Moody v. State

¶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: May 16, 2023

¶4 S23P0046. MOODY v. THE STATE.

¶5 PETERSON, Presiding Justice.

¶6 In 2007, Jeremy Moody was charged with the April 5, 2007,

¶7rape and murder of 13-year-old Chrisondra Kimble and the murder

¶8of Kimble’s 15-year-old cousin, Delarlonva Mattox, Jr., 1 and other

¶9related offenses. Shortly after Moody’s jury trial began in April 2013,

¶10Moody pleaded guilty to two counts each of malice murder, felony

¶11murder predicated on aggravated assault, aggravated assault,

¶12aggravated assault with intent to rob, and kidnapping with bodily

¶13injury, as well as to one count of rape. At the conclusion of the

¶14sentencing phase, a jury found the existence of multiple statutory

¶15 1Mattox’s first name appears in the record as both “Delarlonva” and “Delarlalonva.” Because his father testified at the sentencing trial that the correct spelling is “Delarlonva,” we use that spelling in this opinion. aggravating circumstances as to each murder and recommended a

¶16sentence of death for each murder, and the trial court sentenced

¶17Moody accordingly. See OCGA §§ 17-10-30 (b); 17-10-31 (a).2

¶18 On appeal, Moody raises thirteen claims of error, which we

¶19reject, concluding as follows. The trial court did not abuse its

¶20 2 The crimes occurred on April 5, 2007. Moody was indicted by a Fulton County grand jury on April 20, 2007, and the State filed written notice of its intent to seek the death penalty on May 1, 2007. Jury selection took place from March 7 through April 8, 2013, and Moody’s trial began on April 10, 2013. After the State’s opening statement, however, Moody pleaded guilty to all charges of the indictment. Moody’s sentencing trial began on April 15, 2013. On April 24, 2013, the jury recommended death sentences for each of the murders. In an order filed on the same day, the trial court sentenced Moody to death for each of the malice murder counts in accordance with the jury’s verdicts and to consecutive terms of imprisonment of twenty years for each of the two counts of aggravated assault with intent to rob, life for each of the two counts of kidnapping with bodily injury, and life for the count of rape. For purposes of sentencing, the trial court merged the two aggravated assault counts with the malice murder counts. See Johnson v. State, 300 Ga. 665, 667 (2) (797 SE2d 903) (2017) (holding that aggravated assault merged into malice murder where “there [wa]s no evidence of an interval separating the infliction of the victim’s non-fatal wounds from the infliction of the wounds that killed her”). Although the trial court purported to merge the felony murder counts into the malice murder counts, those counts were actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993). On May 17, 2013, Moody filed a motion for new trial, which he amended on February 18, 2015, on April 28, 2015, and on June 15, 2020. The trial court denied the amended motion in an order filed on August 3, 2020. After the trial court granted Moody’s motion for an extension of time, see OCGA § 5-6-39, Moody filed a timely notice of appeal on October 2, 2020. The appeal was docketed to this Court’s term beginning in December 2022 and was orally argued on December 6, 2022. 2 discretion in denying Moody’s request to withdraw his guilty plea,

¶21because his plea was knowingly, intelligently, and voluntarily

¶22entered and therefore its withdrawal was not required to prevent a

¶23manifest injustice. By pleading guilty to all charges in the

¶24indictment against him, Moody waived his constitutional rights to

¶25represent himself at the trial he forewent and to decide the objective

¶26of his defense at such a trial. The trial court did not err in denying

¶27Moody’s challenge to the composition of the master jury list, because

¶28he failed to show any violations of “essential and substantial”

¶29provisions of a jury selection statute that would warrant automatic

¶30reversal or would establish a prima facie case of a Sixth Amendment

¶31fair cross-section violation. The trial court did not abuse its

¶32discretion in denying Moody’s motion for a mistrial based on juror

¶33misconduct, because the juror at issue did not share the information

¶34that he had learned from his misconduct with the remaining jurors

¶35and because the trial court promptly removed him. There was no

¶36plain error resulting from the admission of the challenged victim

¶37impact testimony because there is no reasonable probability that the

¶38 3 testimony contributed to the jury’s decision to impose Moody’s death

¶39sentences. The trial court did not err in charging the jury that its

¶40verdict as to sentencing must be unanimous. The record does not

¶41support Moody’s prosecutorial misconduct claims or that the State

¶42pursued inconsistent theories in this trial and in that of his co-

¶43defendant.3 The State’s expert witness’s testimony about his

¶44trainees’ testing and evaluation of Moody did not violate the

¶45Confrontation Clause. And we reject Moody’s other constitutional

¶46challenges — the execution of persons with mental illness not rising

¶47to the level of intellectual disability violates neither the federal nor

¶48the state constitutions, Georgia’s death penalty statutes are not

¶49unconstitutional, and qualifying jurors according to their death

¶50penalty views is not unconstitutional.

¶51 Finally, as statutorily required in death penalty appeals, we

¶52 3 The State also sought the death penalty against Moody’s co-defendant, William Felts, in a separate trial held in 2016. See Felts v. State, 311 Ga. 547, 547 n.1 (858 SE2d 708) (2021). The jury found Felts guilty on all counts except the count of rape and following the sentencing phase, fixed the sentence for each of the murders at life imprisonment without the possibility of parole. See id. This Court affirmed Felts’s convictions and sentences in May 2021. See id. at 547.

¶53 4 also review three additional matters regarding Moody’s sentence.

¶54See OCGA § 17-10-35 (c). We determine that the sentence of death

¶55in this case was not imposed under the influence of passion,

¶56prejudice, or any other arbitrary factor. We determine that the

¶57evidence was sufficient to support the jury’s finding beyond a

¶58reasonable doubt the existence of each of the statutory aggravating

¶59circumstances that it found. And we determine that the sentence of

¶60death is not excessive or disproportionate to the penalty imposed in

¶61similar cases, considering both the crimes and the defendant. We

¶62therefore affirm Moody’s convictions and sentences.

¶63 1. Because Moody pled guilty at the very beginning of the

¶64guilt/innocence phase of his trial, the only trial at which evidence

¶65was presented was his sentencing trial; the evidence presented at

¶66that sentencing trial showed the following. On April 5, 2007, Kimble

¶67and Mattox were spending their spring break from school at

¶68Mattox’s father’s home. Kimble’s mother, who is the sister of

¶69Mattox’s father, lived in the same home, and the cousins’

¶70grandmother was staying there temporarily to help care for her

¶71 5 grandchildren. Between 4:00 p.m. and 4:30 p.m., Kimble and Mattox

¶72told their grandmother that they were going to walk to the store to

¶73buy some snacks. When the teens had not returned by

¶74approximately 7:00 p.m., their grandmother and parents became

¶75concerned. After checking with the teens’ friends with no success,

¶76the teens’ parents contacted law enforcement and then, joined by

¶77other family members, searched for the missing teens late into the

¶78night. Early the next day, friends and neighbors joined family

¶79members in the search.

¶80 During the search, the families learned that Kimble and

¶81Mattox had been seen in the area of nearby Bethune Elementary

¶82School. Based on this information, on the afternoon of April 6, 2007,

¶83Kimble’s mother and a young man from the neighborhood searched

¶84an area behind the school. While doing so, Kimble’s mother noticed

¶85an open area in the fence and walked through it and into the wooded

¶86area behind it. There, she first saw some clothing, then the body of

¶87her nephew Mattox, and lastly the body of her daughter.

¶88 When they were found, they were both naked except for socks

¶89 6 on their feet and a leather belt tied around Mattox’s ankles. Piles of

¶90clothing were located near Mattox’s body, and law enforcement

¶91officials also discovered a store receipt from Dollar Tree at the crime

¶92scene. The medical examiner testified that both victims suffered

¶93numerous stab wounds that were consistent with the use of a flat-

¶94headed screwdriver. Blood spatter was located on a tree trunk near

¶95the ground, indicating that the victims were stabbed while lying on

¶96the ground.

¶97 According to the medical examiner, Kimble’s primary cause of

¶98death was multiple stab wounds to her neck, with secondary causes

¶99being blunt trauma to the neck and stab wounds to the head. The

¶100medical examiner testified that Kimble received thirteen stab

¶101wounds to her neck and three stab wounds to her head, including

¶102what would have been a “very severe[ly]” painful wound to the ear.

¶103The medical examiner further testified that Kimble suffered blunt

¶104trauma to her neck and petechial hemorrhages in her eyes, injuries

¶105consistent with manual strangulation, and that she had vaginal

¶106injuries and abrasions on her face and thighs that were consistent

¶107 7 with her being face down in a wooded area and having her face and

¶108the front of her body repeatedly thrust against vegetation. The

¶109medical examiner opined that the stab wounds and the injuries to

¶110the vaginal area most likely occurred before Kimble’s death and that

¶111Kimble could have survived for “minutes” or for “hours” after the

¶112stab wounds, although she would not have survived “very long

¶113following the strangulation.” Subsequent forensic testing of the

¶114vaginal smears from Kimble revealed the presence of Moody’s DNA.

¶115 The medical examiner testified that Mattox’s cause of death

¶116was stab wounds to the head, neck, and chest and that he had

¶117approximately 41 stab wounds in total, including approximately 14

¶118stab wounds to his neck alone. The medical examiner testified that

¶119the injuries to his neck would have been “quite painful” and would

¶120have resulted in “significant bleeding,” as his left carotid artery and

¶121both of his jugular veins were pierced. She also opined that the

¶122multiple stab wounds to the top of Mattox’s head would have

¶123required a significant amount of force to inflict, as they went

¶124through the skull and penetrated his brain, and that they would

¶125 8 have been “very painful.” According to her testimony, some of the

¶126stabs to Mattox’s chest entered his chest cavity and damaged the

¶127cephalic brachial vein, resulting in the collection of approximately

¶128half a liter of blood in his chest, and it would have taken “several

¶129minutes to an hour or so” for Mattox to bleed to death. She also

¶130testified that an abrasion on Mattox’s back was consistent with his

¶131lying face-up in a wooded area with someone on top of him inflicting

¶132stab wounds.

¶133 The next day, on April 7, 2007, law enforcement officials

¶134received a telephone call from Moody’s ex-girlfriend, Tameka

¶135Wright, who identified Moody as a suspect. Wright said that Moody

¶136might be attempting to leave town and that they should look for him

¶137at the bus station, and she provided a description of what Moody

¶138was wearing. Moody was arrested at the bus station with paperwork

¶139in his possession regarding trips to Orlando and Houston. On the

¶140way to the police station, Moody asked why he was being arrested.

¶141When his question was not answered, Moody suggested that he had

¶142watched the news and then stated, “You’re not going to do this to

¶143 9 me. You’re not going to put those kids on me.”

¶144 Wright testified for the State regarding a statement that she

¶145had given to law enforcement officials on the day of Moody’s arrest.

¶146According to Wright, Moody called her at 5:21 p.m. on the day of the

¶147murders and said that he was going to commit a robbery. Moody

¶148called her again about two hours later, saying that he had money.

¶149Later that night, he met her at her job and told her “that he didn’t

¶150have the money, that it didn’t go right, things didn’t go as planned.”

¶151Moody said that he had killed two drug dealers and that “they didn’t

¶152really mean nothing . . . [t]o nobody.” Moody said that the victims

¶153had believed that he had a gun, and that he had walked them “at

¶154gunpoint” into the woods near his mother’s house, killed them, and

¶155left their bodies in the woods. Moody described the victims as

¶156“young” and “scared.” He also said that he undressed the victims

¶157because he did not want any evidence, such as hairs or fibers, to be

¶158found on them. Moody told Wright that he wanted to return to the

¶159crime scene in order to move the bodies to prevent anyone from

¶160finding them, but Wright told Moody not to. Wright testified that

¶161 10 Moody acted like himself and that she did not believe him. She also

¶162testified that she previously had seen Moody both under the

¶163influence of drugs, as well as alcohol, and that he did not appear to

¶164be under the influence of either when she saw him on the night of

¶165the crimes.

¶166 Wright further testified that, on the night of April 6, 2007,

¶167Moody called her to inform her that, according to news reports, the

¶168victims’ bodies had been discovered. After Wright watched the news

¶169for herself and heard the ages of the victims, she confronted Moody

¶170about his telling her that the victims were “drug dealers” when they

¶171were actually “two children.” Moody responded that the victims

¶172meant nothing to him and that they appeared to him to be adults.

¶173Wright also testified that Moody told her that, because he had

¶174removed the victims’ clothes, people were going to make it out to be

¶175worse than it was, and he specifically used the word “rape.” Wright

¶176then asked him multiple times if he raped either one of the victims,

¶177and Moody denied doing so. According to Wright’s testimony, Moody

¶178never expressed remorse for murdering the victims. Moody elicited

¶179 11 Wright’s promise not to call the police, but she did anyway.

¶180 In addition to the above evidence, presented in part in support

¶181of statutory aggravating circumstances that the State had given

¶182notice of, the State presented extensive non-statutory aggravating

¶183evidence regarding Moody’s violent behavior both prior to the

¶184murders and during his pretrial detention, including the following.

¶185The State introduced evidence of Moody’s certified convictions for

¶186simple battery, for simple battery involving family violence, and for

¶187obstruction of an officer that resulted from an incident in which

¶188Moody attacked his girlfriend at the time and a person who came to

¶189her defense. The State also presented testimony that Moody

¶190harassed this same former girlfriend by threatening to kill her and

¶191her family beginning with her infant granddaughter and by

¶192repeatedly calling the daycare center where she worked looking for

¶193her and threatening to kill her co-workers, the children at the

¶194daycare center, and anyone else who got in his way. He also

¶195repeatedly violated the restraining order that the former girlfriend

¶196obtained against him. There was testimony that Moody beat

¶197 12 Wright’s five-to-six-year-old daughter with a belt. And one of

¶198Moody’s female acquaintances testified that Moody tried to strangle

¶199her when she thwarted his plans to have sex with her approximately

¶200two to three weeks before the murders, that he later threatened to

¶201kill her, and that he subsequently tried to break into the house

¶202where she was staying through a window near her bedroom.

¶203 The evidence concerning Moody’s pretrial detention while

¶204awaiting trial showed the following. He had been violent with jail

¶205personnel many times, including attacking a guard with a shank; he

¶206had made numerous verbal and written threats to kill specific jail

¶207personnel, including a law librarian and a detention officer; he had

¶208been found in possession of contraband, including a shank, pills, and

¶209cellphones, both in his cell and on his person; he had been involved

¶210in numerous incidents in which the jail’s special team for dealing

¶211with dangerous inmates had to intervene, and he had tried to

¶212intimidate new officers on this team by throwing water or feces on

¶213them and spitting at them; and he had abused the nurses at the jail

¶214in numerous ways, including making derogatory sexual comments

¶215 13 to them, throwing various liquids such as a mixture of urine and

¶216sour milk at them, spitting at and kicking one of them, and exposing

¶217himself to one of them.

¶218 Moody’s guilty plea renders a review of the evidence for its

¶219constitutional sufficiency moot as to his guilt. 4 See Thomason v.

¶220Caldwell, 229 Ga. 637, 644 (194 SE2d 112) (1972). Nevertheless, we

¶221have reviewed the evidence from his sentencing trial and conclude

¶222that, when viewed in the light most favorable to the sentencing

¶223verdicts, the evidence presented was sufficient to enable a rational

¶224trier of fact to find beyond a reasonable doubt each of the statutory

¶225aggravating circumstances found by the jury, which are discussed

¶226further in Division 16 below. See Ring v. Arizona, 536 U.S. 584 (122

¶227SCt 2428, 153 LE2d 556) (2002) (holding that statutory aggravating

¶228circumstances must be proven to a jury beyond a reasonable doubt);

¶229 4 To the extent that OCGA § 17-10-35 (f) could be understood to require us nevertheless to review the factual substantiation of guilt as a statutory matter (a point on which we offer no opinion), this record is plainly sufficient. In addition to all of the facts supporting guilt recited above, as detailed below in Division (2) (a), Moody admitted as part of his guilty plea colloquy that he was pleading guilty to the crimes with which he was charged because he had, in fact, committed those crimes. 14 Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61

¶230LE2d 560) (1979) (providing the constitutional standard for the

¶231review of the sufficiency of the evidence); OCGA § 17-10-35 (c) (2)

¶232(requiring a review of the sufficiency of the evidence supporting

¶233statutory aggravating circumstances); UAP IV (B) (2) (providing

¶234that, in all death penalty cases, this Court will determine whether

¶235the verdicts are supported by the evidence).

¶236 Guilty Plea

¶237 2. Because Moody’s guilty plea — if valid — would waive

¶238several of his claims, we first address his challenges to that plea. In

¶239conducting that review, we note that the “[e]ntry of a plea is not

¶240some empty ceremony, and statements made to a [trial] judge in

¶241open court are not trifles that defendants may elect to disregard.”

¶242United States v. Stewart, 198 F3d 984, 987 (7th Cir. 1999). We

¶243conclude that Moody’s guilty plea was constitutionally valid and

¶244that he did not establish a “manifest injustice” requiring its

¶245withdrawal.

¶246 At trial, during a brief recess between the State’s opening

¶247 15 statement and the defense’s, defense counsel announced that Moody

¶248had decided to plead guilty to all 11 counts of the indictment. After

¶249an extended colloquy, the trial court found Moody’s plea of guilty to

¶250be entered knowingly, freely, and voluntarily, and the court accepted

¶251the plea. The sentencing phase of Moody’s trial began on April 15,

¶2522013. During jury deliberations nine days later, Moody made a

¶253motion to withdraw his guilty plea.

¶254 Ordinarily, a defendant has the absolute right to withdraw a

¶255guilty plea until his sentence is pronounced. See OCGA § 17-7-93

¶256(b). But in cases where the State seeks the death penalty, a

¶257defendant has no such right; instead, he can seek to withdraw it only

¶258“to prevent a manifest injustice.” Browner v. State, 257 Ga. 321, 321-

¶259322 (1), 323 (3) (357 SE2d 559) (1987). What constitutes a manifest

¶260injustice

¶261 by necessity var[ies] from case to case, but it has been said that withdrawal is necessary to correct a manifest injustice if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.

¶262 16 State v. Evans, 265 Ga. 332, 336 (3) (454 SE2d 468) (1995).

¶263 Moody argues that his plea was involuntary and thus that

¶264withdrawal was necessary to correct a manifest injustice. He

¶265contends that he was coerced into pleading guilty by the trial court’s

¶266ruling two days before his plea denying his request to represent

¶267himself and by its ruling on the morning of the plea that defense

¶268counsel rather than Moody could decide what strategy to pursue at

¶269trial. The State has the burden on direct appeal of establishing that

¶270the plea was entered knowingly and voluntarily. See King v. State,

¶271270 Ga. 367, 369 (1) (509 SE2d 32) (1998). The State may meet this

¶272burden “by showing on the record of the guilty plea hearing that the

¶273defendant was cognizant of all the rights he was waiving and the

¶274possible consequences of his plea, or by use of extrinsic evidence that

¶275affirmatively shows that the guilty plea was knowing and

¶276voluntary.” Loyd v. State, 288 Ga. 481, 485 (2) (b) (705 SE2d 616)

¶277(2011) (citation and punctuation omitted). A trial court’s decision on

¶278a motion to withdraw a guilty plea will not be disturbed absent an

¶279abuse of discretion. See McGuyton v. State, 298 Ga. 351, 353 (1) (a)

¶280 17 (782 SE2d 21) (2016). Here, the record supports the trial court’s

¶281finding that Moody’s plea was not coerced but instead was

¶282knowingly, intelligently, and voluntarily entered.

¶283 (a) Guilty Plea Hearing. Moody testified under oath at the plea

¶284hearing that he was 35 years old, had completed his G.E.D., and was

¶285not then under the influence of alcohol, drugs, or medication. 5 The

¶286prosecutor listed the charges brought against Moody, and Moody

¶287indicated that he understood those charges. Moody also confirmed

¶288that he understood that by pleading not guilty or remaining silent

¶289and not entering a plea, he would obtain a jury trial, and that by

¶290entering a plea of guilty, he was waiving the right to a jury trial.

¶291Moody also acknowledged his initials and signature on the guilty-

¶292plea form, a five-page document that explained the rights that he

¶293was waiving by pleading guilty, and which Moody confirmed that he

¶294 5 Moody did inform the trial court that he was taking antidepressants, mood stabilizers, antibiotics, pain medication, and post-traumatic stress medication. When asked whether those medications “in any way affect[ed his] ability to understand this proceeding,” Moody responded, “No; not that I know of.” On the guilty plea form, Moody affirmed that he was not under the influence of any medication that would affect his ability to understand what he was doing at the time. 18 had discussed with both of his attorneys. This form set out the

¶295charges that Moody faced and the maximum sentence that could be

¶296imposed for each charge, including a sentence of death for each of

¶297the murders.

¶298 Both on the guilty-plea form and during the hearing, Moody

¶299affirmed that he had had sufficient time to speak with his attorneys

¶300regarding the charges in the indictment, including any potential

¶301defenses, and that he did not need any more time to speak with

¶302counsel regarding the guilty plea and the guilt/innocence phase of

¶303his case.

¶304 When the prosecutor asked Moody whether he was satisfied

¶305with the services of counsel, Moody stated that he “wasn’t,” referring

¶306to conflicts with counsel that led to his request to proceed pro se. The

¶307trial court pointed out that it had previously “ruled about the

¶308representation issue” and stated that “that question . . . is not part

¶309of the plea colloquy under . . . superior court rules.” See Uniform

¶310Superior Court Rule 33.8. Moreover, Moody affirmed on the guilty-

¶311plea form that he was satisfied with his counsel’s services. Moody

¶312 19 testified that he understood that he was pleading guilty to all of the

¶313charges in the indictment. He was again informed of the maximum

¶314possible sentence for each charge, and he again confirmed his

¶315understanding of those possible sentences, along with the fact that

¶316a jury would determine his sentence following a separate sentencing

¶317trial, choosing between a sentence of death, a sentence of life without

¶318the possibility of parole, and a sentence of life with the possibility of

¶319parole.

¶320 Moody was advised about the trial rights that he would be

¶321waiving by pleading guilty, and he answered affirmatively that he

¶322understood. Both on the guilty plea form and during the hearing,

¶323Moody confirmed that no one had in any way “threatened,” “forced,”

¶324or “coerced” him to plead guilty and that no one had “promised [him]

¶325anything to get [him] to enter this guilty plea.” He also affirmed that

¶326it was his decision to waive his rights and enter a guilty plea to all

¶327charges in the indictment because he was, in fact, guilty of all of

¶328those charges. After pleading guilty, Moody affirmed that his guilty

¶329plea was freely and voluntarily given with full knowledge of the

¶330 20 charges against him and that he understood that he might have only

¶331a limited right to appeal his guilty-plea convictions.

¶332 After the prosecutor set out the factual basis for the guilty plea,

¶333the trial court conducted its own inquiry. Moody affirmed that, “just

¶334before [lead defense counsel] was about to get up to deliver the

¶335opening statement in th[e guilt/innocence] part of [his] case,” he had

¶336indicated that he wanted to speak with counsel and had

¶337subsequently spoken “for some time” with his attorneys regarding

¶338his decision to plead guilty rather than to proceed with the

¶339guilt/innocence phase of trial. Then the trial court conducted the

¶340following colloquy with Moody regarding his reasons for pleading

¶341guilty:

¶342 THE COURT: Okay. Are you pleading guilty now rather than going through with a trial as to the guilt[/]innocence phase because that’s what you want to do? THE DEFENDANT: Yes, your honor. I just feel it would be more appropriate for the families involved in this not to go through trial procedure, and it’s just, you know, just a decision I made, sir. THE COURT: Okay. So as far as the reason why you’re doing it, you believe it’s in your best interest to go that way as opposed to putting the State and the families and other people through the trial of the facts as to the guilt and

¶343 21  innocence. Is that what you’re saying? THE DEFENDANT: Yes, your honor. Just to try to resolve this issue as quickly as possible, your honor. THE COURT: Okay. And the important part for me – because remember my job is to make sure that what you’re doing is freely and voluntarily done. And is that true? Are you doing that freely and voluntarily? THE DEFENDANT: Yes, your honor.

¶344(Emphasis added.) Thus, Moody did not merely affirm that he

¶345believed that it was in his own best interest to plead guilty, but he

¶346also clearly articulated a reasonable basis for his decision to plead

¶347guilty totally unrelated to the trial court’s recent rulings against

¶348him, namely, his desire to “resolve this issue [of his guilt] as quickly

¶349as possible” to avoid the necessity of a trial for “the families

¶350involved,” apparently referring to both his family and the families of

¶351the victims. See Loyd, 288 Ga. at 485 (2) (b) (affirming the trial

¶352court’s denial of a death-sentenced defendant’s request to withdraw

¶353his guilty plea and noting that defense counsel had stated to the trial

¶354court that the defendant “had expressed to him ‘logical and thought-

¶355out reasons’ for his decision” to enter a non-negotiated plea,

¶356including that the defendant “wanted ‘to admit to what he did’ and

¶357 22 move on to ‘the issues of what the punishments are’” (punctuation

¶358omitted)); McKiernan v. State, 288 Ga. 140, 143 (2) (702 SE2d 170)

¶359(2010) (noting that one of the motivating factors for the defendant’s

¶360decision to enter a guilty plea was to avoid putting his family

¶361through a trial in concluding that he voluntarily and knowingly

¶362entered his guilty plea).

¶363 Then the trial court questioned Moody about his medications

¶364and asked him, “Do you feel like you understand what you are doing

¶365here today, what your choice is, and why you’re doing it?” Moody

¶366responded that he did. Moody also testified that he understood that

¶367there would still be a sentencing phase of trial. The trial court then

¶368returned to the issue of the voluntariness of Moody’s decision, and

¶369the following colloquy ensued, in which Moody once again affirmed

¶370that he was pleading guilty because he believed that it was in his

¶371best interest to do so:

¶372 THE COURT: Okay. And, again, are you [pleading guilty and foregoing a jury trial as to guilt/innocence] because you want to do it? THE DEFENDANT: Yes, your honor. THE COURT: As I understood what you said before,

¶373 23  you’re doing it because you believe that’s the best thing for you? THE DEFENDANT: Yes, your honor.

¶374(Emphasis added.)

¶375 Later, returning one final time to the issue of the voluntariness

¶376of Moody’s decision to plead guilty, the trial court engaged in the

¶377following colloquy with Moody:

¶378 THE COURT: . . . We have had a discussion otherwise in this case recently about your rights as they pertain to going forward with this case. The important question I have for you is, despite the fact that I have made a ruling about your representation, are you still pleading guilty understanding where we go from here because that’s what you want to do and not because of that ruling that I made? In other words, am I forcing – do you feel like I’m forcing you into pleading guilty because of the ruling I made or are you pleading guilty because you think it’s the best thing for you to do? THE DEFENDANT: I feel it is the best thing to do at this time.

¶379(Emphasis added.)

¶380 The trial court then heard from Moody’s lead counsel that he

¶381believed that Moody was entering his guilty plea because he believed

¶382that it was “the best thing for him to do,” that Moody understood his

¶383decision to plead guilty, and that his decision was knowing and

¶384 24 voluntary, and both of Moody’s attorneys told the trial court that

¶385they had no reservations about having the court accept the plea. The

¶386trial court then ruled that “Moody’s plea of guilty [wa]s freely,

¶387voluntarily, and knowingly made” and “accept[ed] his plea as

¶388tendered” based on “the colloquy that ha[d] occurred before [the trial

¶389court] as well as the information contained in [the plea agreement

¶390form initialed and signed by Moody],” which the trial court entered

¶391into evidence.

¶392 (b) Moody’s Request to Withdraw His Plea. While the jury was

¶393deliberating at the conclusion of the sentencing trial, the defense

¶394moved to withdraw Moody’s guilty plea. When the trial court asked

¶395for the basis for the motion, Moody’s lead counsel responded:

¶396 Your honor, . . . he hasn’t said to me exactly what his basis is, but I would contend that his basis is just general disagreement with the strategy of the defense and the way the case was worked up. . . .

¶397After an off-the-record discussion with Moody, lead counsel

¶398“incorporate[d] every concern that [Moody] ha[d] expressed to the

¶399court, whether in ex parte session or in open court concerning the

¶400 25 manner in which his defense ha[d] been conducted.” Counsel stated

¶401that “all of [those concerns] f[e]ll under the general rubric of he

¶402wanted to represent himself,” and counsel listed the preparation and

¶403presentation of the case, issues with Moody’s access to the law

¶404library, and issues regarding Moody’s medication. Counsel also

¶405stated that Moody “believe[d that] he was pressured into a Faretta[ 6]

¶406hearing” that he felt that he was unprepared for.

¶407 The trial court made detailed findings regarding Moody’s

¶408medications and his issues with the law library that are amply

¶409supported in the record, and Moody has not raised those issues on

¶410appeal. With regard to Moody’s claim that he had been “pressured”

¶411into a Faretta hearing, the trial court noted that it had “regularly

¶412spoke[n] with Mr. Moody in the presence of opposing counsel” and

¶413also in ex parte proceedings in order for the trial court to be able to

¶414have “full free-ranging discussions” with him regarding his “feelings

¶415about his attorneys.” The trial court found that, “consistent with the

¶416findings that [the court had] made at the Faretta hearing,” Moody’s

¶417 6 Faretta v. California, 422 U.S. 806 (95 SCt, 2525, 45 LE2d 562) (1975). 26 “feelings” had “vacillated dramatically” over the course of those

¶418hearings and had often focused on issues regarding the jail. The trial

¶419court pointed out that “the Faretta hearing was lengthy,” that “it

¶420[occurred] after a number of conversations about that issue,” and

¶421that “it was clear to the court that the decision that [the court] made

¶422was what was commanded by the evidence.” Moreover, the trial

¶423court pointed out that, “intervening between the Faretta hearing

¶424and Mr. Moody’s decision to plead guilty was the start of this case

¶425at trial for the guilt[/]innocence phase, which notably included the

¶426State’s opening statement” that “appropriate[ly] chronicl[ed] the

¶427evidence that would have come out in this case in the

¶428guilt[/]innocence phase had that gone forward.” The trial court found

¶429that “[i]t was in the face of that very promise of that evidence coming

¶430out that Mr. Moody made his decision to plead guilty,” and the trial

¶431court noted that it was not unusual “in the court’s experience as a

¶432lawyer or a judge that[,] when faced with the reality of what the

¶433evidence against him was going to be[,] a defendant pled guilty.”

¶434 Regarding the voluntariness of Moody’s guilty plea, the trial

¶435 27 court found the following:

¶436 To say that [Moody] was pressured into [pleading guilty] . . . would . . . fly in the face of the very questions he was asked during the plea colloquy. I asked him are you doing this because you’re angry at me or disappointed in the way I ruled? No was the answer. I can draw no conclusion from that except that those two things are not related to each other because he told me they aren’t related to each other. . . .

¶437The trial court further found that the “Faretta hearing ha[d] nothing

¶438to do with the plea,” that Moody made a “clear, unequivocal,

¶439voluntary decision in the face of what he knew would be the evidence

¶440against him to plead guilty and accept responsibility,” and that

¶441Moody “was questioned as thoroughly and carefully as any

¶442defendant [the trial court had] ever seen who entered a plea of

¶443guilty, by the State, by the court, via a colloquy [t]here in court, as

¶444well as a written plea sheet.” Then, finding that his plea was “freely

¶445and voluntarily entered” and that “there [wa]s no reason whatsoever

¶446to set it aside,” the trial court denied Moody’s request to withdraw

¶447his guilty plea.

¶448 Moody now argues that his response to the trial court that he

¶449 28 felt that pleading guilty was “the best thing to do at this time”

¶450indicates that he believed that pleading guilty was “the best thing”

¶451for him to do given that, at that time, “the [trial] court [had] told

¶452[him] that if he went to trial, his lawyers would admit his guilt[.]”

¶453But that is not what Moody said at the plea colloquy. At no time did

¶454Moody state that his decision to plead guilty was the result of feeling

¶455coerced to do so by the trial court’s rulings denying his request to

¶456represent himself and permitting trial counsel to pursue a strategy

¶457that he expressed opposition to, even when the trial court explicitly

¶458asked him whether he felt that its “ruling about [his]

¶459representation]” had “forc[ed him] into pleading guilty.”

¶460Accordingly, the record supports the trial court’s factual findings

¶461that the trial court’s adverse rulings and Moody’s decision to plead

¶462guilty were unrelated to each other. The record also supports the

¶463trial court’s conclusion that Moody knowingly and voluntarily

¶464entered his guilty plea. See Jackson v. State, 285 Ga. 840, 840-841

¶465(1) (684 SE2d 594) (2009) (affirming the denial of the appellant’s

¶466motion to withdraw his guilty plea where he had told the trial court

¶467 29 at the plea hearing that he was not under the influence of alcohol,

¶468drugs, or any intoxicants but later claimed that his plea was

¶469involuntary because he had been under the influence of drugs).

¶470 Nonetheless, Moody contends that, in applying the test for

¶471manifest injustice, this Court in other cases has invalidated pleas as

¶472involuntary based on an antecedent constitutional violation, and he

¶473urges us to do the same here. But the cases that Moody cites in

¶474support do not apply.

¶475 Several of the cases that he cites involved judicial participation

¶476in a defendant’s plea negotiations “so great as to render a guilty plea

¶477involuntary.” Pride v. Kemp, 289 Ga. 353, 354 (711 SE2d 653) (2011)

¶478(citations and punctuation omitted); see also Winfrey v. State, 304

¶479Ga. 94, 97-102 (II) (816 SE2d 613) (2018); McDaniel v. State, 271 Ga.

¶480552, 553-554 (2) (522 SE2d 648) (1999). But here, Moody relies on

¶481an unfavorable ruling on a separate issue, not improper judicial

¶482participation in the plea negotiations, so these cases do not apply.

¶483 Moody also cites in support Alexander v. State, 297 Ga. 59 (772

¶484SE2d 655) (2015), and Wharton v. Jones, 248 Ga. 265 (282 SE2d 310)

¶485 30 (1981). But those cases are irrelevant here, because the defendant

¶486in each of them contended that he received the ineffective assistance

¶487of counsel with respect to the guilty plea, and Moody makes no such

¶488claim. See Alexander, 297 Ga. at 61-64 (distinguishing between a

¶489Sixth Amendment ineffective assistance of counsel claim in relation

¶490to a guilty plea and a Fifth Amendment due process claim that a

¶491plea was not knowingly and voluntarily made).

¶492 Finally, Moody relies on Browner, in which this Court

¶493concluded that the trial court erred in not allowing the defendant,

¶494who had entered a non-negotiated plea to a murder count for which

¶495the State was seeking the death penalty, to withdraw his guilty plea

¶496to prevent a manifest injustice. See 257 Ga. at 323 (3). There, the

¶497defendant “was not present at two conferences discussing the

¶498complexities of his guilty plea – in particular, whether the judge or

¶499a jury would impose sentence, a matter of substantial importance to

¶500him.” Id. As discussed above, what constitutes “manifest injustice”

¶501is case-dependent, and the problematic circumstances in Browner

¶502involved the plea itself and are not present here.

¶503 31  In sum, the transcript of the guilty plea hearing and the guilty

¶504plea form signed by Moody amply support the trial court’s findings

¶505that the plea was not coerced by the trial court’s rulings denying

¶506Moody’s request to represent himself and allowing trial counsel to

¶507determine the objective of the defense, and it supports the trial

¶508court’s ruling that Moody’s guilty plea was knowing and voluntary.

¶509We also conclude that the withdrawal of the guilty plea was not

¶510necessary to correct a manifest injustice.

¶511 Pretrial Issues

¶512 3. Moody argues that the trial court erred in denying his

¶513request for self-representation at the guilt/innocence phase

¶514following a Faretta hearing. 7 As we just held, Moody’s guilty plea

¶515 7 The record shows that approximately five months before jury selection in his case was scheduled to begin, Moody began to express to the trial court that he was dissatisfied with his counsel and that he wanted to represent himself. The trial court held several ex parte hearings on the matter, and during those hearings, Moody vacillated as to whether his frustrations were with his attorneys or with the conditions of his incarceration and as to whether he truly desired to represent himself at trial. Later, trial counsel requested a Faretta hearing because Moody had announced that he wanted to represent himself. At the conclusion of that hearing, the trial court denied Moody’s request, concluding that Moody’s desire to represent himself was “not based on a belief about the outcome of this case” and that his “self-destructive behavior

¶516 32 was valid. Consequently, Moody waived any argument regarding his

¶517right to self-representation at the guilt/innocence phase.

¶518 Under both this Court’s precedent and that of the United

¶519States Supreme Court, a valid guilty plea generally operates as a

¶520waiver of independent claims of constitutional error that occurred

¶521before the plea. See Tollett v. Henderson, 411 U.S. 258, 267 (93 SCt

¶5221602, 36 LE2d 235) (1973) (holding that a defendant who pleads

¶523guilty waives all “independent claims relating to the deprivation of

¶524constitutional rights that occurred prior to the entry of the guilty

¶525plea”); Addison v. State, 239 Ga. 622, 624 (238 SE2d 411) (1977)

¶526(stating that this Court has recognized and repeatedly applied the

¶527principle in Tollett and listing this Court’s decisions holding that a

¶528guilty plea waives a speedy indictment claim, a claim of invalid jury

¶529selection and grand jury composition, and an illegal search claim).

¶530 As the Supreme Court explained in Tollett:

¶531 [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a

¶532as well as some desire of benefit, i.e., better treatment at the jail, . . . was preventing him from making a knowing and intelligent waiver of . . . the right to discharge his attorneys.” 33  criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

¶533411 U.S. at 267. “An exception will only be made if the error goes to

¶534the very power of the State to bring the defendant into court.” Moore

¶535v. State, 285 Ga. 855, 858 (2) (684 SE2d 605) (2009) (citation and

¶536punctuation omitted). Cf. Kennedy v. Carlton, 294 Ga. 576, 577 (1)

¶537(757 SE2d 46) (2014) (“A plea of guilty does not waive the defense

¶538that an indictment charges no crime.”). Thus, a guilty plea generally

¶539waives non-jurisdictional defects in pretrial proceedings. See

¶540Harris v. Hopper, 236 Ga. 389, 391 (224 SE2d 1) (1976), overruled

¶541on other grounds by Griffin v. State, 282 Ga. 215, 221-222 (5) (647

¶542SE2d 36) (2007).

¶543 Whether this principle means that a defendant allegedly

¶544denied his right to self-representation at the guilt/innocence phase

¶545has, by virtue of his guilty plea, waived a Faretta challenge on

¶546appeal is a question of first impression in this Court, and the United

¶547States Supreme Court has not spoken directly on the issue. The

¶548 34 federal appellate courts to decide this question of federal

¶549constitutional law are split, although only the Ninth Circuit has held

¶550that a defendant who pleads guilty may still maintain his Faretta

¶551challenge on appeal. See United States v. Hernandez, 203 F3d 614

¶552(9th Cir. 2000), overruled on other grounds by Indiana v. Edwards,

¶553554 U.S. 164 (128 SCt 2379, 171 LE2d 345) (2008), as recognized in

¶554Jarrett v. Shinn, 836 Fed. Appx. 538, 540 (9th Cir. 2020).8 In

¶555Hernandez, the Ninth Circuit held that a guilty plea by a defendant

¶556wrongfully deprived of his right to self-representation was

¶557automatically involuntary, because a “court’s refusal to allow [a

¶558defendant] to exercise the right of self-representation forced him to

¶559 8 We note that, relying in part on Hernandez, the Court of Appeals of Michigan has come to the same conclusion in an unpublished opinion. See People v. Hoffman, No. 266560, 2007 Mich. App. LEXIS 260, at *7 (Mich. Ct. App. Feb. 6, 2007) (citing Hernandez, 203 F3d at 626-627), leave to appeal denied, 737 NW2d 767 (Mich. 2007). California’s appellate courts have reached the same result, but based on state statute instead of federal constitutional law. See, e.g., People v. Marlow, 96 P3d 126, 146-147 (II) (B) (Cal. 2004) (concluding that “the claim of erroneous denial of a Faretta motion . . . is cognizable on appeal” based on a determination that a Faretta challenge is a challenge to the “‘legality of the proceedings’” as set forth in Cal. Penal Code § 1237.5 (a), which provides under what circumstances a defendant is allowed to appeal from a judgment of conviction upon a plea of guilty (citing People v. Robinson, 65 Cal. Rptr. 2d 406 (1997))). 35 choose between pleading guilty and submitting to a trial the very

¶560structure of which would be unconstitutional.” 203 F3d at 626

¶561(emphasis in original). The Ninth Circuit reasoned that a choice

¶562between two such alternatives deprived the defendant “of the choice

¶563between the only two constitutional alternatives — a plea and a fair

¶564trial” — and that, therefore, a court’s improper Faretta ruling

¶565“‘imposed unreasonable constraints’” on the defendant’s decision to

¶566plead guilty. Id. at 627. In sum, according to the Ninth Circuit,

¶567“[w]hen a defendant is offered a choice between pleading guilty and

¶568receiving a trial that will be conducted in a manner that violates his

¶569fundamental Sixth Amendment rights, his decision to plead guilty

¶570is not voluntary,” because the defendant “has not been offered the

¶571lawful alternatives — the free choice — the Constitution requires.”

¶572Id.

¶573 Although Moody does not cite Hernandez, he urges this Court

¶574to adopt essentially the same reasoning that the Ninth Circuit

¶575employed there. Specifically, Moody’s arguments here would require

¶576us to hold that his guilty plea was rendered involuntary based on

¶577 36 the trial court’s earlier denial of his right to represent himself, as he

¶578argues that, by wrongfully denying Moody’s request to represent

¶579himself, “the trial court effectively forced [him] to forego any

¶580meaningful exercise of his constitutional rights at trial.” 9

¶581 But no other circuit has found the rationale in Hernandez

¶582persuasive, and at least four other federal courts of appeal have

¶583adopted the opposite view, holding that a guilty plea waives a

¶584Faretta challenge. See United States v. Dewberry, 936 F3d 803, 805-

¶585807 (II) (8th Cir. 2019); United States v. Moussaoui, 591 F3d 263,

¶586279-280 (II) (A) (4th Cir. 2010); Gomez v. Berge, 434 F3d 940, 942-

¶587943 (II) (7th Cir. 2006); and United States v. Montgomery, 529 F2d

¶588 9 We note that our discussion here concerns Moody’s right to self-representation during the guilt/innocence phase of trial and not during the penalty phase. Moody’s pretrial concerns about self-representation were clearly focused on issues of guilt and innocence. Likewise, his arguments on appeal about self-representation go to the voluntariness of his guilty plea. Moody’s brief states regarding the scope of his denied request regarding self-representation: “Mr. Moody repeatedly made clear that he wanted to contest his guilt. If he could not decide that objective while represented by counsel, he was willing to forgo counsel altogether in furtherance of his desire to contest guilt.” We discern no argument that Moody should have been allowed to represent himself at the penalty phase. Accordingly, our holding is limited to the waiver of claims regarding self-representation at the guilt/innocence phase.

¶589 37 1404, 1406-1407 (10th Cir. 1976); see also United States v. Williams,

¶59029 F4th 1306, 1314-1315 (II) (11th Cir. 2022) (noting majority view

¶591“that an improper denial of the right to self-representation does not

¶592render a subsequent guilty plea involuntary, so the subsequent

¶593guilty plea waives the right to appeal the improper denial.”).10

¶594 In explicitly rejecting the reasoning of the Ninth Circuit, both

¶595the Fourth and Eighth Circuits pointed out that Hernandez’s

¶596rationale “is based on the false premise that the defendant who is

¶597denied his right to represent himself is forced to either plead guilty

¶598or submit to an unconstitutional trial.” Dewberry, 936 F3d at 806

¶599(emphasis added); see also Moussaoui, 591 F3d at 280 (“The

¶600Hernandez court’s conclusion that the defendant’s guilty plea was

¶601involuntary was based on a faulty premise, namely, that his only

¶602alternative was to submit to an unconstitutional trial.”). As both the

¶603 10 We note that some state intermediate appellate courts have reached the same conclusion as the Fourth, Seventh, Eighth, and Tenth Circuits. See, e.g., State v. Szemple, 753 A2d 732, 736 (N.J. Super. Ct. App. Div. 2000); People v. Shields, 613 N.Y.S.2d 281, 282 (N.Y. App. Div. 1994); State v. Claiborne, No. 61343-0-I, 2009 Wash. App. LEXIS 1002, at *6-7 (Wash. Ct. App. Apr. 27, 2009); State v. Jens, No. 03-3153-CR, 2005 Wisc. App. LEXIS 62, at *10-12 (Wis. Ct. App. Jan. 25, 2005). 38 Fourth and Eighth Circuits reasoned, this premise is flawed because

¶604it “fails to account for the fact that if the defendant proceeded to trial

¶605and was convicted, he could seek an appellate remedy for the

¶606constitutional violations he alleged.” Moussaoui, 591 F3d at 280; see

¶607also Dewberry, 936 F3d at 806 (same).

¶608 Furthermore, as the Eighth Circuit observed, “the approach

¶609used in Hernandez is inconsistent with [long-standing] Supreme

¶610Court precedent” holding that a “guilty plea represents a break in

¶611the chain of events which has preceded it in the criminal process.’”

¶612Dewberry, 936 F3d at 807 (quoting Tollett, 411 U.S. at 267).11 As the

¶613 11 In Hernandez, the Ninth Circuit cited Tollett and also the trilogy of cases that the Supreme Court identified there, i.e., Brady v. United States, 397 U.S. 742 (90 SCt 1463, 25 LE2d 747) (1970), McMann v. Richardson, 397 U.S. 759 (90 SCt 1441, 25 LE2d 763) (1970), and Parker v. North Carolina, 397 U.S. 790 (90 SCt 1458, 25 LE2d 785) (1970), as recognizing the principle “reaffirm[ed]” by the Court in Tollett that “[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett, 411 U.S. at 267. But the Ninth Circuit cited Tollett, Brady, McMann, and Parker only for the law regarding the validity of guilty pleas. See Hernandez, 203 F3d at 618 (citing Tollett, 411 U.S. at 267, Brady, 397 U.S. at 748, and McMann, 397 U.S. at 766); id. at 618 n.5 (citing Brady, 397 U.S. at 749-758, and Parker, 397 U.S. at 794-798); id. at 619 (citing Brady at 754-755); id. at 619 n.7 (citing McMann, 397 U.S. at 771 and Brady, 397 U.S. at 756, 760); and id. at 626 (citing Brady, 397 U.S at 754-755, 748 (I) n.6)).

¶614 39 Eighth Circuit further noted, Supreme Court precedent also holds

¶615that “‘case-related constitutional defects’ are made ‘irrelevant to the

¶616constitutional validity of the conviction’ by a later guilty plea

¶617‘because the defendant has admitted the charges against him.’” Id.

¶618(quoting Class v. United States, ___ U.S. ___ (138 SCt 798, 804-805,

¶619200 LE2d 37) (2018)).

¶620 Moreover, in applying Tollett, we have concluded that, with

¶621limited exceptions, “once a defendant has solemnly admitted in open

¶622court that he is in fact guilty of the offense charged, he may not

¶623thereafter raise independent claims relating to the deprivation of

¶624constitutional rights that occurred prior to the entry of the guilty

¶625plea.” Addison, 239 Ga. at 624 (citing Tollett, 411 U.S. at 267); see

¶626also Moore, 285 Ga. at 858 (2) (holding that the defendant’s claim

¶627that “the affidavits in support of his arrest warrant were insufficient

¶628to establish probable cause” was waived in light of his knowing and

¶629Significantly, the Ninth Circuit failed to acknowledge any United States Supreme Court precedent holding that a subsequent voluntary guilty plea generally operates as a waiver of claims of constitutional error that occurred prior to the plea. 40 voluntary plea). We have applied this principle when the specific

¶630constitutional right being waived as a result of the guilty plea

¶631involved the right to counsel. See Powell v. State, 309 Ga. 523, 528

¶632(3) (847 SE2d 338) (2020) (stating that, even if the defendant had

¶633properly requested new counsel, we need not consider his claim that

¶634the trial court erred by denying his request, because, “[a]s a general

¶635rule, a guilty plea waives all defenses except that based on the

¶636knowing and voluntary nature of the plea”).

¶637 The limited exceptions to the general rule of waiver are for

¶638claims that go “to the very power of the State to bring the defendant

¶639into court to answer the charge brought against him.” Blackledge v.

¶640Perry, 417 U.S. 21, 30 (94 SCt 2098, 40 LE2d 628) (1974); see also

¶641Moore, 285 Ga. at 858 (2) (“An exception will only be made if the

¶642error goes to the very power of the State to bring the defendant into

¶643court.” (citation and punctuation omitted)). A Faretta challenge does

¶644not present that situation.

¶645 Accordingly, we agree with the Eighth Circuit that

¶646Hernandez’s rationale, which is essentially the rationale that Moody

¶647 41 urges us to adopt, “turns . . . on its head” the rule that “‘case-related

¶648constitutional defects’ are made ‘irrelevant to the constitutional

¶649validity of the conviction’ by a later guilty plea . . . by making a

¶650defendant’s admission of guilt irrelevant because of an earlier

¶651purported case-related constitutional defect.” Dewberry, 936 F3d at

¶652807 (quoting Class, 138 SCt at 804-805); see also Montgomery, 529

¶653F2d at 1407 (holding that a “voluntary plea of guilty is the

¶654independent intervening act which renders ineffectual the prior

¶655failure to allow [an] appellant to represent himself at a trial” and

¶656opining that “[t]o hold otherwise would open the door to

¶657manipulations and game[s]manship”).

¶658 Moody’s argument that the Faretta issue raises a structural

¶659error does not alter our conclusion. See McKaskle v. Wiggins, 465

¶660U.S. 168, 177 n.8 (104 SCt 944, 79 LE2d 122) (1984) (the improper

¶661denial of the right to self-representation is a structural error and

¶662requires automatic reversal); Oliver v. State, 305 Ga. 678, 680 (2)

¶663(827 SE2d 639) (2019) (same). Although “[t]he consequence of a

¶664‘structural’ error is that it is not subject to harmless error review, . . .

¶665 42 such errors can still be waived.” Jackson v. Bartow, 930 F3d 930,

¶666934 (7th Cir. 2019) (citation omitted)) (holding that a defendant can

¶667waive his claim of a prior structural error, specifically a Faretta

¶668claim, by validly pleading guilty).

¶669 Indeed, Tollett itself supports this conclusion, as the Supreme

¶670Court there determined that the defendant’s plea in that case

¶671waived any claim that African-Americans had been systematically

¶672excluded from the grand jury that indicted him, see 411 U.S. at 261-

¶673266, an error that the Supreme Court confirmed to be structural in

¶674Vasquez v. Hillery, 474 U.S. 254, 266 (106 SCt 617, 88 LE2d 598)

¶675(1986) (reaffirming “the Court’s long commitment to a rule of

¶676reversal” in the case of racial discrimination in the selection of the

¶677grand jury); see also Williams, 29 F4th at 1314 (reviewing Class, 138

¶678SCt at 804-805, and concluding that it “tells us that that a defendant

¶679may waive a claim of structural error by entering a defendant’s

¶680voluntary guilty plea.”); Moussaoui, 591 F3d at 280 n.12 (“[T]he

¶681notion that a structural error occurring prior to a guilty plea

¶682invalidates the subsequent guilty plea would be at odds with the

¶683 43 result in Tollett[.]”). Therefore, we conclude that Moody’s Faretta

¶684claim is based on an independent, non-jurisdictional constitutional

¶685defect and is waived, because in pleading guilty he waived all such

¶686claims arising from alleged errors preceding his guilty plea.

¶687 4. In a related claim, Moody argues that, in addition to denying

¶688his right to self-representation, the trial court also prevented him

¶689from determining the objective of his defense in violation of the

¶690federal constitution. Moody relies on McCoy v. Louisiana, ___ U.S.

¶691___ (138 SCt 1500, 200 LE2d 821) (2018), where the United States

¶692Supreme Court held that a defendant has a right under the Sixth

¶693Amendment “to decide . . . the objective of the defense,” including

¶694“insist[ing] on maintaining [his or] her innocence at the guilt phase

¶695of a capital trial,” and that a violation of this right constitutes

¶696structural error. 138 SCt at 1508, 1511. The trial court’s challenged

¶697ruling, however, was issued before Moody’s plea and, as a result, like

¶698his challenge to the court’s Faretta ruling, has been waived by virtue

¶699 44 of his guilty plea.12

¶700 As discussed above, under both this Court’s precedent and

¶701that of the United States Supreme Court, a voluntary guilty plea

¶702generally operates as a waiver of claims of constitutional error that

¶703occurred prior to the plea, even claims of structural error. See

¶704Tollett, 411 U.S. at 267; Powell, 309 Ga. at 528 (3) (“As a general

¶705rule, a guilty plea waives all defenses except that based on the

¶706 12 When Moody first expressed his conflict with counsel during an ex parte hearing, he said that trial counsel had not “acknowledged” Moody’s “theory of innocence” and that counsel, instead, “just want[ed] to go with what they ha[d] said” the strategy was. Trial counsel responded that he would meet with Moody and “ask him specifically what [wa]s his theory of the defense, and . . . take it from there.” At a subsequent ex parte hearing held 20 days into jury selection, Moody’s lead counsel told the trial court that Moody “want[ed] to contest guilt [and] innocence in this case,” he “perceive[d] that [counsel we]re not contesting that based on the questions [they we]re asking the jurors” during voir dire, he was “exactly right in that regard,” and he “just simply disagree[d]” with counsel’s approach. At the Faretta hearing, trial counsel asserted that Moody’s desire to represent himself was driven at least in part by his “disagreements with [counsel’s] trial strategy,” and Moody stated that counsel told him he had no “say-so” in the direction of his defense. On the first day of trial, trial counsel told the trial court that “Moody ha[d] expressed to [counsel] th[at] morning that he would prefer to pursue a not guilty by reason of insanity defense or a defense of simply not guilty,” whereas “[t]he defense team believe[d] that the more appropriate strategy [wa]s to pursue a strategy that basically embrace[d] the notion of guilty but mentally ill[, which wa]s the strategy that [defense counsel was] prepared to present and that Mr. Moody disagree[d] with.” In resolving the issue, the trial court concluded that this was a “strategy decision[] appropriately given to [the] attorneys.” Given our conclusion of waiver, we express no view on whether the trial court was correct. 45 knowing and voluntary nature of the plea.”). Like his Faretta

¶707challenge, Moody’s McCoy claim is related to the manner in which

¶708he would have conducted his defense at trial, and it focuses on a

¶709ruling on a non-jurisdictional issue unrelated to his guilty plea, and

¶710that occurred prior to the entry of the guilty plea.

¶711 Moreover, “a valid guilty plea relinquishes any claim that

¶712would contradict the ‘admissions necessarily made upon entry of a

¶713voluntary plea of guilty.’” Class, 138 SCt at 805 (quoting United

¶714States v. Broce, 488 U.S. 563, 573-574 (109 SCt 757, 102 LE2d 927)

¶715(1989)). A McCoy claim based on a defendant’s alleged “intransigent

¶716objection to th[e] admission” of his guilt to a charged crime, 138 SCt

¶717at 1510, would contradict the admission actually made upon entry

¶718of his guilty plea to that crime. Therefore, we conclude that the trial

¶719court’s ruling that Moody now challenges as violating McCoy did not

¶720render his guilty plea invalid, because in pleading guilty Moody

¶721waived all such non-jurisdictional errors leading up to his

¶722convictions except those affecting the validity of his plea.

¶723 5. Moody argues that the method of summoning jurors was

¶724 46 unlawful. But here as well, by pleading guilty, Moody “waived any

¶725claim he might have had concerning the jury selection process” with

¶726respect to the discontinued guilt/innocence phase of his trial. Hooks

¶727v. State, 233 Ga. 149, 150 (1) (210 SE2d 668) (1974) (citing Tollett,

¶728411 U.S. at 267), vacated in part on other grounds by 433 U.S. 917

¶729(97 SCt 2994, 53 LE2d 1104) (1977)). And for reasons discussed

¶730below, the trial court did not err in denying this claim as it applied

¶731to his sentencing.

¶732 (a) Moody challenged the formation of the petit jury, asserting

¶733that the Council of Superior Court Clerks (“Council”) failed to

¶734comply with the Jury Composition Rule (“JCR”), which became

¶735effective on July 1, 2012, in that the Council’s method for removing

¶736duplicate records did not comply with the JCR. He also contended

¶737that Fulton County had substantially altered the master jury list

¶738provided to it by the Council and thereby violated the JCR by

¶739improperly inactivating a substantial number of persons from the

¶740list.

¶741 At a hearing, Moody submitted as an exhibit the “Certificate of

¶742 47 Compliance for Fulton County” from the Council’s vendor certifying

¶743to this Court that the vendor had complied with the JCR in the

¶744preparation of the 2012 Fulton County master jury list and that the

¶745list met the inclusiveness threshold specified in the JCR with an

¶746inclusiveness of 139 percent. See JCR ¶¶ 3, 4 (2012).13 Moody’s

¶747expert witness testified that Fulton County had inactivated 103,263

¶748records on the list supplied by the Council, which did not “comport

¶749with” the JCR. According to Moody’s expert witness’s calculations,

¶750even after Fulton County’s inactivations, the altered master list

¶751from which Moody’s petit jury list was selected still contained

¶752107,608 duplicate records, involving 53,798 duplicate persons,14 and

¶753the altered master jury list was still 119 percent inclusive of the

¶754 13 These citations are to the version of the JCR applicable to Moody’s case, which became effective July 1, 2012, and which provided that “[e]ach county master jury list should be no less than 85% inclusive of the number of persons in the county population age (18) years or older as derived from the most recent decennial census or county population estimate (Table B01001) as of the date of this rule) from the United States Census Bureau for the calendar year when the list is generated.” JCR ¶ 3 (2012). The JCR has been substantially amended since the time of Moody’s sentencing trial. 14 Moody’s expert witness explained that the reason why the number of

¶755persons with duplicate records was not exactly half of the number of duplicate records was that a few of the “duplicate” records were actually “triplicates.”

¶756 48 county population age 18 years or older based on the 2010 decennial

¶757census. 15 Moody’s expert witness also testified that these duplicate

¶758records disproportionately involved whites. The trial court denied

¶759Moody’s motion, summarily concluding “that the jury pool was

¶760properly constituted” and “properly apportioned” and that it “was

¶761not improperly altered by Fulton County.”

¶762 After Moody’s sentencing trial, we issued our decision in Ricks

¶763v. State, 301 Ga. 171 (800 SE2d 307) (2017), an interim appellate

¶764review decision (i.e., an appeal brought before trial) in which we

¶765concluded that Fulton County’s 2013 and 2014 master jury lists had

¶766been altered by the county in violation of the JCR and remanded the

¶767case with direction to the trial court to ensure that the prospective

¶768jurors for the defendant’s trial were drawn from a list that complied

¶769with the JCR and the relevant statutory provisions. See id. at 188-

¶770 15 But see Ricks v. State, 301 Ga. 171, 182 (3) (a) n.9 (800 SE2d 307) (2017) (indicating that the same language in JCR ¶ 3 (a) in effect at the time that Moody’s master jury list was compiled, which directed that population figures be “derived from the most recent decennial census or county population estimate,” meant that the more recent of those two population figures, if available, should be used). 49 194 (5), (6). Moody included the trial court’s denial of his petit jury

¶771challenge in his motion for new trial, contending that Fulton County

¶772committed the same type of violations committed in Ricks and that

¶773his Sixth Amendment fair cross-section right was violated as a

¶774result. The trial court denied Moody’s motion for new trial, finding

¶775as to this particular claim that “there were no violations of the [JCR]

¶776which would have had the effect of vitiating the array” and that

¶777Moody “did not establish a prima facie case of a Sixth Amendment

¶778fair cross-section claim.”

¶779 (b) In his initial brief to this Court, Moody claims that Fulton

¶780County’s violations of the JCR “[c]onstituted an ‘essential and

¶781substantial’ [v]iolation of the [r]ules [g]overning [j]ury [s]election,”

¶782but he does not argue that any specific jury selection statute was

¶783violated. In response to the Attorney General’s brief pointing out

¶784that he had failed to identify a violation of a jury selection statute,

¶785Moody argues for the first time in his reply brief that the altered

¶786master jury list used by Fulton County was not the county master

¶787jury list actually compiled by the Council as required by OCGA §§

¶788 50 15-12-120.1 (providing that, “[o]n and after July 1, 2012, trial juries

¶789shall be chosen from a county master jury list”) and 15-12-1 (5)

¶790(defining the term “’[c]ounty master jury list’” as “a list compiled by

¶791the council”). Moody contends that using the altered list to draw the

¶792array for his trial violated those provisions of the jury selection

¶793statutes. Pretermitting whether this additional argument is entitled

¶794to consideration, see City of Atlanta v. Mays, 301 Ga. 367, 372 (3)

¶795(801 SE2d 1) (2017) (“An appellant who raises an argument for the

¶796first time in a reply brief is not entitled to have that argument

¶797considered.”), and also pretermitting whether a jury selection

¶798statute was actually violated, Moody’s contention does not warrant

¶799reversal.

¶800 Since Ricks we have explained that “the primary objective of

¶801the JCR — to ensure that each county master jury list is ‘no less

¶802than 85% inclusive’ of the county’s adult population — is a

¶803prophylactic measure that is not tied to any specific constitutional

¶804or statutory mandate.” Sinkfield v. State, 311 Ga. 524, 529 (1) (858

¶805SE2d 703) (2021). When a violation of the JCR is shown before trial,

¶806 51 a defendant may be able to obtain pre-trial relief requiring the JCR

¶807to be followed in his trial regardless of any showing of harm. See

¶808Ricks, 301 Ga. at 193 n.22 (5) (f). But the same is not true after trial;

¶809even if a “master jury list violated the JCR,” there must ordinarily

¶810be “some showing of harm — that is, some probability that the error

¶811affected the outcome of the trial proceedings” — in order to warrant

¶812reversal on post-trial appeal. Sinkfield, 311 Ga. at 527 (1). That said,

¶813we have noted that “this Court has suggested — without expressly

¶814using the term ‘structural error’ — that automatic reversal may be

¶815warranted where an ‘essential and substantial’ provision of a jury

¶816selection statute has been violated[.] . . .” Id. at 528 (1). We have long

¶817held as a general matter:

¶818 Statutes regulating the selection, drawing, and summoning of jurors are intended to distribute jury duties among the citizens of the county, provide for rotation in jury service, and are merely directory. Obviously, however, a disregard of the essential and substantial provisions of the statute will have the effect of vitiating the array.

¶819Al-Amin v. State, 278 Ga. 74, 80 (7) (597 SE2d 332) (2004) (citation

¶820and punctuation omitted), overruled on other grounds by State v.

¶821 52 Lane, 308 Ga. 10, 23 (Appendix) (838 SE2d 808) (2020).

¶822 In State v. Towns, we recognized “that this Court never before

¶823ha[d] attempted to articulate a standard that clearly marks the line

¶824between the provisions of jury selection statutes that are ‘essential

¶825and substantial’ and those that are not.” 307 Ga. 351, 355 (3) (834

¶826SE2d 839) (2019). There, we explained that “our examination of the

¶827[applicable] cases le[d] us to conclude that, to the extent that a

¶828violation of the jury selection statutes affects the identity of the

¶829persons selected for the array from the universe of persons eligible

¶830to serve, it is a violation of an ‘essential and substantial’ provision.”

¶831Id. Relying on Towns and on his expert witness’s testimony that the

¶832identities of summoned jurors in his case would have been different

¶833if the master jury list had been properly created and maintained,

¶834Moody argues that Fulton County altered “the identity of the

¶835persons selected for the array from the universe of persons eligible

¶836to serve” by manipulating the master list originally compiled by the

¶837Council using “legacy data” and other means to add and delete

¶838names from that list.

¶839 53  Moody’s argument is unavailing. In Towns, we determined

¶840that, “[i]n the absence of an articulated standard to mark the line,

¶841the best way to find the line is an examination of how we have

¶842applied the ‘essential and substantial’ test in prior cases, especially

¶843cases like [Towns’s case] that involve[d] the selection of a juror who

¶844likely would not otherwise have been chosen for the array.” 307 Ga.

¶845at 355 (2) (emphasis added). In Towns, we also noted that, although

¶846“the persons summoned for service as petit jurors were selected at

¶847random from the master jury list,” the clerk relied on her own

¶848personal knowledge about the prospective petit jurors in selecting

¶849two of them to be summoned for a grand jury that had an insufficient

¶850number of jurors, thereby violating the “random[ness]” requirement

¶851of OCGA § 15-12-66.1. Id. at 354 (2).

¶852 Moody’s alleged violation is nothing like the problem in Towns.

¶853This case is more like the situations we noted in Towns that involved

¶854circumstances in which no relief was warranted. See Towns, 307 Ga.

¶855at 555 (3) n.9. Indeed, several of those cases that we found

¶856distinguishable in Towns dealt specifically with the statutory

¶857 54 procedures for creating master jury lists, just as Moody’s case does.

¶858In those cases, “so long as a jury list meets equal-protection and fair-

¶859cross-section standards respecting the inclusion of cognizable

¶860groups, ‘the statutory procedures for creating the [master jury] list

¶861are merely directory,’ and do not create a basis for sustaining

¶862challenges to the array.” Frazier v. State, 257 Ga. 690, 691 (2) (362

¶863SE2d 351) (1987) (citation and punctuation omitted); see also Foster

¶864v. State, 288 Ga. 98, 101 (2) (b) (701 SE2d 189) (2010) (holding that

¶865the fact that the master jury list was compiled by a board of jury

¶866commissioners that was comprised of only five instead of the six

¶867members required by former OCGA § 15-12-20 “did not rise to ‘such

¶868disregard of the essential and substantial provisions of the statute

¶869as would vitiate the arrays’” (citation omitted)); State v. Parlor, 281

¶870Ga. 820, 820-821 (642 SE2d 54) (2007) (holding that the statutory

¶871instruction to conduct a biennial revision of the grand jury list was

¶872merely directory); Sealey v. State, 277 Ga. 617, 618-619 (2) (593

¶873SE2d 335) (2004) (holding that the statutory instruction to select the

¶874most upright and intelligent citizens for the grand jury was merely

¶875 55 directory), disapproved on other grounds by Willis v. State, 304 Ga.

¶876686, 706 (11) (a) n.3 (820 SE2d 640) (2018); Burney v. State, 244 Ga.

¶87733, 38 (3) (257 SE2d 543) (1979) (holding that former Code § 59-106

¶878was directory only and thus evidence showing that the jury list had

¶879not been revised according to that statute’s timetable and did not

¶880contain a number of names equal to 50 percent of the registered

¶881voters of the county as required by an amendment to that statute

¶882“[did] not invalidate the jury list or deprive defendant of any right

¶883to which he [was] entitled”).16 Therefore, even assuming that OCGA

¶884 16 To further support this claim, Moody asserts that four white jurors who were selected to serve at his sentencing trial appeared as duplicate records on the master jury list used in his case. In the trial court, Moody alleged that it was as many as six jurors; the trial court never made a factual finding on this point. Moody states in a footnote of his brief to this Court that counsel made “[t]hese determinations by comparing the juror numbers associated with the jurors selected to serve[] with the information provided on the juror questionnaires” and then “cross-referencing that information against the list of duplicate records that appeared on the master jury list used in this case, which was admitted as Defense Exhibit 9 at the March 4, 2013, evidentiary hearing.” Moody cites generally to two volumes of the record consisting of 4,145 pages and containing the juror questionnaires for approximately 491 prospective jurors in his case and to a defense exhibit admitted at the March 4, 2013, evidentiary hearing that consists of over 1,000 pages. Pretermitting whether Moody has fully complied with Supreme Court Rule 22 requiring citations in parties’ briefs to be “full and complete,” we conclude that whether four white jurors with duplicate records served on Moody’s jury is irrelevant. Even assuming that, as Moody’s expert witness

¶885 56 § 15-12-120.1 was violated in the manner that Moody alleges, Moody

¶886has not established a fair-cross-section violation, as discussed below,

¶887or that the alleged violation amounted to “such disregard of the

¶888essential and substantial provisions of the statute as would vitiate

¶889the array[]” to warrant automatic reversal. Foster, 288 Ga. at 101

¶890(2) (b) (citation and punctuation omitted).

¶891 (c) Moody also argues that the master jury list used to summon

¶892jurors in his case violated the fair cross-section requirement in that

¶893African-Americans were unconstitutionally under-represented. “In

¶894testified, drawing from a master jury list without duplicates would have resulted in a “different group” of summoned jurors, Moody has not shown that the four jurors who served on his jury would not have remained on a properly created and maintained master jury list and thus could not possibly have been selected for his array, and we deem the relevant unintentional increase in the probability that certain jurors would have been summoned for jury service to fall short of an essential and substantial violation of the general legal requirement of randomness in summoning potential jurors. See Harper v. State, 283 Ga. 102, 103-104 (1) (657 SE2d 213) (2008) (distinguishing between a “defect . . . in complying with the statutory directives governing how the jury commission should select grand jurors” and a defect “[w]here th[e] role of the jury commission ha[d] been entirely circumvented by the service of a grand juror it never selected for service, [which was] an ‘essential and substantial’ violation of the law” (citation and punctuation omitted; emphasis in original); Dawson v. State, 166 Ga. App. 515, 516-517 (2) (304 SE2d 570) (1983) (holding that a grand juror did not illegally serve where her name appeared on the master jury list, although it was not on the grand juror list for the term in which she served). 57 order to show a Sixth Amendment violation, [Moody] must show the

¶895group’s cognizibility, under-representation, and systematic

¶896exclusion.” Humphreys v. State, 287 Ga. 63, 68 (3) (b) (694 SE2d 316)

¶897(2010), disapproved on other grounds by Willis, 304 Ga. at 706 (11)

¶898(a) n.3. Unquestionably, African-Americans are a “cognizable”

¶899group. See, e.g., Williams v. State, 287 Ga. 735, 735-736 (699 SE2d

¶90025) (2010), superseded by the Jury Composition Reform Act of 2011

¶901as noted in Ellington v. State, 292 Ga. 109, 118 (4) n.2 (735 SE2d

¶902736) (2012), disapproved on other grounds by Willis, 304 Ga. at 706

¶903(11) (a) n.3. But Moody has failed to show any under-representation.

¶904 According to Moody’s expert, whites age 18 years and over

¶905comprised 46.68 percent of the population of Fulton County and

¶906African-Americans age 18 years and over comprised 42.8 percent,

¶907each based on the 2010 decennial census. According to Moody’s

¶908expert witness’s calculations, non-duplicate whites on the altered

¶909Fulton County master jury list comprised 46.34 percent of the list,

¶910and non-duplicate African-Americans comprised 46.84 percent.

¶911 Nevertheless, Moody relies on his expert witness’s testimony

¶912 58 that the duplicates on the Fulton County master jury list “had a

¶913higher chance of being selected,” were “disproportionately white[,]

¶914and underrepresent[ed] African[-]Americans.” In particular,

¶915according to Moody’s expert witness’s figures, the duplicates on the

¶916Fulton County master jury list were comprised of 56.81 percent

¶917whites and only 40.88 percent African-Americans. According to

¶918Moody’s expert witness, the Council’s master jury list was missing

¶919race codes for 64.97 percent of the persons on the list, but, as part of

¶920its alteration of the master jury list that it received from the Council,

¶921Fulton County “amend[ed]” the list to add race codes for a significant

¶922number of records on the list.17 Even with the addition of Fulton

¶923County’s race codes, however, Moody’s expert witness testified that

¶924he could not provide the data needed regarding racial disparity in

¶925order to make a constitutional claim, explaining that although the

¶926disproportionality of whites in the duplicates “[wa]s going to cause

¶927a racial skew towards whites,” it was “[r]eally hard to tell” what the

¶928 17It is unclear from the record where Fulton County obtained the information for the race codes that it added. 59 total impact of that skew would be. Moody’s expert witness further

¶929explained that, “for the most part we don’t know what everybody’s

¶930race code is or what everybody’s race that they’ve identified on the

¶931full list, either the [master jury list compiled by the Council] or the

¶932[the master jury list as altered by Fulton County].”

¶933 The absence of that data means that Moody failed to make a

¶934prima facie case. And because Moody did not make a prima facie

¶935case, his fair cross-section claim fails. See Shubert v. State, 306 Ga.

¶936490, 492 (2) (831 SE2d 826) (2019) (holding that the defendant failed

¶937to carry his burden to make even a prima facie case for a fair cross-

¶938section claim because he had presented insufficient evidence to

¶939determine the racial composition of the relevant master jury list).

¶940 Sentencing Trial

¶941 6. Moody contends that the trial court erred in denying his

¶942motion for a mistrial based on juror misconduct. We disagree.

¶943 (a) During a recess on the morning of the third day of the

¶944sentencing trial, the trial court announced to the parties that it had

¶945received a note from Juror 142 asking to speak to the court. The trial

¶946 60 court then summoned the juror to a conference with the court and

¶947the parties. The juror, a registered nurse, then disclosed that, on

¶948returning home the previous evening, he had conducted an internet

¶949search on “sociopathic disorder” and “antisocial personality

¶950disorder.” When the trial court asked him why he had conducted his

¶951search, the juror responded that, even though he had not heard

¶952those particular terms, the jury “ke[pt] hearing, you know, mental

¶953instability [t]here in the courtroom.” He indicated that, while he had

¶954never been a psychiatric nurse, he had had “a psychiatric rotation

¶955in nursing school” and that he had been “curious as to just refreshing

¶956[his] memory” about diagnoses that he had previously learned about.

¶957He also explained that he told his fellow jurors that he had

¶958conducted his search and that, in response, “they all agreed that [he]

¶959should let [the trial court] know” what he had done. The trial court

¶960then asked him whether he had told the other jurors the substance

¶961of what he had learned from his search or whether he had discussed

¶962that information “at all” with them, and he answered unequivocally

¶963to both inquiries, “No, I did not.”

¶964 61  The trial court then gave both parties the opportunity to

¶965question the juror. The State had no further questions, but during

¶966defense counsel’s inquiry, the juror clarified that he had conducted

¶967independent research only on the previous evening and not

¶968throughout the proceedings and that he had informed the other

¶969jurors that he had conducted this research only during the recess

¶970that the trial court had taken shortly before the court had received

¶971his note. Defense counsel asked the juror to describe “the

¶972conversations” that took place regarding the research, and he

¶973responded, “Well, I basically asked them if they thought it was

¶974acceptable that I had looked at these two personality disorders on

¶975the internet.” On further inquiry, the juror stated that he had named

¶976the term “sociopaths” during his conversation with the other jurors

¶977but that he did not believe that he had mentioned the term

¶978“antisocial personality disorder.” Defense counsel then asked him

¶979how the other jurors “express[ed] their concerns to [him] about [his

¶980research],” and he said that “they just said that [he] should not have

¶981done that.” When defense counsel began to ask him whether “any

¶982 62 particular juror sa[id] anything to [him] in the presence of the other

¶983jurors about this,” the trial court intervened and said that the court

¶984had “heard what [it] need[ed] to hear.”

¶985 After Juror 142 left the courtroom, both parties requested that

¶986he be removed, and the trial court agreed to do so. Then defense

¶987counsel suggested that the trial court inquire as to whether the other

¶988jurors “knew that [Juror 142 wa]s a nurse or [wa]s a medical

¶989professional of some sort.” However, the trial court stated that this

¶990question was irrelevant given that any juror could have conducted

¶991the research regardless of his or her background. The trial court

¶992found that the relevant inquiry instead was whether Juror 142’s

¶993actions and statements to the other jurors would “prevent [a juror]

¶994from making [a] decision based on what[ was t]here in the courtroom

¶995and following the court’s instructions to make [a] decision in that

¶996regard.” Defense counsel stated, “I understand,” and did not argue

¶997further. The trial court then brought in one juror and asked:

¶998 I know that Juror 142 asked a question in the presence of the other jurors about some internet search he had done, about whether he should bring it to the court’s attention.

¶999 63  My question for you, is any of that conversation that you heard from him or anything about that, do you believe it would prevent you from doing what you are sworn to do as a juror, listen to the evidence, listening to my instruction, and making a decision based on those things?

¶1000 The juror answered in the negative. After the trial court had

¶1001completed its colloquy, defense counsel told the court that it was

¶1002difficult to “analyze this issue” without “know[ing] exactly what

¶1003[Juror 142] said, and . . . what [the other jurors] said to him.” The

¶1004trial court indicated that it was not going to make an inquiry into

¶1005those matters, and defense counsel said that he understood.

¶1006Defense counsel then requested that the trial court refrain from

¶1007“admoni[shing the jurors] to obey [their] oath because . . . that ha[d]

¶1008a tendency to direct them.” The trial court stated its belief that it

¶1009was acting appropriately and then returned to defense counsel’s

¶1010suggestion about making a further inquiry into what was said

¶1011among the jurors. The trial court explained that it found Juror 142

¶1012credible, pointing out that “the only reason he was out” in the

¶1013courtroom was to tell “[the trial court and the parties] what he did”

¶1014and that the trial court saw no reason not to believe “what else he

¶1015 64 told [them] about what he did.” The trial court concluded that it

¶1016“kn[e]w what was said based on what [Juror 142] told” the trial court

¶1017and the parties in “the same report that brought [the misconduct] to

¶1018[their] attention in the first instance.”

¶1019 The trial court then questioned each of the remaining jurors,

¶1020with all the jurors being asked in a substantially similar manner.

¶1021Each of the jurors responded that there was nothing in the

¶1022conversation that would keep him or her from being fair and

¶1023impartial and deciding the case on the evidence and the law. In

¶1024addition, one juror volunteered that, “[i]f anything, [the

¶1025conversation] ma[de the jurors] much more conscious of [their]

¶1026duty.” Another juror volunteered that “it was not a conversation” but

¶1027that “[Juror 142] maybe said two sentences at the most.” A different

¶1028juror stated “[t]here was nothing specific said,” and yet another

¶1029stated that he “didn’t even hear [Juror 142’s] question.” No juror

¶1030indicated that the trial court’s description of the circumstances of

¶1031Juror 142’s disclosure to his fellow jurors was incorrect.

¶1032 After the trial court stated its intention to go forward, defense

¶1033 65 counsel moved for a mistrial based on Juror 142’s misconduct and

¶1034the subject matter that he had researched. Defense counsel

¶1035expressed particular concern “about the actual subject matter of

¶1036[Juror 142’s] inquiry, sociopath and antisocial personality disorder,

¶1037given that there ha[d] been absolutely no testimony at th[at] point

¶1038concerning that but that [defense counsel] anticipate[d] there, in

¶1039fact, w[ould] be substantial testimony concerning those issues.” The

¶1040trial court denied the motion, finding that “[t]he jurors ha[d] clearly

¶1041indicated that nothing about what happened, to the extent that they

¶1042heard it, developed by the questioning, ha[d] affected their ability to

¶1043be fair and impartial in the case” and concluding that therefore there

¶1044was no basis for a mistrial.

¶1045 (b) We have recently explained:

¶1046 We review a trial court’s denial of a motion for mistrial for abuse of discretion, and the trial court’s exercise of its discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial. When reviewing a trial court’s ultimate decision for an abuse of discretion, we review factual findings or credibility determinations underlying the court’s decision only for clear error.

¶1047 66  To set aside a jury verdict solely because of irregular jury conduct, a court must conclude that the conduct was so prejudicial that the verdict is inherently lacking in due process. Any juror irregularity that has the potential to injure a defendant’s due process rights triggers a presumption of prejudice, and the prosecution must then carry the burden of establishing beyond a reasonable doubt that no harm occurred. To establish that the juror irregularity was harmless beyond a reasonable doubt, the State must show based on the record evidence that there is no reasonable possibility that the juror irregularity contributed to the [outcome of the proceeding]. As we have explained, the State may carry this burden by establishing that the juror irregularity was an immaterial irregularity without opportunity for injury.

¶1048Charles v. State, 315 Ga. 651, 657-658 (3) (___ SE2d ___) (2023)

¶1049(cleaned up).

¶1050 On appeal, Moody argues that “the substance of [Juror 142]’s

¶1051research went directly to a central, disputed, inflammatory, and

¶1052likely dispositive issue in the sentencing phase of the trial,” i.e.,

¶1053whether he suffers from severe mental illness or instead from

¶1054antisocial personality disorder. But that alone does not establish

¶1055presumptive prejudice — after all, the trial court promptly excused

¶1056Juror 142 after establishing that he did not share the substance of

¶1057any of the information gleaned from his research with any of his

¶1058 67 fellow jurors but instead immediately followed their advice to inform

¶1059the trial court about what he had done.

¶1060 Moody nevertheless argues that Juror 142 “shared [his]

¶1061research with other jurors,” who ultimately sentenced him to death,

¶1062and that “[t]he trial court’s limited inquiry into the misconduct did

¶1063not provide the State with sufficient proof to rebut the presumption

¶1064of prejudice that arose from this misconduct.” Although the trial

¶1065court did not question the remaining jurors as to what the specific

¶1066conversation was that took place when Juror 142 told them that he

¶1067had conducted internet research, Juror 142’s testimony and the

¶1068responses of the jurors to the trial court’s inquiry, which were

¶1069consistent with what Juror 142 described as having taken place,

¶1070authorized the trial court to find that Juror 142 did not share what

¶1071he had learned with the other jurors. Moreover, the trial court’s

¶1072questioning of each of the remaining jurors established that they

¶1073could remain fair and impartial. This was sufficient to establish

¶1074beyond a reasonable doubt that Juror 142’s misconduct did not harm

¶1075Moody. See Jones v. State, 258 Ga. 96, 97 (366 SE2d 144) (1988)

¶1076 68 (“[W]here the substance of the communication is established

¶1077without contradiction, the facts themselves may establish the lack

¶1078of prejudice or harm to the defendant.”). Accordingly, the trial court

¶1079did not abuse its discretion in denying Moody’s motion for a mistrial.

¶1080See Burney v. State, 309 Ga. 273, 292-294 (5) (845 SE2d 625) (2020)

¶1081(holding that a juror’s misconduct in conducting an online search for

¶1082the terms “malice” and “malice murder” during the jury’s

¶1083deliberations in a murder prosecution was harmless beyond a

¶1084reasonable doubt where the trial court found that the juror did not

¶1085share what she had learned with her fellow jurors and that her

¶1086misconduct did not impact any juror’s assessment of the charges

¶1087against the defendant, including her own); Hodges v. State, 302 Ga.

¶1088564, 568-569 (4) (807 SE2d 856) (2017) (holding that a juror’s

¶1089misconduct in looking up some words on a dictionary application

¶1090during trial was harmless beyond a reasonable doubt, where the

¶1091juror testified that the search had no impact on her as a juror and

¶1092there was no evidence that she shared her search results with other

¶1093jurors).

¶1094 69  7. Moody contends that the trial court abused its discretion by

¶1095allowing improper victim impact testimony from the grandmother

¶1096and the mothers of the victims. For the reasons set forth below, we

¶1097discern no reversible error.

¶1098 (a) Testimony of the Victims’ Grandmother. Over Moody’s

¶1099objection that the statements were in the format of poems to the

¶1100victims, the trial court allowed the grandmother of Kimble and

¶1101Mattox to read her victim impact statements to the jury. 18 In

¶1102 18 The grandmother stated:

¶1103 The first one is my moonlight, and that’s what Del was to me. Okay. It reads my moonlight, you will always be with me. I can always look out at night and see you glowing through the trees. On my mind you will always be my handsome grandson who was smart and very nice to me. One thing I know we all know for sure, you were --- we were all very proud of you. Nighttime, daytime, noontime, all the time I think of you. Loved ones can never be replace no matter what you do. I still miss you, and I wish you were here. But I know you’re with God. You are happy there. God only knows what is best for us. When we look ---- when he took you home, it was a must. Heaven is your home now. Earth is mine, but we will be soon together when it is time. The time will come, we will meet again, and we will all see each other in that Great Promised Land.

¶1104 Okay. And this is to my sunshine, Sierra Kimble. Sunshine, my sweet, shining, beautiful sunshine, your love --- your love and your smile will always be for the --- will be with me for a lifetime.

¶1105 70 overruling Moody’s objection, the trial court noted that a

¶1106grandmother’s testimony about what it meant to her to lose her

¶1107grandchildren “[wa]s about as poignant as it can get.” However, the

¶1108trial court found that the statements were “not ploys for sympathy”

¶1109or “overly prejudicial.” We agree. Both statements were very brief

¶1110descriptions of the victims’ unique qualities that endeared them to

¶1111their grandmother and her longing to see them again, and they were

¶1112proper testimony. See Bryant v. State, 288 Ga. 876, 897 (15) (a) (708

¶1113SE2d 362) (2011) (explaining that this Court has deemed victim

¶1114impact testimony describing the victim’s life and the impact of his

¶1115or her loss on his or her family as being appropriate); Lawler v. State,

¶1116 Understanding why you had to leave so soon is very hard, but to be absent from the body is to be present with God. Never will I forget you. You will always be in my heart. When I think of you, it is so hard being apart. Sun --- shining sunshine, my sweet sunshine, shining forever you will always be with me and leave me never. Heaven is your home. I do understand. You are with God waiting for me with open hands. I can see you now working and helping others out. That is what you do. That is what you are about. Now I know you that you are now resting in peace. Everlasting life is what we all have to look forward to, also getting to heaven and meeting up with you.

¶1117 71 276 Ga. 229, 232 (3) (576 SE2d 841) (2003) (stating that victim

¶1118impact testimony is not unconstitutional simply because it is

¶1119poignant or sad).

¶1120 Nevertheless, on appeal Moody now asserts that these

¶1121statements were “emotionally-charged” due to their figurative

¶1122language and “religious references to ‘[G]od,’ ‘heaven,’ and

¶1123‘everlasting life.’” Relying on Livingston v. State, 264 Ga. 402, 404

¶1124(1) (b) (444 SE2d 748) (1994), Moody argues that the statements

¶1125were improper because they inflamed and unduly prejudiced the

¶1126jury. But in Livingston, our point was that “even some [otherwise-]

¶1127legitimate victim impact evidence could inflame or unduly prejudice

¶1128a jury if admitted in excess.” 264 Ga. at 404 (1) (b) (emphasis added).

¶1129That did not happen here, as the statements at issue each comprised

¶1130merely a half-page of transcript. The language used by the victims’

¶1131grandmother, such as references to her granddaughter as her

¶1132“sunshine” and to her grandson as her “moonlight” and to her

¶1133religious belief in life after death, is not the type of language that

¶1134would unduly inflame or prejudice a jury. See Turner v. State, 268

¶1135 72 Ga. 213, 215 (2) (b) (486 SE2d 839) (1997) (no error in admitting

¶1136victim impact statements that were brief, “covering less than two

¶1137pages of transcript each,” that “focused on the witnesses’

¶1138relationship with the victim and how the victim’s death had affected

¶1139the witness personally,” and that made “extremely brief” references

¶1140and did not inflame the “jury based on religion”); Livingston, 264 Ga.

¶1141at 404 (1) (b) (noting that this Court has held that “‘the passion’

¶1142proscribed by our law does not encompass all emotion, but only that

¶1143engendered by prejudice, particularly racial prejudice . . . or

¶1144[prejudice towards] religious preference,’ or other arbitrary factors”

¶1145(citation omitted)). Therefore, this claim has no merit.

¶1146 (b) Testimony of the Victims’ Mothers. Moody also claims that

¶1147the trial court committed reversible error by admitting the victim

¶1148impact testimony of the victims’ mothers to the extent they

¶1149contained statements that can be construed only as pleas to the jury

¶1150to recommend a death sentence. “It is settled law that testimony by

¶1151relatives of a victim concerning the appropriate sentence is not

¶1152properly admissible in a death penalty case as victim-impact

¶1153 73 testimony.” State v. Worsley, 293 Ga. 315, 328 (5) (745 SE2d 617)

¶1154(2013).

¶1155 But because Moody raised no objections to either of these

¶1156statements at trial, his claims are not preserved for ordinary

¶1157appellate review and can be reviewed only for plain error. See

¶1158Williams v. State, 315 Ga. 490, 494 (2) n.7 (883 SE2d 733) (2023)

¶1159(holding that an unobjected-to ruling on admitting or excluding

¶1160evidence is subject to plain error review under OCGA § 24-1-103 (d)

¶1161even if the basis for the ruling is governed by the Constitution or by

¶1162a statutory provision outside the Evidence Code). Under plain error

¶1163review, we apply the four-pronged analysis articuled in State v.

¶1164Kelly:

¶1165 First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which

¶1166 74  ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

¶1167290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (cleaned up); see also

¶1168Martin v. State, 298 Ga. 259, 279 (6) (d) (779 SE2d 342) (2015)

¶1169(noting that this Court’s obligation under OCGA § 17-10-35 (c) (1) to

¶1170conduct a plenary review in all death penalty cases “guards against

¶1171any obvious impropriety at trial, whether objected to or not, that in

¶1172reasonable probability led to the jury’s decision to impose a death

¶1173sentence”), disapproved on other grounds by Willis, 304 Ga. at 707

¶1174(11) (a) n.3. Thus, under both the plain error review of Kelly and the

¶1175plenary review of Moody’s death sentences under OCGA § 17-10-35

¶1176(c) (1), relief here would be warranted only if there is a reasonable

¶1177probability that the improper victim impact testimony in this case

¶1178led to the jury’s decision to impose Moody’s death sentences.

¶1179 The victim impact testimony contained language of the sort

¶1180that we previously have deemed improper. In her victim impact

¶1181statement, Rhonda Mattox, who was Mattox’s mother and Kimble’s

¶1182aunt, stated that “[her] hope [wa]s that the jury w[ould] punish the

¶1183 75 defendant to the fullest extent.” Zondra Mathis, who was Kimble’s

¶1184mother and Mattox’s aunt, said the following:

¶1185 I just said to myself I don’t want them[ 19] to die because of what – because of the heart that I have. But I want them to really pay for what they had done and taken my baby through. My emotion has changed to someone that I don’t want to be, and I would have never wanted to think the way that I’m thinking these days. I’m just asking for – I’m just asking that they be punished to the fullest. I know that that won’t bring my sunshine back to me, but it would give me that knowledge, the knowledge that justice was served.

¶1186 Although Mathis’s testimony was somewhat ambiguous —

¶1187defense counsel argued in closing that she had asked the jury not to

¶1188impose the death penalty — Mathis and Mattox nevertheless made

¶1189statements calling for “justice” and a “punish[ment] to the fullest”

¶1190extent of the law, which we have ruled are improper. See Martin,

¶1191298 Ga. at 285 (9) (victim impact testimony “refer[ring] to the

¶1192family’s desire for ‘justice’” was improper), disapproved on other

¶1193grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Worsley, 293 Ga. at

¶1194328 (5) (statements that the defendant should receive the

¶1195 19 By using the pronouns “them” and “they,” Mathis was apparently referring to Moody and his co-defendant, Felts. 76 “maximum” or “ultimate” sentence were “implied requests for the

¶1196jury to recommend the death penalty”).

¶1197 Any errors in allowing this testimony, however, did not affect

¶1198Moody’s substantial rights. In the light of the overwhelming

¶1199evidence, the nature of Moody’s crimes, the brevity of the improper

¶1200testimony, the fact that the improper testimony was not explicit or

¶1201especially inflammatory, and the fact that Mathis’s testimony was

¶1202ambiguous enough that defense counsel used it in closing argument

¶1203as showing that she was against death sentences for Moody, there

¶1204is no reasonable probability that the challenged portions of the

¶1205testimony led to the jury’s decision to impose death sentences for

¶1206Moody. See Martin, 298 Ga. at 285 (9) (affirming the defendant’s two

¶1207death sentences after applying plain error review pursuant to OCGA

¶1208§ 17-10-35 (c) (1) to improper victim impact testimony “refer[ring] to

¶1209the family’s desire for ‘justice,’” along with other improper testimony

¶1210not objected to at trial).

¶1211 8. Moody next argues that the prosecutor engaged in several

¶1212acts of misconduct in an effort to undermine his neurological defense

¶1213 77 that he suffers from organic brain damage. To prevail on a claim of

¶1214prosecutorial misconduct, a “defendant must show [both] actual

¶1215misconduct and demonstrable prejudice to his right to a fair trial.”

¶1216Cushenberry v. State, 300 Ga. 190, 195 (2) (b) (794 SE2d 165) (2016)

¶1217(citation and punctuation omitted). We conclude for the various

¶1218reasons discussed below that Moody has failed to make such a

¶1219showing.

¶1220 (a) Alleged Misconduct in Attacking the Credibility of Moody’s

¶1221Expert Witness. Moody first claims that the prosecutor improperly

¶1222attacked the credibility of his out-of-state expert neurologist, Dr.

¶1223Thomas Hyde, by suggesting that Dr. Hyde had acted wrongly in

¶1224failing to notify the Georgia Composite Medical Board before

¶1225working on Moody’s case. Moody claims this constituted improper

¶1226impeachment.

¶1227 Shortly into his cross-examination of Dr. Hyde, the prosecutor

¶1228confirmed that Dr. Hyde was not a psychiatrist but instead practiced

¶1229medicine in the state of Maryland with “part of [his] expertise” being

¶1230neurology. Then the following colloquy took place:

¶1231 78  PROSECUTOR: So when you came here to work on Jeremy Moody, did you call the state board here in Georgia? DR. HYDE: No. It’s not necessary as an expert to call the state board. PROSECUTOR: To testify. But to actually review and meet with the victim – I mean the defendant in this case, didn’t you have to get a waiver in order to practice medicine in the state? DR. HYDE: I’m not practicing medicine. I’m offering an expert opinion. PROSECUTOR: Well, didn’t you have to practice medicine to do your neurological review? DR. HYDE: I have never in any state ever been told that you have to contact the state medical board in order to be an expert witness, and I’ve been qualified as an expert in Florida, Virginia, Maryland, Pennsylvania, Georgia in the past, and North Carolina. PROSECUTOR: And you actually did medical work in state prior to testifying? DR. HYDE: I examined, interviewed, and prepared reports on patients. PROSECUTOR: You may want to consult with the state board because – DR. HYDE: Is that a threat, sir? PROSECUTOR: No, it’s not. I’m – you’re telling me, doctor, that you’re not aware of it, so I’m telling you [that] you many want to do that.

¶1232At that point, defense counsel objected on the basis that the

¶1233prosecutor’s line of questioning “[wa]s not a proper line of cross-

¶1234examination.” The trial court told the prosecutor that he had “made

¶1235 79 [his] point,” and the prosecutor moved on.

¶1236 During subsequent cross-examination about Moody’s past

¶1237medical records indicating that he suffers from antisocial

¶1238personality disorder, the exchange between the prosecutor and Dr.

¶1239Hyde became heated. After sending the jury out of the courtroom,

¶1240the trial court admonished the prosecutor to “ask[] questions

¶1241without testifying or making . . . out of hand remarks to the witness.”

¶1242At that time, Dr. Hyde stated to the trial court that he “ha[d] never

¶1243been threatened by a state prosecutor, overtly or covertly,” that he

¶1244would be reported to the State Medical Board “for practicing without

¶1245a license,” and that he was unaware of a requirement that an out-

¶1246of-state expert witness had to be licensed to practice medicine in

¶1247Georgia before he or she could perform an evaluation for purposes of

¶1248testifying in court. When questioned by the trial court, the

¶1249prosecutor could not provide a basis for his questioning of Dr. Hyde

¶1250regarding the State Board issue. Defense counsel subsequently

¶1251asked the trial court to “tell the jury [that] whether [Dr. Hyde i]s

¶1252licensed or not is not an issue that they should be concerned about.”

¶1253 80 However, the trial court declined to do so and suggested that this

¶1254was a matter for defense counsel’s redirect examination. Defense

¶1255counsel raised no objection to the trial court’s basis for refusing to

¶1256instruct the jury pursuant to his request.

¶1257 Assuming that Moody preserved this claim for the purposes of

¶1258ordinary appellate review, see Jeffers v. State, 290 Ga. 311, 314 (4)

¶1259(a) (721 SE2d 86) (2012) (holding that a party must “make and

¶1260obtain a ruling on an objection to evidence in the trial court, before

¶1261or as the evidence is admitted, in order to preserve the objection for

¶1262appeal” and is “allow[ed] to raise on appeal only the same objections

¶1263that were properly preserved below” (citation omitted)), we first note

¶1264that the fact of whether Dr. Hyde was licensed in Georgia was a

¶1265legitimate area of inquiry. See Brooks v. Green, 277 Ga. 722, 723-

¶1266724 (2) (594 SE2d 629) (2004) (stating that “the possession of a

¶1267license in Georgia does not go to qualification as an expert witness

¶1268but may go to the weight and credibility that a factfinder gives to

¶1269such expert’s opinion” (cleaned up)).

¶1270 Although the prosecutor’s line of questioning suggesting that

¶1271 81 Dr. Hyde was required to contact the State Medical Board before

¶1272evaluating Moody as an expert witness was not backed by legal

¶1273authority, we need not resolve that because there was no prejudice

¶1274resulting from it. The questioning was promptly ended by the trial

¶1275court, the prosecutor conceded during closing arguments that he was

¶1276not challenging Dr. Hyde’s credentials, and the prosecutor made no

¶1277further mention of the State Medical Board issue. Thus, even if the

¶1278prosecutor’s questioning was improper, Moody has failed to show

¶1279“demonstrable prejudice” resulting from this brief inquiry. See

¶1280Brooks v. State, 305 Ga. 600, 606 (3) (826 SE2d 45) (2019).

¶1281 (b) Alleged Misconduct Regarding a State’s Expert Witness.

¶1282Moody also contends that the prosecutor engaged in misconduct

¶1283during the State’s rebuttal case by calling Dr. Matthew Norman, a

¶1284psychiatrist Moody claims had performed only “a sanity evaluation”

¶1285of him, to testify that he disagreed with Dr. Hyde’s neurological

¶1286examination of Moody. Moody asserts that calling Dr. Norman as a

¶1287rebuttal witness was misconduct for two reasons. Pretermitting

¶1288whether Moody preserved this claim, neither reason offered by

¶1289 82 Moody has merit.

¶1290 (i) First, Moody contends that it was misconduct to call Dr.

¶1291Norman in rebuttal, because Dr. Norman had been retained to

¶1292testify only in the event that Dr. Glen Egan, a clinical psychologist,

¶1293was unavailable. Moody argues that, because Dr. Egan had already

¶1294testified in the State’s rebuttal case, the prosecutor’s use of Dr.

¶1295Norman’s testimony constituted an improper attempt (procedurally

¶1296and substantively) to discredit Dr. Hyde. But this claim is plainly

¶1297contradicted by the record.

¶1298 The State moved the trial court for an order appointing Dr.

¶1299Norman to conduct a psychiatric evaluation of Moody after Dr. Peter

¶1300Ash, not Dr. Egan, announced that he would be out of the country

¶1301and unavailable during the timeframe in which his testimony might

¶1302be required. 20 Moreover, in response to the State’s request, the trial

¶1303court ordered that

¶1304 a qualified medical professional of the State’s choosing, [namely,] Dr. Matthew Norman, conduct an evaluative examination of [Moody] and provide to the Court a report

¶1305 20 Dr. Ash, the psychiatrist who had initially performed a court-ordered evaluation of Moody, did not testify at Moody’s trial. 83  of diagnosis, prognosis and its findings with respect to: 1. Degree of Criminal Responsibility or Mental Competence at the Time of the Crime . . . [, and] 2. Any other recommendations for disposition.

¶1306 The trial court further ordered that, upon completion, Dr.

¶1307Norman’s report should be provided only to the trial court, which

¶1308would place it under seal, and further ordered the following: if “the

¶1309defense determine[d] that it w[ould] present expert [mental health]

¶1310testimony at trial, the defense w[ould] disclose to the State the

¶1311totality of the information and documentation used by any expert

¶1312the defense [wa]s relying on to support its position, including any

¶1313report generated by that expert”; “Dr. Norman w[ould] then be

¶1314allowed to review said materials and amend his report and/or re-

¶1315evaluate [Moody] as he deem[ed] appropriate”; and “all materials

¶1316w[ould] then be provided to the State.” Therefore, the record shows

¶1317that Dr. Norman was explicitly appointed by the trial court for the

¶1318State to present as a rebuttal witness in the event that Moody

¶1319presented any expert mental health testimony at trial. See State v.

¶1320Johnson, 276 Ga. 78 (576 SE2d 831) (2003) (discussing procedures

¶1321 84 for a trial court to order the State’s expert’s examination of a

¶1322defendant, the sealing of an expert’s report, and the unsealing of it

¶1323in order for it to be used for rebuttal purposes if the defense presents

¶1324expert mental health testimony at trial).

¶1325 Moreover, at the sentencing trial, in anticipation of Dr. Hyde’s

¶1326testimony, the prosecutor identified Dr. Norman as “an expert

¶1327witness that [the State] m[ight] call in rebuttal,” gave notice to the

¶1328defense and the trial court that the State “would have him in [the

¶1329courtroom] to assist” the State during Dr. Hyde’s testimony, and

¶1330requested that “before [Dr. Hyde’s] cross-examination [the State]

¶1331have just a five-minute recess so [that the prosecutor] c[ould] consult

¶1332with Dr. Norman.” Defense counsel stated that he considered the

¶1333State’s request “appropriate” and that he had no objections.

¶1334Therefore, given the evidence in the record showing that the parties

¶1335clearly understood that Dr. Norman was to testify in rebuttal to any

¶1336mental health testimony that Moody might present, this portion of

¶1337Moody’s claim of prosecutorial misconduct is meritless.

¶1338 (ii) Moody also contends that it was beyond the scope of Dr.

¶1339 85 Norman’s expertise and his evaluation of Moody to attack the

¶1340professional opinions of Dr. Hyde that Moody suffers from organic

¶1341brain damage or a seizure disorder. 21 This claim also fails.

¶1342 After conducting an interview of Moody and reviewing

¶1343numerous records, including his mental health records and

¶1344evaluations, Dr. Norman diagnosed Moody as having antisocial

¶1345personality disorder, cocaine dependence “in full sustained

¶1346remission in [a] controlled environment,” and borderline personality

¶1347traits. Dr. Norman testified that his diagnosis of antisocial

¶1348personality disorder was based on his interview with Moody and his

¶1349review of Moody’s records showing “that there was a personality

¶1350disorder diagnosis . . . that was solidly, in [his] opinion, documented”

¶1351at ages 13, 15, and 17 years “and that there was . . . consistency

¶1352within that documentation from multiple different clinicians.” Dr.

¶1353 21 Dr. Hyde testified that he did not make a psychiatric diagnosis of Moody but he opined that Moody suffers from organic brain dysfunction. With regard to Dr. Norman’s diagnosis of antisocial personality disorder, Dr. Hyde testified that “there are other diagnoses that are a better fit than antisocial personality disorder, although [Moody] has traits that can be assigned within what are characterized as antisocial traits.” Dr. Hyde opined that, “probably,” meaning “[m]ore likely than not,” Moody’s psychiatric problems “are caused by and reflect [his] underlying organic brain damage.” 86 Norman explicitly disagreed with Dr. Hyde’s findings that Moody

¶1354had organic brain damage, explaining:

¶1355 In my review of the records and seeing the consistency from so many different other clinicians for a nearly 20- plus year timeframe of having diagnoses of antisocial personality disorder, borderline personality disorder, conduct disorder, cocaine dependences, what was replete through the records that the best fit diagnosis is the antisocial personality disorder with borderline traits and the cocaine dependence.

¶1356 At the time of Moody’s sentencing trial, former OCGA § 24-7-

¶1357707 governed the admissibility of expert opinion testimony in

¶1358criminal proceedings, and that statute provided:

¶1359 In criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.22

¶1360Moody has not cited a single case, nor are we are aware of one, in

¶1361which we have held that testimony regarding brain damage fell

¶1362 22 The General Assembly repealed OCGA § 24-7-707, effective July 1, 2022, and the admissibility of expert opinion testimony in both civil and criminal proceedings commenced on or after that date is now governed by OCGA § 24-7-702 with a few exceptions not relevant here. See Ga. L. 2022, p. 201, §§ 1-3. Former OCGA § 24-7-707 was carried over from its predecessor, OCGA § 24-9-67; therefore, when interpreting former OCGA § 24-7-707, it is appropriate to rely on decisions under OCGA § 24-9-67. See Mosby v. State, 300 Ga. 450, 453 (2) n.2 (796 SE2d 277) (2017). 87 outside the appropriate scope of expert testimony from a

¶1363psychiatrist, and, in fact, our cases suggest just the opposite. See

¶1364Turpin v. Lipham, 270 Ga. 208, 217 (3) (B) (3) (510 SE2d 32) (1998)

¶1365(relying on “affidavits of several psychologists and psychiatrists who

¶1366testified [in the habeas proceedings] that test results contained

¶1367within the institutional records . . . suggest[ed] organic brain

¶1368damage centered in the left hemisphere and post[-]traumatic stress

¶1369disorder” to conclude that trial counsel’s investigation of available

¶1370mitigation evidence was not reasonable and therefore was deficient

¶1371(emphasis added)); Wellons v. State, 266 Ga. 77, 82 (2) (463 SE2d

¶1372868) (1995) (relying in part on the testimony of a death penalty

¶1373defendant’s expert psychologist “acknowledg[ing] . . . that Wellons

¶1374was also evaluated by a court-appointed psychiatrist, who concluded

¶1375that Wellons is an intelligent, well-educated man with a significant

¶1376personality disorder but no brain damage and no psychosis” to

¶1377conclude that “the evidence as a whole demonstrate[d] that his

¶1378defenses of insanity and mental illness were simply not viable”

¶1379(emphasis added)); Heard v. State, 248 Ga. 348, 349 (283 SE2d 270)

¶1380 88 (1981) (stating that the defendant offered the testimony of a forensic

¶1381psychiatrist, who opined that he was “suffering from some brain

¶1382damage” (emphasis added)). Moreover, it was for the jury “to judge

¶1383the credibility of the opposing expert witnesses.” Tye v. State, 298

¶1384Ga. 474, 477-478 (2) (a) (782 SE2d 10) (2016).

¶1385 Moody also asserts that Dr. Norman was not qualified to

¶1386disagree with Dr. Hyde “about whether there was evidence that [he]

¶1387suffered from a seizure disorder.” Dr. Hyde explained that he was

¶1388using the term “seizure” as “the neurological term, which is normal

¶1389involuntary discharge of electrical activity from a damaged or

¶1390abnormal part of the brain that spreads to normal tissue[,]

¶1391interrupting the normal function of that part of the normal tissue of

¶1392the brain.” He also affirmed that, although since 2003 Moody had

¶1393had multiple clinical evaluations for seizures at Grady Memorial

¶1394Hospital, he “never saw an EEG report, which is a test that is done

¶1395to assay electrical activity in the brain,” and that he “would have

¶1396liked to have seen” such a report. Even so, after noting Moody’s

¶1397history of seizures, Dr. Hyde opined that a seizure disorder was

¶1398 89 additional evidence of brain damage. Although Dr. Norman also

¶1399acknowledged Moody’s history suggesting a seizure disorder, he did

¶1400not diagnose Moody with that disorder. When asked whether he saw

¶1401anything in the documents that he had reviewed that “definitively

¶1402said that [Moody] had a seizure disorder,” Dr. Norman responded

¶1403that he found it significant that, in reviewing those documents,

¶1404which included Dr. Hyde’s report,” he had seen no “documentation

¶1405of an EEG,” which would show the “electrical activity that Dr. Hyde

¶1406[described] that you need to actually have a seizure.” We see no

¶1407impropriety in Dr. Norman’s testimony.

¶1408 (c) Alleged Misconduct Involving the Solicitation of Opinion

¶1409Testimony. Moody contends that the prosecutor also engaged in

¶1410misconduct by eliciting improper opinion testimony from three of the

¶1411State’s lay witnesses and two of its expert witnesses. We reject this

¶1412claim.

¶1413 (i) Lay Witness Testimony. Moody contends that the prosecutor

¶1414committed misconduct by eliciting from two Fulton County jail

¶1415nurses and a former Fulton County jail officer improper “medical

¶1416 90 opinion testimony designed to rebut [his] expert testimony.” Under

¶1417OCGA § 24-7-701 (a) (“Rule 701 (a)”), a lay witness may testify “in

¶1418the form of opinions or inferences that are rationally based on the

¶1419witness’s perception, helpful to a clear understanding of the

¶1420determination of a fact in issue, and not based on scientific,

¶1421technical, or other specialized knowledge.” Bullard v. State, 307 Ga.

¶1422482, 491 (4) (837 SE2d 348) (2019) (citation and punctuation

¶1423omitted). “[L]ay witnesses may draw on their professional

¶1424experiences to guide their opinions without necessarily being

¶1425treated as expert witnesses.” Id. at 492 (4) (citation and punctuation

¶1426omitted).

¶1427 Jail Nurse Michelle McClure. First, Moody points to the

¶1428testimony of jail nurse Michelle McClure regarding his alleged

¶1429mental deficiencies and seizure disorder. Even if this claim of error

¶1430was preserved, Moody has not shown that this testimony was

¶1431improper, and thus the prosecutor did not commit misconduct by

¶1432eliciting it.

¶1433 During her testimony, McClure affirmed that she had had

¶1434 91 opportunities during Moody’s years of incarceration to have

¶1435conversations with him, that he appeared to know what was going

¶1436on when she talked with him, that she had never heard him speak

¶1437nonsensically, and that he did not appear to be “mentally deficient

¶1438in some way.” She explained that she thought Moody was “very

¶1439smart” based on the fact that he “ask[ed] a lot of questions about”

¶1440his medications, including asking about their side effects and

¶1441requesting “printouts” for them. McClure also testified that she had

¶1442never observed Moody actually having a seizure but that she had

¶1443been among the medical staff who had responded after he had

¶1444reportedly had one and that Moody had appeared “[a]wake and

¶1445alert” and that he had “ranted.” She testified that this was not

¶1446typical in her experience, which was that “[a] lot of people” were

¶1447“confused” and “not really aware of their surroundings when they

¶1448c[a]me out of the seizures.”

¶1449 McClure’s testimony was rationally based on her personal

¶1450observations of Moody and her experience with other patients and

¶1451did not require scientific, technical, or other specialized knowledge.

¶1452 92 Her testimony was also relevant to two issues in Moody’s case —

¶1453what his mental condition was and whether he suffered from a

¶1454seizure disorder. Accordingly, as this testimony was admissible

¶1455under Rule 701 (a), the prosecutor plainly did not commit

¶1456misconduct by eliciting it.

¶1457 Jail Nurse Angelica Rosant. Moody also alleges that the

¶1458prosecutor elicited improper opinion testimony when he asked

¶1459another jail nurse, Angelica Rosant, whether, “based on [her]

¶1460training and experience in the jail and having spent time with Mr.

¶1461Moody, . . . he appear[ed] to have brain damage or brain injuries”

¶1462and she responded in the negative. Defense counsel immediately

¶1463objected on the ground that Rosant was “not qualified to testify as

¶1464to whether or not [Moody] has brain damage.” The trial court

¶1465instructed the prosecutor to rephrase his question, and the

¶1466prosecutor’s rephrased questions were asked and answered without

¶1467objection.

¶1468 Although the court asked the prosecutor to rephrase the

¶1469question, it never informed the jury as to whether or not Moody’s

¶1470 93 objection was sustained. Nevertheless, because Moody never

¶1471requested a curative instruction for the jury to disregard the

¶1472challenged testimony, we review his argument for plain error. See

¶1473Wynn v. State, 313 Ga. 827, 838 (4) (874 SE2d 42) (2022). Moody’s

¶1474claim fails under such review.

¶1475 Rosant’s testimony was not obviously improper. She was asked

¶1476whether Moody appeared to have brain damage or brain injuries

¶1477based on her training, experience, and time spent with Moody, and

¶1478she previously testified without objection about her observations

¶1479about whether Moody understood everything she told him. See

¶1480Bullard, 307 Ga. at 491 (4).

¶1481 Even if her opinion testimony was improper, Moody has failed

¶1482to show prejudice. In response to rephrased questions, Rosant

¶1483testified without objection that she had never seen Moody walk with

¶1484a limp “[i]n the times” that she had been with him, that she had

¶1485personal experience with stroke victims and that he did not appear

¶1486like a person who had suffered a stroke, that he communicated

¶1487“[v]ery well” with her, and that he was able to provide “paperwork”

¶1488 94 to her. This subsequent testimony was not improper. It was

¶1489rationally based on Rosant’s personal observations of Moody and her

¶1490experience with other patients, it did not require specialized

¶1491knowledge, and it was relevant to determining what Moody’s mental

¶1492condition was, which was a fact at issue at his sentencing trial. See

¶1493Bullard, 307 Ga. at 491-492 (4); see also Harris v. State, 309 Ga. 599,

¶1494604 (2) (a) (847 SE2d 563) (2020) (holding that a detective’s opinion

¶1495that the defendant shot himself in the leg was admissible under Rule

¶1496701 (a), as it was rationally based on inferences that the detective

¶1497formed from his review of the evidence and his prior observations of

¶1498gunshot wounds, which did not require scientific, technical, or other

¶1499specialized knowledge). Therefore, given the propriety of this

¶1500testimony and the trial court’s response to defense counsel’s prompt

¶1501objection to the prosecutor’s initial question, we conclude that there

¶1502is no reasonable probability that the prosecutor’s allegedly improper

¶1503question and Rosant’s response to it contributed to the jury’s

¶1504decision to impose Moody’s death sentences. See Martin, 298 Ga. at

¶1505279 (6) (d).

¶1506 95  Jail Officer Ricardo Rucker. Lastly, Moody contends that the

¶1507prosecutor elicited an improper lay opinion from former Fulton

¶1508County jail officer Ricardo Rucker that “Moody like[d] to plan his

¶1509seizures.” This testimony occurred when the prosecutor asked

¶1510Rucker whether he had “ever notice[d] if [Moody] ever had any

¶1511seizures,” and Rucker responded:

¶1512 Yes, sir. Now, I mean, I know it was a time he probably had a couple around me, but during my time with him I’ve noticed that Mr. Moody likes to plan his seizures and like just plan out the day. . . .

¶1513 Even if Moody preserved this claim for review, the statements

¶1514were admissible because they were based on Rucker’s personal

¶1515observation. According to Rucker, Moody’s “plan” to have a seizure

¶1516began when Rucker was in “the tower” with the microphone on and

¶1517heard inmates talking with one another, with one saying, “Hey,

¶1518when they get ready to do the round, I’m going to say you [are]

¶1519having a seizure, and then you go through the routine.” Then Rucker

¶1520testified, “[A]s soon as [I] walk[ed] in the zone, everybody [was]

¶1521beating on the door, hey, Moody [is] having a seizure.” He also

¶1522 96 described seeing “soap . . . squished up and made like it’s throw up

¶1523to the side,” and he testified that, when medical personnel came to

¶1524render aid to Moody, they reported that he was “good.” He also

¶1525testified that he “ha[d] not seen [Moody have] a seizure where it

¶1526required any type of medical attention.” Furthermore, according to

¶1527Rucker, when Moody realized that jail personnel would not remove

¶1528him from his cell to treat his seizures, he started injuring himself in

¶1529ways that would necessitate his being taken to the jail’s medical

¶1530facility or to the hospital. As an example, Rucker described an

¶1531occasion when Moody mentioned getting a “vacation” or “break” and

¶1532then, shortly afterward, seriously injured his head, requiring a trip

¶1533to the hospital.

¶1534 To the extent that Rucker provided opinion testimony, it was

¶1535rationally based on his personal observations of and experiences

¶1536with Moody and did not require scientific, technical, or other

¶1537specialized knowledge, and it was relevant to an issue in Moody’s

¶1538case — whether he was malingering. See Bullard, 307 Ga. at 491

¶1539(4). Because this testimony was admissible under Rule 701 (a), there

¶1540 97 was no prosecutorial misconduct in eliciting it.

¶1541 (ii) Expert Witness Testimony. Moody contends that the

¶1542prosecutor also committed misconduct by eliciting improper

¶1543testimony from the chief medical examiner and from the State’s

¶1544expert clinical psychologist. Even if preserved, the claims here are

¶1545meritless, as Moody has not shown that any of this testimony was

¶1546improper and thus that the prosecutor committed misconduct by

¶1547eliciting it.

¶1548 Chief Medical Examiner. Moody asserts that the prosecutor

¶1549committed misconduct by eliciting improper testimony from Dr.

¶1550Michele Stauffenberg, the chief medical examiner. First, Moody

¶1551contends that the prosecutor elicited improper testimony from Dr.

¶1552Stauffenberg in which she “repeatedly speculated” about the pain

¶1553that the victims suffered. But this was a subject within a medical

¶1554examiner’s area of expertise, and the testimony was highly relevant

¶1555to the jury’s determination regarding the existence of the statutory

¶1556aggravating circumstances in this case. See Walker v. State, 281 Ga.

¶1557157, 157, 159 (1), 166 (14) (635 SE2d 740) (2006) (noting the medical

¶1558 98 examiner’s testimony that the victim “suffered painful blunt force

¶1559injuries to the head . . . and . . . a painful bullet entry through her

¶1560wrist” in our review of the evidence supporting the section (b) (7)

¶1561statutory aggravating circumstance involving torture); West v.

¶1562State, 252 Ga. 156, 160-161 (313 SE2d 67) (1984) (providing a

¶1563suggested jury instruction “clarifying the statutory language of the

¶1564(b) (7) aggravating circumstance[’s]” component involving torture).

¶1565 Moody also contends that the prosecutor committed

¶1566misconduct by eliciting testimony from Dr. Stauffenberg identifying

¶1567a screwdriver that was not the actual murder weapon as being

¶1568consistent with what had caused the victims’ injuries. The purpose

¶1569of this testimony was to lay the foundation for the admission of the

¶1570screwdriver as a “demonstrative exhibit.” Demonstrative evidence

¶1571includes replicas or other devices “‘used to aid the trier of fact in

¶1572understanding the issues and facts at trial.’” Smith v. State, 299 Ga.

¶1573424, 434 (3) (b) (788 SE2d 433) (2016) (citation and punctuation

¶1574omitted). We have explained that:

¶1575 Demonstrative evidence . . . must be relevant, see OCGA

¶1576 99  § 24-4-401, and it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, see OCGA § 24-4-403.

¶1577Id. at 434-435 (3) (b).

¶1578 It is generally permissible to admit a weapon for demonstrative

¶1579purposes, as long as a proper foundation is laid, and the challenged

¶1580statements here were necessary to lay that foundation. Dr.

¶1581Stauffenberg testified that the screwdriver was similar to the

¶1582implement that caused the victims’ injuries. See Robinson v. State,

¶1583308 Ga. 543, 547-548 (2) (a) (842 SE2d 54) (2020) (holding that the

¶1584admission of two firearms for demonstrative purposes was not

¶1585improper, where the State’s evidence was sufficient to lay a

¶1586foundation of similarity between those firearms and the gun that

¶1587shot the victim and it was made clear to the jury that the firearms

¶1588used at trial were not the actual firearms used in the alleged crimes).

¶1589 Moody takes issue with the prosecutor having displayed the

¶1590screwdriver during closing argument. But the prosecutor made clear

¶1591 100 that the screwdriver was “solely” an “aid.” See United States v.

¶1592Aldaco, 201 F3d 979, 986-987 (III) (B) (2) (7th Cir. 2000) (holding

¶1593that prejudice is minimized when the government makes clear to the

¶1594jury that the replica is not the actual murder weapon possessed by

¶1595the defendant); see also United States v. Garvin, 88 Fed. Appx. 542,

¶1596544 (3rd Cir. 2004) (holding that the district court did not abuse its

¶1597discretion in allowing the government to use representative

¶1598currency as demonstrative evidence during closing argument of a

¶1599drug prosecution, where the government clearly informed the jury

¶1600that it was not the actual currency seized from the defendant but

¶1601was in the same denominations to show what that amount looked

¶1602like). 23 Therefore, Moody’s claim here fails.

¶1603 State Psychologist. Moody also alleges that the prosecutor

¶1604elicited improper testimony from Dr. Glen Egan, a psychologist who

¶1605worked in the Emory University School of Medicine’s Department of

¶1606 23 See Rickman v. State, 304 Ga. 61, 64 (2) (816 SE2d 4) (2018) (stating that, because provisions of the current Evidence Code governing the admission of demonstrative evidence mirror the Federal Rules of Evidence, the interpretation of those provisions is guided by the decisions of the federal appellate courts). 101 Psychiatry. Dr. Egan was qualified to testify as an expert on behalf

¶1607of the State in the field of clinical and forensic psychology in rebuttal

¶1608to the testimony of Moody’s expert neuropsychologist, Dr. Barry

¶1609Crown. Moody contends that it was improper for the prosecutor to

¶1610elicit testimony that Moody did not exhibit signs of “brain damage

¶1611or brain disorder” despite the fact that Dr. Egan was not a

¶1612neurologist and did not conduct neuropsychological testing of

¶1613Moody.

¶1614 When the prosecutor initially asked Dr. Egan whether Moody

¶1615“exhibit[ed] signs in any way, shape[,] or form that le[d] him to

¶1616believe that [Moody] ha[d] some type of brain injury, brain damage[,]

¶1617or any kind of brain disorder,” Dr. Egan stated that he was not a

¶1618neurologist and “did not do any kind of neurological evaluation” of

¶1619Moody. Then he began to list the records regarding Moody that he

¶1620had reviewed for “any indication that [Moody] showed any kind of

¶1621signs of brain damage either on CT-scans or anything like that.” At

¶1622that point, defense counsel objected on the basis that Dr. Egan was

¶1623testifying outside the scope of his qualifications. The trial court

¶1624 102 offered the prosecutor an opportunity to inquire as to Dr. Egan’s

¶1625qualifications specific to this question, but the prosecutor

¶1626maintained that his question had been whether Moody “exhibit[ed]

¶1627anything consistent [with brain damage], not whether he actually

¶1628had [brain damage] or not.” In response, the trial court suggested

¶1629that the defense’s objection was aimed “more to the breadth of Dr.

¶1630Egan’s testimony” and suggested that the prosecutor direct Dr. Egan

¶1631appropriately.

¶1632 Even if this claim were preserved, it is meritless.

¶1633 After the trial court’s directions, the following colloquy ensued:

¶1634 Q: And, Doctor, my question is, based on your background, training, and education over these many years, did the defendant exhibit signs consistent with someone who you believed or that you could say in any way, shape or form suffered from some type of brain damage or brain disorder? A: From the information that I have – and the reality of the situation is I’m the one who does all of the neuropsychological evaluations for the Department of Psychiatry at Emory. And I can tell you from what I’ve seen, in terms of records – and I have to review records constantly in terms of looking for this possibility and alerting people to that fact – is that I could not see any kind of clear signs from the evidence that I saw.

¶1635 103  Dr. Egan further testified that his opinion was based on his

¶1636own interactions with Moody, a past evaluation of Moody that he

¶1637was involved in at Emory, and a review of numerous mental health

¶1638records related to Moody. Dr. Egan pointed out in particular his

¶1639review of “[t]he psychological testing that [he] saw, in terms of the

¶1640data that [he] was given” that included Dr. Crown’s evaluation and

¶1641results of his intelligence testing of Moody, which Dr. Crown had

¶1642testified about and which was admitted into evidence without

¶1643objection.

¶1644 Although Moody takes issue with the fact that Dr. Egan was

¶1645not a neurologist, he has failed to cite a single case in which we have

¶1646held that it is an abuse of discretion for a trial court to admit the

¶1647testimony of a psychologist about brain damage based on a review

¶1648of a defendant’s mental health records. Similar to Moody’s challenge

¶1649to Dr. Norman’s testimony on the grounds that he exceeded his area

¶1650of expertise, the fact that Dr. Egan was not a neurologist and had

¶1651not conducted his own neurological testing of Moody went only to

¶1652the weight and not to the admissibility of his testimony. See Adams

¶1653 104 v. State, 275 Ga. 867, 868 (3) (572 SE2d 545) (2002) (the fact that a

¶1654licensed clinical social worker did not hold a medical degree went

¶1655only to the weight and not to the admissibility of her testimony

¶1656regarding the defendant). Because the testimony elicited by the

¶1657prosecutor was not improper, this claim is meritless.

¶1658 (d) Alleged Misconduct in Closing Arguments. Moody contends

¶1659that the prosecutor made several improper arguments at the close

¶1660of the sentencing trial that require reversal of his death sentences.

¶1661Pretermitting the fact that Moody has waived his right to ordinary

¶1662appellate review of those arguments by failing to object at trial, see

¶1663Martin, 298 Ga. at 279 (7), disapproved on other grounds by Willis,

¶1664304 Ga. at 706 (11) (a) n.3, we conclude that they were not improper.

¶1665 (i) While arguing to the jurors that they should not accept Dr.

¶1666Hyde’s opinion about Moody, the prosecutor remarked, “Of course

¶1667Dr. Hyde thinks he’s the only person that can perform a neurological

¶1668exam in the United States.” Later, the prosecutor argued that Dr.

¶1669Hyde’s conclusions regarding Moody were not consistent with other

¶1670testimony and evidence that had been presented. The prosecutor

¶1671 105 then reminded the jury that Dr. Hyde had testified that, in his

¶1672experience, state mental health facilities tend to conduct cursory

¶1673neurological examinations but that Dr. Hyde “had no personal

¶1674knowledge of any of the Georgia state facilities and ha[d] never . . .

¶1675toured them” and that Dr. Hyde’s testimony here had been

¶1676contradicted by Dr. Norman’s testimony that Georgia’s state

¶1677facilities were “just fine.” The prosecutor concluded this portion of

¶1678his argument by telling the jury that “the State’s contention of Dr.

¶1679Hyde” is that he claimed, “I’m right” and “[e]veryone else is inferior.”

¶1680 Moody contends that the prosecutor committed misconduct by

¶1681making these remarks regarding Dr. Hyde. But when viewed in

¶1682context, the prosecutor’s brief comments came within “the wide

¶1683latitude” granted to counsel “in the conduct of closing argument.”

¶1684Styles v. State, 309 Ga. 463, 470 (4) (847 SE2d 325) (2020).

¶1685 (ii) Moody also contends that the prosecutor improperly argued

¶1686to the jurors: “[Y]ou are the sole judges of credibility. Whether [the

¶1687witness is] an expert witness or not doesn’t matter.” This is not an

¶1688improper argument.

¶1689 106  The “[c]redibility of witnesses and the weight to be given their

¶1690testimony is a decision-making power that lies solely with the trier

¶1691of fact.” Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994). This

¶1692is true even with respect to the testimony of expert witnesses. See

¶1693McCoy v. State, 237 Ga. 118, 119 (227 SE2d 18) (1976) (“The jury

¶1694can consider the expert’s credentials and then give such weight and

¶1695credit to the expert’s testimony as it sees fit.”). Therefore, the

¶1696prosecutor’s argument here was not improper.

¶1697 (iii) The prosecutor argued to the jury that letters that Moody

¶1698had written to Wright while incarcerated and that had been

¶1699admitted during Wright’s testimony “corroborate[d] the relationship

¶1700that [Wright] ha[d] with Jeremy Moody” and showed that she was

¶1701“telling [the jury] the truth.” The prosecutor then remarked

¶1702somewhat off-handedly, “interestingly [the evidence about these

¶1703letters] also show[ed] that apparently [the defense’s mitigation

¶1704specialist] isn’t aware of the rules about ferr[y]ing mail out by

¶1705inmates that [the defense’s prison expert] told you about.” Moody

¶1706contends that this remark about the defense’s mitigation specialist

¶1707 107 was improper, because it was “without a factual basis.” We disagree.

¶1708 During its direct examination, the State elicited testimony

¶1709from Wright regarding a letter written to her from Moody after his

¶1710incarceration. Wright testified that this letter was sent to her

¶1711through Moody’s defense team, that it was accompanied with

¶1712Moody’s handwritten instructions to “[s]end to Tameka,” and that it

¶1713had been mailed to her in an envelope that had the defense’s

¶1714mitigation specialist’s address as a return address. The defense did

¶1715not object to Wright’s testimony or to the State’s introduction into

¶1716evidence of Moody’s letter and the envelope in which it was mailed.

¶1717Indeed, on cross-examination, the defense asked Wright to again

¶1718confirm that the return address on the envelope containing Moody’s

¶1719letter to Wright was that of the defense’s mitigation specialist

¶1720“sitting right [t]here” and to confirm that the defense team had

¶1721“helped [her] and [Moody] communicate in jail on occasion,” and

¶1722Wright did so. Later, Moody’s own witness, James Aiken, who was

¶1723qualified to testify as an expert on prisons and the classifications

¶1724and security assessments of inmates, testified that, other than

¶1725 108 letters to the courts or attorneys, a facility’s staff approves whether

¶1726an inmate’s letter “goes out.” Aiken testified that in the past he had

¶1727completed a security evaluation of the Fulton County jail and that

¶1728mail was not supposed to be carried out of that facility outside of

¶1729that approval process. The prosecutor asked Aiken, “[I]f [Moody]

¶1730wanted to get a letter to his ex-girlfriend, someone working for the

¶1731defense team wouldn’t be able to ferry that letter out to her, would

¶1732they?” Aiken responded, “According to the rules and regulations that

¶1733is correct, sir.” Accordingly, the prosecutor’s argument was “derived

¶1734from evidence properly before the jury,” and it was not improper.

¶1735Spiller v. State, 282 Ga. 351, 354 (3) (647 SE2d 64) (2007).

¶1736 (iv) After reminding the jury that defense counsel had

¶1737“essentially” asked the medical examiner whether it was “possible

¶1738that the death[s of the victims] w[ere] actually pretty quick,” the

¶1739prosecutor argued that the purpose of that question was to allow

¶1740defense counsel “to stand up in front of [the jury] and say, oh, it

¶1741wasn’t torture,” because “[Moody] killed them quickly[, and t]hey

¶1742didn’t feel any pain.” The prosecutor then told the jury that any such

¶1743 109 argument would be “offensive,” which Moody contends was

¶1744misconduct.

¶1745 But the prosecutor’s argument was based on a reasonable

¶1746deduction from the evidence, and we conclude that it came within

¶1747the wide latitude given to counsel in the conduct of closing

¶1748argument. See Walker v. State, 312 Ga. 232, 240 (4) (c) (862 SE2d

¶1749285) (2021); see also Ballard v. State, 268 Ga. App. 55, 61 (5) (d) (601

¶1750SE2d 434) (2004) (holding that the prosecutor’s argument to the

¶1751jurors that certain testimony that the defendant presented “‘should

¶1752be offensive to [them]’ . . . came within the wide latitude given to

¶1753counsel in closing argument,” which includes the ability to argue

¶1754reasonable inferences from the evidence). Therefore, there was no

¶1755impropriety, and Moody’s claim here is meritless.

¶1756 (v) Lastly, Moody contends that the prosecutor argued

¶1757improperly by asserting that Moody had acted in compliance with

¶1758the book, The Art of War, when there was evidence that the book had

¶1759been found in his cell but no evidence that he had actually read it.

¶1760This was not an improper argument.

¶1761 110  In making the statement, the prosecutor reminded the jury of

¶1762a Fulton County jail deputy’s testimony that, “when he saw that

¶1763[book found in Moody’s cell] and the way Moody was acting, he

¶1764actually read The Art of War so he’d be familiar” with it. This deputy

¶1765testified that the book described how to attack “the weakest links”

¶1766of a group and that Moody had used that tactic by “target[ing]” new

¶1767people on the team of specially-trained officers that dealt with high-

¶1768risk inmates. After reminding the jury of another officer’s similar

¶1769testimony regarding Moody’s behavior, the prosecutor argued that

¶1770Moody would “start with the weakest and move his way up,” which

¶1771was the “[p]attern” taught in the The Art of War. As this argument

¶1772was “derived from evidence properly before the jury,” it was not

¶1773improper on the basis Moody argues. Spiller, 282 Ga. at 354 (3).

¶1774 9. Moody contends that the State violated his state and federal

¶1775constitutional rights to due process by presenting a theory of the

¶1776crimes at his sentencing trial that was inconsistent with the theory

¶1777that it later presented at the trial of his co-defendant, William Felts.

¶1778In particular, Moody contends that at his sentencing trial the State

¶1779 111 argued that he alone committed the crimes but that at Felts’s trial

¶1780the State argued that Felts was also responsible. Although this

¶1781claim is arguably not preserved, 24 we have reviewed the record as a

¶1782part of our mandatory plenary review under OCGA § 17-10-35 (c) (1)

¶1783and conclude that it has no merit.25

¶1784 In the past, we have “assumed that there could be a due process

¶1785problem if the State uses ‘inherently factually contradictory

¶1786theories,’” while at the same time we have noted that there is

¶1787perhaps some “doubt [as to] whether such a due process right exists.”

¶1788Battle v. State, 305 Ga. 268, 274 (2) (b) (824 SE2d 335) (2019)

¶1789(citations and punctuation omitted); see also 5 Wayne R. LaFave et

¶1790al., Criminal Procedure § 17.4 (a) (4th ed. Nov. 2022 update) (“[O]n

¶1791the ground ‘that the use of inconsistent, irreconcilable theories to

¶1792secure convictions against more than one defendant in prosecutions

¶1793 24 Moody raised the claim only after the trial court denied his motion for new trial and never obtained a trial court ruling on it. Ordinarily we would not review such a claim. See McClendon v. State, 299 Ga. 611, 616 (4) (A) (791 SE2d 69) 2016) (“Because [the defendant] raises an issue on appeal that was not presented [to] or ruled upon by the trial court, his argument is not preserved for review by this Court.”). 25 At Moody’s request, the trial court ordered that the appellate record in

¶1794Felts’s case be included in Moody’s appellate record. 112 for the same crime violate[s] the due process clause,’ a defendant

¶1795may be able to have his conviction overturned because of the

¶1796conviction of another defendant on an inconsistent theory, . . .

¶1797though the Supreme Court has yet to pass on this theory.” (emphasis

¶1798in original, footnotes, and citation omitted)). In our discussion below,

¶1799we again assume without deciding that such a due process claim

¶1800could be cognizable, but we conclude no such claim arises under the

¶1801facts presented here.

¶1802 Felts’s death penalty trial occurred approximately three years

¶1803after Moody’s plea and sentencing trial. The same prosecuting

¶1804attorney tried both cases. The State argued at Felts’s trial that

¶1805although Moody was the one who inflicted the fatal injuries to both

¶1806victims and the one who raped Kimble, Felts was just as guilty as a

¶1807party to the crimes, because “Felts aided, assisted, encouraged, and

¶1808made this happen” by participating in the robbery of the victims and

¶1809then standing by and ensuring that they did not leave the woods.

¶1810The State urged Felts’s jury not to worry about Moody and stated

¶1811that “Moody [was] for another day, another jury,” arguments we

¶1812 113 read not as minimizing Moody’s actions but instead as focusing on

¶1813determining Felts’s personal guilt in the crimes. See Battle, 305 Ga.

¶1814at 274 (2) (b) (stating that “limiting discussion of Appellant’s

¶1815culpability to a passing remark that she had also been charged and

¶1816would get her day in court made sense at [her co-defendant’s] trial”).

¶1817In the same way, the State argued at the sentencing phase of Felts’s

¶1818trial, “Let’s talk about Felts. That’s why we’re here. We’re not here

¶1819for Moody.”

¶1820 In comparison, at the beginning of the guilt/innocence phase of

¶1821Moody’s trial, the State indicated in its opening statement that Felts

¶1822was involved in the crimes with Moody. The prosecutor explained

¶1823about the period following Moody’s arrest:

¶1824 [Law enforcement officials] started canvassing the neighborhood to find out about Jeremy Moody and if somebody else had done this with Jeremy Moody because it seemed like it was something that more than one person should have been involved, given that one of the victims may have been able to run or something like that. And the investigation showed that there was another defendant involved, William Felts, aka Black Frank. And the witnesses from the neighborhood will tell you that Moody and Black Frank were together that week a lot.

¶1825 114 (Emphasis added.)

¶1826 As discussed above, Moody pled guilty to all counts of his

¶1827indictment following the State’s opening. In presenting a factual

¶1828basis for Moody’s pleas to the trial court during the plea colloquy,

¶1829the prosecutor began by stating: “[H]ad this case gone to trial the

¶1830State would have proven beyond a reasonable doubt that on April

¶18315th, 2007, that Jeremy Moody along with, the State’s contention, Mr.

¶1832William Felts confronted the victims in this case, . . . . in the woods

¶1833behind Bethune Elementary School.” The prosecutor then proceeded

¶1834to describe the factual basis for each of the crimes to which Moody

¶1835pled guilty. In the sentencing trial that followed Moody’s plea, the

¶1836State no longer had to prove that he had committed the crimes. See

¶1837Shepard v. Williams, 299 Ga. 437, 440 (1) (788 SE2d 428) (2016)

¶1838(recognizing that a plea of guilty admits the facts set forth in an

¶1839indictment). And the State also had no need to mention Felts or

¶1840present any evidence regarding his participation in the crimes.

¶1841Instead, the State focused on proving the statutory aggravating

¶1842circumstances and non-statutory aggravating circumstances. See

¶1843 115 O’Kelley v. State, 284 Ga. 758, 766-767 (3) (670 SE2d 388) (2008)

¶1844(pointing out that the guilt/innocence and sentencing phases of a

¶1845death penalty trial have different purposes and that different

¶1846evidence is introduced in each phase).

¶1847 Moody contends that the State represented to the jury in its

¶1848closing argument that it had presented “all the facts” surrounding

¶1849the crimes, despite the fact that the State had presented no evidence

¶1850about Felts’s involvement in the case. But Moody seriously

¶1851misrepresents the prosecutor’s argument to that end by lifting his

¶1852words out of context, including at one point even cobbling together

¶1853phrases from two different sections of the State’s argument that are

¶1854over 50 pages apart in the transcript. 26 Our review of the State’s

¶1855 26 In his brief, Moody argues the following:

¶1856 More brazenly, the State argued at Mr. Moody’s trial that Mr. Moody alone, “by his own choice,” Vol. 28, T. 3936, decided to “lay[] in those woods” for someone to rob, Vol. 28, T. 3879. But at Mr. Felts’s trial, the State presented evidence that it would be “pretty unreasonable” to suspect that a single person was involved in the crime.

¶1857The phrases Moody relies on do not support anything resembling Moody’s characterization. The first lifted phrase about deciding to “lay[] in those

¶1858 116 closing argument in its entirety shows that, although the State kept

¶1859the jury properly focused on Moody’s role in the crimes for the

¶1860purposes of determining his appropriate sentences for the murders,

¶1861nowhere did the State contend that Moody acted alone in

¶1862committing the crimes.

¶1863 In sum, based on our review of the two sets of trial transcripts,

¶1864we conclude that, although the evidence presented and the

¶1865prosecutor’s arguments differed somewhat at each trial, those

¶1866arguments were consistent with the evidence actually presented at

¶1867each trial and with the differing procedural posture of each case.

¶1868woods,” was part of the State’s argument about Moody’s motive to commit a robbery:

¶1869 Motive [is] not an element, meaning we don’t have to prove that. But you have it here. You know what the motive was. Remember he called Tameka. He said I’ve got a plan. I’m going to get some money. I’m going to rob someone, laying in those woods waiting for who was going to come along, and unfortunately it was the two kids.

¶1870The second phrase appeared in the State’s argument about Moody’s decision to murder the victims:

¶1871 I’ve got these boards up here that show a picture of them . . . in their lives and then a picture of them . . . from their autopsy. That’s what he did. He did that to them. He did that by his own choice.

¶1872 117 More importantly, those differences did not go to the core theory of

¶1873the case, and, therefore, this is not a situation where the State

¶1874presented separate and irreconcilable theories of guilt. See Haynes

¶1875v. Cupp, 827 F2d 435, 439 (9th Cir. 1987) (holding that “variations

¶1876in emphasis” were not cause for reversal where “the underlying

¶1877theory of the case” that each defendant was culpable was

¶1878consistent). Accordingly, Moody’s claim here is meritless.

¶1879 10. Moody argues that the trial court erred in twice denying his

¶1880request to charge concerning the consequences of a jury’s failure to

¶1881reach a unanimous sentencing verdict. Even apart from the issue of

¶1882waiver surrounding Moody’s initial request for this charge, we see

¶1883no error — plain or ordinary — in the trial court’s refusal to give it

¶1884either initially or when it was later requested again during jury

¶1885deliberations. 27

¶1886 27 Although we conclude that the jury instructions in Moody’s case were not erroneous in any fashion, we note that, for plain error review with respect to allegedly erroneous jury instructions not properly objected to at trial, this Court applies the four-pronged analysis that we adopted in Kelly, 290 Ga. at 33 (2) (a). And, as we explained in Division 7 (b) above, under both the plain error review of Kelly and the plenary review of Moody’s death sentences under

¶1887 118  (a) In his requests to charge, Moody proposed the following

¶1888instruction:

¶1889 A death sentence may only be imposed and carried out if all twelve jurors vote for a death sentence. In other words, each juror has the power and authority to give life by voting for a sentence of life imprisonment without parole, or life imprisonment.

¶1890At the charge conference, the trial court denied the requested

¶1891charge, stating that it was “argumentative” and was “covered

¶1892adequately elsewhere,” and Moody did not object to the trial court’s

¶1893denial of his request. The trial court ultimately charged the jury:

¶1894“Your verdict as to penalty must be unanimous, and it must be in

¶1895writing, dated, and signed by your foreperson and returned to be

¶1896read in open court.” Moody also did not object to the trial court’s

¶1897giving of this instruction, which tracks the suggested pattern jury

¶1898instruction. See Suggested Pattern Jury Instructions, Vol. II:

¶1899Criminal Cases (2020), § 2.15.80. And, more to the point here, Moody

¶1900failed to raise an objection regarding the trial court’s failure to give

¶1901OCGA § 17-10-35 (c) (1), relief would be warranted only if there were a reasonable probability that an unobjected-to error, here allegedly erroneous jury instructions, led to the jury’s decision to impose Moody’s death sentences. 119 the specific charge he had requested at the charge conference. As a

¶1902result, his claim is reviewed only for plain error. See OCGA § 17-8-

¶190358 (b); Martin, 298 Ga. at 278-279 (6) (d).

¶1904 There is no error, much less plain error, in the instruction

¶1905given. This Court has repeatedly approved the instruction that was

¶1906given. See, e.g., Walker, 281 Ga. at 165 (11) & n.39. And there was

¶1907no error in the trial court’s refusal to give the specific charge that

¶1908Moody requested at the charge conference. See Humphreys, 287 Ga.

¶1909at 81-82 (9) (b) (“We have repeatedly held that a trial court is not

¶1910required to instruct the jury in the sentencing phase of a death

¶1911penalty trial about the consequences of a deadlock.”), disapproved

¶1912on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3. 28

¶1913 (b) In his closing argument, defense counsel argued:

¶1914 Ladies and gentlemen, there are no hung juries during the sentencing phase in a death penalty case. If the determination is 11 to 1 and one person believes that life without parole is appropriate, that’s the verdict, life without parole. . . .

¶1915 28 See OCGA § 17-10-31 (c) (providing that, if the jury in a death penalty case “is unable to reach a unanimous verdict as to sentence, the judge shall dismiss the jury and shall impose a sentence of either life imprisonment or imprisonment for life without parole”). 120  After deliberating for less than two hours, the jury sent a note

¶1916asking the trial court to “clarify” the apparent conflict between the

¶1917trial court’s instructions “that the penalty verdict must be

¶1918unanimous” and defense counsel’s argument that “there would be no

¶1919hung jury” because “if 11 vote[d] for [the] death penalty and one

¶1920vote[d] for life without parole, the result [would be] life without

¶1921parole.” Moody requested that the trial court provide “some

¶1922language” that would inform the jurors regarding what would

¶1923happen if they were unable to reach a unanimous verdict. However,

¶1924the trial court pointed out to defense counsel that the “[l]aw

¶1925applicable to a hung jury, which is what you have described, is not

¶1926applicable to [the jury] at this point in time,” and the trial court

¶1927refused to give such an instruction. Instead, over Moody’s objection,

¶1928the trial court told the jurors that the court had instructed them “as

¶1929to the law applicable to this case” and directed them to the

¶1930unanimity instruction in their copy of the court’s written

¶1931instructions that it had given them.

¶1932 121  On appeal Moody contends that the trial court erred by

¶1933redirecting the jury to its previous instruction rather than

¶1934instructing the jury about what would happen if it were unable to

¶1935reach a unanimous verdict. But as we noted above, a trial court is

¶1936not required to instruct the jury in the sentencing phase of a death

¶1937penalty trial about the consequences of a deadlock.

¶1938 [I]n Georgia a unanimous verdict is required even in the sentencing phase of a capital case because under our death penalty law, where a jury is unable to agree on a verdict, that disagreement is not itself a verdict. The jury’s deadlock may lead to a sentence of life with or without parole imposed by the trial court, but it does not result either in a mistrial subject to retrial (as in other contexts where a jury deadlocks) or an automatic verdict (as occurs under the death penalty law of other states). Moreover, we have repeatedly held that a trial court is not required to instruct the jury in the sentencing phase of a death penalty trial about the consequences of a deadlock.

¶1939Humphreys, 287 Ga. at 81-82 (9) (b) (footnote, citations, and

¶1940punctuation omitted). 29 Accordingly, the unanimity instruction that

¶1941 29In Humphreys, we explained how modified Allen charges should be given during the sentencing phases of death penalty trials when such charges are necessary, see 287 Ga. at 81-82 (9) (b) (citing Allen v. United States, 164 U.S. 492, 501 (9) (17 SCt 154, 41 LE2d 528) (1896)). However, the trial court never found it necessary to give a modified Allen charge in Moody’s case,

¶1942 122 the trial court directed the jury to recall was “a correct statement of

¶1943the law even in the context of the sentencing phase of a death

¶1944penalty trial.” Id.

¶1945 11. As discussed above, the State’s psychologist, Dr. Egan, was

¶1946qualified without objection as an expert witness in the field of

¶1947clinical and forensic psychology. Moody contends that his Sixth

¶1948Amendment right of confrontation under Crawford v. Washington,

¶1949541 U.S. 36 (124 SCt 1354, 158 LE2d 177) (2004), was violated when

¶1950Dr. Egan was allowed to testify about the testing and evaluation of

¶1951Moody conducted by two resident trainees and was then permitted

¶1952to testify that Moody did not exhibit signs of “brain damage or brain

¶1953disorder.” Even if this claim were preserved, it has no merit.

¶1954 Dr. Egan testified that in 2012 Dr. Peter Ash, whom the trial

¶1955court had asked to do an evaluation of Moody’s competence to stand

¶1956trial and criminal responsibility at the time of the crimes, had “some

¶1957because the jury gave no indication in its note that it was deadlocked and because, shortly before noon on the following day, the jury announced its verdict without submitting any further questions.

¶1958 123 questions” that he wanted Dr. Egan to address, specifically, whether

¶1959Moody was malingering. Dr. Egan testified that to assist him in his

¶1960evaluation he had assigned two of his resident trainees who were

¶1961clinical psychologists to conduct some psychological testing of Moody

¶1962and that he himself met with Moody later. Dr. Egan also testified

¶1963that the purpose of the testing that the trainees conducted was to

¶1964detect malingering, that the testing was composed of two parts, and

¶1965that Moody “became so uncooperative” that his trainees were unable

¶1966to complete the second part of their testing. Dr. Egan relied on his

¶1967own interview with Moody and his review of the test results to

¶1968testify: “On that day that we evaluated him, yes, his behavior during

¶1969that day suggested to us strongly that he was malingering.” Dr.

¶1970Egan also testified that his opinions regarding Moody’s mental

¶1971condition were based on his education and experience, on his review

¶1972of numerous records, including records showing Moody’s extremely

¶1973low verbal scores on intelligence tests that were wholly inconsistent

¶1974with his personal observations of Moody’s ability to communicate,

¶1975and on his own interview of Moody and interactions with him. On

¶1976 124 cross-examination, Dr. Egan confirmed that he was not present

¶1977when the trainees conducted their testing of Moody. The trainees’

¶1978evaluation and testing results were not admitted into evidence.

¶1979 We have previously explained:

¶1980 In the context of scientific lab reports, the United States Supreme Court has held that the Sixth Amendment right to confrontation grants the accused a right “to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” Bullcoming v. Mexico, 564 U.S. 647, 652 (131 SCt 2705, 180 LE2d 610) (2011). This Court has since held that someone with a significant personal connection to the test could testify in lieu of the scientist who actually conducted it. See Disharoon v. State, 291 Ga. 45 (727 SE2d 465) (2012); Leger v. State, 291 Ga. 584 (5) (732 SE2d 53) (2012).

¶1981Taylor v. State, 303 Ga. 225, 230 (4) (811 SE2d 286) (2018).

¶1982However, we have also clarified that, “[i]n applying [the Sixth

¶1983Amendment right to confront witnesses], there is a critical

¶1984distinction between cases where the [test] results were admitted

¶1985into evidence and those where the [test] results were merely used in

¶1986an expert’s opinion.” Id. In the latter type of situations, “[t]he

¶1987decision of Bullcoming . . . is inapplicable. . . .” Naji v. State, 300 Ga.

¶1988 125 659, 663 (2) (797 SE2d 916) (2017) (citation omitted).

¶1989 Here, the State never sought to admit the trainees’ testing and

¶1990evaluation into evidence. Instead, Dr. Egan used the facts contained

¶1991therein, including factual data collected by the trainees, to inform

¶1992his expert opinion as to whether Moody had malingered on the

¶1993State’s tests and to inform his opinions regarding Moody’s mental

¶1994condition. Accordingly, “[t]he expert opinion admitted at trial was

¶1995not the restatement of the diagnostic opinion of another expert.”

¶1996Naji, 300 Ga. at 663 (2) (citation and punctuation omitted).

¶1997Therefore, the Confrontation Clause was not violated. See Taylor,

¶1998303 Ga. at 230 (4) (holding that the Confrontation Clause was not

¶1999violated where the medical examiner testified as to his independent,

¶2000expert opinion regarding the facts contained in the report of an

¶2001autopsy that he did not conduct and where the State did not seek to

¶2002admit the report itself); Naji, 300 Ga. at 662-663 (2) (same, where

¶2003the medical examiner used another examiner’s autopsy report,

¶2004which was not admitted, to testify about his opinion on the victim’s

¶2005 126 cause of death).30

¶2006 12. Moody argues that, pursuant to the federal and state

¶2007constitutions, he is ineligible for the death penalty by virtue of his

¶2008“serious mental illness.” Even apart from the fact that Moody failed

¶2009even to seek a jury verdict on his alleged mental illness, this claim

¶2010is meritless. See Brookins v. State, 315 Ga. 86, 110 (16) (879 SE2d

¶2011466) (2022) (reaffirming “that persons with ‘mental illness’ [do not]

¶2012constitute a category of persons that, like intellectual disability,

¶2013must be subject to a categorical exemption from death sentences”

¶2014 30 Although we hold that Bullcoming is inapplicable and thus that Dr. Egan was not required to have a “substantial personal connection” to the resident trainees’ testing and evaluation, Disharoon, 291 Ga. at 48, we note that this requirement was nevertheless met. In Disharoon, we recognized Bullcoming’s condemnation of “surrogate testimony” but held that Bullcoming does not require the exclusion of a substitute witness who “is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue.” Id. (citation and punctuation omitted). In that regard, our review of the report detailing the results of the resident trainees’ testing and evaluation shows that, while one of the trainees signed the report as “Examiner,” Dr. Egan also signed it as “Supervising Licensed Psychologist.” Furthermore, it was clear from Dr. Egan’s testimony that he requested the specific testing and evaluation completed by the trainees, that he supervised the trainees, that they reported back to him, and that he reached his own independent conclusions regarding whether Moody had malingered. See Leger, 291 Ga. at 593 (5) (holding that it was not improper for a scientist to testify who had not personally performed certain DNA tests but had selected the stains for testing, had supervised the worker who did the testing, had interpreted the worker’s results, and had written the lab report). 127 (citing Lewis v. State, 279 Ga. 756, 764 (12) (620 SE2d 778) (2005)).

¶2015 13. Moody contends that the practice of qualifying jurors

¶2016according to their death penalty views is unconstitutional for

¶2017various reasons. Pretermitting whether he has abandoned this

¶2018claim by providing no meaningful argument or citation to authority

¶2019to support his contentions, see Supreme Court Rule 22, we hold that

¶2020the claim is meritless. See, e.g., Walker, 281 Ga. at 162 (8)

¶2021(“Qualifying prospective jurors based upon their death penalty

¶2022views does not deny capital defendants their right to an impartial

¶2023jury drawn from a representative cross-section of the community

¶2024and is not otherwise unconstitutional.” (citing Wainwright v. Witt,

¶2025469 U.S. 412, 418-426 (105 SCt 844, 83 LE2d 841) (1985)).

¶2026 Pretermitting whether Moody has standing to challenge death-

¶2027qualification on the ground that it violates prospective jurors’

¶2028constitutional rights to serve as jurors, we reject his claim to that

¶2029effect here. See King v. State, 273 Ga. 258, 267 (20) (539 SE2d 783)

¶2030(2000) (rejecting a claim that “the constitutional right to freedom of

¶2031religion and conscience [is violated] where a juror is stricken for

¶2032 128 cause based upon death penalty views that are derived from

¶2033religion” without first addressing the question of standing),

¶2034disapproved on other grounds by Clark v. State, 315 Ga. 423, 435

¶2035n.16 (883 SE2d 317) (2023). The United States Supreme Court has

¶2036recognized that only “qualified” jurors are entitled to serve. Smith v.

¶2037Texas, 311 U.S. 128, 130 (61 SCt 164, 85 LE2d 84) (1940). A juror is

¶2038not qualified if “his or her views on capital punishment . . . would

¶2039prevent or substantially impair the performance of his duties as a

¶2040juror in accordance with his instructions and his oath.” Morgan v.

¶2041Illinois, 504 U.S. 719, 728 (112 SCt 2222, 119 LE2d 492) (1992)

¶2042(citation and punctuation omitted)); see also Humphreys, 287 Ga. at

¶204371-72 (5), disapproved on other grounds by Willis, 304 Ga. at 706

¶2044(11) (a) n.3.

¶2045 14. Moody contends that the trial court erred by denying his

¶2046motion challenging the constitutionality of Georgia’s death penalty

¶2047statutes on several different grounds. For the reasons set forth

¶2048below, we discern no error.

¶2049 (a) Moody contends that Georgia’s death penalty scheme fails

¶2050 129 sufficiently to narrow the class of persons eligible for the death

¶2051penalty. However, this Court has repeatedly rejected similar claims,

¶2052and Moody offers no persuasive reason to do otherwise here. See,

¶2053e.g., Arrington v. State, 286 Ga. 335, 337 (4) (687 SE2d 438) (2009)

¶2054(citing Zant v. Stephens, 462 U.S. 862, 876-879 (103 SCt 2733, 77

¶2055LE2d 235) (1983), for the proposition that “Georgia’s statutory

¶2056aggravating circumstances constitutionally narrow the class of

¶2057death-eligible defendants”).

¶2058 (b) Moody makes an equal protection claim that Georgia’s

¶2059death penalty statutes provide no uniform standard or procedure

¶2060guiding the decision to seek the death penalty made by the district

¶2061attorneys in the State’s numerous judicial circuits. But we have

¶2062previously explained that district attorneys do not have unfettered

¶2063discretion under the death penalty statutes, because “[a] district

¶2064attorney’s decision to seek the death penalty requires the exercise of

¶2065professional judgment as to whether an aggravating circumstance

¶2066exists and, thus, as to whether the imposition of the death penalty

¶2067should be submitted for a jury’s determination.” Crowe v. State, 265

¶2068 130 Ga. 582, 595 (24) (458 SE2d 799) (1995). “The [district attorney]’s

¶2069discretion is also ‘limited by the jury’s ultimate decision’ and the

¶2070‘strength of the evidence’ in any given case.” Wagner v. State, 282

¶2071Ga. 149, 152 (5) (646 SE2d 676) (2007) (citation omitted). Moreover,

¶2072Moody’s claim fails because “he has not shown any invidious

¶2073discrimination in his case.” Ellington, 292 Ga. at 116 (3) (b),

¶2074disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3.

¶2075 (c) Lastly, Moody asserts that Georgia’s death penalty statutes

¶2076give unguided discretion to the jury over how to consider mitigating

¶2077circumstances, resulting in the arbitrary imposition of the death

¶2078penalty. But Moody has not alleged that the trial court failed to

¶2079charge his jury properly at his sentencing trial on mitigating

¶2080circumstances, and “the Georgia death penalty scheme sufficiently

¶2081narrows the application of the death penalty and guides the jury’s

¶2082consideration of it as a possible sentence, while also affording jurors

¶2083the latitude to consider all mitigating circumstances in their

¶2084deliberations.” Ellington, 292 Ga. at 116 (3) (a), disapproved on other

¶2085grounds by Willis, 304 Ga. at 706 (11) (a) n.3.

¶2086 131  Sentence Review

¶2087 15. Upon our review of the entire record, including those

¶2088portions relevant to the improper victim impact testimony that we

¶2089discuss above and relevant to the improper cross-examination of an

¶2090expert witness and the improper examination of a lay witness that

¶2091our analysis above assumes to have occurred, 31 we conclude that the

¶2092sentence of death in this case was not imposed under the influence

¶2093of passion, prejudice, or any other arbitrary factor. See OCGA § 17-

¶209410-35 (c) (1); see also Martin, 298 Ga. at 279 (6) (d) (stating regarding

¶2095this Court’s review under OCGA § 17-10-35 (c) (1): “That plenary

¶2096review guards against any obvious impropriety at trial, whether

¶2097objected to or not, that in reasonable probability led to the jury’s

¶2098decision to impose a death sentence.”).

¶2099 31 Referring only to the allegedly improper victim impact statements discussed in Division 7, Moody argues that his death sentences should be reversed based on a cumulative error analysis. See Lane, 308 Ga. at 14 (1). In this case, because Moody did not object to the improper victim impact statements at trial and thus those claims are only subject to review for plain error, our plenary review here for passion, prejudice, or any other arbitrary factor applies the same standard as would be applied under Lane, and it subsumes any such cumulative analysis of the improper victim impact statements that might otherwise be warranted under Lane. 132  16. In its sentencing verdict, the jury found beyond a

¶2100reasonable doubt that Kimble’s murder was committed while Moody

¶2101was engaged in the capital felonies of the murder of Mattox and the

¶2102rape of Kimble, that it was committed for the purpose of receiving

¶2103money or any other thing of monetary value, and that it was

¶2104outrageously or wantonly vile, horrible, or inhuman in that it

¶2105involved torture and an aggravated battery to the victim and the

¶2106depravity of mind of the defendant. See OCGA § 17-10-30 (b) (2), (4),

¶2107(7). The jury found beyond a reasonable doubt that Mattox’s murder

¶2108was committed while Moody was engaged in the capital felonies of

¶2109the rape and murder of Kimble, that it was committed for the

¶2110purpose of receiving money or any other thing of monetary value,

¶2111and that it was outrageously or wantonly vile, horrible, or inhuman

¶2112in that it involved torture and an aggravated battery to the victim

¶2113and the depravity of mind of the defendant. See OCGA § 17-10-30

¶2114(b) (2), (4), (7). As we concluded in our review in Division 1, the

¶2115evidence was sufficient to support the jury’s finding beyond a

¶2116reasonable doubt the existence of each of these statutory

¶2117 133 aggravating circumstances. And, “[e]ven applying what this Court

¶2118has previously described as a ‘rule’ against ‘mutually supporting

¶2119aggravating circumstances,’ both death sentences in this case

¶2120remain supported by [at least] one statutory aggravating

¶2121circumstance.” Brookins, 315 Ga. at 115 (23).

¶2122 17. In the direct appeal of a death sentence, this Court is

¶2123required to determine “[w]hether the sentence of death is excessive

¶2124or disproportionate to the penalty imposed in similar cases,

¶2125considering both the crime and the defendant.” OCGA § 17-10-35 (c)

¶2126(3). In making this determination, we note that Moody’s crimes were

¶2127brutal, unprovoked attacks on minor victims that went well beyond

¶2128the robbery that served as his initial motive. Moody forced his

¶2129victims to strip naked, bound the 15-year-old male victim, raped and

¶2130strangled the 13-year-old female victim, viciously stabbed both of

¶2131the victims repeatedly with a sharp instrument like a screwdriver,

¶2132and then left them in the woods to bleed to death. Upon our review

¶2133of all of the evidence presented in the sentencing trial, we conclude

¶2134that the death sentences imposed for the murders in this case are

¶2135 134 not disproportionate punishment within the meaning of Georgia

¶2136law. See id.; Gissendaner v, State, 272 Ga. 704, 717 (19) (a) (632

¶2137SE2d 677) (2000) (holding that this Court’s statutorily mandated

¶2138proportionality review concerns whether “a given sentence is

¶2139excessive per se or substantially out of line”). The cases in the

¶2140Appendix support this conclusion, as each shows a jury’s willingness

¶2141to impose a death sentence for the commission of a murder involving

¶2142the section (b) (7) statutory aggravating circumstance or a murder

¶2143involving a minor person, a rape, or the deliberate, unprovoked

¶2144killing of two or more persons. See Barrett v. State, 292 Ga. 160, 190

¶2145(4) (733 SE2d 304) (2012) (stating that this Court is “not required to

¶2146find identical cases for comparison in [its] proportionality review.”).

¶2147 Judgment affirmed. All the Justices concur.

¶2148 135  APPENDIX

¶2149Brookins v. State, 315 Ga. 86 (879 SE2d 466) (2022); Young v. State, 312 Ga. 71 (860 SE2d 746) (2021); Willis v. State, 304 Ga. 686 (820 SE2d 640) (2018); Martin v. State, 298 Ga. 259 (779 SE2d 342) (2015); Hulett v. State, 296 Ga. 49 (766 SE2d 1) (2014); Edenfield v. State, 293 Ga. 370 (744 SE2d 738) (2013), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Rice v. State, 292 Ga. 191 (733 SE2d 755) (2012), overruled on other grounds by State v. Lane, 308 Ga. 10, 23 (Appendix) (838 SE2d 808) (2020), and disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Barrett v. State, 292 Ga. 160 (733 SE2d 304) (2012); Ledford v. State, 289 Ga. 70 (709 SE2d 239) (2011), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Loyd v. State, 288 Ga. 481 (705 SE2d 616) (2011); Tate v. State, 287 Ga. 364 (695 SE2d 591) (2010); Humphreys v. State, 287 Ga. 63 (694 SE2d 316) (2010), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Stinski v. State, 286 Ga. 839 (691 SE2d 854) (2010); Arrington v. State, 286 Ga. 335 (687 SE2d 438) (2009); O’Kelley v. State, 284 Ga. 758 (670 SE2d 388) (2008); Rivera v. State, 282 Ga. 355 (647 SE2d 70) (2007); Lewis v. State, 279 Ga. 756 (620 SE2d 778) (2005); Braley v. State, 276 Ga. 47 (572 SE2d 583) (2002); Terrell v. State, 276 Ga. 34 (572 SE2d 595) (2002); Lucas v. State, 274 Ga. 640 (555 SE2d 440) (2001); Rhode v. State, 274 Ga. 377 (552 SE2d 855) (2001); Presnell v. State, 274 Ga. 246 (551 SE2d 723) (2001); Pruitt v. State, 270 Ga. 745 (514 SE2d 639) (1999).

¶2150 136