Nundra v. StateNundra v. State
- Reporters:
- ,
- Before:
- Peterson, All
Thaddas Nundra was convicted of murder and many other serious charges related to the shooting death of Herbert Moore.1 On
We assume without deciding that the trial court made two errors. First, we assume that the trial court abused its discretion in admitting evidence of Nundra‘s 1997 convictions for armed robbery and hijacking a motor vehicle. And second, we assume that the trial court erred in admitting certain evidence of the victim‘s good character. We conclude, however, that these errors were harmless, both individually and cumulatively.
And we reject Nundra‘s remaining claims. The trial court did not abuse its discretion in allowing the State to compare Nundra to
We therefore affirm Nundra‘s convictions.
1. (a) The Crime2
On the night of October 25, 2017, Nundra, Ronnie McFadden, and Louis Ousley were spending time at Na‘Gina Hightower‘s apartment. Hightower was dating McFadden at the time, even though McFadden was married to someone else. They were there to
The three men walked towards a pawn shop, planning to break into it. As they tried to figure out a way over the fence around the pawn shop, Nundra noticed a man in a truck in a parking lot across the street.
Watching the driver, Herbert Moore, park his vehicle, Nundra asked Ousley to hand over the gun he had brought. Nundra told McFadden and Ousley he was going to rob Moore, and he went and hid in the bushes behind the truck.
He then ran up to Moore and demanded he “[g]ive it up.” Moore attempted to fight back, and Nundra fired eight shots, hitting Moore twice. Nundra, McFadden, and Ousley fled the scene.
(b) The Aftermath
Around 6:00 a.m., Hightower heard the shots ring out from her nearby apartment. Roughly 20 minutes later, McFadden and Ousley came running back into her apartment. They were in a near panic; McFadden collapsed on the floor, struggled for breath, and threw up.
Nundra cleaned himself and cooked breakfast. He talked about the murder, and warned McFadden and Ousley he would kill them if they talked to the police. As Nundra prepared to leave Hightower‘s apartment, he said he was going to burn his clothes.
After dropping Hightower‘s son off at school, Nundra and McFadden went back to McFadden‘s home. There, they burned their clothing, and Nundra changed clothes a second time. McFadden‘s wife saw them burning something, and said that Nundra needed to leave.
(c) The Investigation
When police arrived on the scene of the shooting, they found six cartridge casings by the back left tire of the truck. There were
The investigators then canvassed the nearby streets. They initially learned of two suspects: Nundra and McFadden. They also learned that Nundra was driving a white Dodge truck. Nundra later gave police consent to search his truck. There was nothing in the truck specifically implicating Nundra in the shooting, though he did appear to have packed the vehicle as though he were leaving town.
Sometime later, a city employee contacted investigators about a black puffy jacket discovered in the wooded area of a nearby park.3 They then went to search the park, where they found a gun wrapped in a stocking hat — partially buried near the place where the black jacket had been found.
After that, the police detained McFadden and Ousley, and arrested Nundra in connection with the murder. Nundra admitted that he was in the area with McFadden and Ousley, but he claimed
Later on, the gun and the stocking hat were sent for forensic testing. The GBI determined that the bullets and casings collected at the crime scene all came from the gun. And a DNA specialist found a match of DNA profiles between Nundra and a sample taken from the hat.
(d) The Trial
Four aspects of the trial are relevant to this appeal.
i) First, the State introduced, over Nundra‘s objection, evidence of Nundra‘s 1997 convictions for armed robbery and hijacking a motor vehicle. That evidence showed the following. On a Sunday night in December 1996, a man named Rufus Walker was driving his car, and he made contact with Nundra. Nundra pulled a gun and shot him multiple times — including once in the left eye, which Walker lost. Nundra also beat Walker with the pistol, robbed him, and stole his car.
Before this evidence was presented to the jury, the trial court
in order to prove its case as alleged in the indictment, the State must [show] knowledge, intent, participation — conspiracy, plan, preparation, and it may show motive or opportunity. To do so the State intends to offer evidence of other acts allegedly committed by an accused. You‘re permitted to consider that evidence only insofar as it may relate to those issues and not for any other purpose. You may not infer from such evidence that the accused is of a character that would commit such crimes.
The trial court repeated essentially the same admonition in its final jury instructions. This time, the court added
[a]gain, such evidence . . . may not be considered by you for any other purpose. The accused is on trial for the offenses charged in the bill of indictment only and not for any other acts[,] even though such acts may incidentally be criminal and may have resulted in conviction. Before you may consider any [such] acts for the limited purposes stated earlier, you must first determine whether it‘s more likely than not that the accused committed the other alleged acts. If so, you then must determine whether the acts shed any light on the elements of the offense for which the act has been admitted in the crimes charged in the indictment . . . . Remember to keep in mind the limited use and prohibited
use of this evidence about . . . other acts of the accused.
The State talked about these convictions during closing arguments: “Mr. Nundra intimidates people based on fear. He likes to bully people. Likes to pick on people when they‘re vulnerable. In the ‘90s when Mr. Rufus Walker is in a vehicle, he goes up to him, Mr. Walker can‘t see him, shoots him in the eye. When Mr. Moore is trying to get in his work truck, sneaks up behind him from the bushes with a gun and shoots him. Because he‘s a bully.”
ii) Second, various pieces of evidence came in tending to show the good character of the victim and evoke sympathy for him, his widow, and the community. Donald Grubbs, who heard the gunshots from his home and had his wife call the police, discussed his relationship with Moore and described him as the “nicest fellow.” Along the same lines, a police captain who responded to the scene said that he had known Moore for “20-something years” and was sad while he gave the victim chest compressions. And, most importantly, the State elicited more of this sort of evidence from Moore‘s widow. In response to a question about why Moore had not retired, she
iii) Third, and again during closing arguments, the State compared Nundra to serial killers Jeffrey Dahmer, Charles Manson, and Ted Bundy, calling Nundra a “sociopath.”
iv) Finally, Nundra objected to the introduction of DNA evidence analyzed through TrueAllele software. The stocking hat contained the DNA profiles of at least four individuals, testified Emily Mathis, a forensic biologist for the GBI, and so the GBI used TrueAllele to analyze those samples. Explaining the scientific value of the TrueAllele software, Mathis testified that it “uses very high level mathematics and algorithms in order to interpret [the] data
2.
Nundra first argues that the trial court abused its discretion in admitting evidence of Nundra‘s 1997 convictions under Rule 404 (b). We need not decide whether he is correct, because even if this was error, it was harmless given the strength of the other evidence against Nundra, the trial court‘s instruction that the jury could not use the evidence to conclude Nundra had a propensity to commit these sort of crimes, and the fact that the jury was told Nundra had been charged and pleaded guilty for the crimes.
A trial court‘s evidentiary error “requires reversal of [the
Generally, we have found Rule 404 (b) errors harmless “where the properly admitted evidence . . . was so strong that the prejudicial effect of the other-acts evidence had no significant influence on the guilty verdicts.” Heard, 309 Ga. at 91 (3) (g) (collecting cases); see also Thompson v. State, 302 Ga. 533, 542 (III) (A) (807 SE2d 899) (2017) (“Where evidentiary error is deemed harmless, it is often true that the evidence was only ‘marginal’ to the prosecution‘s case.“) (quoting Johnson v. State, 301 Ga. 277, 280 (2) (800 SE2d 545) (2017)).
And so it is here. Evidence of previous violent crimes like the
First and foremost, the evidence of Nundra‘s guilt was very strong. Ousley testified that Nundra participated in planning a burglary, and then used Ousley‘s gun to attempt to rob Moore — but ended up killing him instead. Ousley also testified that a jacket recovered in a nearby park was the same one Nundra had been
Second, the evidence also made clear that Nundra had committed the prior crime a long time ago, and that he had pleaded guilty. And although it does not appear the jury was ever told what sentence Nundra received for his crimes, the knowledge of his guilty plea nonetheless reduces the risk that the jury convicted Nundra to punish him for his other crimes, because the jury could infer that Nundra had already been punished for those crimes.4 Compare
Third, although the trial court‘s limiting instructions did not meaningfully explain for which permissible purpose the evidence was relevant, they did, at least, tell the jury what it could not do: “You may not infer from such evidence that the accused is of a character that would commit such crimes.” And we have held that this sort of admonition can lower the risk that the jury will convict for the wrong reasons. See Morrell v. State, 313 Ga. 247, 262 (2) (c) (869 SE2d 447) (2022); see also Jackson, 306 Ga. at 82 (3) (although the trial court‘s initial limiting instruction about a prior crime was “obviously incomplete,” “this Court considers the instructions as a whole” (citation and punctuation omitted)). To be clear: because these instructions did not sufficiently specify the permissible purposes for which the evidence could be considered, they do not have the same mitigating effect that we have found in other cases where the trial judge specifically instructed the jury on which Rule 404 (b) purposes could be considered. Even so, the trial court‘s
Thus, because the evidence of Nundra‘s guilt was very strong, because Nundra‘s guilty plea allowed the jury to infer that he had been punished for his prior crimes, and because the trial court instructed the jury not to consider the evidence as proof of Nundra‘s propensity to commit these sort of crimes, we conclude it was highly probable that admitting the 1997 convictions did not contribute to the verdict.
3.
Nundra next argues that the trial court should not have allowed the State to introduce evidence of the victim‘s good character and talk about it during closing arguments. We assume without deciding that the evidence should not have been admitted. But we conclude, because the evidence of Nundra‘s guilt was very strong, that this was harmless.
(a) “Generally, apart from evidence of a ‘pertinent trait,’
Nundra points to three instances of supposed good-character evidence. First, he complains that Grubbs was allowed to discuss his relationship with Moore and describe him as the “nicest fellow.” Second, he objects that the first officer on the scene was permitted to say that he had known Moore for “20-something years” and was sad while he gave the victim chest compressions. And third, and
And, as discussed, the State referred back to all this in closing arguments, apparently in an effort to evoke sympathy for Moore and his widow. Speaking of the impact on the community, the State told the jury that Grubbs and his son “knew Mr. Moore. Nice guy. Played with their dogs. Talked to everybody around here.” Plus, the State told the jury, the officer who testified about knowing Moore “is not the most flowery, smiley guy that we have on our police force. And the fact that he was [choked] up, almost crying, about Mr. Moore tells you a lot about how this has impacted [the] community.” On the
(b) Assuming that Nundra preserved this issue for ordinary appellate review, and that admitting the evidence was error, the State would still have the opportunity to show that it is “highly probable that the error did not contribute to the verdict.” Smith v. State, 299 Ga. 424, 432 (2) (d) (788 SE2d 433) (2016) (citation and punctuation omitted).
And once again we conclude that that this evidence did not affect the outcome of the trial. For the reasons already discussed, the evidence of Nundra‘s guilt was very strong, so the risk that
4. Next, and relatedly, Nundra contends that the trial court abused its discretion in allowing the State to compare him to “sociopaths” and serial killers like Jeffrey Dahmer, Charles Manson, and Ted Bundy. On this point, we disagree. The State‘s comments here were inflammatory, but attorneys are allowed wide latitude in their arguments to the jury. And these arguments drew on permissible inferences from the evidence, and did not (as Nundra suggests) rely on facts or diagnoses not in evidence. That is enough to reject Nundra‘s claim.
(a) During closing arguments, the State told the jury that “Mr.
Nundra argues on appeal that allowing the State to refer to him as a sociopath was “inflammatory, not supported by the evidence, irrelevant, and an improper appeal to passion or prejudice” — and had “no relevant purpose for argument beyond inflaming the passion of the jury to convict regardless of whether the evidence proved Nundra was guilty beyond a reasonable doubt.”
(b)
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On
objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
Referencing famous crimes or criminals to make a point is not prohibited, but the remarks must be based on a “permissible inference from the evidence.” Robinson v. State, 257 Ga. 194, 196 (4) (357 SE2d 74) (1987). We have said that “[c]ounsel may bring to his use in the discussion of the case well-established historical facts,” and “may forcibly or even extravagantly attempt to impress upon the jury the enormity of the offense and the solemnity of their duty[.]” Conner v. State, 251 Ga. 113, 122-123 (6) (303 SE2d 266) (1983) (citations and punctuation omitted). And, just as importantly, “[a] closing argument is to be judged in the context in which it is made.” Booth v. State, 301 Ga. 678, 686 (4) (804 SE2d 104) (2017).
So, for example, in Robinson, we held that the trial court was not required to declare a mistrial or give a curative instruction when, in closing arguments, “the prosecutor said that the [defendant] lied and” compared him to Charles Manson and Jim
Conversely, we have held that it is error to allow these sort of arguments where the State‘s comments “inject[ ] into the argument [ ] extrinsic and prejudicial matters which have no basis in the evidence.” Bell v. State, 263 Ga. 776, 777 (439 SE2d 480) (1994) (quoting Conner, 251 Ga. at 123 (6)). In Bell, for example, the defendant was merely charged with selling drugs — “there was no evidence of drug-related murder or serial rape,” to which the State had compared Bell‘s actions, “[n]or evidence from which serial rape and murder would have been a reasonable inference.” Id. Thus, we said, “[b]y referring to such extraneous and prejudicially
(c) Here, the State‘s arguments were inflammatory, but the trial court did not abuse its discretion in declining to take any corrective action. In context, the state‘s remarks about Nundra did not invoke medical facts or diagnoses not in evidence. To the contrary, the State‘s commentary illustrated the severity of the crime, the culpability of the conduct, and the stakes of the case — based on facts that were in evidence. The trial court was therefore not required to reprimand the State or give a curative instruction, let alone declare a mistrial. See Robinson, 257 Ga. at 196 (4).
5. Moving into evidence of the crime itself, Nundra asserts that
(a) We begin by rejecting Nundra‘s assertion that he preserved this issue for ordinary appellate review. True, Nundra “objected to the TrueAllele evidence in a brief to the trial court following the pretrial hearing,” but he did not so much as mention the
That is not the same issue Nundra raises here. Nundra‘s
(b) Nundra has not shown plain error. Under plain error review, we can reverse only if the trial court made a clear or obvious error that was not affirmatively waived, likely affected the outcome of the proceedings, and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Gates, 298 Ga. at 327 (3); State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (“As summarized even more succinctly in the context of
At the time Nundra was tried, former
Nundra cites no authority — and we are aware of none — suggesting that expert testimony about a random-bystander benchmark is necessary for a trial court to admit TrueAllele evidence. The cases he cites to that end are inapposite.6 Indeed, we
6. Finally, we reject Nundra‘s argument that the cumulative effect of errors below requires reversal.
When this Court has identified or presumed more than one error, although the effect of each on its own might have been
It is “highly probable that the error” in admitting Nundra‘s 1997 convictions and the good character evidence of the victim “did not contribute to the verdict.” Allen v. State, 310 Ga. 411, 418 (4) n.6 (851 SE2d 541) (2020) (citations and punctuation omitted). Although the 1997 convictions for a violent crime held the potential for prejudice, and the good character evidence invited sympathy for the victim and his widow, the jury was charged that it was not permitted to be influenced by sympathy for either party. We typically presume juries follow the instructions that they are given by the trial court, absent evidence to the contrary. See Ash v. State, 312 Ga. 771, 781 (2) (865 SE2d 150) (2021); see also Lofton v. State, 309 Ga. 349, 367 (7) (846 SE2d 57) (2020) (relying on jury instruction not to show sympathy in concluding that the combined prejudicial effect of
Judgment affirmed. All the Justices concur.
Notes
On August 14, 2018, a Decatur County grand jury indicted Nundra for malice murder (Count 1), aggravated assault (Count 2), felony murder (Counts 3, 6, 8, 10, and 12), possession of a firearm during the commission of a felony (Count 4), conspiracy to commit burglary (Count 5), conspiracy to commit armed robbery (Count 7), criminal attempt to commit burglary (Count 9), criminal attempt to commit armed robbery (Count 11), and possession of a firearm by a convicted felon (Count 13).
Nundra was found guilty on February 14, 2019, of Counts 1, 2, 3, 4, 8, 11, and 12, as well as a lesser included offense on Count 5. He was acquitted on counts 6, 7, 9, and 10. The State entered a nolle prosequi on Count 13, charging possession of a firearm by a convicted felon.
The trial court pronounced Nundra‘s sentence on February 14, 2019, and he filed a motion for new trial on February 26, 2019. Nundra‘s premature motion for new trial ripened when the trial court entered its sentence on February 27, 2019. See Seals v. State, 311 Ga. 739, 739 n.1 (860 SE2d 419) (2021); Southall v. State, 300 Ga. 462, 463-464 (1) (796 SE2d 261) (2017).
The trial court sentenced Nundra to life in prison without the possibility of parole for Count 1, a consecutive five-year term of imprisonment for Count 4, and a consecutive two-and-a-half year term of imprisonment for Count 5. The remaining counts merged or were vacated by operation of law.
Nundra amended his motion for new trial in December 2020, and the trial court denied it on February 28, 2022 following a hearing. Because he did not receive notice of the ruling, Nundra failed to file a timely notice of appeal. On Nundra‘s motion raising the lack of notice, the trial court vacated and re-entered the order on April 28, 2022. Nundra timely appealed. The case was docketed to this Court‘s term beginning in December 2022 and submitted for consideration on the briefs.