KIMBRO v. THE STATE
S23A0678
In the Supreme Court of Georgia
Decided: October 11, 2023
WARREN, Justice.
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
Appellant Torrey Kimbro was convicted of malice murder and rape in connection with the strangling death of Diamond Shepherd.1 In this appeal, Kimbro contends that the evidence presented at his trial was legally insufficient to support his convictions. He also claims that the trial court erred in the following ways: by denying his motion for new trial on the “general grounds” set forth in OCGA
1. The evidence presented at Kimbro‘s trial showed the following. On November 3, 2009, Shepherd, who was 17 years old, was staying in a motel room near Fulton Industrial Boulevard in Atlanta with her boyfriend Edwin Perkins, Perkins‘s cousin, and the cousin‘s girlfriend. Around 3:00 p.m., investigators responded to a 911 call from a maintenance worker at the motel, who found Shepherd lying on her back on the floor of her room near the door, dead. A towel was covering her face; her shirt and bra were pushed up, exposing her breasts; her shorts were pulled down around her right ankle, exposing her vagina; and her legs were spread apart. Her purse was across her body, with the strap around her neck. Unopened condoms were strewn nearby. The bed had been moved, as if there had been a struggle. Investigators also observed “fluid leaking” from Shepherd‘s vagina.
Shepherd‘s boyfriend, Perkins, testified that Shepherd often had sex with men in exchange for money. He said that on the day Shepherd was killed, he and his cousin left the motel around 7:00 a.m. to run errands. Shepherd called him from the motel room phone around 12:00 or 12:30 p.m.2 When he arrived back at the motel room with his cousin and the cousin‘s girlfriend, they saw investigators in the room and learned that Shepherd had been killed. The maintenance worker who discovered Shepherd‘s body testified that around 12:00 or 12:30 p.m., he was working on the breezeway near Shepherd‘s room when she passed by with a man who was “shorter than 6‘2“” and “about 200 pounds” and had dreadlocks. The maintenance worker thought that the man was planning to pay Shepherd for sex. Shepherd asked the maintenance worker to let her and the man into her room because her key was not working; the maintenance worker let her in; and the man followed her. The maintenance worker saw the man leave about 45 minutes later, but he did not know if Shepherd left the room after that or if anyone else came to the room.3
The medical examiner who performed Shepherd‘s autopsy found abrasions on her neck and an “impression” on the front and
In September 2010, the GBI was notified that the DNA profile that was uploaded to CODIS matched Kimbro. A GBI forensic biologist then performed a comparison of the DNA profile and Kimbro‘s reference sample in CODIS and confirmed the match. The GBI notified the lead detective for the case, who determined that Kimbro was in prison for unrelated crimes. The detective testified that although he believed he had probable cause to arrest Kimbro, he never obtained an arrest warrant and did not continue to work on the case, because Kimbro was already in prison and the detective wanted to focus on “the other cases [he] had.” The case was eventually classified as a “cold case.” In May 2017, an investigator who was assigned to the “cold case” unit reviewed the case file and obtained an arrest warrant for Kimbro; he was arrested in March 2020. Investigators then obtained a buccal swab from Kimbro and performed additional DNA testing, which confirmed that the DNA profile generated from the swabs matched Kimbro.
At trial, the State also presented evidence that on December 21, 2009 (less than two months after Shepherd‘s murder), Kimbro choked then 22-year-old Robertenette Gordon-Deaver in another motel room in the same motel near Fulton Industrial Boulevard. Gordon-Deaver testified that sometime between 8:00 and 10:00 p.m., she encountered Kimbro, whom she did not know, near the motel, where she was staying, and he agreed to pay her for sex. When they went inside her motel room, he sprayed mace in her face, grabbed her neck with his hands, and choked her. She screamed for help, and a security guard at the motel and a man who was staying in a nearby room ran into Gordon-Deaver‘s room, scuffled with Kimbro, and eventually handcuffed him and called the police, who arrested him.
Kimbro elected not to testify at trial, but he presented testimony from a detective who reviewed the case in 2014 and determined that there was not probable cause to arrest Kimbro, despite the DNA evidence, because the maintenance worker‘s description of the man who was with Shepherd about two hours before her body was discovered did not match Kimbro‘s appearance. Kimbro‘s primary theory of defense was that although Kimbro had sex with Shepherd at some point before her death, the man with dreadlocks whom the maintenance worker saw killed Shepherd. To rebut that theory, the prosecutor argued that the maintenance worker said the man with dreadlocks left Shepherd‘s room around 12:45 or 1:15 p.m.—about two hours before Shepherd‘s body was found—and that there was ample time for Kimbro to encounter, rape, and kill Shepherd during that timeframe.
2. Kimbro contends that the evidence presented at his trial was insufficient—as a matter of constitutional due process and as a matter of Georgia statutory law—to support his convictions for rape and malice murder.5 This claim fails.
When properly viewed in the light most favorable to the jury‘s verdicts, the evidence at trial showed that when investigators discovered Shepherd‘s dead body on the floor of her motel room, the strap of her purse was around her neck; unopened condoms were strewn around her body; her shirt and bra were pushed up, exposing her breasts; her shorts were pulled down, exposing her vagina; her legs were spread apart; and fluid containing Kimbro‘s DNA was still “leaking”
The evidence presented at trial and summarized above authorized the jury to reasonably infer that Kimbro had sex with Shepherd “forcibly and against her will,” see
The evidence, though circumstantial, was also sufficient as a matter of Georgia statutory law. See
3. Kimbro next contends, in two related enumerations of error, that the trial court abused its discretion by denying his motion for new trial on the “general grounds” under
At the hearing on the continuance motion, which was held on the first day of jury selection, Kimbro‘s trial counsel argued that the updated witness list provided contact information for six witnesses and that she would not have time to interview those witnesses before the prosecutor called them to testify. Counsel also noted that most of the additional discovery that the prosecutor had filed contained nothing new, with the exception of two recordings of investigators’ interviews with Perkins and the maintenance worker on the day of the murder. The prosecutor responded that she had been asking officers with the police department for the recordings and that she had found them at the department with the physical evidence for the case (rather than in the case file, where she had expected them to be) the day before she notified Kimbro‘s trial counsel. Kimbro‘s counsel then said that due to technical issues, she had not been able to play the recordings. The trial court said that it would give Kimbro‘s counsel time during the trial to interview witnesses and that the court‘s Information Technology (“IT“) staff would be available to help counsel with any technical issues. The court then denied the motion for a continuance.
We see no abuse of discretion in the trial court‘s decision to deny Kimbro‘s motion. As discussed above, the court fashioned appropriate, alternative remedies by allowing trial counsel time to interview witnesses and by offering the services of the court‘s IT staff. The record shows that during the trial, the court paused the proceedings to provide trial counsel time to interview Perkins before he testified, and counsel testified at the motion for new trial hearing that she interviewed Gordon-Deaver in the hallway outside the courtroom (but that after a few minutes, Gordon-Deaver refused to talk with her). The record also shows that trial counsel did not mention any further technical issues with the recordings. Given these circumstances, Kimbro‘s claim fails. See, e.g., Brittian v. State, 299 Ga. 706, 707-708 (791 SE2d 810) (2016) (concluding that the trial court did not abuse its discretion by denying the defendant‘s motion for a continuance on the ground that the State added 16 witnesses to its list 10 days before trial, because “the trial court ensured that, during the course of the trial, [the defendant] would be provided with an opportunity to interview the State‘s additional witnesses prior to their testimony being given“); Collum v. State, 281 Ga. 719, 723-724 (642 SE2d 640) (2007) (holding that there was “no error” in the trial court‘s denial of the defendant‘s continuance motion on the grounds that he received “amended witness lists and additional documentation from the State shortly before trial“).9
5. Kimbro claims that the trial court erred by denying his motion to dismiss the indictment in this case on the ground that the more than 11-year delay between Shepherd‘s rape and murder in November 2009 and Kimbro‘s arrest in March 2020 violated his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution. See United States v. Marion, 404 U.S. 307, 324 (92 SCt 455, 30 LE2d 468) (1971) (explaining that an inordinate delay between the time a crime is committed and the time a defendant is arrested or indicted may violate due-process guarantees). See also United States v. Lovasco, 431 U.S. 783, 784-797 (97 SCt 2044, 52 LE2d 752) (1977) (reversing the district court‘s dismissal of the defendant‘s indictment on the ground that the delay between the alleged crimes and the indictment violated his right to due process and explaining that “to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time“).10 To prevail on this claim, Kimbro must “prove (1) that the delay caused actual prejudice to his defense, and (2) that the delay was the result of deliberate prosecutorial action to give the State a tactical advantage.” Curry v. State, 291 Ga. 446, 449 (729 SE2d 370) (2012) (citation omitted). After a hearing, the trial court issued an order denying the motion to dismiss, concluding that Kimbro had not established either part of the test. Pretermitting whether Kimbro has shown actual prejudice, we agree that he has not demonstrated that the State engaged in deliberate delay to gain a tactical advantage. See Jackson v. State, 279 Ga. 449, 451 (614 SE2d 781) (2005) (explaining that an appellant‘s failure to satisfy one part of the test “obviates any need to consider” the other).
Kimbro does not allege in his appellate brief that the delay was an intentional attempt
6. Kimbro argues that the trial court abused its discretion by
denying his motion for a mistrial. We disagree.
During the prosecutor‘s direct examination of the investigator who reviewed the “cold case” file and obtained an arrest warrant for Kimbro, the prosecutor asked about the investigator‘s training, and he responded that he had “received training from the Federal Bureau of Investigation‘s Behavioral Science Unit.” The prosecutor asked what that training involved, and the investigator said, “That training involved basically the serial killers -- .” Trial counsel then interrupted and asked to approach the bench, where she moved for a mistrial based on the reference to “serial killers.” The trial court denied the motion and offered to give a curative instruction. Trial counsel agreed, and the court then instructed the jury that the court was “strik[ing] from [its] consideration the last testimony from the witness that training involved basically serial killers“; that the testimony “ha[d] nothing to do with this case“; that “[t]he [S]tate‘s question was not pointed to that type of training“; and that it “was an inadvertent comment.”
Assuming without deciding that Kimbro preserved this claim for appellate review, it fails.11 “[T]he decision to grant a
7. Kimbro contends that the trial court abused its discretion by overruling several of his objections to certain statements that the prosecutor made during her closing argument. As explained below, we see no reversible error in this respect.
First, Kimbro points to three comments the prosecutor made to the effect that if the jurors believed Kimbro was guilty, they had a “duty” or “obligation” to convict him. Kimbro objected to each of the comments when they were made, asserting that they were a misstatement of the law, and the trial court overruled the objections. However, when the prosecutor made a fourth comment along those lines, arguing that the jury had “an obligation to convict [Kimbro] of each and every crime in this indictment,” the trial court interrupted, saying that it “need[ed] to correct some of the arguments.” The court then instructed the jury on the presumption of innocence, the State‘s burden of proof, and reasonable doubt, explaining, among other things, that the jurors would be “authorized to convict” Kimbro if they found him guilty beyond a reasonable doubt, but that “it would be [their] duty to acquit” Kimbro if the State failed to prove guilt beyond a reasonable doubt. The court repeated these instructions during the final jury charge.
Applying the harmless-error standard, even assuming that the trial court abused its discretion by overruling Kimbro‘s objections, it is highly probable that any such error did not contribute to the verdicts. See Allen v. State, ___ Ga. ___ (890 SE2d 700, 708) (2023) (“‘A nonconstitutional error is harmless if the State shows that it is highly probable that the error did not contribute to the verdict.‘“) (citation omitted). As discussed above, after the trial court overruled Kimbro‘s objections, the court interrupted the prosecutor‘s argument in order to “correct” it, and then thoroughly and accurately instructed the jury on the presumption of innocence, the State‘s burden of proof, and reasonable doubt. The trial court provided these same instructions during its preliminary charge, and during the final charge, the court repeated the instructions and reiterated that it was the court‘s duty to instruct on the law that applied to the case. Under these circumstances, any error in the trial court‘s overruling Kimbro‘s objections was harmless. See, e.g., Williams v. State, 297 Ga. 460, 463 (773 SE2d 213) (2015) (holding that the trial court abused its discretion by overruling the appellant‘s objection to the prosecutor‘s misstatement of the law regarding justification during his closing argument, but that the error was harmless because the trial court fully instructed the jury on that point and made it
Second, just after the trial court provided the instructions discussed above, the prosecutor said, “[T]here is no defense raised by this evidence. The evidence is that this defendant left.” Kimbro objected on the ground that the prosecutor‘s argument improperly shifted the burden of proof to the defense, and the trial court overruled the objection. Kimbro argues that the trial court abused its discretion, but as we have explained, “[a] prosecutor has ‘wide latitude in the conduct of closing argument, the bounds of which are in the trial court‘s discretion.‘” Ridley v. State, 315 Ga. 452, 458 (883 SE2d 357) (2023) (citation omitted). Viewed properly in context, the prosecutor‘s comment merely emphasized to the jury that Kimbro had not successfully rebutted or explained the State‘s evidence. Thus, the trial court did not abuse its discretion by determining that the statement fell within the permissible bounds of closing argument. See id. (concluding that it was not improper for the prosecutor to point out during closing argument that the defendant had failed to rebut or explain the State‘s evidence, and explaining that such comments did not amount to an improper burden-shifting argument).
Third, Kimbro alleges that the trial court abused its discretion by overruling his objection to the prosecutor‘s statement near the end of her closing argument, “I submit to you that there should be no jury nullification.” We cannot say that the trial court abused its discretion by concluding that this statement, which essentially encouraged the jurors to decide the case based on the evidence presented, was not improper. Cf. Menefee v. State, 301 Ga. 505, 515 (801 SE2d 782) (2017) (explaining that a prosecutor‘s statements during closing argument urging jurors to draw reasonable conclusions from the evidence are not improper).12
8. Kimbro contends that his trial counsel provided constitutionally ineffective assistance in several ways. To prevail on these claims, Kimbro must show that his lawyer‘s performance was constitutionally deficient and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To prove deficient performance, Kimbro must establish that his trial counsel “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Clark v. State, 315 Ga. 423, 442 (883 SE2d 317) (2023) (citation and punctuation omitted). See also Strickland, 466 U.S. at 688-689. To prove prejudice, Kimbro “must show a reasonable probability that, but for counsel‘s deficient performance, the result of the trial would have been different.” Clark, 315 Ga. at 442. See also Strickland, 466 U.S. at 694. We need not address both components of the Strickland test if Kimbro makes an insufficient showing on one. See Strickland, 466 U.S. at 697; Clark, 315 Ga. at 442. And in reviewing a claim of ineffective assistance of counsel, we accept the trial court‘s factual findings and credibility determinations unless clearly erroneous, but we review the court‘s legal conclusions de novo. See Davis v. State, 306 Ga. 430, 432 (831 SE2d 804) (2019).
(a) Kimbro first argues that his trial counsel provided ineffective assistance by failing to fully investigate certain witnesses. But Kimbro did not raise this claim in his motion for new trial or in any of his amended motions, and the trial court did not rule on it. Thus, he has not preserved this claim for our review. See Allen, 890 SE2d at 711 (explaining that “[i]neffectiveness claims must be raised and pursued at the earliest practicable moment, which for a claim of ineffective assistance of trial counsel is at the motion for new trial stage if the
(b) Kimbro next claims that his trial counsel was ineffective for failing to cross-examine Gordon-Deaver. In particular, Kimbro asserts that he attacked Gordon-Deaver because she had robbed his wife, who died before trial, and that counsel should have elicited testimony to that effect from Gordon-Deaver. As the trial court correctly determined in its order denying Kimbro‘s motion for new trial, Kimbro has not shown that counsel performed deficiently, so he cannot succeed on this claim.
At the motion for new trial hearing, trial counsel testified that she briefly interviewed Gordon-Deaver before she testified, but shortly after the interview began, Gordon-Deaver refused to talk to her. Counsel also testified that she decided not to cross-examine Gordon-Deaver because she did not think it would have been “helpful to ... Kimbro“; counsel doubted Gordon-Deaver would have admitted robbing, or even knowing, Kimbro‘s wife, so counsel could not have elicited information about Kimbro attacking Gordon-Deaver to seek revenge; and Gordon-Deaver was “a victim,” so “going after her would not necessarily make ... Kimbro look good in the jury‘s eyes.” Counsel then testified that she believed the better strategy was “to disregard [Gordon-Deaver] as a witness” and to “play up the idea” that the State used her testimony to show Kimbro‘s propensity to commit the charged crimes, because it had “little evidence” of his guilt. In its order denying Kimbro‘s motion for new trial, the trial court expressly credited trial counsel‘s testimony on this point.
In light of trial counsel‘s assessment of Gordon-Deaver‘s potential testimony, we cannot say that no competent attorney would have decided not to cross-examine her. The record supports counsel‘s testimony that her strategy was to downplay the importance of Gordon-Deaver‘s testimony about the attack and to instead assert, as she did in closing argument, that the State introduced the evidence to bolster its otherwise weak case against Kimbro. Kimbro has failed to show that this strategy was objectively unreasonable, so he has not proven that his trial counsel was deficient in this respect. See, e.g., Gaston v. State, 307 Ga. 634, 642-643 (837 SE2d 808) (2020) (explaining that “[t]he scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel,” and holding that trial counsel‘s decision not to cross-examine a witness and to instead focus his closing argument on the inconsistencies in the witness‘s testimony was not objectively unreasonable and thus did not amount to deficient performance) (citation omitted); Lawrence v. State, 286 Ga. 533, 534 (690 SE2d 801) (2010) (concluding that trial counsel‘s decision not to cross-examine several of the State‘s witnesses was “reasonable trial strategy” and that he therefore did not perform deficiently, as counsel “testified at the motion for new trial hearing that he felt that cross-examining the witnesses in question would not have added anything beneficial to [the] defense, because it merely would have given the witnesses a chance to further implicate [the defendant] with their emphasized testimony“).
(c) Kimbro argues that his trial counsel provided ineffective assistance by failing to object to testimony from a forensic toxicologist on the ground that it was not relevant under
Rule 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of
(d) Kimbro claims that his trial counsel was ineffective for failing to object to the trial court‘s refusal to instruct the jury on mere presence and mere association. But the trial court thoroughly and properly instructed the jury on the presumption of innocence and the State‘s burden to prove beyond a reasonable doubt each essential element of the charged crimes during its preliminary instructions, during the prosecutor‘s closing argument, and again during the final jury charge. The court also accurately instructed the jury on circumstantial evidence, criminal intent, and the elements of malice murder and rape. Considering the charge as a whole, the jury was adequately informed that it was not authorized to convict Kimbro if he was merely present at the scene of the crimes or if he was merely associated with some other perpetrator. Thus, Kimbro cannot establish that his trial counsel performed deficiently by failing to object to the trial court‘s refusal to give those instructions. See Downey v. State, 298 Ga. 568, 574-575 (783 SE2d 622) (2016) (holding that trial counsel did not perform deficiently by failing to object to the omission of jury instructions on knowledge and shared intent, because the charges as a whole “were sufficient to cover the knowledge and shared intent required” for the defendant to be convicted); Simmons v. State, 282 Ga. 183, 188 (646 SE2d 55) (2007) (holding that the trial court did not err by failing to instruct the jury on mere presence and guilt by association, because “mere presence is only a corollary to the requirement that the State prove each element of the crime charged, and . . . the trial court‘s instructions clearly informed the jury of this requirement“).
(e) Finally, Kimbro contends that his trial counsel provided ineffective assistance by failing to request DNA testing of a condom that was found in the toilet in Shepherd‘s motel room, hairs and fibers taken from Shepherd‘s purse, and fingernail clippings taken from Shepherd. As the trial court correctly concluded in its order denying Kimbro‘s motion for new trial, trial counsel did not perform deficiently in this respect, because her decision not to pursue DNA testing was reasonably strategic. Trial counsel testified at the hearing on Kimbro‘s motion for new trial that she made a strategic choice not to request DNA testing of the condom, hairs, fibers, and fingernail clippings because the results of the testing may have been “inculpatory rather than exculpatory.” And the record shows that trial counsel used the lack of DNA testing to advance the defense theory that the case had not been adequately investigated, as counsel emphasized the fact that the State had not tested the condom, purse, or fingernail clippings during her opening statement, during her cross-examination of the “cold-case” investigator, and during her closing argument. Because trial counsel‘s decision not to request DNA testing on the items Kimbro claims should have been tested was not objectively unreasonable such that no competent attorney would have made such a decision, Kimbro has not proven that counsel performed deficiently. This claim, like Kimbro‘s other claims of ineffective assistance, is meritless. See Horton v. State, 310 Ga. 310, 328 (849 SE2d 382) (2020) (explaining that “decisions as to what witnesses and other evidence to present are matters of trial strategy and are
Judgment affirmed. All the Justices concur, except Peterson, P.J., not participating.