In the Supreme Court of Georgia

Decided: October 11, 2023

S23A0678. KIMBRO v. THE STATE.

 WARREN, Justice.

Appellant Torrey Kimbro was convicted of malice murder and 

rape in connection with the strangling death of Diamond Shepherd.1

In this appeal, Kimbro contends that the evidence presented at his 

trial was legally insufficient to support his convictions. He also 

claims that the trial court erred in the following ways: by denying 

his motion for new trial on the “general grounds” set forth in OCGA 

1 Shepherd was killed on November 3, 2009. In April 2021, a Fulton 

County grand jury indicted Kimbro for malice murder, two counts of felony 

murder, and rape. At a trial from November 30 to December 6, 2021, a jury 

found him guilty of all counts. The trial court sentenced him as a recidivist to 

serve life in prison without the possibility of parole for murder and a 

concurrent life sentence (to serve 25 years in prison and the remainder on 

probation) for rape. The felony murder counts were vacated by operation of 

law. Kimbro filed a timely motion for new trial, which he amended three times 

through new counsel. After an evidentiary hearing, the trial court denied the 

motion in January 2023. Kimbro then filed a timely notice of appeal, which he 

later amended, and the case was docketed to the April 2023 term of this Court 

and submitted for a decision on the briefs.
2

§§ 5-5-20 and 5-5-21; by denying his motion for a continuance; by 

denying his motion to dismiss his indictment; by denying his motion 

for a mistrial; and by overruling his objections to certain statements 

that the prosecutor made during her closing argument. In addition, 

he claims that his trial counsel provided constitutionally ineffective 

assistance in several respects. As explained below, we affirm.

1. The evidence presented at Kimbro’s trial showed the 

following. On November 3, 2009, Shepherd, who was 17 years old,

was staying in a motel room near Fulton Industrial Boulevard in 

Atlanta with her boyfriend Edwin Perkins, Perkins’s cousin, and the 

cousin’s girlfriend. Around 3:00 p.m., investigators responded to a 

911 call from a maintenance worker at the motel, who found 

Shepherd lying on her back on the floor of her room near the door, 

dead. A towel was covering her face; her shirt and bra were pushed 

up, exposing her breasts; her shorts were pulled down around her 

right ankle, exposing her vagina; and her legs were spread apart. 

Her purse was across her body, with the strap around her neck. 

Unopened condoms were strewn nearby. The bed had been moved, 
3

as if there had been a struggle. Investigators also observed “fluid 

leaking” from Shepherd’s vagina. 

Shepherd’s boyfriend, Perkins, testified that Shepherd often 

had sex with men in exchange for money. He said that on the day 

Shepherd was killed, he and his cousin left the motel around 7:00 

a.m. to run errands. Shepherd called him from the motel room 

phone around 12:00 or 12:30 p.m.2 When he arrived back at the 

motel room with his cousin and the cousin’s girlfriend, they saw 

investigators in the room and learned that Shepherd had been 

killed. The maintenance worker who discovered Shepherd’s body 

testified that around 12:00 or 12:30 p.m., he was working on the 

breezeway near Shepherd’s room when she passed by with a man 

who was “shorter than 6’2”” and “about 200 pounds” and had 

dreadlocks. The maintenance worker thought that the man was 

planning to pay Shepherd for sex. Shepherd asked the maintenance 

worker to let her and the man into her room because her key was 

2 During his interview with investigators on the day of the murder, 

Perkins said that Shepherd called him around 11:25 a.m.
4

not working; the maintenance worker let her in; and the man 

followed her. The maintenance worker saw the man leave about 45 

minutes later, but he did not know if Shepherd left the room after 

that or if anyone else came to the room.3

The medical examiner who performed Shepherd’s autopsy 

found abrasions on her neck and an “impression” on the front and 

side of her neck that was likely created by her purse strap being 

tightened against her neck. The examiner ultimately concluded that 

Shepherd died from asphyxia due to neck compression. The medical 

examiner collected vaginal, cervical, and rectal swabs from 

Shepherd.

4 Investigators later determined that the swabs contained 

3 The State did not argue that the man the maintenance worker saw was 

Kimbro, whose appearance differed from the description that the maintenance 

worker gave. Indeed, a booking report and photos from Kimbro’s arrest on 

unrelated charges on December 21, 2009 (less than two months after 

Shepherd’s murder), which were admitted into evidence, showed that he was 

5’6” tall and weighed 145 pounds and that he was bald. The State asserted 

that the man the maintenance worker saw may have been Shepherd’s brother, 

who Shepherd’s mother testified was about 6’2” tall, weighed 195 to 215 

pounds, and had dreadlocks. As discussed more below, the defense argued that 

this man was likely Shepherd’s assailant.

4 The medical examiner testified that there were no acute injuries to 

Shepherd’s genitals and that a sexual assault does not always result in such 

injuries.
5

male DNA; they then generated a profile from the male DNA and 

uploaded the DNA profile to the Combined DNA Index System 

(“CODIS”) in April 2010.

In September 2010, the GBI was notified that the DNA profile 

that was uploaded to CODIS matched Kimbro. A GBI forensic 

biologist then performed a comparison of the DNA profile and 

Kimbro’s reference sample in CODIS and confirmed the match. The 

GBI notified the lead detective for the case, who determined that 

Kimbro was in prison for unrelated crimes. The detective testified 

that although he believed he had probable cause to arrest Kimbro, 

he never obtained an arrest warrant and did not continue to work 

on the case, because Kimbro was already in prison and the detective 

wanted to focus on “the other cases [he] had.” The case was 

eventually classified as a “cold case.” In May 2017, an investigator 

who was assigned to the “cold case” unit reviewed the case file and 

obtained an arrest warrant for Kimbro; he was arrested in March 

2020. Investigators then obtained a buccal swab from Kimbro and 

performed additional DNA testing, which confirmed that the DNA 
6

profile generated from the swabs matched Kimbro.

At trial, the State also presented evidence that on December 

21, 2009 (less than two months after Shepherd’s murder), Kimbro 

choked then 22-year-old Robertenette Gordon-Deaver in another 

motel room in the same motel near Fulton Industrial Boulevard. 

Gordon-Deaver testified that sometime between 8:00 and 10:00 

p.m., she encountered Kimbro, whom she did not know, near the 

motel, where she was staying, and he agreed to pay her for sex. 

When they went inside her motel room, he sprayed mace in her face,

grabbed her neck with his hands, and choked her. She screamed for 

help, and a security guard at the motel and a man who was staying 

in a nearby room ran into Gordon-Deaver’s room, scuffled with 

Kimbro, and eventually handcuffed him and called the police, who 

arrested him.

Kimbro elected not to testify at trial, but he presented 

testimony from a detective who reviewed the case in 2014 and 

determined that there was not probable cause to arrest Kimbro, 

despite the DNA evidence, because the maintenance worker’s 
7

description of the man who was with Shepherd about two hours 

before her body was discovered did not match Kimbro’s appearance. 

Kimbro’s primary theory of defense was that although Kimbro had 

sex with Shepherd at some point before her death, the man with 

dreadlocks whom the maintenance worker saw killed Shepherd. To 

rebut that theory, the prosecutor argued that the maintenance 

worker said the man with dreadlocks left Shepherd’s room around 

12:45 or 1:15 p.m.—about two hours before Shepherd’s body was 

found—and that there was ample time for Kimbro to encounter, 

rape, and kill Shepherd during that timeframe.

2. Kimbro contends that the evidence presented at his trial 

was insufficient—as a matter of constitutional due process and as a 

matter of Georgia statutory law—to support his convictions for rape 

and malice murder.

5 This claim fails.

When properly viewed in the light most favorable to the jury’s 

5 To the extent Kimbro also challenges the sufficiency of the evidence 

supporting the felony murder counts, those counts were vacated by operation 

of law, so his challenge is moot. See Ellington v. State, 314 Ga. 335, 340 (877 

SE2d 221) (2022). 
8

verdicts, the evidence at trial showed that when investigators 

discovered Shepherd’s dead body on the floor of her motel room, the 

strap of her purse was around her neck; unopened condoms were 

strewn around her body; her shirt and bra were pushed up, exposing 

her breasts; her shorts were pulled down, exposing her vagina; her 

legs were spread apart; and fluid containing Kimbro’s DNA was still 

“leaking” from her vagina. The medical examiner concluded that 

Shepherd was likely strangled with her purse strap, which caused 

her death. And although, as Kimbro points out in his appellate brief, 

the medical examiner determined that there were no acute injuries 

to Shepherd’s genitals, the examiner also testified that a sexual 

assault does not always result in such injuries. 

The evidence presented at trial and summarized above

authorized the jury to reasonably infer that Kimbro had sex with 

Shepherd “forcibly and against her will,” see OCGA § 16-6-1 (a)

(defining rape), just before he strangled and killed her, see OCGA § 

15-5-1 (a) (defining malice murder), and that he was therefore guilty 

beyond a reasonable doubt of rape and malice murder. Thus, the 
9

evidence was constitutionally sufficient to support his convictions

for those crimes. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt

2781, 61 LE2d 560) (1979). See also Martinez v. State, 302 Ga. 86, 

86-89 (805 SE2d 44) (2017) (holding that evidence that the victim’s 

dead body was found partially undressed with a phone cord around 

her neck and that the DNA profile generated from spermatozoa 

collected from the victim’s vagina matched the defendant, who 

claimed that he did not remember meeting the victim, was 

constitutionally sufficient to support his convictions for rape and 

malice murder, even though the victim had no physical injury to her 

genitalia, and explaining that “‘[v]aginal trauma and physical injury 

are not necessarily a constituent element of the criminal offense of 

rape’”) (citation omitted).

The evidence, though circumstantial, was also sufficient as a 

matter of Georgia statutory law. See OCGA § 24-14-6 (“To warrant 

a conviction on circumstantial evidence, the proved facts shall not 

only be consistent with the hypothesis of guilt, but shall exclude 

every other reasonable hypothesis save that of the guilt of the 
10

accused.”). Kimbro argues that the evidence failed to exclude the 

reasonable hypothesis that sometime after he had unprotected, 

“consensual sex” with Shepherd, the unknown man with dreadlocks 

raped and killed her, leaving behind an insufficient amount of DNA 

to generate a DNA profile. But the state in which Shepherd’s body 

was discovered—on the floor and partially undressed with fluid 

leaking from her vagina, which yielded only Kimbro’s DNA profile—

authorized the jury to reject that hypothesis as unreasonable and to 

instead find him guilty of rape and malice murder. See Daniels v. 

State, 298 Ga. 120, 121-123 (779 SE2d 640) (2015) (holding that 

evidence that the dead body of the victim, a prostitute, was partially 

undressed with her legs spread and that the defendant’s DNA profile 

was generated from spermatozoa found in the victim’s vagina was 

sufficient under OCGA § 24-4-6 (the predecessor to OCGA § 24-14-

6) to authorize the jury to reject as unreasonable the defendant’s 

hypothesis that he had consensual sex with the victim shortly before 

someone else strangled her to death, and to instead find him guilty 
11

of rape and malice murder).6

3. Kimbro next contends, in two related enumerations of error,

that the trial court abused its discretion by denying his motion for 

new trial on the “general grounds” under OCGA §§ 5-5-20 and 5-5-

21. See Drennon v. State, 314 Ga. 854, 860 (880 SE2d 139) (2022) 

(“Even when the evidence is legally sufficient to sustain a conviction, 

a trial judge may grant a new trial if the verdict of the jury is 

‘contrary to . . . the principles of justice and equity,’ OCGA § 5-5-20, 

or if the verdict is ‘decidedly and strongly against the weight of the 

evidence.’ OCGA § 5-5-21.”) (citation and punctuation omitted). But 

this claim presents nothing for our review. See King v. State, 316

Ga. 611, 616 (889 SE2d 851) (2023) (“‘[T]he merits of the trial court’s 

decision on the general grounds are not subject to our review,’ and 

the decision to grant a new trial on the general grounds ‘is vested 

6 OCGA § 24-4-6, which was part of the old Evidence Code, was carried 

into the current Evidence Code in identical form in OCGA § 24-14-6, and there 

is no materially identical federal rule of evidence, so our case law interpreting 

the former provision is still applicable. See Jackson v. State, 305 Ga. 614, 619-

620 (825 SE2d 188) (2019).
12

solely in the trial court.’”) (citation omitted).7

4. Kimbro argues that the trial court abused its discretion by 

denying his motion for a continuance. He asserts that a continuance 

was necessary to allow his trial counsel additional time to prepare 

for trial, because 10 days before the trial began, the prosecutor filed

an updated witness list, and eight days before trial, the prosecutor 

filed additional discovery.

8 But a trial court has broad discretion in 

7 On appeal, the Attorney General argues that Kimbro cites no legal 

authority to support this claim and that it should therefore be deemed 

abandoned under this Court’s Rule 22, which says, in pertinent part, “[a]ny 

enumerated error not supported by argument or citation of authority in the 

brief shall be deemed abandoned.” But we need not decide that issue, because 

the claim does not warrant our review in any event. 

We note that we need not determine in this case the propriety of our past 

practice of reviewing a general-grounds claim under the sufficiency-of-theevidence standard set forth in Jackson v. Virginia, because as we concluded in 

Division 2 above, the evidence was constitutionally sufficient to support 

Kimbro’s convictions. See King, 316 Ga. at 616 n.8. See also Muse v. State, 

316 Ga. 639, 653 n.6 (889 SE2d 885) (2023). In addition, to the extent Kimbro 

claims that the trial court incorrectly applied the standard in Jackson v. 

Virginia instead of properly exercising its broad discretion in reviewing the 

evidence under the general grounds, the trial court’s order denying the motion 

for new trial clearly shows that the court understood the nature of its discretion 

and exercised it. 

8 Kimbro also argues that the trial court should have granted his motion 

for a continuance on the ground that his trial counsel was unable to prepare 

for the case due to the COVID-19 pandemic, on the ground that the case was a

“cold case,” and on the ground that the trial court should have conducted an 

evidentiary hearing on the admissibility of the evidence that Kimbro 
13

ruling on a motion for a continuance, see OCGA § 17-8-22, and we 

will not disturb such a ruling without a clear showing that the court

abused its discretion, see Reed v. State, 314 Ga. 534, 549 (878 SE2d 

217) (2022). Kimbro has failed to make that showing here.

At the hearing on the continuance motion, which was held on 

the first day of jury selection, Kimbro’s trial counsel argued that the 

updated witness list provided contact information for six witnesses 

and that she would not have time to interview those witnesses before 

the prosecutor called them to testify. Counsel also noted that most 

of the additional discovery that the prosecutor had filed contained 

nothing new, with the exception of two recordings of investigators’ 

interviews with Perkins and the maintenance worker on the day of 

the murder. The prosecutor responded that she had been asking 

officers with the police department for the recordings and that she 

had found them at the department with the physical evidence for 

the case (rather than in the case file, where she had expected them 

previously attacked Gordon-Deaver. But trial counsel did not request a 

continuance on these bases, so Kimbro has not preserved these claims for 

appellate review. See Harris v. State, 304 Ga. 276, 279 (818 SE2d 530) (2018).
14

to be) the day before she notified Kimbro’s trial counsel. Kimbro’s 

counsel then said that due to technical issues, she had not been able 

to play the recordings. The trial court said that it would give 

Kimbro’s counsel time during the trial to interview witnesses and 

that the court’s Information Technology (“IT”) staff would be 

available to help counsel with any technical issues. The court then 

denied the motion for a continuance. 

We see no abuse of discretion in the trial court’s decision to 

deny Kimbro’s motion. As discussed above, the court fashioned

appropriate, alternative remedies by allowing trial counsel time to 

interview witnesses and by offering the services of the court’s IT 

staff. The record shows that during the trial, the court paused the 

proceedings to provide trial counsel time to interview Perkins before 

he testified, and counsel testified at the motion for new trial hearing 

that she interviewed Gordon-Deaver in the hallway outside the 

courtroom (but that after a few minutes, Gordon-Deaver refused to 

talk with her). The record also shows that trial counsel did not 

mention any further technical issues with the recordings. Given 
15

these circumstances, Kimbro’s claim fails. See, e.g., Brittian v. 

State, 299 Ga. 706, 707-708 (791 SE2d 810) (2016) (concluding that 

the trial court did not abuse its discretion by denying the defendant’s 

motion for a continuance on the ground that the State added 16 

witnesses to its list 10 days before trial, because “the trial court 

ensured that, during the course of the trial, [the defendant] would 

be provided with an opportunity to interview the State’s additional 

witnesses prior to their testimony being given”); Collum v. State, 281 

Ga. 719, 723-724 (642 SE2d 640) (2007) (holding that there was “no 

error” in the trial court’s denial of the defendant’s continuance 

motion on the grounds that he received “amended witness lists and 

additional documentation from the State shortly before trial”).9

9 Kimbro also asserts that the trial court abused its discretion by denying 

his trial counsel’s request that at the end of each trial day, the prosecutor 

provide a list of the witnesses she planned to call the next day, but this claim 

fails. The court acted within the bounds of its considerable discretion to control 

the trial proceedings, see Jackson v. State, 315 Ga. 543, 554 (883 SE2d 815) 

(2023), and as discussed above, the trial court’s remedy of allowing Kimbro 

time to interview witnesses before they testified was adequate. 

It is unclear whether Kimbro contends in his brief on appeal that the 

prosecutor violated certain discovery statutes. See OCGA §§ 17-16-8 (a)

(requiring the prosecutor in a felony case to provide to the defense certain 

information regarding witnesses “not later than ten days before trial” or “as 
16

5. Kimbro claims that the trial court erred by denying his 

motion to dismiss the indictment in this case on the ground that the 

more than 11-year delay between Shepherd’s rape and murder in 

November 2009 and Kimbro’s arrest in March 2020 violated his 

right to due process under the Fifth and Fourteenth Amendments to 

the United States Constitution. See United States v. Marion, 404 

U.S. 307, 324 (92 SCt 455, 30 LE2d 468) (1971) (explaining that an 

inordinate delay between the time a crime is committed and the time 

a defendant is arrested or indicted may violate due-process 

guarantees). See also United States v. Lovasco, 431 U.S. 783, 784-

797 (97 SCt 2044, 52 LE2d 752 (1977) (reversing the district court’s 

otherwise ordered by the court”) & 17-16-4 (a) (3) (A) (requiring the prosecutor 

in a felony case to permit the defendant to inspect and copy recordings that the 

prosecution intends to use in its case-in-chief or rebuttal “no later than ten 

days prior to trial” or “as otherwise ordered by the court”) & (c) (providing that 

if a party in a felony case discovers additional evidence that is subject to 

discovery, he “shall promptly notify the other party of the existence of the 

additional evidence” and make the evidence available). In any event, the trial 

court did not abuse its discretion by employing the remedies discussed above. 

See OCGA §§ 17-16-8 (a) (stating that if a trial court, for good cause, allows the 

State to file required witness information late, the court shall permit the 

defense an opportunity to interview witnesses before they testify) & 17-16-6 

(providing several remedies for late-filed discovery, including allowing the 

defendant to inspect the discovery).
17

dismissal of the defendant’s indictment on the ground that the delay 

between the alleged crimes and the indictment violated his right to 

due process and explaining that “to prosecute a defendant following 

investigative delay does not deprive him of due process, even if his 

defense might have been somewhat prejudiced by the lapse of 

time”).

10 To prevail on this claim, Kimbro must “‘prove (1) that the 

delay caused actual prejudice to his defense, and (2) that the delay 

was the result of deliberate prosecutorial action to give the State a 

tactical advantage.’” Curry v. State, 291 Ga. 446, 449 (729 SE2d 370)

(2012) (citation omitted). After a hearing, the trial court issued an 

10 We can assume without deciding that Kimbro preserved his 

Fourteenth-Amendment claim for appellate review, because as discussed 

below, it fails in any event. 

We also note that Kimbro does not contend that his right to a speedy 

trial under the Sixth Amendment to the United States Constitution was 

violated. See Wooten v. State, 262 Ga. 876, 878 (426 SE2d 852) (1993)

(explaining that “[a] pre-trial delay which follows an arrest or indictment may 

violate the right to a speedy trial guaranteed by the Sixth Amendment” but 

that “[t]he Sixth Amendment does not guarantee a right to a speedy arrest”; 

instead, “an inordinate delay between the time a crime is committed and the 

time a defendant is arrested or indicted may violate due process guarantees 

under the Fifth and Fourteenth Amendments”) (emphasis in original). See also

Marion, 404 U.S. at 320-321 (explaining that “it is either a formal indictment 

or information or else the actual restraints imposed by arrest and holding to 

answer a criminal charge that engage the particular protections of the speedy 

trial provision of the Sixth Amendment” and expressly “declin[ing] to extend 

that reach of the amendment to the period prior to arrest”).
18

order denying the motion to dismiss, concluding that Kimbro had

not established either part of the test. Pretermitting whether 

Kimbro has shown actual prejudice, we agree that he has not 

demonstrated that the State engaged in deliberate delay to gain a 

tactical advantage. See Jackson v. State, 279 Ga. 449, 451 (614 

SE2d 781) (2005) (explaining that an appellant’s failure to satisfy 

one part of the test “obviates any need to consider” the other).

Kimbro does not allege in his appellate brief that the delay was 

an intentional attempt by the State to gain a tactical advantage, and 

our review of the record supports the trial court’s finding that the 

State had no such intent. Instead, the record shows that the delay 

from 2010—when investigators learned that Kimbro’s DNA 

matched the DNA profile generated from the swabs taken from 

Shepherd’s body—until 2014 was caused by the lead detective’s 

inaction in failing to obtain an arrest warrant (even though he 

believed he had probable cause to support a warrant). The delay 

from 2014—when another detective reviewed the “cold case”—to 

2017 was the result of that detective’s determination that there was 
19

not probable cause to arrest Kimbro, because his appearance did not 

match the maintenance worker’s description of the man who was 

with Shepherd about two hours before her body was discovered. The 

record does not indicate the cause of the delay from 2017—when the 

investigator who was assigned to the “cold case” unit reviewed the 

case file and obtained an arrest warrant for Kimbro—until March 

2020, when he was arrested. In sum, the record supports a finding

that part of the delay was the result of the State’s inaction, part of 

the delay was the result of the State’s belief that it did not have 

probable cause to proceed, and part of the delay was caused by 

unknown reasons. The record does not indicate, however, that the 

delay was deliberate and designed to give the State a tactical 

advantage. Thus, Kimbro cannot prevail on this claim. See, e.g., 

Hilton v. State, 288 Ga. 201, 207 (702 SE2d 188) (2010) (holding that 

the defendant had not shown that the 30-year delay between the 

crimes and his indictment was the result of deliberate prosecutorial 

action to give the State a tactical advantage, and therefore had not 

shown that the delay violated his due-process right, because part of 
20

the delay was due to the State’s belief that the evidence against the 

defendant was insufficient to proceed, and part of the delay was due 

to “an extended period of inaction on the case by the State,” and 

there was “no evidence showing that this delay was deliberate and 

designed to gain an advantage”); Wooten v. State, 262 Ga. 876, 880 

(426 SE2d 852) (1993) (holding that the defendant failed to establish 

that the 13-year delay between the crimes and his indictment was 

the result of deliberate prosecutorial action to give the State a 

tactical advantage, because he argued only that the State was 

negligent in investigating his case, and nothing in the record 

indicated that the State had acted in bad faith). See also United 

States v. Butler, 792 F2d 1528, 1534 (11th Cir. 1986) (explaining 

that “[t]he government’s inaction in bringing the case is insufficient, 

standing alone, to establish that the government’s actions were 

motivated by an attempt to gain a tactical advantage,” and rejecting 

the defendants’ claim that a pre-indictment delay violated their 

Fifth Amendment due-process right).

6. Kimbro argues that the trial court abused its discretion by 
21

denying his motion for a mistrial. We disagree.

During the prosecutor’s direct examination of the investigator 

who reviewed the “cold case” file and obtained an arrest warrant for 

Kimbro, the prosecutor asked about the investigator’s training, and 

he responded that he had “received training from the Federal 

Bureau of Investigation’s Behavioral Science Unit.” The prosecutor 

asked what that training involved, and the investigator said, “That 

training involved basically the serial killers -- .” Trial counsel then

interrupted and asked to approach the bench, where she moved for 

a mistrial based on the reference to “serial killers.” The trial court 

denied the motion and offered to give a curative instruction. Trial 

counsel agreed, and the court then instructed the jury that the court

was “strik[ing] from [its] consideration the last testimony from the 

witness that training involved basically serial killers”; that the 

testimony “ha[d] nothing to do with this case”; that “[t]he [S]tate’s 

question was not pointed to that type of training”; and that it “was 

an inadvertent comment.” 

Assuming without deciding that Kimbro preserved this claim 
22

for appellate review, it fails.11 “‘[T]he decision to grant a mistrial is 

within the discretion of the trial court and will not be disturbed on 

appeal unless there is a showing that a mistrial is essential to the 

preservation of the right to a fair trial.’” Perkins v. State, 313 Ga. 

885, 896 (873 SE2d 185) (2022) (citation omitted). Here, the 

investigator’s brief reference to “serial killers” was during his 

explanation of his general training with the FBI; the investigator 

did not mention Kimbro or the circumstances of this case in 

connection with that reference. Moreover, the trial court 

immediately and thoroughly instructed the jury to disregard the 

reference, and we presume that the jury followed those instructions. 

See, e.g., id. at 897 (holding that the trial court did not abuse its 

discretion by denying the defendant’s motion for a mistrial when a

11 The State argues that Kimbro failed to preserve this issue for appeal 

by failing to renew his motion for a mistrial immediately after the trial court’s 

curative instruction and by failing to object to the instruction. But we need not 

address that issue, because as discussed below, we conclude in any event that 

the trial court did not abuse its discretion by denying the motion. See Horton 

v. State, 310 Ga. 310, 317 n.8 (849 SE2d 382) (2020) (declining to address 

whether the appellant failed to preserve a mistrial claim by not renewing “his 

motion for mistrial after the trial court’s curative instruction or object[ing] to 

the instruction as inadequate,” and concluding that the trial court did not 

abuse its discretion by denying the motion).
23

testifying witness mentioned the word “gang” only once, without

mentioning the defendant’s name in connection with the reference,

and the trial court immediately instructed the jury to disregard the 

reference, and noting that “[i]t is well established that a trial court 

‘can negate the potentially harmful effect of improperly introduced 

evidence by prompt curative instructions rather than by granting a 

mistrial’” and that “juries ‘are presumed to follow curative 

instructions in the absence of proof to the contrary’”) (citations

omitted). Kimbro’s claim therefore fails.

7. Kimbro contends that the trial court abused its discretion 

by overruling several of his objections to certain statements that the 

prosecutor made during her closing argument. As explained below, 

we see no reversible error in this respect.

First, Kimbro points to three comments the prosecutor made to 

the effect that if the jurors believed Kimbro was guilty, they had a 

“duty” or “obligation” to convict him. Kimbro objected to each of the 

comments when they were made, asserting that they were a 

misstatement of the law, and the trial court overruled the objections. 
24

However, when the prosecutor made a fourth comment along those 

lines, arguing that the jury had “an obligation to convict [Kimbro] of 

each and every crime in this indictment,” the trial court interrupted, 

saying that it “need[ed] to correct some of the arguments.” The court 

then instructed the jury on the presumption of innocence, the State’s 

burden of proof, and reasonable doubt, explaining, among other 

things, that the jurors would be “authorized to convict” Kimbro if 

they found him guilty beyond a reasonable doubt, but that “it would 

be [their] duty to acquit” Kimbro if the State failed to prove guilt 

beyond a reasonable doubt. The court repeated these instructions 

during the final jury charge.

Applying the harmless-error standard, even assuming that the 

trial court abused its discretion by overruling Kimbro’s objections, it 

is highly probable that any such error did not contribute to the 

verdicts. See Allen v. State, ___ Ga. ___, ___ (890 SE2d 700, 708)

(2023) (“‘A nonconstitutional error is harmless if the State shows 

that it is highly probable that the error did not contribute to the

verdict.’”) (citation omitted). As discussed above, after the trial court 
25

overruled Kimbro’s objections, the court interrupted the prosecutor’s 

argument in order to “correct” it, and then thoroughly and 

accurately instructed the jury on the presumption of innocence, the 

State’s burden of proof, and reasonable doubt. The trial court 

provided these same instructions during its preliminary charge, and 

during the final charge, the court repeated the instructions and

reiterated that it was the court’s duty to instruct on the law that 

applied to the case. Under these circumstances, any error in the 

trial court’s overruling Kimbro’s objections was harmless. See, e.g.,

Williams v. State, 297 Ga. 460, 463 (773 SE2d 213) (2015) (holding 

that the trial court abused its discretion by overruling the 

appellant’s objection to the prosecutor’s misstatement of the law 

regarding justification during his closing argument, but that the 

error was harmless because the trial court fully instructed the jury 

on that point and made it clear that the instruction on the law would 

come from the court).

Second, just after the trial court provided the instructions 

discussed above, the prosecutor said, “[T]here is no defense raised 
26

by this evidence. The evidence is that this defendant left.” Kimbro 

objected on the ground that the prosecutor’s argument improperly 

shifted the burden of proof to the defense, and the trial court 

overruled the objection. Kimbro argues that the trial court abused 

its discretion, but as we have explained, “[a] prosecutor has ‘wide 

latitude in the conduct of closing argument, the bounds of which are 

in the trial court’s discretion.’” Ridley v. State, 315 Ga. 452, 458 (883 

SE2d 357) (2023) (citation omitted). Viewed properly in context, the 

prosecutor’s comment merely emphasized to the jury that Kimbro 

had not successfully rebutted or explained the State’s evidence. 

Thus, the trial court did not abuse its discretion by determining that 

the statement fell within the permissible bounds of closing 

argument. See id. (concluding that it was not improper for the 

prosecutor to point out during closing argument that the defendant 

had failed to rebut or explain the State’s evidence, and explaining 

that such comments did not amount to an improper burden-shifting 

argument). 

Third, Kimbro alleges that the trial court abused its discretion 
27

by overruling his objection to the prosecutor’s statement near the 

end of her closing argument, “I submit to you that there should be 

no jury nullification.” We cannot say that the trial court abused its 

discretion by concluding that this statement, which essentially 

encouraged the jurors to decide the case based on the evidence 

presented, was not improper. Cf. Menefee v. State, 301 Ga. 505, 515 

(801 SE2d 782) (2017) (explaining that a prosecutor’s statements 

during closing argument urging jurors to draw reasonable 

conclusions from the evidence are not improper).12

8. Kimbro contends that his trial counsel provided 

constitutionally ineffective assistance in several ways. To prevail on 

these claims, Kimbro must show that his lawyer’s performance was 

constitutionally deficient and that he suffered prejudice as a result. 

See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 

12 Kimbro also points to additional statements made by the prosecutor 

during closing argument, but the trial court sustained Kimbro’s objections to 

those statements, so his claims regarding them present nothing for our review. 

See Lupoe v. State, 300 Ga. 233, 251 (794 SE2d 67) (2016). Furthermore, to 

the extent Kimbro argues that the trial court should have granted a mistrial 

based on the prosecutor’s comments, that claim is not preserved for appellate 

review, because Kimbro did not move for a mistrial on that ground. See Kessler 

v. State, 311 Ga. 607, 613 (858 SE2d 1) (2021).
28

LE2d 674) (1984). To prove deficient performance, Kimbro must 

establish that his trial counsel “performed at trial in an objectively 

unreasonable way considering all the circumstances and in the light 

of prevailing professional norms.” Clark v. State, 315 Ga. 423, 442 

(883 SE2d 317) (2023) (citation and punctuation omitted). See also 

Strickland, 466 U.S. at 688-689. To prove prejudice, Kimbro “must 

show a reasonable probability that, but for counsel’s deficient 

performance, the result of the trial would have been different.” 

Clark, 315 Ga. at 442. See also Strickland, 466 U.S. at 694. We 

need not address both components of the Strickland test if Kimbro 

makes an insufficient showing on one. See Strickland, 466 U.S. at 

697; Clark, 315 Ga. at 442. And in reviewing a claim of ineffective 

assistance of counsel, we accept the trial court’s factual findings and 

credibility determinations unless clearly erroneous, but we review 

the court’s legal conclusions de novo. See Davis v. State, 306 Ga. 

430, 432 (831 SE2d 804) (2019).

(a) Kimbro first argues that his trial counsel provided 

ineffective assistance by failing to fully investigate certain 
29

witnesses. But Kimbro did not raise this claim in his motion for new 

trial or in any of his amended motions, and the trial court did not 

rule on it. Thus, he has not preserved this claim for our review. See 

Allen, 890 SE2d at 711 (explaining that “‘[i]neffectiveness claims 

must be raised and pursued at the earliest practicable moment, 

which for a claim of ineffective assistance of trial counsel is at the 

motion for new trial stage if the defendant is no longer represented 

by the attorney who represented him at trial,’” and holding that the 

appellant forfeited his claim of ineffective assistance of counsel 

where he did not raise it in his motion for new trial or in the 

amended motions and the trial court did not rule on it) (citation 

omitted).

(b) Kimbro next claims that his trial counsel was ineffective 

for failing to cross-examine Gordon-Deaver. In particular, Kimbro 

asserts that he attacked Gordon-Deaver because she had robbed his 

wife, who died before trial, and that counsel should have elicited 

testimony to that effect from Gordon-Deaver. As the trial court 

correctly determined in its order denying Kimbro’s motion for new 
30

trial, Kimbro has not shown that counsel performed deficiently, so 

he cannot succeed on this claim. 

At the motion for new trial hearing, trial counsel testified that 

she briefly interviewed Gordon-Deaver before she testified, but 

shortly after the interview began, Gordon-Deaver refused to talk to 

her. Counsel also testified that she decided not to cross-examine 

Gordon-Deaver because she did not think it would have been 

“helpful to . . . Kimbro”; counsel doubted Gordon-Deaver would have 

admitted robbing, or even knowing, Kimbro’s wife, so counsel could 

not have elicited information about Kimbro attacking GordonDeaver to seek revenge; and Gordon-Deaver was “a victim,” so “going 

after her would not necessarily make . . . Kimbro look good in the 

jury’s eyes.” Counsel then testified that she believed the better 

strategy was “to disregard [Gordon-Deaver] as a witness” and to

“play up the idea” that the State used her testimony to show 

Kimbro’s propensity to commit the charged crimes, because it had 

“little evidence” of his guilt. In its order denying Kimbro’s motion 

for new trial, the trial court expressly credited trial counsel’s 
31

testimony on this point.

In light of trial counsel’s assessment of Gordon-Deaver’s 

potential testimony, we cannot say that no competent attorney 

would have decided not to cross-examine her. The record supports 

counsel’s testimony that her strategy was to downplay the 

importance of Gordon-Deaver’s testimony about the attack and to 

instead assert, as she did in closing argument, that the State 

introduced the evidence to bolster its otherwise weak case against 

Kimbro. Kimbro has failed to show that this strategy was 

objectively unreasonable, so he has not proven that his trial counsel 

was deficient in this respect. See, e.g., Gaston v. State, 307 Ga. 634, 

642-643 (837 SE2d 808) (2020) (explaining that “‘[t]he scope of crossexamination is grounded in trial tactics and strategy, and will rarely 

constitute ineffective assistance of counsel,’” and holding that trial 

counsel’s decision not to cross-examine a witness and to instead 

focus his closing argument on the inconsistencies in the witness’s 

testimony was not objectively unreasonable and thus did not 

amount to deficient performance) (citation omitted); Lawrence v. 
32

State, 286 Ga. 533, 534 (690 SE2d 801) (2010) (concluding that trial 

counsel’s decision not to cross-examine several of the State’s 

witnesses was “reasonable trial strategy” and that he therefore did 

not perform deficiently, as counsel “testified at the motion for new 

trial hearing that he felt that cross-examining the witnesses in 

question would not have added anything beneficial to [the] defense, 

because it merely would have given the witnesses a chance to 

further implicate [the defendant] with their emphasized 

testimony”).

(c) Kimbro argues that his trial counsel provided ineffective 

assistance by failing to object to testimony from a forensic 

toxicologist on the ground that it was not relevant under OCGA §§ 

24-4-401 (“Rule 401”) & 24-4-402 (“Rule 402”). Specifically, Kimbro 

points to the toxicologist’s testimony that his testing showed that 

Shepherd’s blood and urine were negative for gamma 

hydroxybutyric acid (“GHB”).

13 Kimbro has failed to show that his 

13 The toxicologist described GHB as having a “sedating” effect and 

testified that it is sometimes used in “sexual assault situations.”
33

trial counsel performed deficiently in this regard. 

Rule 401 defines “‘relevant evidence’” as “evidence having any 

tendency to make the existence of any fact that is of consequence to 

the determination of the action more probable or less probable than 

it would be without the evidence.” Under Rule 402, “[a]ll relevant 

evidence shall be admissible, except as limited by constitutional 

requirements or as otherwise provided by law or by other rules . . . . 

Evidence which is not relevant shall not be admissible.” “The test 

for relevance is generally a liberal one, and relevance is a binary 

concept—evidence is relevant or it is not.” Harris v. State, 314 Ga. 

238, 262 (875 SE2d 659) (2022) (cleaned up). Here, the forensic 

toxicologist’s testimony that Shepherd’s blood and urine were 

negative for GHB tended to show that the person who raped and 

killed her did not drug her with GHB. Thus, the testimony was 

relevant, and an objection on that ground would have been 

meritless. Accordingly, trial counsel did not perform deficiently by 

failing to make such an objection, and this claim of ineffective 

assistance fails. See, e.g., Walker v. State, 311 Ga. 719, 726-727 (859 
34

SE2d 25) (2021) (holding that trial counsel did not perform 

deficiently by failing to raise a meritless objection to relevant 

evidence).

(d) Kimbro claims that his trial counsel was ineffective for 

failing to object to the trial court’s refusal to instruct the jury on 

mere presence and mere association. But the trial court thoroughly 

and properly instructed the jury on the presumption of innocence 

and the State’s burden to prove beyond a reasonable doubt each 

essential element of the charged crimes during its preliminary 

instructions, during the prosecutor’s closing argument, and again 

during the final jury charge. The court also accurately instructed

the jury on circumstantial evidence, criminal intent, and the 

elements of malice murder and rape. Considering the charge as a 

whole, the jury was adequately informed that it was not authorized 

to convict Kimbro if he was merely present at the scene of the crimes 

or if he was merely associated with some other perpetrator. Thus, 

Kimbro cannot establish that his trial counsel performed deficiently 

by failing to object to the trial court’s refusal to give those 
35

instructions. See Downey v. State, 298 Ga. 568, 574-575 (783 SE2d 

622) (2016) (holding that trial counsel did not perform deficiently by 

failing to object to the omission of jury instructions on knowledge 

and shared intent, because the charges as a whole “were sufficient 

to cover the knowledge and shared intent required” for the

defendant to be convicted); Simmons v. State, 282 Ga. 183, 188 (646 

SE2d 55) (2007) (holding that the trial court did not err by failing to 

instruct the jury on mere presence and guilt by association, because 

“mere presence is only a corollary to the requirement that the State 

prove each element of the crime charged, and . . . the trial court’s 

instructions clearly informed the jury of this requirement”).

(e) Finally, Kimbro contends that his trial counsel provided 

ineffective assistance by failing to request DNA testing of a condom

that was found in the toilet in Shepherd’s motel room, hairs and 

fibers taken from Shepherd’s purse, and fingernail clippings taken 

from Shepherd. As the trial court correctly concluded in its order 

denying Kimbro’s motion for new trial, trial counsel did not perform 

deficiently in this respect, because her decision not to pursue DNA 
36

testing was reasonably strategic. Trial counsel testified at the 

hearing on Kimbro’s motion for new trial that she made a strategic 

choice not to request DNA testing of the condom, hairs, fibers, and 

fingernail clippings because the results of the testing may have been 

“inculpatory rather than exculpatory.” And the record shows that 

trial counsel used the lack of DNA testing to advance the defense 

theory that the case had not been adequately investigated, as 

counsel emphasized the fact that the State had not tested the 

condom, purse, or fingernail clippings during her opening 

statement, during her cross-examination of the “cold-case” 

investigator, and during her closing argument. Because trial 

counsel’s decision not to request DNA testing on the items Kimbro 

claims should have been tested was not objectively unreasonable 

such that no competent attorney would have made such a decision, 

Kimbro has not proven that counsel performed deficiently. This 

claim, like Kimbro’s other claims of ineffective assistance, is 

meritless. See Horton v. State, 310 Ga. 310, 328 (849 SE2d 382) 

(2020) (explaining that “‘decisions as to what witnesses and other 
37

evidence to present are matters of trial strategy and are ineffective 

only if unreasonable ones that no competent attorney would make,’” 

and holding that trial counsel did not perform deficiently and thus 

did not render ineffective assistance by failing to request DNA 

testing of hairs found on the murder victim’s clothing, because 

“[c]ompetent counsel could reasonably have concluded that further 

testing might have revealed that the hair indeed was [the 

defendant’s], and that evidence would have been damaging to [the 

defendant’s] defense”) (citation omitted); Green v. State, 291 Ga. 287, 

297 (728 SE2d 668) (2012) (concluding that trial counsel did not 

perform deficiently and was therefore not constitutionally 

ineffective by failing to request DNA testing of fecal matter found on 

the murder victim, because counsel reasonably determined that the 

testing “would not be helpful or exculpatory”).

Judgment affirmed. All the Justices concur, except Peterson, 

P.J., not participating.