and that admitting the evidence was error, the
¶331State would still have the opportunity to show that it is “highly
¶332probable that the error did not contribute to the verdict.” Smith v.
¶333State, 299 Ga. 424, 432 (2) (d) (788 SE2d 433) (2016) (citation and
¶334punctuation omitted).
¶335 And once again we conclude that that this evidence did not
¶336affect the outcome of the trial. For the reasons already discussed,
¶337the evidence of Nundra’s guilt was very strong, so the risk that
¶338 21 evidence of the victim’s good character would lead the jury to convict
¶339Nundra for some reason other than guilt was fairly low. See Lucas
¶340v. State, 274 Ga. 640, 642-644 (2) (555 SE2d 440) (2001) (concluding
¶341that “certain comments . . . and testimony” that “improperly raised
¶342the worth of the victims and the impact wrought by their deaths”
¶343were harmless in the light of the defendant’s confessions of guilt to
¶344a friend and law enforcement officers, as well as corroborating
¶345evidence of the crime). Thus, this claim fails as well.
¶346 4. Next, and relatedly, Nundra contends that the trial court
¶347abused its discretion in allowing the State to compare him to
¶348“sociopaths” and serial killers like Jeffrey Dahmer, Charles Manson,
¶349and Ted Bundy. On this point, we disagree. The State’s comments
¶350here were inflammatory, but attorneys are allowed wide latitude in
¶351their arguments to the jury. And these arguments drew on
¶352permissible inferences from the evidence, and did not (as Nundra
¶353suggests) rely on facts or diagnoses not in evidence. That is enough
¶354to reject Nundra’s claim.
¶355 (a) During closing arguments, the State told the jury that “Mr.
¶356 22 Nundra is very similar to Jeffrey Dahmer, Charles Manson, and Ted
¶357Bundy. All four of them are sociopaths.” Nundra objected that this
¶358was “wholly inappropriate”; that “no doctor [ ] came in and said that
¶359Mr. Nundra has sociopathic qualities,” so the characterization was
¶360“not in evidence.” But the trial court overruled the objection, and the
¶361State doubled down, insisting that “Mr. Nundra is a sociopath.
¶362Anyone [who,] after they kill a man acts like it’s no big deal, anyone
¶363that goes to someone’s house and makes eggs and grits after they
¶364shot a man . . . is a sociopath . . . . He is sick.”
¶365 Nundra argues on appeal that allowing the State to refer to
¶366him as a sociopath was “inflammatory, not supported by the
¶367evidence, irrelevant, and an improper appeal to passion or
¶368prejudice” — and had “no relevant purpose for argument beyond
¶369inflaming the passion of the jury to convict regardless of whether the
¶370evidence proved Nundra was guilty beyond a reasonable doubt.”
¶371 (b) OCGA § 17-8-75 addresses precisely this point:
¶372 Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On
¶373 23 objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
¶374Referencing famous crimes or criminals to make a point is not
¶375prohibited, but the remarks must be based on a “permissible
¶376inference from the evidence.” Robinson v. State, 257 Ga. 194, 196 (4)
¶377(357 SE2d 74) (1987). We have said that “[c]ounsel may bring to his
¶378use in the discussion of the case well-established historical facts,”
¶379and “may forcibly or even extravagantly attempt to impress upon
¶380the jury the enormity of the offense and the solemnity of their
¶381duty[.]” Conner v. State, 251 Ga. 113, 122-123 (6) (303 SE2d 266)
¶382(1983) (citations and punctuation omitted). And, just as importantly,
¶383“[a] closing argument is to be judged in the context in which it is
¶384made.” Booth v. State, 301 Ga. 678, 686 (4) (804 SE2d 104) (2017).
¶385 So, for example, in Robinson, we held that the trial court was
¶386not required to declare a mistrial or give a curative instruction
¶387when, in closing arguments, “the prosecutor said that the
¶388[defendant] lied and” compared him to Charles Manson and Jim
¶389 24 Jones in terms of “their powers of persuasion and ability to control
¶390others.” 257 Ga. at 196 (4). The accusation that the defendant lied
¶391was a “permissible inference from the evidence”; the defendant had
¶392filed a missing report on the victim, despite “evidence that he knew
¶393where she was.” Id.; see also Martin v. State, 223 Ga. 649, 650-651
¶394(2) (157 SE2d 458) (1967) (the prosecutor’s comment that “the
¶395possibility of [the defendant] someday returning to society would be
¶396a greater damage than the threat of world communism and the Viet
¶397Cong . . . was a permissible inference from the evidence” because the
¶398evidence in the case involved “a brutal slaying”). And the
¶399comparisons to cultists like Manson and Jones were argumentative
¶400illustrations “of the ability of some people to exert control over
¶401others,” and thus “within the wide latitude which we allow in closing
¶402arguments.” Robinson, 257 Ga. at 196 (4); see also Hudson v. State,
¶403273 Ga. 124, 127 (5) (538 SE2d 751) (2000) (identifying no error
¶404where “[t]he prosecutor compared [the defendant] to well-known
¶405murderers Charles Manson, David Berkowitz, and Jeffrey Dahmer,
¶406noting that they too contended they were not guilty by reason of
¶407 25 insanity and were delusional, but were nonetheless held accountable
¶408for their actions and found guilty of their crimes” because “[i]t is
¶409permissible to use well known cases to illustrate a legal principle”);
¶410Pace v. State, 271 Ga. 829, 843 (32) (b) (524 SE2d 490) (1999) (“The
¶411prosecutor compared Pace to serial killers like Bundy and Dahmer
¶412when arguing that the families of these serial killers would have also
¶413said nice things about them when they were children. Under these
¶414circumstances, this is not an improper argument.”).
¶415 Conversely, we have held that it is error to allow these sort of
¶416arguments where the State’s comments “inject[ ] into the argument
¶417[ ] extrinsic and prejudicial matters which have no basis in the
¶418evidence.” Bell v. State, 263 Ga. 776, 777 (439 SE2d 480) (1994)
¶419(quoting Conner, 251 Ga. at 123 (6)). In Bell, for example, the
¶420defendant was merely charged with selling drugs — “there was no
¶421evidence of drug-related murder or serial rape,” to which the State
¶422had compared Bell’s actions, “[n]or evidence from which serial rape
¶423and murder would have been a reasonable inference.” Id. Thus, we
¶424said, “[b]y referring to such extraneous and prejudicially
¶425 26 inflammatory material in her closing argument, the prosecutor
¶426exceeded the wide latitude of closing argument,” and the trial court
¶427should have granted a mistrial. Id. at 778; see also Conner, 251 Ga.
¶428at 123 (6) (“The portion of the prosecutor’s argument referring to his
¶429prior criminal experience and the frequency with which he had
¶430sought the death penalty was not supported by any evidence and,
¶431moreover, was not relevant to any issue in the case. The argument
¶432was therefore improper”).
¶433 (c) Here, the State’s arguments were inflammatory, but the
¶434trial court did not abuse its discretion in declining to take any
¶435corrective action. In context, the state’s remarks about Nundra did
¶436not invoke medical facts or diagnoses not in evidence. To the
¶437contrary, the State’s commentary illustrated the severity of the
¶438crime, the culpability of the conduct, and the stakes of the case —
¶439based on facts that were in evidence. The trial court was therefore
¶440not required to reprimand the State or give a curative instruction,
¶441let alone declare a mistrial. See Robinson, 257 Ga. at 196 (4).
¶442 5. Moving into evidence of the crime itself, Nundra asserts that
¶443 27 the trial court erred in allowing the State to introduce incriminating
¶444DNA evidence using TrueAllele software, insisting that there was
¶445not enough evidence to show that the software is sufficiently
¶446reliable. In particular, Nundra argues, the State’s expert testified
¶447only that it was “two billion times more likely” that DNA on the cap
¶448recovered near the crime scene matched Nundra than a random
¶449individual — without explaining the probability that the sample
¶450would match a random person. The State responds that Nundra
¶451never objected to the expert’s probability testimony, “nor did he
¶452object to the TrueAllele program or its results on the basis he now
¶453contests[.]” Thus, the State says, the issue can be reviewed only for
¶454plain error, and Nundra cannot show error because the likelihood a
¶455sample would match any random person goes to the weight of the
¶456evidence, not its admissibility. We agree.
¶457 (a) We begin by rejecting Nundra’s assertion that he preserved
¶458this issue for ordinary appellate review. True, Nundra “objected to
¶459the TrueAllele evidence in a brief to the trial court following the
¶460pretrial hearing,” but he did not so much as mention the
¶461 28 admissibility issue he advances here. Instead, he argued only that
¶462the State had failed to show “the tester substantially performed the
¶463[relevant] scientific procedures in an acceptable manner,” on three
¶464fronts: (1) that “[the expert] admitted that the positive control test
¶465failed on the first DNA sample so a second sample was retrieved
¶466from the test tube and re-amplified”; (2) that, despite the State’s
¶467“contention that TrueAllele is a better computing system [for
¶468analyzing DNA evidence] because it is unbiased and not subject to
¶469human error as it can eliminate choice,” the software’s creator and
¶470the expert witness both “admitted that humans do in fact play . . .
¶471an important role . . . in determining the number of contributors in
¶472a given DNA sample”; and (3) that “duplicate, concordant results
¶473were never achieved in this case.” At trial, he reiterated that
¶474objection: “Judge, I don’t have any objection to [the GBI forensic
¶475biologist] being tendered as an expert. However, at this time I would
¶476renew my previous objection that I had made about the admissibility
¶477of the evidence for the record.”
¶478 That is not the same issue Nundra raises here. Nundra’s
¶479 29 arguments below asserted a failure to show that the tester
¶480performed the procedures in an acceptable manner. His argument
¶481here, by contrast, is not that the test was not shown to have been
¶482performed correctly — but that the State or the expert should have
¶483been required to provide another piece of foundational information
¶484to the jury. Those are two different issues. Thus, because Nundra
¶485“did not raise these specific objections in the trial court below, his
¶486claim may be reviewed only for plain error.” Morton v. State, 306 Ga.
¶487492, 497 (3) (831 SE2d 740) (2019) (citing Gates v. State, 298 Ga.
¶488324, 326-327 (3) (781 SE2d 772) (2016)).
¶489 (b) Nundra has not shown plain error. Under plain error
¶490review, we can reverse only if the trial court made a clear or obvious
¶491error that was not affirmatively waived, likely affected the outcome
¶492of the proceedings, and seriously affects the fairness, integrity, or
¶493public reputation of judicial proceedings. Gates, 298 Ga. at 327 (3);
¶494State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (“As
¶495summarized even more succinctly in the context of OCGA § 17-8-58
¶496(b), the proper inquiry is whether the instruction was erroneous,
¶497 30 whether it was obviously so, and whether it likely affected the
¶498outcome of the proceedings.” (citation and punctuation omitted)).
¶499“Satisfying all four prongs of this standard is difficult, as it should
¶500be.” Kelly, 290 Ga. at 33 (2) (a) (cleaned up). Nundra’s argument is
¶501essentially that, because the State did not establish how likely it is
¶502that TrueAllele would identify a match between the DNA sample
¶503from the hat and DNA from a random member of the public, the
¶504testimony showing that the sample was two billion times more likely
¶505to be Nundra’s DNA “[was] incomplete.” “[T]wo billion times more
¶506likely than what number?” Nundra asks. Lacking that, he concludes,
¶507“[t]he statistics here were misleading and did not provide the jury
¶508with any context with which to evaluate the information.” But
¶509whatever the merits of the argument, it fails to show that admitting
¶510the evidence was a “clear or obvious” error.
¶511 At the time Nundra was tried, former OCGA § 24-7-707 (2013),
¶512governing expert testimony, was still in effect. Under that rule, “the
¶513opinions of experts on any question of science, skill, trade, or like
¶514questions [were] always [ ] admissible” in criminal cases, “and such
¶515 31 opinions [could] be given on the facts as proved by other witnesses.”
¶516Id. “But trial courts still were empowered to exclude expert
¶517testimony based on a particular ‘procedure or technique’ on the
¶518ground that it had not ‘reached a scientific stage of verifiable
¶519certainty.’” Smith v. State, 315 Ga. 287, 300 (2) (a) n.6 (882 SE2d
¶520300) (2022) (quoting Harper v. State, 249 Ga. 519, 525 (1) (292 SE2d
¶521389) (1982). “The trial court [could] make this determination from
¶522evidence presented to it at trial by the parties,” or else “base its
¶523determination on exhibits, treatises[,] or the rationale of cases in
¶524other jurisdictions.” Harper, 249 Ga. at 525 (1); see also Walsh v.
¶525State, 303 Ga. 276, 279 (811 SE2d 353) (2018) (“[t]he foundation for
¶526evidence based on a scientific principle or technique requires two
¶527findings regarding the evidence’s reliability: . . . (1) the general
¶528scientific principles and techniques involved are valid and capable
¶529of producing reliable results, and (2) the person performing the test
¶530substantially performed the scientific procedures in an acceptable
¶531manner.” (citation and punctuation omitted)). And, of course,
¶532whether to admit or exclude evidence was a matter within the trial
¶533 32 court’s discretion. See Kilpatrick v. State, 308 Ga. 194, 196-197 (2)
¶534(839 SE2d 551) (2020). 5
¶535 Nundra cites no authority — and we are aware of none —
¶536suggesting that expert testimony about a random-bystander
¶537benchmark is necessary for a trial court to admit TrueAllele
¶538evidence. The cases he cites to that end are inapposite. 6 Indeed, we
¶539 5 We note for the bench and bar that “[t]he General Assembly recently has amended the Evidence Code . . . to extend to criminal cases the federal standard of admissibility of expert testimony articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (113 SCt 2786, 125 LE2d 469) (1993), and its progeny. See 2022 Ga. Laws, p. 201, § 1 (amending OCGA § 24-7-702). Under that standard, a trial court must evaluate the reliability of the expert’s proffered testimony; proper considerations include ‘whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training.’” Smith v. State, 315 Ga. 287, 300 (2) (a) n.6 (882 SE2d 300) (2022) (quoting HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010)). Thus, the Harper standard does not apply to cases tried after July 1, 2022. See 2022 Ga. Laws, p. 201, 202 § 3. 6 Nundra cites to one case involving field sobriety tests and another
¶540generally involving statistics. See Duncan v. State, 305 Ga. App. 268, 272 (2) (a) (699 SE2d 341) (2010) (cited for the proposition that courts have considered whether a witness was sufficiently trained and experienced to give the Horizontal Gaze Nystagmus test and interpret its results); Caldwell v. State, 260 Ga. 278, 289-290 (1) (e) (393 SE2d 436) (1990) (cited because it “discuss[ed] problems with determination the relevant population and its importance to statistics.”)
¶541 33 have discussed TrueAllele in detail just once, in Gates v. State, 308
¶542Ga. 238 (840 SE2d 437) (2020). 7 And all we said there was that (1)
¶543the defendant had shown reasonable diligence in filing his
¶544extraordinary motion for a new trial based on TrueAllele analysis,
¶545and (2) the DNA evidence offered in that case was material and may
¶546well affect the outcome of the case. Id. at 250 (3). We had no reason
¶547to consider any challenge to the admissibility of the evidence,
¶548because “[t]he State did not contest the accuracy of the TrueAllele
¶549results . . . and its witnesses testified that TrueAllele is ‘scientifically
¶550valid[.]’” Id. at 251 (3).Thus, it is not clear or obvious that the
¶551baseline Nundra suggests is required, and so he has failed to show
¶552that the decision to admit the TrueAllele analysis was plain error.
¶553 6. Finally, we reject Nundra’s argument that the cumulative
¶554effect of errors below requires reversal.
¶555 When this Court has identified or presumed more than one
¶556error, although the effect of each on its own might have been
¶557 7We also discussed Gates and TrueAllele in Smith, but only to say that expert opinion is evidence — not for any issues related to the admissibility of TrueAllele analysis itself. See Smith, 315 Ga. at 296-297 (2) (a). 34 harmless to the defendant’s trial, we have looked to whether the
¶558combined effect of the errors harmed the defendant. See State v.
¶559Lane, 308 Ga. 10, 13-14 (1) (838 SE2d 808) (2020). We “consider
¶560collectively,” rather than individually, “the prejudicial effect, if any,
¶561of trial court errors[.]” Id. at 17 (1).
¶562 It is “highly probable that the error” in admitting Nundra’s
¶5631997 convictions and the good character evidence of the victim “did
¶564not contribute to the verdict.” Allen v. State, 310 Ga. 411, 418 (4) n.6
¶565(851 SE2d 541) (2020) (citations and punctuation omitted). Although
¶566the 1997 convictions for a violent crime held the potential for
¶567prejudice, and the good character evidence invited sympathy for the
¶568victim and his widow, the jury was charged that it was not permitted
¶569to be influenced by sympathy for either party. We typically presume
¶570juries follow the instructions that they are given by the trial court,
¶571absent evidence to the contrary. See Ash v. State, 312 Ga. 771, 781
¶572(2) (865 SE2d 150) (2021); see also Lofton v. State, 309 Ga. 349, 367
¶573(7) (846 SE2d 57) (2020) (relying on jury instruction not to show
¶574sympathy in concluding that the combined prejudicial effect of
¶575 35 various actual and assumed errors and deficiencies by counsel,
¶576including counsel’s failure to object to the State’s improper victim
¶577impact arguments, was not sufficient to outweigh the strength of the
¶578properly admitted evidence of the appellant’s guilt). And, on the
¶579other side of the ledger, there was very strong, independent evidence
¶580of Nundra’s guilt. See Payne v. State, 314 Ga. 322, 334 (4) (877 SE2d
¶581202) (2022) (concluding prejudice from presumed error and
¶582presumed deficiencies of counsel was insufficient to reverse where
¶583“[t]he jury heard a significant amount of incriminating testimony”
¶584unrelated to the presumed errors). “Given this strong evidence,”
¶585which Nundra “fails to undermine on appeal, it is highly unlikely
¶586that the jury here was swayed by other acts evidence” and the good
¶587character of the victim. Allen, 310 Ga. at 418 (4). We therefore
¶588conclude that “[i]t is not at all probable that the collective effect of
¶589the assumed errors” harmed Nundra. Id.
¶590 Judgment affirmed. All the Justices concur.
¶591 36