In the Supreme Court of Georgia

Decided: May 16, 2023

S23P0046. MOODY v. THE STATE.

 PETERSON, Presiding Justice.

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

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

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

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

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

murder predicated on aggravated assault, aggravated assault, 

aggravated assault with intent to rob, and kidnapping with bodily 

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

sentencing phase, a jury found the existence of multiple statutory 

 1 Mattox’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. 
2

aggravating circumstances as to each murder and recommended a 

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

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

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

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

 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. 
3

discretion in denying Moody’s request to withdraw his guilty plea, 

because his plea was knowingly, intelligently, and voluntarily 

entered and therefore its withdrawal was not required to prevent a 

manifest injustice. By pleading guilty to all charges in the 

indictment against him, Moody waived his constitutional rights to

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

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

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

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

provisions of a jury selection statute that would warrant automatic 

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

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

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

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

that he had learned from his misconduct with the remaining jurors 

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

plain error resulting from the admission of the challenged victim 

impact testimony because there is no reasonable probability that the 
4

testimony contributed to the jury’s decision to impose Moody’s death 

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

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

support Moody’s prosecutorial misconduct claims or that the State 

pursued inconsistent theories in this trial and in that of his codefendant.3 The State’s expert witness’s testimony about his 

trainees’ testing and evaluation of Moody did not violate the 

Confrontation Clause. And we reject Moody’s other constitutional 

challenges — the execution of persons with mental illness not rising 

to the level of intellectual disability violates neither the federal nor 

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

unconstitutional, and qualifying jurors according to their death 

penalty views is not unconstitutional.

Finally, as statutorily required in death penalty appeals, we 

 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.
5

also review three additional matters regarding Moody’s sentence. 

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

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

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

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

reasonable doubt the existence of each of the statutory aggravating 

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

death is not excessive or disproportionate to the penalty imposed in 

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

therefore affirm Moody’s convictions and sentences.

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

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

was presented was his sentencing trial; the evidence presented at 

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

and Mattox were spending their spring break from school at 

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

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

grandmother was staying there temporarily to help care for her 
6

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

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

buy some snacks. When the teens had not returned by 

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

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

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

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

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

members in the search.

During the search, the families learned that Kimble and 

Mattox had been seen in the area of nearby Bethune Elementary 

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

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

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

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

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

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

When they were found, they were both naked except for socks 
7

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

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

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

scene. The medical examiner testified that both victims suffered 

numerous stab wounds that were consistent with the use of a flatheaded screwdriver. Blood spatter was located on a tree trunk near 

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

the ground. 

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

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

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

medical examiner testified that Kimble received thirteen stab 

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

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

The medical examiner further testified that Kimble suffered blunt 

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

consistent with manual strangulation, and that she had vaginal 

injuries and abrasions on her face and thighs that were consistent 
8

with her being face down in a wooded area and having her face and 

the front of her body repeatedly thrust against vegetation. The 

medical examiner opined that the stab wounds and the injuries to 

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

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

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

following the strangulation.” Subsequent forensic testing of the 

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

The medical examiner testified that Mattox’s cause of death 

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

approximately 41 stab wounds in total, including approximately 14 

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

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

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

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

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

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

through the skull and penetrated his brain, and that they would 
9

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

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

cephalic brachial vein, resulting in the collection of approximately 

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

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

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

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

stab wounds.

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

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

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

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

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

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

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

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

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

watched the news and then stated, “You’re not going to do this to 
10

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

Wright testified for the State regarding a statement that she 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

finding them, but Wright told Moody not to. Wright testified that 
11

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

testified that she previously had seen Moody both under the 

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

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

the crimes.

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

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

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

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

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

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

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

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

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

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

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

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

never expressed remorse for murdering the victims. Moody elicited 
12

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

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

of statutory aggravating circumstances that the State had given 

notice of, the State presented extensive non-statutory aggravating 

evidence regarding Moody’s violent behavior both prior to the 

murders and during his pretrial detention, including the following. 

The State introduced evidence of Moody’s certified convictions for 

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

obstruction of an officer that resulted from an incident in which 

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

her defense. The State also presented testimony that Moody 

harassed this same former girlfriend by threatening to kill her and 

her family beginning with her infant granddaughter and by 

repeatedly calling the daycare center where she worked looking for 

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

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

repeatedly violated the restraining order that the former girlfriend 

obtained against him. There was testimony that Moody beat 
13

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

Moody’s female acquaintances testified that Moody tried to strangle 

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

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

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

where she was staying through a window near her bedroom. 

The evidence concerning Moody’s pretrial detention while 

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

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

had made numerous verbal and written threats to kill specific jail 

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

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

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

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

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

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

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

in numerous ways, including making derogatory sexual comments 
14

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

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

himself to one of them.

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

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

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

have reviewed the evidence from his sentencing trial and conclude 

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

verdicts, the evidence presented was sufficient to enable a rational 

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

aggravating circumstances found by the jury, which are discussed 

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

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

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

 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.
15

Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 

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

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

(requiring a review of the sufficiency of the evidence supporting 

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

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

the verdicts are supported by the evidence). 

Guilty Plea

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

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

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

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

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

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

conclude that Moody’s guilty plea was constitutionally valid and 

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

withdrawal.

At trial, during a brief recess between the State’s opening 
16

statement and the defense’s, defense counsel announced that Moody 

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

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

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

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

2013. During jury deliberations nine days later, Moody made a 

motion to withdraw his guilty plea.

Ordinarily, a defendant has the absolute right to withdraw a 

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

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

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

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

322 (1), 323 (3) (357 SE2d 559) (1987). What constitutes a manifest 

injustice 

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.
17

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

Moody argues that his plea was involuntary and thus that 

withdrawal was necessary to correct a manifest injustice. He 

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

ruling two days before his plea denying his request to represent 

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

counsel rather than Moody could decide what strategy to pursue at 

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

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

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

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

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

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

affirmatively shows that the guilty plea was knowing and 

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

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

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

abuse of discretion. See McGuyton v. State, 298 Ga. 351, 353 (1) (a) 
18

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

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

knowingly, intelligently, and voluntarily entered. 

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

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

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

prosecutor listed the charges brought against Moody, and Moody 

indicated that he understood those charges. Moody also confirmed 

that he understood that by pleading not guilty or remaining silent 

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

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

Moody also acknowledged his initials and signature on the guiltyplea form, a five-page document that explained the rights that he 

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

 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. 
19

had discussed with both of his attorneys. This form set out the 

charges that Moody faced and the maximum sentence that could be 

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

the murders. 

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

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

regarding the charges in the indictment, including any potential 

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

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

his case. 

When the prosecutor asked Moody whether he was satisfied 

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

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

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

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

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

Superior Court Rule 33.8. Moreover, Moody affirmed on the guiltyplea form that he was satisfied with his counsel’s services. Moody 
20

testified that he understood that he was pleading guilty to all of the 

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

possible sentence for each charge, and he again confirmed his 

understanding of those possible sentences, along with the fact that 

a jury would determine his sentence following a separate sentencing 

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

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

parole. 

Moody was advised about the trial rights that he would be 

waiving by pleading guilty, and he answered affirmatively that he 

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

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

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

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

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

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

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

plea was freely and voluntarily given with full knowledge of the 
21

charges against him and that he understood that he might have only 

a limited right to appeal his guilty-plea convictions. 

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

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

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

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

indicated that he wanted to speak with counsel and had 

subsequently spoken “for some time” with his attorneys regarding 

his decision to plead guilty rather than to proceed with the 

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

following colloquy with Moody regarding his reasons for pleading 

guilty:

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 
22

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.

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

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

also clearly articulated a reasonable basis for his decision to plead 

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

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

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

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

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

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

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

court that the defendant “had expressed to him ‘logical and thoughtout reasons’ for his decision” to enter a non-negotiated plea, 

including that the defendant “wanted ‘to admit to what he did’ and 
23

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

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

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

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

through a trial in concluding that he voluntarily and knowingly 

entered his guilty plea). 

Then the trial court questioned Moody about his medications 

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

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

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

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

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

the following colloquy ensued, in which Moody once again affirmed 

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

best interest to do so: 

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, 
24

you’re doing it because you believe that’s the best thing for 

you?

THE DEFENDANT: Yes, your honor.

(Emphasis added.) 

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

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

following colloquy with Moody: 

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.

(Emphasis added.) 

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

believed that Moody was entering his guilty plea because he believed 

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

decision to plead guilty, and that his decision was knowing and 
25

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

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

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

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

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

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

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

into evidence.

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

deliberating at the conclusion of the sentencing trial, the defense 

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

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

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. . . .

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

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

court, whether in ex parte session or in open court concerning the 
26

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

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

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

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

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

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

hearing” that he felt that he was unprepared for. 

The trial court made detailed findings regarding Moody’s 

medications and his issues with the law library that are amply 

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

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

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

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

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

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

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

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

 6 Faretta v. California, 422 U.S. 806 (95 SCt, 2525, 45 LE2d 562) (1975).
27

“feelings” had “vacillated dramatically” over the course of those 

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

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

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

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

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

court pointed out that, “intervening between the Faretta hearing 

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

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

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

evidence that would have come out in this case in the 

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

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

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

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

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

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

Regarding the voluntariness of Moody’s guilty plea, the trial 
28

court found the following:

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. . . . 

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

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

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

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

Moody “was questioned as thoroughly and carefully as any 

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

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

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

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

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

his guilty plea.

Moody now argues that his response to the trial court that he 
29

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

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

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

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

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

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

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

represent himself and permitting trial counsel to pursue a strategy 

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

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

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

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

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

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

trial court’s conclusion that Moody knowingly and voluntarily 

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

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

motion to withdraw his guilty plea where he had told the trial court 
30

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

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

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

Nonetheless, Moody contends that, in applying the test for 

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

involuntary based on an antecedent constitutional violation, and he 

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

support do not apply. 

Several of the cases that he cites involved judicial participation 

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

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

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

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

552, 553-554 (2) (522 SE2d 648) (1999). But here, Moody relies on 

an unfavorable ruling on a separate issue, not improper judicial 

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

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

SE2d 655) (2015), and Wharton v. Jones, 248 Ga. 265 (282 SE2d 310) 
31

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

in each of them contended that he received the ineffective assistance 

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

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

Sixth Amendment ineffective assistance of counsel claim in relation 

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

plea was not knowingly and voluntarily made). 

Finally, Moody relies on Browner, in which this Court 

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

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

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

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

defendant “was not present at two conferences discussing the 

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

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

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

is case-dependent, and the problematic circumstances in Browner

involved the plea itself and are not present here.
32

In sum, the transcript of the guilty plea hearing and the guilty 

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

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

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

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

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

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

necessary to correct a manifest injustice.

Pretrial Issues

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

request for self-representation at the guilt/innocence phase

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

 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 
33

was valid. Consequently, Moody waived any argument regarding his 

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

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

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

waiver of independent claims of constitutional error that occurred 

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

1602, 36 LE2d 235) (1973) (holding that a defendant who pleads 

guilty waives all “independent claims relating to the deprivation of 

constitutional rights that occurred prior to the entry of the guilty 

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

(stating that this Court has recognized and repeatedly applied the 

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

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

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

As the Supreme Court explained in Tollett:

[A] guilty plea represents a break in the chain of events 

which has preceded it in the criminal process. When a 

 

as 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.”
34

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. 

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

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

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

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

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

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

waives non-jurisdictional defects in pretrial proceedings. See 

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

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

SE2d 36) (2007). 

Whether this principle means that a defendant allegedly 

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

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

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

States Supreme Court has not spoken directly on the issue. The 
35

federal appellate courts to decide this question of federal 

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

that a defendant who pleads guilty may still maintain his Faretta 

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

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

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

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

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

wrongfully deprived of his right to self-representation was 

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

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

 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))). 
36

choose between pleading guilty and submitting to a trial the very 

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

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

between two such alternatives deprived the defendant “of the choice 

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

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

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

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

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

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

fundamental Sixth Amendment rights, his decision to plead guilty 

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

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

Id. 

Although Moody does not cite Hernandez, he urges this Court 

to adopt essentially the same reasoning that the Ninth Circuit 

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

us to hold that his guilty plea was rendered involuntary based on 
37

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

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

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

meaningful exercise of his constitutional rights at trial.”9

But no other circuit has found the rationale in Hernandez

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

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

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

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

279-280 (II) (A) (4th Cir. 2010); Gomez v. Berge, 434 F3d 940, 942-

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

 9 We note that our discussion here concerns Moody’s right to selfrepresentation 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 selfrepresentation: “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. 
38

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

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

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

render a subsequent guilty plea involuntary, so the subsequent 

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

In explicitly rejecting the reasoning of the Ninth Circuit, both 

the Fourth and Eighth Circuits pointed out that Hernandez’s 

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

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

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

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

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

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

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

 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).
39

Fourth and Eighth Circuits reasoned, this premise is flawed because 

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

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

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

also Dewberry, 936 F3d at 806 (same).

Furthermore, as the Eighth Circuit observed, “the approach 

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

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

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

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

 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)). 
40

Eighth Circuit further noted, Supreme Court precedent also holds 

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

constitutional validity of the conviction’ by a later guilty plea 

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

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

200 LE2d 37) (2018)).

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

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

court that he is in fact guilty of the offense 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.” Addison, 239 Ga. at 624 (citing Tollett, 411 U.S. at 267); see 

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

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

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

 

Significantly, 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. 
41

voluntary plea). We have applied this principle when the specific 

constitutional right being waived as a result of the guilty plea 

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

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

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

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

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

knowing and voluntary nature of the plea”). 

The limited exceptions to the general rule of waiver are for 

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

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

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

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

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

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

not present that situation. 

Accordingly, we agree with the Eighth Circuit that 

Hernandez’s rationale, which is essentially the rationale that Moody 
42

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

constitutional defects’ are made ‘irrelevant to the constitutional 

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

defendant’s admission of guilt irrelevant because of an earlier 

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

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

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

independent intervening act which renders ineffectual the prior 

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

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

manipulations and game[s]manship”).

Moody’s argument that the Faretta issue raises a structural

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

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

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

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

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

‘structural’ error is that it is not subject to harmless error review, . . . 
43

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

934 (7th Cir. 2019) (citation omitted)) (holding that a defendant can 

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

claim, by validly pleading guilty).

Indeed, Tollett itself supports this conclusion, as the Supreme 

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

waived any claim that African-Americans had been systematically 

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

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

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

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

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

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

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

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

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

notion that a structural error occurring prior to a guilty plea 

invalidates the subsequent guilty plea would be at odds with the 
44

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

claim is based on an independent, non-jurisdictional constitutional 

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

claims arising from alleged errors preceding his guilty plea.

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

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

from determining the objective of his defense in violation of the 

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

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

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

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

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

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

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

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

his challenge to the court’s Faretta ruling, has been waived by virtue 
45

of his guilty plea.12

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

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

generally operates as a waiver of claims of constitutional error that 

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

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

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

 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.
46

knowing and voluntary nature of the plea.”). Like his Faretta 

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

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

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

that occurred prior to the entry of the guilty plea.

Moreover, “a valid guilty plea relinquishes any claim that 

would contradict the ‘admissions necessarily made upon entry of a 

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

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

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

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

at 1510, would contradict the admission actually made upon entry 

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

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

render his guilty plea invalid, because in pleading guilty Moody 

waived all such non-jurisdictional errors leading up to his 

convictions except those affecting the validity of his plea.

5. Moody argues that the method of summoning jurors was 
47

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

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

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

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

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

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

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

to his sentencing. 

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

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

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

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

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

that Fulton County had substantially altered the master jury list 

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

improperly inactivating a substantial number of persons from the 

list. 

At a hearing, Moody submitted as an exhibit the “Certificate of 
48

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

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

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

list met the inclusiveness threshold specified in the JCR with an 

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

expert witness testified that Fulton County had inactivated 103,263 

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

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

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

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

107,608 duplicate records, involving 53,798 duplicate persons,14 and

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

 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 

persons with duplicate records was not exactly half of the number of duplicate 

records was that a few of the “duplicate” records were actually “triplicates.” 
49

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

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

records disproportionately involved whites. The trial court denied 

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

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

not improperly altered by Fulton County.” 

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

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

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

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

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

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

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

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

 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).
50

194 (5), (6). Moody included the trial court’s denial of his petit jury 

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

committed the same type of violations committed in Ricks and that 

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

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

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

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

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

fair cross-section claim.” 

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

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

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

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

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

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

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

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

jury list actually compiled by the Council as required by OCGA §§ 
51

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

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

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

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

array for his trial violated those provisions of the jury selection 

statutes. Pretermitting whether this additional argument is entitled 

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

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

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

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

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

reversal.

Since Ricks we have explained that “the primary objective of 

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

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

prophylactic measure that is not tied to any specific constitutional 

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

SE2d 703) (2021). When a violation of the JCR is shown before trial, 
52

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

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

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

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

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

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

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

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

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

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

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

held as a general matter:

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.

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

and punctuation omitted), overruled on other grounds by State v. 
53

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

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

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

between the provisions of jury selection statutes that are ‘essential 

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

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

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

violation of the jury selection statutes affects the identity of the 

persons selected for the array from the universe of persons eligible 

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

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

identities of summoned jurors in his case would have been different

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

Moody argues that Fulton County altered “the identity of the 

persons selected for the array from the universe of persons eligible 

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

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

names from that list. 
54

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

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

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

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

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

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

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

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

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

personal knowledge about the prospective petit jurors in selecting 

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

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

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

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

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

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

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

distinguishable in Towns dealt specifically with the statutory 
55

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

In those cases, “so long as a jury list meets equal-protection and faircross-section standards respecting the inclusion of cognizable 

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

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

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

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

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

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

commissioners that was comprised of only five instead of the six 

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

disregard of the essential and substantial provisions of the statute 

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

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

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

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

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

most upright and intelligent citizens for the grand jury was merely 
56

directory), disapproved on other grounds by Willis v. State, 304 Ga. 

686, 706 (11) (a) n.3 (820 SE2d 640) (2018); Burney v. State, 244 Ga. 

33, 38 (3) (257 SE2d 543) (1979) (holding that former Code § 59-106 

was directory only and thus evidence showing that the jury list had 

not been revised according to that statute’s timetable and did not 

contain a number of names equal to 50 percent of the registered 

voters of the county as required by an amendment to that statute 

“[did] not invalidate the jury list or deprive defendant of any right 

to which he [was] entitled”).16 Therefore, even assuming that OCGA 

 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 
57

§ 15-12-120.1 was violated in the manner that Moody alleges, Moody 

has not established a fair-cross-section violation, as discussed below, 

or that the alleged violation amounted to “such disregard of the 

essential and substantial provisions of the statute as would vitiate 

the array[]” to warrant automatic reversal. Foster, 288 Ga. at 101 

(2) (b) (citation and punctuation omitted). 

(c) Moody also argues that the master jury list used to summon 

jurors in his case violated the fair cross-section requirement in that 

African-Americans were unconstitutionally under-represented. “In 

 

testified, 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). 
58

order to show a Sixth Amendment violation, [Moody] must show the 

group’s cognizibility, under-representation, and systematic 

exclusion.” Humphreys v. State, 287 Ga. 63, 68 (3) (b) (694 SE2d 316) 

(2010), disapproved on other grounds by Willis, 304 Ga. at 706 (11) 

(a) n.3. Unquestionably, African-Americans are a “cognizable” 

group. See, e.g., Williams v. State, 287 Ga. 735, 735-736 (699 SE2d 

25) (2010), superseded by the Jury Composition Reform Act of 2011 

as noted in Ellington v. State, 292 Ga. 109, 118 (4) n.2 (735 SE2d 

736) (2012), disapproved on other grounds by Willis, 304 Ga. at 706 

(11) (a) n.3. But Moody has failed to show any under-representation. 

According to Moody’s expert, whites age 18 years and over 

comprised 46.68 percent of the population of Fulton County and 

African-Americans age 18 years and over comprised 42.8 percent, 

each based on the 2010 decennial census. According to Moody’s 

expert witness’s calculations, non-duplicate whites on the altered 

Fulton County master jury list comprised 46.34 percent of the list, 

and non-duplicate African-Americans comprised 46.84 percent. 

Nevertheless, Moody relies on his expert witness’s testimony 
59

that the duplicates on the Fulton County master jury list “had a 

higher chance of being selected,” were “disproportionately white[,] 

and underrepresent[ed] African[-]Americans.” In particular, 

according to Moody’s expert witness’s figures, the duplicates on the 

Fulton County master jury list were comprised of 56.81 percent 

whites and only 40.88 percent African-Americans. According to 

Moody’s expert witness, the Council’s master jury list was missing 

race codes for 64.97 percent of the persons on the list, but, as part of 

its alteration of the master jury list that it received from the Council, 

Fulton County “amend[ed]” the list to add race codes for a significant 

number of records on the list.17 Even with the addition of Fulton 

County’s race codes, however, Moody’s expert witness testified that 

he could not provide the data needed regarding racial disparity in 

order to make a constitutional claim, explaining that although the 

disproportionality of whites in the duplicates “[wa]s going to cause 

a racial skew towards whites,” it was “[r]eally hard to tell” what the 

 17 It is unclear from the record where Fulton County obtained the 

information for the race codes that it added.
60

total impact of that skew would be. Moody’s expert witness further 

explained that, “for the most part we don’t know what everybody’s 

race code is or what everybody’s race that they’ve identified on the 

full list, either the [master jury list compiled by the Council] or the 

[the master jury list as altered by Fulton County].” 

The absence of that data means that Moody failed to make a 

prima facie case. And because Moody did not make a prima facie 

case, his fair cross-section claim fails. See Shubert v. State, 306 Ga. 

490, 492 (2) (831 SE2d 826) (2019) (holding that the defendant failed 

to carry his burden to make even a prima facie case for a fair crosssection claim because he had presented insufficient evidence to 

determine the racial composition of the relevant master jury list).

Sentencing Trial

6. Moody contends that the trial court erred in denying his 

motion for a mistrial based on juror misconduct. We disagree.

(a) During a recess on the morning of the third day of the 

sentencing trial, the trial court announced to the parties that it had 

received a note from Juror 142 asking to speak to the court. The trial 
61

court then summoned the juror to a conference with the court and 

the parties. The juror, a registered nurse, then disclosed that, on

returning home the previous evening, he had conducted an internet 

search on “sociopathic disorder” and “antisocial personality 

disorder.” When the trial court asked him why he had conducted his 

search, the juror responded that, even though he had not heard 

those particular terms, the jury “ke[pt] hearing, you know, mental 

instability [t]here in the courtroom.” He indicated that, while he had 

never been a psychiatric nurse, he had had “a psychiatric rotation 

in nursing school” and that he had been “curious as to just refreshing 

[his] memory” about diagnoses that he had previously learned about. 

He also explained that he told his fellow jurors that he had 

conducted his search and that, in response, “they all agreed that [he] 

should let [the trial court] know” what he had done. The trial court 

then asked him whether he had told the other jurors the substance 

of what he had learned from his search or whether he had discussed 

that information “at all” with them, and he answered unequivocally 

to both inquiries, “No, I did not.” 
62

The trial court then gave both parties the opportunity to 

question the juror. The State had no further questions, but during 

defense counsel’s inquiry, the juror clarified that he had conducted 

independent research only on the previous evening and not 

throughout the proceedings and that he had informed the other 

jurors that he had conducted this research only during the recess 

that the trial court had taken shortly before the court had received 

his note. Defense counsel asked the juror to describe “the 

conversations” that took place regarding the research, and he 

responded, “Well, I basically asked them if they thought it was 

acceptable that I had looked at these two personality disorders on 

the internet.” On further inquiry, the juror stated that he had named

the term “sociopaths” during his conversation with the other jurors 

but that he did not believe that he had mentioned the term 

“antisocial personality disorder.” Defense counsel then asked him

how the other jurors “express[ed] their concerns to [him] about [his 

research],” and he said that “they just said that [he] should not have 

done that.” When defense counsel began to ask him whether “any 
63

particular juror sa[id] anything to [him] in the presence of the other 

jurors about this,” the trial court intervened and said that the court 

had “heard what [it] need[ed] to hear.” 

After Juror 142 left the courtroom, both parties requested that 

he be removed, and the trial court agreed to do so. Then defense 

counsel suggested that the trial court inquire as to whether the other 

jurors “knew that [Juror 142 wa]s a nurse or [wa]s a medical 

professional of some sort.” However, the trial court stated that this 

question was irrelevant given that any juror could have conducted 

the research regardless of his or her background. The trial court 

found that the relevant inquiry instead was whether Juror 142’s 

actions and statements to the other jurors would “prevent [a juror] 

from making [a] decision based on what[ was t]here in the courtroom 

and following the court’s instructions to make [a] decision in that 

regard.” Defense counsel stated, “I understand,” and did not argue 

further. The trial court then brought in one juror and asked: 

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. 
64

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?

The juror answered in the negative. After the trial court had 

completed its colloquy, defense counsel told the court that it was 

difficult to “analyze this issue” without “know[ing] exactly what 

[Juror 142] said, and . . . what [the other jurors] said to him.” The 

trial court indicated that it was not going to make an inquiry into 

those matters, and defense counsel said that he understood. 

Defense counsel then requested that the trial court refrain from 

“admoni[shing the jurors] to obey [their] oath because . . . that ha[d] 

a tendency to direct them.” The trial court stated its belief that it 

was acting appropriately and then returned to defense counsel’s 

suggestion about making a further inquiry into what was said 

among the jurors. The trial court explained that it found Juror 142 

credible, pointing out that “the only reason he was out” in the 

courtroom was to tell “[the trial court and the parties] what he did” 

and that the trial court saw no reason not to believe “what else he 
65

told [them] about what he did.” The trial court concluded that it 

“kn[e]w what was said based on what [Juror 142] told” the trial court

and the parties in “the same report that brought [the misconduct] to 

[their] attention in the first instance.” 

The trial court then questioned each of the remaining jurors, 

with all the jurors being asked in a substantially similar manner.

Each of the jurors responded that there was nothing in the 

conversation that would keep him or her from being fair and

impartial and deciding the case on the evidence and the law. In 

addition, one juror volunteered that, “[i]f anything, [the 

conversation] ma[de the jurors] much more conscious of [their] 

duty.” Another juror volunteered that “it was not a conversation” but 

that “[Juror 142] maybe said two sentences at the most.” A different 

juror stated “[t]here was nothing specific said,” and yet another 

stated that he “didn’t even hear [Juror 142’s] question.” No juror 

indicated that the trial court’s description of the circumstances of

Juror 142’s disclosure to his fellow jurors was incorrect. 

After the trial court stated its intention to go forward, defense 
66

counsel moved for a mistrial based on Juror 142’s misconduct and 

the subject matter that he had researched. Defense counsel 

expressed particular concern “about the actual subject matter of 

[Juror 142’s] inquiry, sociopath and antisocial personality disorder, 

given that there ha[d] been absolutely no testimony at th[at] point 

concerning that but that [defense counsel] anticipate[d] there, in 

fact, w[ould] be substantial testimony concerning those issues.” The 

trial court denied the motion, finding that “[t]he jurors ha[d] clearly 

indicated that nothing about what happened, to the extent that they 

heard it, developed by the questioning, ha[d] affected their ability to 

be fair and impartial in the case” and concluding that therefore there 

was no basis for a mistrial.

(b) We have recently explained:

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.
67

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.

Charles v. State, 315 Ga. 651, 657-658 (3) (___ SE2d ___) (2023) 

(cleaned up).

On appeal, Moody argues that “the substance of [Juror 142]’s 

research went directly to a central, disputed, inflammatory, and 

likely dispositive issue in the sentencing phase of the trial,” i.e., 

whether he suffers from severe mental illness or instead from 

antisocial personality disorder. But that alone does not establish 

presumptive prejudice — after all, the trial court promptly excused 

Juror 142 after establishing that he did not share the substance of 

any of the information gleaned from his research with any of his 
68

fellow jurors but instead immediately followed their advice to inform 

the trial court about what he had done. 

Moody nevertheless argues that Juror 142 “shared [his]

research with other jurors,” who ultimately sentenced him to death, 

and that “[t]he trial court’s limited inquiry into the misconduct did 

not provide the State with sufficient proof to rebut the presumption 

of prejudice that arose from this misconduct.” Although the trial 

court did not question the remaining jurors as to what the specific 

conversation was that took place when Juror 142 told them that he 

had conducted internet research, Juror 142’s testimony and the 

responses of the jurors to the trial court’s inquiry, which were

consistent with what Juror 142 described as having taken place, 

authorized the trial court to find that Juror 142 did not share what 

he had learned with the other jurors. Moreover, the trial court’s 

questioning of each of the remaining jurors established that they 

could remain fair and impartial. This was sufficient to establish 

beyond a reasonable doubt that Juror 142’s misconduct did not harm

Moody. See Jones v. State, 258 Ga. 96, 97 (366 SE2d 144) (1988) 
69

(“[W]here the substance of the communication is established 

without contradiction, the facts themselves may establish the lack 

of prejudice or harm to the defendant.”). Accordingly, the trial court 

did not abuse its discretion in denying Moody’s motion for a mistrial.

See Burney v. State, 309 Ga. 273, 292-294 (5) (845 SE2d 625) (2020) 

(holding that a juror’s misconduct in conducting an online search for 

the terms “malice” and “malice murder” during the jury’s 

deliberations in a murder prosecution was harmless beyond a 

reasonable doubt where the trial court found that the juror did not 

share what she had learned with her fellow jurors and that her 

misconduct did not impact any juror’s assessment of the charges 

against the defendant, including her own); Hodges v. State, 302 Ga. 

564, 568-569 (4) (807 SE2d 856) (2017) (holding that a juror’s 

misconduct in looking up some words on a dictionary application 

during trial was harmless beyond a reasonable doubt, where the 

juror testified that the search had no impact on her as a juror and 

there was no evidence that she shared her search results with other 

jurors). 
70

7. Moody contends that the trial court abused its discretion by 

allowing improper victim impact testimony from the grandmother 

and the mothers of the victims. For the reasons set forth below, we 

discern no reversible error.

(a) Testimony of the Victims’ Grandmother. Over Moody’s 

objection that the statements were in the format of poems to the 

victims, the trial court allowed the grandmother of Kimble and 

Mattox to read her victim impact statements to the jury.18 In 

 18 The grandmother stated: 

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. 

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. 
71

overruling Moody’s objection, the trial court noted that a 

grandmother’s testimony about what it meant to her to lose her 

grandchildren “[wa]s about as poignant as it can get.” However, the 

trial court found that the statements were “not ploys for sympathy” 

or “overly prejudicial.” We agree. Both statements were very brief 

descriptions of the victims’ unique qualities that endeared them to 

their grandmother and her longing to see them again, and they were 

proper testimony. See Bryant v. State, 288 Ga. 876, 897 (15) (a) (708 

SE2d 362) (2011) (explaining that this Court has deemed victim 

impact testimony describing the victim’s life and the impact of his 

or her loss on his or her family as being appropriate); Lawler v. State, 

 

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. 
72

276 Ga. 229, 232 (3) (576 SE2d 841) (2003) (stating that victim 

impact testimony is not unconstitutional simply because it is 

poignant or sad). 

Nevertheless, on appeal Moody now asserts that these

statements were “emotionally-charged” due to their figurative 

language and “religious references to ‘[G]od,’ ‘heaven,’ and 

‘everlasting life.’” Relying on Livingston v. State, 264 Ga. 402, 404 

(1) (b) (444 SE2d 748) (1994), Moody argues that the statements 

were improper because they inflamed and unduly prejudiced the 

jury. But in Livingston, our point was that “even some [otherwise-] 

legitimate victim impact evidence could inflame or unduly prejudice 

a jury if admitted in excess.” 264 Ga. at 404 (1) (b) (emphasis added). 

That did not happen here, as the statements at issue each comprised 

merely a half-page of transcript. The language used by the victims’ 

grandmother, such as references to her granddaughter as her 

“sunshine” and to her grandson as her “moonlight” and to her 

religious belief in life after death, is not the type of language that 

would unduly inflame or prejudice a jury. See Turner v. State, 268 
73

Ga. 213, 215 (2) (b) (486 SE2d 839) (1997) (no error in admitting 

victim impact statements that were brief, “covering less than two 

pages of transcript each,” that “focused on the witnesses’ 

relationship with the victim and how the victim’s death had affected 

the witness personally,” and that made “extremely brief” references 

and did not inflame the “jury based on religion”); Livingston, 264 Ga. 

at 404 (1) (b) (noting that this Court has held that “‘the passion’ 

proscribed by our law does not encompass all emotion, but only that 

engendered by prejudice, particularly racial prejudice . . . or 

[prejudice towards] religious preference,’ or other arbitrary factors” 

(citation omitted)). Therefore, this claim has no merit. 

(b) Testimony of the Victims’ Mothers. Moody also claims that 

the trial court committed reversible error by admitting the victim 

impact testimony of the victims’ mothers to the extent they 

contained statements that can be construed only as pleas to the jury 

to recommend a death sentence. “It is settled law that testimony by 

relatives of a victim concerning the appropriate sentence is not 

properly admissible in a death penalty case as victim-impact 
74

testimony.” State v. Worsley, 293 Ga. 315, 328 (5) (745 SE2d 617) 

(2013). 

But because Moody raised no objections to either of these 

statements at trial, his claims are not preserved for ordinary 

appellate review and can be reviewed only for plain error. See 

Williams v. State, 315 Ga. 490, 494 (2) n.7 (883 SE2d 733) (2023) 

(holding that an unobjected-to ruling on admitting or excluding 

evidence is subject to plain error review under OCGA § 24-1-103 (d) 

even if the basis for the ruling is governed by the Constitution or by 

a statutory provision outside the Evidence Code). Under plain error 

review, we apply the four-pronged analysis articuled in State v. 

Kelly:

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 
75

ought to be exercised only if the error seriously affects the 

fairness, integrity or public reputation of judicial 

proceedings.

290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (cleaned up); see also

Martin v. State, 298 Ga. 259, 279 (6) (d) (779 SE2d 342) (2015)

(noting that this Court’s obligation under OCGA § 17-10-35 (c) (1) to 

conduct a plenary review in all death penalty cases “guards against 

any obvious impropriety at trial, whether objected to or not, that in 

reasonable probability led to the jury’s decision to impose a death 

sentence”), disapproved on other grounds by Willis, 304 Ga. at 707 

(11) (a) n.3. Thus, under both the plain error review of Kelly and the 

plenary review of Moody’s death sentences under OCGA § 17-10-35 

(c) (1), relief here would be warranted only if there is a reasonable 

probability that the improper victim impact testimony in this case 

led to the jury’s decision to impose Moody’s death sentences. 

The victim impact testimony contained language of the sort

that we previously have deemed improper. In her victim impact 

statement, Rhonda Mattox, who was Mattox’s mother and Kimble’s 

aunt, stated that “[her] hope [wa]s that the jury w[ould] punish the 
76

defendant to the fullest extent.” Zondra Mathis, who was Kimble’s 

mother and Mattox’s aunt, said the following:

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.

Although Mathis’s testimony was somewhat ambiguous —

defense counsel argued in closing that she had asked the jury not to 

impose the death penalty — Mathis and Mattox nevertheless made 

statements calling for “justice” and a “punish[ment] to the fullest” 

extent of the law, which we have ruled are improper. See Martin, 

298 Ga. at 285 (9) (victim impact testimony “refer[ring] to the 

family’s desire for ‘justice’” was improper), disapproved on other 

grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Worsley, 293 Ga. at 

328 (5) (statements that the defendant should receive the 

 19 By using the pronouns “them” and “they,” Mathis was apparently 

referring to Moody and his co-defendant, Felts.
77

“maximum” or “ultimate” sentence were “implied requests for the 

jury to recommend the death penalty”). 

Any errors in allowing this testimony, however, did not affect 

Moody’s substantial rights. In the light of the overwhelming 

evidence, the nature of Moody’s crimes, the brevity of the improper 

testimony, the fact that the improper testimony was not explicit or 

especially inflammatory, and the fact that Mathis’s testimony was 

ambiguous enough that defense counsel used it in closing argument

as showing that she was against death sentences for Moody, there 

is no reasonable probability that the challenged portions of the 

testimony led to the jury’s decision to impose death sentences for 

Moody. See Martin, 298 Ga. at 285 (9) (affirming the defendant’s two 

death sentences after applying plain error review pursuant to OCGA 

§ 17-10-35 (c) (1) to improper victim impact testimony “refer[ring] to 

the family’s desire for ‘justice,’” along with other improper testimony 

not objected to at trial). 

8. Moody next argues that the prosecutor engaged in several 

acts of misconduct in an effort to undermine his neurological defense
78

that he suffers from organic brain damage. To prevail on a claim of 

prosecutorial misconduct, a “defendant must show [both] actual 

misconduct and demonstrable prejudice to his right to a fair trial.” 

Cushenberry v. State, 300 Ga. 190, 195 (2) (b) (794 SE2d 165) (2016) 

(citation and punctuation omitted). We conclude for the various 

reasons discussed below that Moody has failed to make such a 

showing. 

(a) Alleged Misconduct in Attacking the Credibility of Moody’s 

Expert Witness. Moody first claims that the prosecutor improperly 

attacked the credibility of his out-of-state expert neurologist, Dr. 

Thomas Hyde, by suggesting that Dr. Hyde had acted wrongly in 

failing to notify the Georgia Composite Medical Board before 

working on Moody’s case. Moody claims this constituted improper 

impeachment.

Shortly into his cross-examination of Dr. Hyde, the prosecutor

confirmed that Dr. Hyde was not a psychiatrist but instead practiced 

medicine in the state of Maryland with “part of [his] expertise” being 

neurology. Then the following colloquy took place:
79

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.

At that point, defense counsel objected on the basis that the 

prosecutor’s line of questioning “[wa]s not a proper line of crossexamination.” The trial court told the prosecutor that he had “made 
80

[his] point,” and the prosecutor moved on. 

During subsequent cross-examination about Moody’s past 

medical records indicating that he suffers from antisocial 

personality disorder, the exchange between the prosecutor and Dr. 

Hyde became heated. After sending the jury out of the courtroom, 

the trial court admonished the prosecutor to “ask[] questions 

without testifying or making . . . out of hand remarks to the witness.” 

At that time, Dr. Hyde stated to the trial court that he “ha[d] never 

been threatened by a state prosecutor, overtly or covertly,” that he 

would be reported to the State Medical Board “for practicing without 

a license,” and that he was unaware of a requirement that an outof-state expert witness had to be licensed to practice medicine in 

Georgia before he or she could perform an evaluation for purposes of 

testifying in court. When questioned by the trial court, the 

prosecutor could not provide a basis for his questioning of Dr. Hyde 

regarding the State Board issue. Defense counsel subsequently 

asked the trial court to “tell the jury [that] whether [Dr. Hyde i]s 

licensed or not is not an issue that they should be concerned about.” 
81

However, the trial court declined to do so and suggested that this 

was a matter for defense counsel’s redirect examination. Defense 

counsel raised no objection to the trial court’s basis for refusing to 

instruct the jury pursuant to his request. 

Assuming that Moody preserved this claim for the purposes of 

ordinary appellate review, see Jeffers v. State, 290 Ga. 311, 314 (4) 

(a) (721 SE2d 86) (2012) (holding that a party must “make and 

obtain a ruling on an objection to evidence in the trial court, before 

or as the evidence is admitted, in order to preserve the objection for 

appeal” and is “allow[ed] to raise on appeal only the same objections 

that were properly preserved below” (citation omitted)), we first note 

that the fact of whether Dr. Hyde was licensed in Georgia was a 

legitimate area of inquiry. See Brooks v. Green, 277 Ga. 722, 723-

724 (2) (594 SE2d 629) (2004) (stating that “the possession of a 

license in Georgia does not go to qualification as an expert witness 

but may go to the weight and credibility that a factfinder gives to 

such expert’s opinion” (cleaned up)). 

Although the prosecutor’s line of questioning suggesting that 
82

Dr. Hyde was required to contact the State Medical Board before 

evaluating Moody as an expert witness was not backed by legal 

authority, we need not resolve that because there was no prejudice 

resulting from it. The questioning was promptly ended by the trial 

court, the prosecutor conceded during closing arguments that he was 

not challenging Dr. Hyde’s credentials, and the prosecutor made no 

further mention of the State Medical Board issue. Thus, even if the 

prosecutor’s questioning was improper, Moody has failed to show 

“demonstrable prejudice” resulting from this brief inquiry. See

Brooks v. State, 305 Ga. 600, 606 (3) (826 SE2d 45) (2019). 

(b) Alleged Misconduct Regarding a State’s Expert Witness. 

Moody also contends that the prosecutor engaged in misconduct 

during the State’s rebuttal case by calling Dr. Matthew Norman, a 

psychiatrist Moody claims had performed only “a sanity evaluation” 

of him, to testify that he disagreed with Dr. Hyde’s neurological 

examination of Moody. Moody asserts that calling Dr. Norman as a 

rebuttal witness was misconduct for two reasons. Pretermitting 

whether Moody preserved this claim, neither reason offered by 
83

Moody has merit. 

(i) First, Moody contends that it was misconduct to call Dr. 

Norman in rebuttal, because Dr. Norman had been retained to 

testify only in the event that Dr. Glen Egan, a clinical psychologist, 

was unavailable. Moody argues that, because Dr. Egan had already 

testified in the State’s rebuttal case, the prosecutor’s use of Dr. 

Norman’s testimony constituted an improper attempt (procedurally 

and substantively) to discredit Dr. Hyde. But this claim is plainly 

contradicted by the record.

The State moved the trial court for an order appointing Dr. 

Norman to conduct a psychiatric evaluation of Moody after Dr. Peter 

Ash, not Dr. Egan, announced that he would be out of the country 

and unavailable during the timeframe in which his testimony might 

be required.20 Moreover, in response to the State’s request, the trial 

court ordered that 

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 

 20 Dr. Ash, the psychiatrist who had initially performed a court-ordered 

evaluation of Moody, did not testify at Moody’s trial.
84

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. 

The trial court further ordered that, upon completion, Dr. 

Norman’s report should be provided only to the trial court, which 

would place it under seal, and further ordered the following: if “the 

defense determine[d] that it w[ould] present expert [mental health] 

testimony at trial, the defense w[ould] disclose to the State the 

totality of the information and documentation used by any expert 

the defense [wa]s relying on to support its position, including any 

report generated by that expert”; “Dr. Norman w[ould] then be 

allowed to review said materials and amend his report and/or reevaluate [Moody] as he deem[ed] appropriate”; and “all materials 

w[ould] then be provided to the State.” Therefore, the record shows 

that Dr. Norman was explicitly appointed by the trial court for the 

State to present as a rebuttal witness in the event that Moody 

presented any expert mental health testimony at trial. See State v. 

Johnson, 276 Ga. 78 (576 SE2d 831) (2003) (discussing procedures 
85

for a trial court to order the State’s expert’s examination of a 

defendant, the sealing of an expert’s report, and the unsealing of it 

in order for it to be used for rebuttal purposes if the defense presents 

expert mental health testimony at trial). 

Moreover, at the sentencing trial, in anticipation of Dr. Hyde’s 

testimony, the prosecutor identified Dr. Norman as “an expert 

witness that [the State] m[ight] call in rebuttal,” gave notice to the 

defense and the trial court that the State “would have him in [the 

courtroom] to assist” the State during Dr. Hyde’s testimony, and 

requested that “before [Dr. Hyde’s] cross-examination [the State] 

have just a five-minute recess so [that the prosecutor] c[ould] consult 

with Dr. Norman.” Defense counsel stated that he considered the 

State’s request “appropriate” and that he had no objections. 

Therefore, given the evidence in the record showing that the parties 

clearly understood that Dr. Norman was to testify in rebuttal to any 

mental health testimony that Moody might present, this portion of 

Moody’s claim of prosecutorial misconduct is meritless.

(ii) Moody also contends that it was beyond the scope of Dr. 
86

Norman’s expertise and his evaluation of Moody to attack the 

professional opinions of Dr. Hyde that Moody suffers from organic 

brain damage or a seizure disorder.21 This claim also fails. 

After conducting an interview of Moody and reviewing 

numerous records, including his mental health records and 

evaluations, Dr. Norman diagnosed Moody as having antisocial 

personality disorder, cocaine dependence “in full sustained 

remission in [a] controlled environment,” and borderline personality 

traits. Dr. Norman testified that his diagnosis of antisocial 

personality disorder was based on his interview with Moody and his 

review of Moody’s records showing “that there was a personality 

disorder diagnosis . . . that was solidly, in [his] opinion, documented” 

at ages 13, 15, and 17 years “and that there was . . . consistency 

within that documentation from multiple different clinicians.” Dr. 

 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.” 
87

Norman explicitly disagreed with Dr. Hyde’s findings that Moody 

had organic brain damage, explaining:

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.

At the time of Moody’s sentencing trial, former OCGA § 24-7-

707 governed the admissibility of expert opinion testimony in 

criminal proceedings, and that statute provided: 

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 

Moody has not cited a single case, nor are we are aware of one, in 

which we have held that testimony regarding brain damage fell 

 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).
88

outside the appropriate scope of expert testimony from a 

psychiatrist, and, in fact, our cases suggest just the opposite. See

Turpin v. Lipham, 270 Ga. 208, 217 (3) (B) (3) (510 SE2d 32) (1998) 

(relying on “affidavits of several psychologists and psychiatrists who 

testified [in the habeas proceedings] that test results contained 

within the institutional records . . . suggest[ed] organic brain 

damage centered in the left hemisphere and post[-]traumatic stress 

disorder” to conclude that trial counsel’s investigation of available 

mitigation evidence was not reasonable and therefore was deficient

(emphasis added)); Wellons v. State, 266 Ga. 77, 82 (2) (463 SE2d 

868) (1995) (relying in part on the testimony of a death penalty 

defendant’s expert psychologist “acknowledg[ing] . . . that Wellons 

was also evaluated by a court-appointed psychiatrist, who concluded 

that Wellons is an intelligent, well-educated man with a significant 

personality disorder but no brain damage and no psychosis” to 

conclude that “the evidence as a whole demonstrate[d] that his 

defenses of insanity and mental illness were simply not viable” 

(emphasis added)); Heard v. State, 248 Ga. 348, 349 (283 SE2d 270) 
89

(1981) (stating that the defendant offered the testimony of a forensic 

psychiatrist, who opined that he was “suffering from some brain 

damage” (emphasis added)). Moreover, it was for the jury “to judge 

the credibility of the opposing expert witnesses.” Tye v. State, 298 

Ga. 474, 477-478 (2) (a) (782 SE2d 10) (2016).

Moody also asserts that Dr. Norman was not qualified to 

disagree with Dr. Hyde “about whether there was evidence that [he] 

suffered from a seizure disorder.” Dr. Hyde explained that he was 

using the term “seizure” as “the neurological term, which is normal 

involuntary discharge of electrical activity from a damaged or 

abnormal part of the brain that spreads to normal tissue[,] 

interrupting the normal function of that part of the normal tissue of 

the brain.” He also affirmed that, although since 2003 Moody had 

had multiple clinical evaluations for seizures at Grady Memorial 

Hospital, he “never saw an EEG report, which is a test that is done 

to assay electrical activity in the brain,” and that he “would have 

liked to have seen” such a report. Even so, after noting Moody’s 

history of seizures, Dr. Hyde opined that a seizure disorder was 
90

additional evidence of brain damage. Although Dr. Norman also 

acknowledged Moody’s history suggesting a seizure disorder, he did 

not diagnose Moody with that disorder. When asked whether he saw 

anything in the documents that he had reviewed that “definitively 

said that [Moody] had a seizure disorder,” Dr. Norman responded 

that he found it significant that, in reviewing those documents, 

which included Dr. Hyde’s report,” he had seen no “documentation 

of an EEG,” which would show the “electrical activity that Dr. Hyde 

[described] that you need to actually have a seizure.” We see no 

impropriety in Dr. Norman’s testimony.

(c) Alleged Misconduct Involving the Solicitation of Opinion 

Testimony. Moody contends that the prosecutor also engaged in 

misconduct by eliciting improper opinion testimony from three of the 

State’s lay witnesses and two of its expert witnesses. We reject this 

claim.

(i) Lay Witness Testimony. Moody contends that the prosecutor 

committed misconduct by eliciting from two Fulton County jail 

nurses and a former Fulton County jail officer improper “medical 
91

opinion testimony designed to rebut [his] expert testimony.” Under 

OCGA § 24-7-701 (a) (“Rule 701 (a)”), a lay witness may testify “in 

the form of opinions or inferences that are rationally based on the 

witness’s perception, helpful to a clear understanding of the 

determination of a fact in issue, and not based on scientific, 

technical, or other specialized knowledge.” Bullard v. State, 307 Ga. 

482, 491 (4) (837 SE2d 348) (2019) (citation and punctuation 

omitted). “[L]ay witnesses may draw on their professional 

experiences to guide their opinions without necessarily being 

treated as expert witnesses.” Id. at 492 (4) (citation and punctuation 

omitted). 

Jail Nurse Michelle McClure. First, Moody points to the 

testimony of jail nurse Michelle McClure regarding his alleged 

mental deficiencies and seizure disorder. Even if this claim of error 

was preserved, Moody has not shown that this testimony was 

improper, and thus the prosecutor did not commit misconduct by 

eliciting it. 

During her testimony, McClure affirmed that she had had 
92

opportunities during Moody’s years of incarceration to have 

conversations with him, that he appeared to know what was going 

on when she talked with him, that she had never heard him speak 

nonsensically, and that he did not appear to be “mentally deficient 

in some way.” She explained that she thought Moody was “very 

smart” based on the fact that he “ask[ed] a lot of questions about” 

his medications, including asking about their side effects and 

requesting “printouts” for them. McClure also testified that she had 

never observed Moody actually having a seizure but that she had 

been among the medical staff who had responded after he had 

reportedly had one and that Moody had appeared “[a]wake and 

alert” and that he had “ranted.” She testified that this was not 

typical in her experience, which was that “[a] lot of people” were 

“confused” and “not really aware of their surroundings when they 

c[a]me out of the seizures.” 

McClure’s testimony was rationally based on her personal 

observations of Moody and her experience with other patients and 

did not require scientific, technical, or other specialized knowledge. 
93

Her testimony was also relevant to two issues in Moody’s case —

what his mental condition was and whether he suffered from a 

seizure disorder. Accordingly, as this testimony was admissible 

under Rule 701 (a), the prosecutor plainly did not commit 

misconduct by eliciting it. 

Jail Nurse Angelica Rosant. Moody also alleges that the 

prosecutor elicited improper opinion testimony when he asked

another jail nurse, Angelica Rosant, whether, “based on [her] 

training and experience in the jail and having spent time with Mr. 

Moody, . . . he appear[ed] to have brain damage or brain injuries”

and she responded in the negative. Defense counsel immediately 

objected on the ground that Rosant was “not qualified to testify as 

to whether or not [Moody] has brain damage.” The trial court 

instructed the prosecutor to rephrase his question, and the 

prosecutor’s rephrased questions were asked and answered without 

objection.

Although the court asked the prosecutor to rephrase the 

question, it never informed the jury as to whether or not Moody’s 
94

objection was sustained. Nevertheless, because Moody never 

requested a curative instruction for the jury to disregard the 

challenged testimony, we review his argument for plain error. See 

Wynn v. State, 313 Ga. 827, 838 (4) (874 SE2d 42) (2022). Moody’s 

claim fails under such review.

Rosant’s testimony was not obviously improper. She was asked 

whether Moody appeared to have brain damage or brain injuries

based on her training, experience, and time spent with Moody, and 

she previously testified without objection about her observations 

about whether Moody understood everything she told him. See 

Bullard, 307 Ga. at 491 (4).

Even if her opinion testimony was improper, Moody has failed 

to show prejudice. In response to rephrased questions, Rosant 

testified without objection that she had never seen Moody walk with 

a limp “[i]n the times” that she had been with him, that she had 

personal experience with stroke victims and that he did not appear 

like a person who had suffered a stroke, that he communicated 

“[v]ery well” with her, and that he was able to provide “paperwork” 
95

to her. This subsequent testimony was not improper. It was 

rationally based on Rosant’s personal observations of Moody and her 

experience with other patients, it did not require specialized 

knowledge, and it was relevant to determining what Moody’s mental 

condition was, which was a fact at issue at his sentencing trial. See

Bullard, 307 Ga. at 491-492 (4); see also Harris v. State, 309 Ga. 599, 

604 (2) (a) (847 SE2d 563) (2020) (holding that a detective’s opinion 

that the defendant shot himself in the leg was admissible under Rule 

701 (a), as it was rationally based on inferences that the detective

formed from his review of the evidence and his prior observations of 

gunshot wounds, which did not require scientific, technical, or other 

specialized knowledge). Therefore, given the propriety of this 

testimony and the trial court’s response to defense counsel’s prompt 

objection to the prosecutor’s initial question, we conclude that there 

is no reasonable probability that the prosecutor’s allegedly improper 

question and Rosant’s response to it contributed to the jury’s 

decision to impose Moody’s death sentences. See Martin, 298 Ga. at 

279 (6) (d).
96

Jail Officer Ricardo Rucker. Lastly, Moody contends that the 

prosecutor elicited an improper lay opinion from former Fulton 

County jail officer Ricardo Rucker that “Moody like[d] to plan his 

seizures.” This testimony occurred when the prosecutor asked 

Rucker whether he had “ever notice[d] if [Moody] ever had any 

seizures,” and Rucker responded:

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. . . . 

Even if Moody preserved this claim for review, the statements 

were admissible because they were based on Rucker’s personal 

observation. According to Rucker, Moody’s “plan” to have a seizure 

began when Rucker was in “the tower” with the microphone on and 

heard inmates talking with one another, with one saying, “Hey, 

when they get ready to do the round, I’m going to say you [are] 

having a seizure, and then you go through the routine.” Then Rucker 

testified, “[A]s soon as [I] walk[ed] in the zone, everybody [was] 

beating on the door, hey, Moody [is] having a seizure.” He also 
97

described seeing “soap . . . squished up and made like it’s throw up 

to the side,” and he testified that, when medical personnel came to 

render aid to Moody, they reported that he was “good.” He also 

testified that he “ha[d] not seen [Moody have] a seizure where it 

required any type of medical attention.” Furthermore, according to 

Rucker, when Moody realized that jail personnel would not remove 

him from his cell to treat his seizures, he started injuring himself in 

ways that would necessitate his being taken to the jail’s medical 

facility or to the hospital. As an example, Rucker described an 

occasion when Moody mentioned getting a “vacation” or “break” and

then, shortly afterward, seriously injured his head, requiring a trip 

to the hospital. 

To the extent that Rucker provided opinion testimony, it was 

rationally based on his personal observations of and experiences 

with Moody and did not require scientific, technical, or other 

specialized knowledge, and it was relevant to an issue in Moody’s 

case — whether he was malingering. See Bullard, 307 Ga. at 491 

(4). Because this testimony was admissible under Rule 701 (a), there 
98

was no prosecutorial misconduct in eliciting it. 

(ii) Expert Witness Testimony. Moody contends that the 

prosecutor also committed misconduct by eliciting improper 

testimony from the chief medical examiner and from the State’s 

expert clinical psychologist. Even if preserved, the claims here are 

meritless, as Moody has not shown that any of this testimony was 

improper and thus that the prosecutor committed misconduct by 

eliciting it.

Chief Medical Examiner. Moody asserts that the prosecutor

committed misconduct by eliciting improper testimony from Dr. 

Michele Stauffenberg, the chief medical examiner. First, Moody 

contends that the prosecutor elicited improper testimony from Dr. 

Stauffenberg in which she “repeatedly speculated” about the pain 

that the victims suffered. But this was a subject within a medical 

examiner’s area of expertise, and the testimony was highly relevant 

to the jury’s determination regarding the existence of the statutory 

aggravating circumstances in this case. See Walker v. State, 281 Ga. 

157, 157, 159 (1), 166 (14) (635 SE2d 740) (2006) (noting the medical 
99

examiner’s testimony that the victim “suffered painful blunt force 

injuries to the head . . . and . . . a painful bullet entry through her 

wrist” in our review of the evidence supporting the section (b) (7) 

statutory aggravating circumstance involving torture); West v. 

State, 252 Ga. 156, 160-161 (313 SE2d 67) (1984) (providing a 

suggested jury instruction “clarifying the statutory language of the 

(b) (7) aggravating circumstance[’s]” component involving torture). 

Moody also contends that the prosecutor committed 

misconduct by eliciting testimony from Dr. Stauffenberg identifying 

a screwdriver that was not the actual murder weapon as being 

consistent with what had caused the victims’ injuries. The purpose 

of this testimony was to lay the foundation for the admission of the 

screwdriver as a “demonstrative exhibit.” Demonstrative evidence

includes replicas or other devices “‘used to aid the trier of fact in 

understanding the issues and facts at trial.’” Smith v. State, 299 Ga. 

424, 434 (3) (b) (788 SE2d 433) (2016) (citation and punctuation 

omitted). We have explained that:

Demonstrative evidence . . . must be relevant, see OCGA 
100

§ 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. 

Id. at 434-435 (3) (b). 

It is generally permissible to admit a weapon for demonstrative 

purposes, as long as a proper foundation is laid, and the challenged 

statements here were necessary to lay that foundation. Dr. 

Stauffenberg testified that the screwdriver was similar to the 

implement that caused the victims’ injuries. See Robinson v. State, 

308 Ga. 543, 547-548 (2) (a) (842 SE2d 54) (2020) (holding that the 

admission of two firearms for demonstrative purposes was not 

improper, where the State’s evidence was sufficient to lay a

foundation of similarity between those firearms and the gun that 

shot the victim and it was made clear to the jury that the firearms 

used at trial were not the actual firearms used in the alleged crimes). 

Moody takes issue with the prosecutor having displayed the 

screwdriver during closing argument. But the prosecutor made clear 
101

that the screwdriver was “solely” an “aid.” See United States v. 

Aldaco, 201 F3d 979, 986-987 (III) (B) (2) (7th Cir. 2000) (holding 

that prejudice is minimized when the government makes clear to the 

jury that the replica is not the actual murder weapon possessed by 

the defendant); see also United States v. Garvin, 88 Fed. Appx. 542, 

544 (3rd Cir. 2004) (holding that the district court did not abuse its 

discretion in allowing the government to use representative 

currency as demonstrative evidence during closing argument of a 

drug prosecution, where the government clearly informed the jury 

that it was not the actual currency seized from the defendant but 

was in the same denominations to show what that amount looked 

like).23 Therefore, Moody’s claim here fails. 

State Psychologist. Moody also alleges that the prosecutor

elicited improper testimony from Dr. Glen Egan, a psychologist who 

worked in the Emory University School of Medicine’s Department of 

 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). 
102

Psychiatry. Dr. Egan was qualified to testify as an expert on behalf 

of the State in the field of clinical and forensic psychology in rebuttal 

to the testimony of Moody’s expert neuropsychologist, Dr. Barry 

Crown. Moody contends that it was improper for the prosecutor to 

elicit testimony that Moody did not exhibit signs of “brain damage 

or brain disorder” despite the fact that Dr. Egan was not a 

neurologist and did not conduct neuropsychological testing of 

Moody. 

When the prosecutor initially asked Dr. Egan whether Moody 

“exhibit[ed] signs in any way, shape[,] or form that le[d] him to 

believe that [Moody] ha[d] some type of brain injury, brain damage[,]

or any kind of brain disorder,” Dr. Egan stated that he was not a 

neurologist and “did not do any kind of neurological evaluation” of 

Moody. Then he began to list the records regarding Moody that he 

had reviewed for “any indication that [Moody] showed any kind of 

signs of brain damage either on CT-scans or anything like that.” At 

that point, defense counsel objected on the basis that Dr. Egan was 

testifying outside the scope of his qualifications. The trial court 
103

offered the prosecutor an opportunity to inquire as to Dr. Egan’s 

qualifications specific to this question, but the prosecutor

maintained that his question had been whether Moody “exhibit[ed] 

anything consistent [with brain damage], not whether he actually 

had [brain damage] or not.” In response, the trial court suggested 

that the defense’s objection was aimed “more to the breadth of Dr. 

Egan’s testimony” and suggested that the prosecutor direct Dr. Egan 

appropriately. 

Even if this claim were preserved, it is meritless. 

After the trial court’s directions, the following colloquy ensued:

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.
104

Dr. Egan further testified that his opinion was based on his 

own interactions with Moody, a past evaluation of Moody that he 

was involved in at Emory, and a review of numerous mental health 

records related to Moody. Dr. Egan pointed out in particular his 

review of “[t]he psychological testing that [he] saw, in terms of the 

data that [he] was given” that included Dr. Crown’s evaluation and 

results of his intelligence testing of Moody, which Dr. Crown had 

testified about and which was admitted into evidence without 

objection. 

Although Moody takes issue with the fact that Dr. Egan was 

not a neurologist, he has failed to cite a single case in which we have 

held that it is an abuse of discretion for a trial court to admit the 

testimony of a psychologist about brain damage based on a review 

of a defendant’s mental health records. Similar to Moody’s challenge 

to Dr. Norman’s testimony on the grounds that he exceeded his area 

of expertise, the fact that Dr. Egan was not a neurologist and had 

not conducted his own neurological testing of Moody went only to 

the weight and not to the admissibility of his testimony. See Adams 
105

v. State, 275 Ga. 867, 868 (3) (572 SE2d 545) (2002) (the fact that a 

licensed clinical social worker did not hold a medical degree went 

only to the weight and not to the admissibility of her testimony 

regarding the defendant). Because the testimony elicited by the 

prosecutor was not improper, this claim is meritless. 

(d) Alleged Misconduct in Closing Arguments. Moody contends 

that the prosecutor made several improper arguments at the close 

of the sentencing trial that require reversal of his death sentences. 

Pretermitting the fact that Moody has waived his right to ordinary 

appellate review of those arguments by failing to object at trial, see 

Martin, 298 Ga. at 279 (7), disapproved on other grounds by Willis, 

304 Ga. at 706 (11) (a) n.3, we conclude that they were not improper.

(i) While arguing to the jurors that they should not accept Dr. 

Hyde’s opinion about Moody, the prosecutor remarked, “Of course 

Dr. Hyde thinks he’s the only person that can perform a neurological 

exam in the United States.” Later, the prosecutor argued that Dr. 

Hyde’s conclusions regarding Moody were not consistent with other 

testimony and evidence that had been presented. The prosecutor
106

then reminded the jury that Dr. Hyde had testified that, in his 

experience, state mental health facilities tend to conduct cursory 

neurological examinations but that Dr. Hyde “had no personal 

knowledge of any of the Georgia state facilities and ha[d] never . . . 

toured them” and that Dr. Hyde’s testimony here had been

contradicted by Dr. Norman’s testimony that Georgia’s state 

facilities were “just fine.” The prosecutor concluded this portion of 

his argument by telling the jury that “the State’s contention of Dr. 

Hyde” is that he claimed, “I’m right” and “[e]veryone else is inferior.” 

Moody contends that the prosecutor committed misconduct by 

making these remarks regarding Dr. Hyde. But when viewed in 

context, the prosecutor’s brief comments came within “the wide 

latitude” granted to counsel “in the conduct of closing argument.” 

Styles v. State, 309 Ga. 463, 470 (4) (847 SE2d 325) (2020). 

(ii) Moody also contends that the prosecutor improperly argued 

to the jurors: “[Y]ou are the sole judges of credibility. Whether [the 

witness is] an expert witness or not doesn’t matter.” This is not an 

improper argument. 
107

The “[c]redibility of witnesses and the weight to be given their 

testimony is a decision-making power that lies solely with the trier 

of fact.” Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994). This 

is true even with respect to the testimony of expert witnesses. See

McCoy v. State, 237 Ga. 118, 119 (227 SE2d 18) (1976) (“The jury 

can consider the expert’s credentials and then give such weight and 

credit to the expert’s testimony as it sees fit.”). Therefore, the 

prosecutor’s argument here was not improper.

(iii) The prosecutor argued to the jury that letters that Moody 

had written to Wright while incarcerated and that had been 

admitted during Wright’s testimony “corroborate[d] the relationship 

that [Wright] ha[d] with Jeremy Moody” and showed that she was 

“telling [the jury] the truth.” The prosecutor then remarked 

somewhat off-handedly, “interestingly [the evidence about these 

letters] also show[ed] that apparently [the defense’s mitigation 

specialist] isn’t aware of the rules about ferr[y]ing mail out by 

inmates that [the defense’s prison expert] told you about.” Moody 

contends that this remark about the defense’s mitigation specialist 
108

was improper, because it was “without a factual basis.” We disagree.

 During its direct examination, the State elicited testimony 

from Wright regarding a letter written to her from Moody after his 

incarceration. Wright testified that this letter was sent to her 

through Moody’s defense team, that it was accompanied with 

Moody’s handwritten instructions to “[s]end to Tameka,” and that it 

had been mailed to her in an envelope that had the defense’s 

mitigation specialist’s address as a return address. The defense did 

not object to Wright’s testimony or to the State’s introduction into 

evidence of Moody’s letter and the envelope in which it was mailed. 

Indeed, on cross-examination, the defense asked Wright to again 

confirm that the return address on the envelope containing Moody’s 

letter to Wright was that of the defense’s mitigation specialist 

“sitting right [t]here” and to confirm that the defense team had 

“helped [her] and [Moody] communicate in jail on occasion,” and 

Wright did so. Later, Moody’s own witness, James Aiken, who was 

qualified to testify as an expert on prisons and the classifications 

and security assessments of inmates, testified that, other than 
109

letters to the courts or attorneys, a facility’s staff approves whether 

an inmate’s letter “goes out.” Aiken testified that in the past he had 

completed a security evaluation of the Fulton County jail and that 

mail was not supposed to be carried out of that facility outside of 

that approval process. The prosecutor asked Aiken, “[I]f [Moody] 

wanted to get a letter to his ex-girlfriend, someone working for the 

defense team wouldn’t be able to ferry that letter out to her, would 

they?” Aiken responded, “According to the rules and regulations that 

is correct, sir.” Accordingly, the prosecutor’s argument was “derived 

from evidence properly before the jury,” and it was not improper. 

Spiller v. State, 282 Ga. 351, 354 (3) (647 SE2d 64) (2007).

(iv) After reminding the jury that defense counsel had 

“essentially” asked the medical examiner whether it was “possible 

that the death[s of the victims] w[ere] actually pretty quick,” the 

prosecutor argued that the purpose of that question was to allow 

defense counsel “to stand up in front of [the jury] and say, oh, it 

wasn’t torture,” because “[Moody] killed them quickly[, and t]hey 

didn’t feel any pain.” The prosecutor then told the jury that any such 
110

argument would be “offensive,” which Moody contends was 

misconduct. 

But the prosecutor’s argument was based on a reasonable 

deduction from the evidence, and we conclude that it came within 

the wide latitude given to counsel in the conduct of closing 

argument. See Walker v. State, 312 Ga. 232, 240 (4) (c) (862 SE2d 

285) (2021); see also Ballard v. State, 268 Ga. App. 55, 61 (5) (d) (601 

SE2d 434) (2004) (holding that the prosecutor’s argument to the 

jurors that certain testimony that the defendant presented “‘should 

be offensive to [them]’ . . . came within the wide latitude given to 

counsel in closing argument,” which includes the ability to argue 

reasonable inferences from the evidence). Therefore, there was no 

impropriety, and Moody’s claim here is meritless. 

(v) Lastly, Moody contends that the prosecutor argued 

improperly by asserting that Moody had acted in compliance with 

the book, The Art of War, when there was evidence that the book had 

been found in his cell but no evidence that he had actually read it. 

This was not an improper argument.
111

In making the statement, the prosecutor reminded the jury of 

a Fulton County jail deputy’s testimony that, “when he saw that 

[book found in Moody’s cell] and the way Moody was acting, he 

actually read The Art of War so he’d be familiar” with it. This deputy 

testified that the book described how to attack “the weakest links” 

of a group and that Moody had used that tactic by “target[ing]” new 

people on the team of specially-trained officers that dealt with highrisk inmates. After reminding the jury of another officer’s similar 

testimony regarding Moody’s behavior, the prosecutor argued that 

Moody would “start with the weakest and move his way up,” which 

was the “[p]attern” taught in the The Art of War. As this argument

was “derived from evidence properly before the jury,” it was not 

improper on the basis Moody argues. Spiller, 282 Ga. at 354 (3).

9. Moody contends that the State violated his state and federal 

constitutional rights to due process by presenting a theory of the 

crimes at his sentencing trial that was inconsistent with the theory 

that it later presented at the trial of his co-defendant, William Felts. 

In particular, Moody contends that at his sentencing trial the State 
112

argued that he alone committed the crimes but that at Felts’s trial 

the State argued that Felts was also responsible. Although this 

claim is arguably not preserved, 24 we have reviewed the record as a 

part of our mandatory plenary review under OCGA § 17-10-35 (c) (1) 

and conclude that it has no merit.25

In the past, we have “assumed that there could be a due process

problem if the State uses ‘inherently factually contradictory 

theories,’” while at the same time we have noted that there is 

perhaps some “doubt [as to] whether such a due process right exists.” 

Battle v. State, 305 Ga. 268, 274 (2) (b) (824 SE2d 335) (2019) 

(citations and punctuation omitted); see also 5 Wayne R. LaFave et 

al., Criminal Procedure § 17.4 (a) (4th ed. Nov. 2022 update) (“[O]n 

the ground ‘that the use of inconsistent, irreconcilable theories to 

secure convictions against more than one defendant in prosecutions 

 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 

Felts’s case be included in Moody’s appellate record. 
113

for the same crime violate[s] the due process clause,’ a defendant 

may be able to have his conviction overturned because of the 

conviction of another defendant on an inconsistent theory, . . . 

though the Supreme Court has yet to pass on this theory.” (emphasis

in original, footnotes, and citation omitted)). In our discussion below, 

we again assume without deciding that such a due process claim 

could be cognizable, but we conclude no such claim arises under the 

facts presented here. 

Felts’s death penalty trial occurred approximately three years 

after Moody’s plea and sentencing trial. The same prosecuting 

attorney tried both cases. The State argued at Felts’s trial that

although Moody was the one who inflicted the fatal injuries to both 

victims and the one who raped Kimble, Felts was just as guilty as a 

party to the crimes, because “Felts aided, assisted, encouraged, and 

made this happen” by participating in the robbery of the victims and 

then standing by and ensuring that they did not leave the woods. 

The State urged Felts’s jury not to worry about Moody and stated 

that “Moody [was] for another day, another jury,” arguments we 
114

read not as minimizing Moody’s actions but instead as focusing on 

determining Felts’s personal guilt in the crimes. See Battle, 305 Ga. 

at 274 (2) (b) (stating that “limiting discussion of Appellant’s 

culpability to a passing remark that she had also been charged and 

would get her day in court made sense at [her co-defendant’s] trial”). 

In the same way, the State argued at the sentencing phase of Felts’s

trial, “Let’s talk about Felts. That’s why we’re here. We’re not here 

for Moody.” 

In comparison, at the beginning of the guilt/innocence phase of 

Moody’s trial, the State indicated in its opening statement that Felts 

was involved in the crimes with Moody. The prosecutor explained 

about the period following Moody’s arrest: 

[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.
115

(Emphasis added.)

As discussed above, Moody pled guilty to all counts of his

indictment following the State’s opening. In presenting a factual 

basis for Moody’s pleas to the trial court during the plea colloquy, 

the prosecutor began by stating: “[H]ad this case gone to trial the 

State would have proven beyond a reasonable doubt that on April 

5th, 2007, that Jeremy Moody along with, the State’s contention, Mr. 

William Felts confronted the victims in this case, . . . . in the woods 

behind Bethune Elementary School.” The prosecutor then proceeded 

to describe the factual basis for each of the crimes to which Moody 

pled guilty. In the sentencing trial that followed Moody’s plea, the 

State no longer had to prove that he had committed the crimes. See 

Shepard v. Williams, 299 Ga. 437, 440 (1) (788 SE2d 428) (2016) 

(recognizing that a plea of guilty admits the facts set forth in an 

indictment). And the State also had no need to mention Felts or 

present any evidence regarding his participation in the crimes. 

Instead, the State focused on proving the statutory aggravating 

circumstances and non-statutory aggravating circumstances. See
116

O’Kelley v. State, 284 Ga. 758, 766-767 (3) (670 SE2d 388) (2008) 

(pointing out that the guilt/innocence and sentencing phases of a 

death penalty trial have different purposes and that different 

evidence is introduced in each phase). 

Moody contends that the State represented to the jury in its 

closing argument that it had presented “all the facts” surrounding 

the crimes, despite the fact that the State had presented no evidence 

about Felts’s involvement in the case. But Moody seriously

misrepresents the prosecutor’s argument to that end by lifting his 

words out of context, including at one point even cobbling together 

phrases from two different sections of the State’s argument that are 

over 50 pages apart in the transcript.26 Our review of the State’s 

 26 In his brief, Moody argues the following:

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.

The phrases Moody relies on do not support anything resembling Moody’s 

characterization. The first lifted phrase about deciding to “lay[] in those 
117

closing argument in its entirety shows that, although the State kept 

the jury properly focused on Moody’s role in the crimes for the 

purposes of determining his appropriate sentences for the murders, 

nowhere did the State contend that Moody acted alone in 

committing the crimes. 

In sum, based on our review of the two sets of trial transcripts, 

we conclude that, although the evidence presented and the 

prosecutor’s arguments differed somewhat at each trial, those 

arguments were consistent with the evidence actually presented at 

each trial and with the differing procedural posture of each case. 

 

woods,” was part of the State’s argument about Moody’s motive to commit a 

robbery:

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. 

The second phrase appeared in the State’s argument about Moody’s decision to 

murder the victims:

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.
118

More importantly, those differences did not go to the core theory of 

the case, and, therefore, this is not a situation where the State 

presented separate and irreconcilable theories of guilt. See Haynes 

v. Cupp, 827 F2d 435, 439 (9th Cir. 1987) (holding that “variations 

in emphasis” were not cause for reversal where “the underlying 

theory of the case” that each defendant was culpable was 

consistent). Accordingly, Moody’s claim here is meritless. 

10. Moody argues that the trial court erred in twice denying his 

request to charge concerning the consequences of a jury’s failure to 

reach a unanimous sentencing verdict. Even apart from the issue of 

waiver surrounding Moody’s initial request for this charge, we see 

no error — plain or ordinary — in the trial court’s refusal to give it 

either initially or when it was later requested again during jury 

deliberations. 27 

 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 
119

(a) In his requests to charge, Moody proposed the following 

instruction:

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. 

At the charge conference, the trial court denied the requested 

charge, stating that it was “argumentative” and was “covered 

adequately elsewhere,” and Moody did not object to the trial court’s 

denial of his request. The trial court ultimately charged the jury: 

“Your verdict as to penalty must be unanimous, and it must be in 

writing, dated, and signed by your foreperson and returned to be 

read in open court.” Moody also did not object to the trial court’s 

giving of this instruction, which tracks the suggested pattern jury 

instruction. See Suggested Pattern Jury Instructions, Vol. II:

Criminal Cases (2020), § 2.15.80. And, more to the point here, Moody 

failed to raise an objection regarding the trial court’s failure to give

 

OCGA § 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. 
120

the specific charge he had requested at the charge conference. As a 

result, his claim is reviewed only for plain error. See OCGA § 17-8-

58 (b); Martin, 298 Ga. at 278-279 (6) (d). 

There is no error, much less plain error, in the instruction

given. This Court has repeatedly approved the instruction that was 

given. See, e.g., Walker, 281 Ga. at 165 (11) & n.39. And there was 

no error in the trial court’s refusal to give the specific charge that 

Moody requested at the charge conference. See Humphreys, 287 Ga. 

at 81-82 (9) (b) (“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.”), disapproved 

on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3.28 

(b) In his closing argument, defense counsel argued:

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. . . .

 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”). 
121

After deliberating for less than two hours, the jury sent a note 

asking the trial court to “clarify” the apparent conflict between the 

trial court’s instructions “that the penalty verdict must be 

unanimous” and defense counsel’s argument that “there would be no 

hung jury” because “if 11 vote[d] for [the] death penalty and one 

vote[d] for life without parole, the result [would be] life without 

parole.” Moody requested that the trial court provide “some 

language” that would inform the jurors regarding what would 

happen if they were unable to reach a unanimous verdict. However, 

the trial court pointed out to defense counsel that the “[l]aw 

applicable to a hung jury, which is what you have described, is not 

applicable to [the jury] at this point in time,” and the trial court 

refused to give such an instruction. Instead, over Moody’s objection, 

the trial court told the jurors that the court had instructed them “as 

to the law applicable to this case” and directed them to the

unanimity instruction in their copy of the court’s written 

instructions that it had given them. 
122

On appeal Moody contends that the trial court erred by 

redirecting the jury to its previous instruction rather than 

instructing the jury about what would happen if it were unable to 

reach a unanimous verdict. But as we noted above, 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. 

[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. 

Humphreys, 287 Ga. at 81-82 (9) (b) (footnote, citations, and 

punctuation omitted). 29 Accordingly, the unanimity instruction that 

 29 In 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, 
123

the trial court directed the jury to recall was “a correct statement of 

the law even in the context of the sentencing phase of a death 

penalty trial.” Id. 

11. As discussed above, the State’s psychologist, Dr. Egan, was 

qualified without objection as an expert witness in the field of 

clinical and forensic psychology. Moody contends that his Sixth 

Amendment right of confrontation under Crawford v. Washington, 

541 U.S. 36 (124 SCt 1354, 158 LE2d 177) (2004), was violated when 

Dr. Egan was allowed to testify about the testing and evaluation of 

Moody conducted by two resident trainees and was then permitted 

to testify that Moody did not exhibit signs of “brain damage or brain 

disorder.” Even if this claim were preserved, it has no merit.

Dr. Egan testified that in 2012 Dr. Peter Ash, whom the trial 

court had asked to do an evaluation of Moody’s competence to stand 

trial and criminal responsibility at the time of the crimes, had “some 

 

because 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.

 
124

questions” that he wanted Dr. Egan to address, specifically, whether 

Moody was malingering. Dr. Egan testified that to assist him in his 

evaluation he had assigned two of his resident trainees who were 

clinical psychologists to conduct some psychological testing of Moody 

and that he himself met with Moody later. Dr. Egan also testified 

that the purpose of the testing that the trainees conducted was to 

detect malingering, that the testing was composed of two parts, and 

that Moody “became so uncooperative” that his trainees were unable 

to complete the second part of their testing. Dr. Egan relied on his 

own interview with Moody and his review of the test results to 

testify: “On that day that we evaluated him, yes, his behavior during 

that day suggested to us strongly that he was malingering.” Dr. 

Egan also testified that his opinions regarding Moody’s mental 

condition were based on his education and experience, on his review 

of numerous records, including records showing Moody’s extremely 

low verbal scores on intelligence tests that were wholly inconsistent 

with his personal observations of Moody’s ability to communicate, 

and on his own interview of Moody and interactions with him. On 
125

cross-examination, Dr. Egan confirmed that he was not present 

when the trainees conducted their testing of Moody. The trainees’ 

evaluation and testing results were not admitted into evidence.

We have previously explained: 

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).

Taylor v. State, 303 Ga. 225, 230 (4) (811 SE2d 286) (2018). 

However, we have also clarified that, “[i]n applying [the Sixth 

Amendment right to confront witnesses], there is a critical 

distinction between cases where the [test] results were admitted 

into evidence and those where the [test] results were merely used in 

an expert’s opinion.” Id. In the latter type of situations, “[t]he 

decision of Bullcoming . . . is inapplicable. . . .” Naji v. State, 300 Ga. 
126

659, 663 (2) (797 SE2d 916) (2017) (citation omitted).

Here, the State never sought to admit the trainees’ testing and 

evaluation into evidence. Instead, Dr. Egan used the facts contained 

therein, including factual data collected by the trainees, to inform 

his expert opinion as to whether Moody had malingered on the 

State’s tests and to inform his opinions regarding Moody’s mental 

condition. Accordingly, “[t]he expert opinion admitted at trial was 

not the restatement of the diagnostic opinion of another expert.” 

Naji, 300 Ga. at 663 (2) (citation and punctuation omitted). 

Therefore, the Confrontation Clause was not violated. See Taylor, 

303 Ga. at 230 (4) (holding that the Confrontation Clause was not 

violated where the medical examiner testified as to his independent, 

expert opinion regarding the facts contained in the report of an 

autopsy that he did not conduct and where the State did not seek to 

admit the report itself); Naji, 300 Ga. at 662-663 (2) (same, where 

the medical examiner used another examiner’s autopsy report, 

which was not admitted, to testify about his opinion on the victim’s 
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cause of death).30

12. Moody argues that, pursuant to the federal and state 

constitutions, he is ineligible for the death penalty by virtue of his 

“serious mental illness.” Even apart from the fact that Moody failed 

even to seek a jury verdict on his alleged mental illness, this claim

is meritless. See Brookins v. State, 315 Ga. 86, 110 (16) (879 SE2d 

466) (2022) (reaffirming “that persons with ‘mental illness’ [do not] 

constitute a category of persons that, like intellectual disability, 

must be subject to a categorical exemption from death sentences”

 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). 
128

(citing Lewis v. State, 279 Ga. 756, 764 (12) (620 SE2d 778) (2005)).

13. Moody contends that the practice of qualifying jurors 

according to their death penalty views is unconstitutional for 

various reasons. Pretermitting whether he has abandoned this 

claim by providing no meaningful argument or citation to authority 

to support his contentions, see Supreme Court Rule 22, we hold that 

the claim is meritless. See, e.g., Walker, 281 Ga. at 162 (8) 

(“Qualifying prospective jurors based upon their death penalty 

views does not deny capital defendants their right to an impartial 

jury drawn from a representative cross-section of the community 

and is not otherwise unconstitutional.” (citing Wainwright v. Witt, 

469 U.S. 412, 418-426 (105 SCt 844, 83 LE2d 841) (1985)).

Pretermitting whether Moody has standing to challenge deathqualification on the ground that it violates prospective jurors’ 

constitutional rights to serve as jurors, we reject his claim to that 

effect here. See King v. State, 273 Ga. 258, 267 (20) (539 SE2d 783) 

(2000) (rejecting a claim that “the constitutional right to freedom of 

religion and conscience [is violated] where a juror is stricken for 
129

cause based upon death penalty views that are derived from 

religion” without first addressing the question of standing), 

disapproved on other grounds by Clark v. State, 315 Ga. 423, 435 

n.16 (883 SE2d 317) (2023). The United States Supreme Court has 

recognized that only “qualified” jurors are entitled to serve. Smith v. 

Texas, 311 U.S. 128, 130 (61 SCt 164, 85 LE2d 84) (1940). A juror is 

not qualified if “his or her views on capital punishment . . . would 

prevent or substantially impair the performance of his duties as a 

juror in accordance with his instructions and his oath.” Morgan v. 

Illinois, 504 U.S. 719, 728 (112 SCt 2222, 119 LE2d 492) (1992) 

(citation and punctuation omitted)); see also Humphreys, 287 Ga. at 

71-72 (5), disapproved on other grounds by Willis, 304 Ga. at 706 

(11) (a) n.3.

14. Moody contends that the trial court erred by denying his 

motion challenging the constitutionality of Georgia’s death penalty 

statutes on several different grounds. For the reasons set forth 

below, we discern no error.

(a) Moody contends that Georgia’s death penalty scheme fails 
130

sufficiently to narrow the class of persons eligible for the death 

penalty. However, this Court has repeatedly rejected similar claims, 

and Moody offers no persuasive reason to do otherwise here. See, 

e.g., Arrington v. State, 286 Ga. 335, 337 (4) (687 SE2d 438) (2009) 

(citing Zant v. Stephens, 462 U.S. 862, 876-879 (103 SCt 2733, 77 

LE2d 235) (1983), for the proposition that “Georgia’s statutory 

aggravating circumstances constitutionally narrow the class of 

death-eligible defendants”). 

(b) Moody makes an equal protection claim that Georgia’s 

death penalty statutes provide no uniform standard or procedure 

guiding the decision to seek the death penalty made by the district 

attorneys in the State’s numerous judicial circuits. But we have 

previously explained that district attorneys do not have unfettered 

discretion under the death penalty statutes, because “[a] district 

attorney’s decision to seek the death penalty requires the exercise of 

professional judgment as to whether an aggravating circumstance 

exists and, thus, as to whether the imposition of the death penalty 

should be submitted for a jury’s determination.” Crowe v. State, 265 
131

Ga. 582, 595 (24) (458 SE2d 799) (1995). “The [district attorney]’s 

discretion is also ‘limited by the jury’s ultimate decision’ and the 

‘strength of the evidence’ in any given case.” Wagner v. State, 282 

Ga. 149, 152 (5) (646 SE2d 676) (2007) (citation omitted). Moreover, 

Moody’s claim fails because “he has not shown any invidious 

discrimination in his case.” Ellington, 292 Ga. at 116 (3) (b), 

disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3. 

(c) Lastly, Moody asserts that Georgia’s death penalty statutes 

give unguided discretion to the jury over how to consider mitigating 

circumstances, resulting in the arbitrary imposition of the death 

penalty. But Moody has not alleged that the trial court failed to 

charge his jury properly at his sentencing trial on mitigating 

circumstances, and “the Georgia death penalty scheme sufficiently 

narrows the application of the death penalty and guides the jury’s 

consideration of it as a possible sentence, while also affording jurors 

the latitude to consider all mitigating circumstances in their 

deliberations.” Ellington, 292 Ga. at 116 (3) (a), disapproved on other 

grounds by Willis, 304 Ga. at 706 (11) (a) n.3. 
132

Sentence Review

15. Upon our review of the entire record, including those 

portions relevant to the improper victim impact testimony that we 

discuss above and relevant to the improper cross-examination of an 

expert witness and the improper examination of a lay witness that 

our analysis above assumes to have occurred,31 we conclude that the 

sentence of death in this case was not imposed under the influence 

of passion, prejudice, or any other arbitrary factor. See OCGA § 17-

10-35 (c) (1); see also Martin, 298 Ga. at 279 (6) (d) (stating regarding 

this Court’s review under OCGA § 17-10-35 (c) (1): “That plenary 

review guards against any obvious impropriety at trial, whether 

objected to or not, that in reasonable probability led to the jury’s 

decision to impose a death sentence.”). 

 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.
133

16. In its sentencing verdict, the jury found beyond a 

reasonable doubt that Kimble’s murder was committed while Moody 

was engaged in the capital felonies of the murder of Mattox and the 

rape of Kimble, that it was committed for the purpose of receiving 

money or any other thing of monetary value, and that it was 

outrageously or wantonly vile, horrible, or inhuman in that it 

involved torture and an aggravated battery to the victim and the 

depravity of mind of the defendant. See OCGA § 17-10-30 (b) (2), (4), 

(7). The jury found beyond a reasonable doubt that Mattox’s murder 

was committed while Moody was engaged in the capital felonies of 

the rape and murder of Kimble, that it was committed for the 

purpose of receiving money or any other thing of monetary value, 

and that it was outrageously or wantonly vile, horrible, or inhuman 

in that it involved torture and an aggravated battery to the victim 

and the depravity of mind of the defendant. See OCGA § 17-10-30 

(b) (2), (4), (7). As we concluded in our review in Division 1, the 

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

reasonable doubt the existence of each of these statutory 
134

aggravating circumstances. And, “[e]ven applying what this Court 

has previously described as a ‘rule’ against ‘mutually supporting 

aggravating circumstances,’ both death sentences in this case 

remain supported by [at least] one statutory aggravating 

circumstance.” Brookins, 315 Ga. at 115 (23). 

17. In the direct appeal of a death sentence, this Court is 

required to determine “[w]hether the sentence of death is excessive 

or disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant.” OCGA § 17-10-35 (c)

(3). In making this determination, we note that Moody’s crimes were 

brutal, unprovoked attacks on minor victims that went well beyond 

the robbery that served as his initial motive. Moody forced his 

victims to strip naked, bound the 15-year-old male victim, raped and 

strangled the 13-year-old female victim, viciously stabbed both of 

the victims repeatedly with a sharp instrument like a screwdriver, 

and then left them in the woods to bleed to death. Upon our review 

of all of the evidence presented in the sentencing trial, we conclude 

that the death sentences imposed for the murders in this case are 
135

not disproportionate punishment within the meaning of Georgia 

law. See id.; Gissendaner v, State, 272 Ga. 704, 717 (19) (a) (632 

SE2d 677) (2000) (holding that this Court’s statutorily mandated 

proportionality review concerns whether “a given sentence is 

excessive per se or substantially out of line”). The cases in the 

Appendix support this conclusion, as each shows a jury’s willingness 

to impose a death sentence for the commission of a murder involving 

the section (b) (7) statutory aggravating circumstance or a murder 

involving a minor person, a rape, or the deliberate, unprovoked 

killing of two or more persons. See Barrett v. State, 292 Ga. 160, 190 

(4) (733 SE2d 304) (2012) (stating that this Court is “not required to 

find identical cases for comparison in [its] proportionality review.”).

Judgment affirmed. All the Justices concur.
136

APPENDIX

Brookins 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).